‘Using’ Crisis of Governance as an Opportunity for ‘Re-invention’: Why the Supreme Court of India Took To Hearing Public Interest Litigations—A Case Study

SCI’s Change of Strategy Over the Decades

One popular explanation behind such increasing responsiveness of the SCI towards PILs is that the Supreme Court’s realization that it should be accessible to the disadvantaged section of the society. Thus, Justice P.N. Bhagwati, considered by many academicians ⁹ to be one of the pioneers of PILs in Indian jurisprudence, observed, ‘Public interest litigation is … intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of a number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed’. ¹⁰

But there seems to be more than meets the eye. The same Justice Bhagwati concurred with the majority in one of the most debatable judgements in 1976 which ratified the absolute powers of the executive and the legislature against life and liberty of an individual. ¹¹ Not only Justice Bhagwati but the SCI on the whole, during the first two and a half decades after Indian independence, hardly undertook any action that, one could say, would further the cause of the masses. Among many instances of confrontation with the Parliament and the executive during such period, it sought to strike down the legislative and executive acts of implementing land reforms, abolishing privy purses to the Indian princes and nationalising private banks. ¹² In his essay on ‘Supreme Court in a Developing Society: Progressive or Reactionary Force’, Neal A. Roberts argues that the elite socio-economic background of the Supreme Court judges was responsible for such judgements. ¹³ This essay writer too finds no good reason to differ with him on this point.

Thus, it would not be correct to abide by the simplistic proposition that the entertaining of PILs by SCI signals its change of heart in favour of the downtrodden. Rather, it might be appropriate to view such action of the SCI as a change of its strategy in its power equation vis-à-vis the elected politicians. This essay would posit that at a particular point of time in Indian politics, that is, after the end of emergency period in 1977, the SCI found in PILs a more effective weapon in its continuous power struggle with the elected politicians. Prior to that, other options in the game had been tried by the SCI but without any significant success. It would be thus better to see in SCI’s increasing admission of PILs an adoption of rational choice as the court sought to influence the domain of governance that normally remains a jurisdiction for elected politicians.

But why would the SCI try to act like that? This essay posits that SCI judges being no less than rational actors are concerned with their institutional status and have always tried to maximize their sphere of importance in their equation with the other organs of the State, regardless of what the founding fathers of the Constitution may have wanted the court to be. In their study on the application of game theory in the judgements delivered by the Supreme Court of Israel, Gad Barzilai and Itai Sened show how the constitutional court always aspires to achieve more ground and with that end in view, acts according to the situations, the chief variables being the ‘position of the public at large’ and the ‘position of the elected politicians’. ¹⁴ This essay will endorse that view in its study of the SCI’s handling of PILs.

Elected Politicians and Constitutional Court: A Principal–Trustee Perspective Before 1975

In his essay on ‘Constitutional Courts and Parliamentary Democracy’, Alec Stone Sweet argues courts can be broadly studied in terms of ‘principal-agent (P-A) theory’. ¹⁵ Stone, however, draws a line of distinction between constitutional courts and other agents that can be studied in such terms of P-A framework and labels the former as ‘trustees’ rather than ‘agents’. According to him, the difference between trustees and agents lies in the degree of ex-post controls that the principals retain in their hands. He finds that in the case of trustees, fewer ex-post controls are there in principal’s hands and there the transfer of ‘political property rights’ by the principals is more pronounced as they are more worried about the factor of ‘credible commitment’. Such argument of ‘credible commitment’ in the arena of judicial politics was first laid by Landes and Posner when they held that the guarantee of judicial independence enables the existing legislators to put more credibility in their acts and statutes in the sense that their favoured constituencies rest assured that a future change in political structure will not necessarily make it easy for the next set of legislators to undo the benefits they get at the moment. ¹⁶ As a result, the current legislators are in a position to extract higher ‘rent’ from their favoured constituencies. An independent judiciary thus makes the legislation more ‘valuable’ than it would be in the absence of a reliable enforcement mechanism. Ferejohn finds an exact parallel between creation of independent judiciary and creation of independent central banks, saying that a rational legislator would find it politically convenient to create and staff a court with decision-makers who are committed to norms of legality even when they run counter to the legislator’s short-term political preferences. ¹⁷

We thus find a significant volume of literature on how the principals look at their trustees. But what about the trustees themselves? Are they always ready to remain within the confines drawn for them by the principals? This study of the SCI’s handling of PILs would show that the judges, that is, trustees, in this case, have always tried to enhance further their position of status and importance. This is perfectly ‘rational’. In his seminal work on human motivation, A.H. Maslow argues that ‘All people (with a few pathological exceptions) have what we may call a desire for reputation or prestige, recognition, attention, importance or appreciation’. ¹⁸ This essay would consider the Supreme Court judges’ ‘desire for attention and importance’, as what Peter John called ‘self-interest’ of a rational actor. ¹⁹ No wonder that the first chief justice of the SCI said on the very occasion of the inauguration of the court, ‘In view of the fact however that the opposition is negligible, the position of the judiciary becomes all the more important’. ²⁰ Did the parliamentarians like such an approach of the SCI? Not exactly. Nehru, the first prime minister and member of the constituent assembly said, ‘No Supreme Court and no judiciary can stand in judgement over the sovereign will of Parliament representing the will of the entire community … ultimately, the whole Constitution is a creature of Parliament’. ²¹ The conflict between two sets of rational actors thus has been there since the very inception of the institution. It is only that during the first two and a half decades, the SCI relied more on the technical aspects of legal provisions in its game of maximization of importance against the principals who too, in their turn, took advantage of their position by amending specific provisions in the Constitution and thus controlled what Mark Thatcher and Alec Stone Sweet call ‘agency losses’. ²²

In 1973, the SCI made an attempt to curb the principals’ power to control such ‘agency losses’ for good when it delivered judgement in the case of Kesavananda v State of Kerala to rule that there is a limit to Parliament’s power to amend the Constitution and that the Constitution cannot be amended beyond its ‘basic structure’ conferred upon it by the founding fathers thereof. ²³ Incidentally, this ruling came at a time when the principals were enjoying a very strong position in the national political arena. According to Professor S.P. Sathe, ‘the ruling party interpreted the Kesavananda ruling as a coup by the judges to wrest supremacy from Parliament and the government thus retaliated decisively by dissolving the Kesavananda majority’. ²⁴ In terms of the game thesis forwarded by Gad Barzilai and Itai Sened, ²⁵ one may see the action of the SCI in the Kesavananda case as an instance of ‘irrational choice’.

This essay writer would further argue that the SCI learnt from its experience of the Kesavananda episode and became more calculative in their subsequent actions. It gained the knowledge as to how far the existing principals could go in their bid to control ‘agency losses’ and thus, the SCI judges decided not to counter the acts of the legislature or the executive in the wake of the declaration of emergency in 1975. There were countrywide political and civil protests against such declaration of emergency, leading to large-scale preventive detentions of protesters by the executive agencies. This, in turn, resulted in a significant number of Writ petitions seeking constitutional remedies in different State High Courts where most of the judges held that such detentions were illegal. Evidently, such rulings of the High Courts were against the very spirit of the emergency. The government adopted two measures. ‘One’ was that it transferred all the 16 High Court judges who ruled against such emergency provisions, without really consulting the chief justice of India. ²⁶ The ‘second’ action taken was that, in one case, it decided to contest the High Court decision and filed an appeal petition to the SCI. Four out of five SCI judges ruled in this case that during the emergency the preventive agencies were perfectly right in detaining people even if that detention did not observe the established code of procedural law. ²⁷ As mentioned earlier in this essay, Justice P.N. Bhagwati was also one of the four judges who expressed their absolute faith in the scrupulousness of police agencies in India. ²⁸ Only one judge differed with the majority on this point and he was deprived of the chair of the chief justice of India when it was his turn to head the bench. ²⁹ The cost of confronting the principals was really high then.

SCI in Principal–Trustee perspective: After the Emergency

The Janata Party occupied office after the Congress was defeated in the post-emergency national elections in 1977. The party had fought the elections on the plank of restoration of democracy and thus, had a good reason to create a different political climate after the electoral victory. This made the environment much easier for the SCI. ³⁰

And at the same time, it would be necessary to argue that the SCI itself must have been much concerned about the loss of prestige and self-esteem it had suffered in the immediate past. Both law intellectuals in India and the international media severely criticized the SCI’s ruling in the 1976 case that has come to be widely known as the Habeas Corpus Case. ³¹ After the formation of an anti-Congress government in Centre, the SCI went about repairing its ‘injured self’.

In its fresh game plan to revive its status of importance, the SCI now chose a different strategy. While in the pre-emergency years it relied almost wholly on its constitutional power of judicial review in its game plan against the legislature, it relied increasingly on providing direct relief to the people after the emergency was over. Alec Stone describes the Kelsenian distinction between a positive legislator and a negative legislator and explains how a constitutional court acts in the latter capacity when it holds judicial reviews and strikes down laws created by legislatures. ³² Such actions earned limited success for the SCI earlier. After the peoples’ power was evident in the wake of the 1977 general elections when the electors handed down the defeat of their curbing principals, the SCI judges made their choice to take the people along with them in their subsequent power equation vis-a-vis the elected politicians. It would be better to recall how Gad Barzilai and Itai Sened show in their study and also refer to other studies before theirs to argue that a constitutional court always takes into its consideration, among other things, ‘the expectations of the general public’. ³³ Arguably, the SCI did not do anything different from that.

The SCI thus read more meaning in existing provisions of law and expanded the scope of their jurisdiction. This saw their transition from erstwhile ‘negative legislator’ status to the level of so-called ‘positive legislator’. Earlier, it relied mostly on Article 13 of the Constitution that gives the SCI the power of judicial review. After the emergency, it relied mostly on Article 21 which reads as the fundamental right to life and liberty. The court read more meaning in Article 21 and held that ‘right to life’ does not just mean ‘right to existence’ because words like ‘life’ or ‘personal liberty’ are ‘open-textured expressions’. ³⁴ And, in another similar case, the court observed,

We think that the right to life includes the right to live with human dignity and all that goes along with it and … must in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self. ³⁵

Thus, the SCI deftly expanded the scope of its own mandate, in a much larger way than was provided for in the Constitution and theoretically brought every aspect of life and governance under its purview. In fact, such a stance of the apex court virtually amounted to the obliteration of the techno-legal difference between the fundamental rights enshrined in Part III of the Constitution and the Directive Principles of State Policy contained in Part IV thereof. This was bound to result in increased reliance on the court by the citizens of the country and thus, most of the PILs in the SCI have been about either enforcing existing laws or forcing public agencies to take steps to enhance the welfare of the citizens. ³⁶ The SCI’s ruling in the S.P. Gupta v Union of India case facilitated such filing of cases, even more, when it ruled out the traditional requirement of locus standi of the petitioner. ³⁷ Further, in Sunil Batra v Delhi Administration, the ‘apex court’ even acted on the basis of a complaint written in a postcard, ³⁸ creating eventually what came to be known as the ‘epistolary jurisdiction’ of the SCI. ³⁹

One should see such steps taken by the SCI judges as steps prompted by rational choice as they sought to reach out to the people in a strategic effort to further their influence in the domain of governance. Quite strategically, the SCI went on to gradually expand the scope of the fundamental right to life and embraced more and more areas related to the executive jurisdiction. By way of entertaining PILs the SCI, for example, asked the Punjab National Bank to advance loans to the cart-pullers, ⁴⁰ provided directions as to how blood samples should be collected, ⁴¹ how children of prostitutes should be educated, ⁴² what should be the fee structure in private technical colleges, ⁴³ how the pavement dwellers should be accommodated ⁴⁴ or even how the Central Bureau of Investigation should be insulated from extraneous influences while conducting investigations against persons holding high offices. ⁴⁵ An exhaustive list in this regard would really provide an astonishing variety of examples as to how the SCI has made its presence significant in the area of governance. Article 141 of the Constitution endows every decision of the SCI with the status of the law of the land which, coupled with the ‘common law’ tradition of precedents in Indian legal system, has encouraged the practice of PILs all the more.

Weak Principals Produce Strong Trustees

The political position of the central governments over the years since 1977 has also encouraged the SCI’s attempt at maximizing its influence over the government agencies. During the Janata Party years from 1977 to 1980, the SCI started consolidating its position by taking the people on its side through its adept handling of PILs. Thus, when Mrs Gandhi once again came to power in 1980, the SCI had already gained, if not bettered, its previous position. ⁴⁶ The Congress, too, acted rationally in not repeating the same mistakes as it had done before 1977. Moreover, the government remained preoccupied with terrorism in Punjab during most of the early 1980s and thus had little time to join issue with the court on PIL matters. ⁴⁷ From 1985 to 1989, the Rajiv Gandhi government commanded a very good numerical strength in the Parliament but lacked the astuteness of a seasoned head of the government. ⁴⁸ From 1989 to 1991, once again the centre was ruled by more than one minority government. From 1991 to 1996, the Congress government under Prime Minister P.V. Narasimha Rao was plagued with in-fighting and multiple corruption charges, not excluding even the prime minister himself. ⁴⁹ Since 1996 till date, the political centre of India has never seen another single-party majority government. This is surely not a mark of a strong principal.

And thus, for all the occasional attempts by not-so-strong principals, either to put a general curb on the PILs in SCI ⁵⁰ or to suggest in writing that the court should discontinue its special PIL bench on the environment, we can get to hear the trustees’ voice as the chief justice of India observes, ‘The device of Public Interest Litigation may have its detractors, but it always plays an invaluable role in … improving access to justice’. ⁵¹