The crisis facing India's Supreme Court

Supreme Court Image copyright Reuters
Image caption India's top court is facing intense scrutiny

India's Supreme Court has been witness recently to some extraordinary developments over the handling of alleged corruption by a retired high court judge.

There have been open differences between its most senior judges over petitions seeking an independent investigation into corruption charges involving a blacklisted medical college.

Federal investigators had accused retired judge Ishrat Masroor Quddusi - who was arrested last September and is now on bail - of trying to secure court orders to reopen the college.

Last week, the top court saw stormy exchanges between one petitioner - Prashant Bhushan, himself a prominent lawyer - and Chief Justice Dipak Misra, after the former openly charged the senior judge with conflict of interest.

It all brought into sharp relief judicial indiscipline and growing mistrust among India's top judges.

This is not good news for one of the world's most powerful courts. In an unprecedented chorus of criticism, commentators said last week's events revealed "deep distrust at the top" of the court, raised "very serious questions about its future" and underlined the collective failure of judges and lawyers to "treat the faith of the people in the institution with the respect it deserves".

Image copyright J Suresh
Image caption The federal government has bypassed a judgement banning a bullfighting sport in south India

Pratap Bhanu Mehta, a leading academic and columnist, believes the top court is "facing its worst crisis of credibility since the Emergency", the darkest hour in independent India's history when civil liberties were suspended and the court buckled under pressure from then prime minister Indira Gandhi's government.

He could be right.

"During the Emergency the judges were browbeaten and weakened by the government. What we are seeing now is an internal crisis," Alok Prasanna Kumar, a fellow of Vidhi Legal Policy, a Bangalore-based independent legal policy advisory group, told me.

"Judges, who are supposed to be protecting the institution, don't seem to trust each other. This is the hollowing out of a great institution."

India's Supreme Court is the final court of appeal, has constitutional powers and is a significant public institution. It is also one of the busiest: in 2015, it disposed off more than 47,000 cases, but still had a backlog of nearly 60,000 cases until February last year.

Fierce scrutiny

Many say the crisis in the top court mirrors the declining faith of the people in the justice system. Many Indians don't see judges as neutral and honest any more. Hearings can go on for years or even decades - there are some 30 million cases pending in district courts alone.

The number of civil cases filed in all courts has steadily declined over the last decade even as India's population and economy have grown. More people appear to be settling their disputes through their elected lawmakers or local police.

Image copyright AFP
Image caption Last year the court ruled that the national anthem must be played in every cinema

Over the last decade, say experts, even the higher courts have begun to look flawed.

"Lower courts were compromised, but the high courts and Supreme Court were seen to be above suspicion. No longer. That's the scary part," says Shylashri Shankar, a fellow with the Delhi-based Centre for Policy Research and author of a book on the Supreme Court.

As the top court has come under fierce scrutiny by the media and independent legal reforms groups, the public backlash against some of its judgements has been rising. In the past year alone, the court has been in the news for all the wrong reasons.

Among the controversies:

Then there's mounting criticism about the way the court has stonewalled attempts to bring it under the right to information law. Critics are also are discomfited by the absolute powers the court enjoys in appointing and transferring judges through a largely opaque collegium system - comprising five of the most senior judges including the chief justice - which appoints judges to the supreme court and two dozen high courts.

Political pressures

There's also much chatter about "unwritten" regional and gender quotas in appointment of top judges, and an alleged "cosy relationship" between the judges and the lawyers of the court.

Judges, say many, are also vulnerable to political pressures because many take up prestigious government jobs after retirement. One reason could be their relatively modest pay: salaries of judges have been hiked only four times in the past 67 years, and even then at a lower rate than the salaries of lawmakers.

At the same time, there is little doubt that India's top judges are overworked.

Image copyright AFP
Image caption There has been a vocal campaign to decriminalise homosexuality in India

When Dr Shankar was researching her book on the Supreme Court, she found a single high court judge was hearing some 100 cases - including adjournments - every day. A serving high court judge told a colleague recently that he had heard 300 cases in a single day. A Supreme Court judge, during his tenure over four to six years, was hearing some 6,000 cases alone.

Many feel that the relatively short tenures of the judges - less than four years on an average for a top court judge and about two years for the chief justice - means that they don't serve long enough or gain a "sense of ownership" of the court and provide robust leadership and continuity. "It is not possible," says Alok Prasanna Kumar, "to take charge of an institution so quickly and easily."

Divided court

The court's judgments have been a mix of the liberal and the conservative. It controversially outlawed gay sex, but also recognised transgender people as a third gender. It whimsically ruled that national anthem should be played in cinema theatres, but, in a landmark judgement, also ruled that citizens have a fundamental right to privacy.

In the end, many say, the recent developments point to a divided court and tension about the judiciary's role in a democracy where other institutions have become corroded.

The challenge is to ensure that the judiciary remains accountable to the principles of democracy, Dr Shankar says.

"Judiciary," she says, "cannot be above democracy."

Related Topics