[And unlike the United States Supreme Court, which agrees to hear only about 70 cases a year, the various panels of the Indian Supreme Court hear up to 700 legal matters a day. By law, any petitioner who wants to appeal to the country’s highest court has the right to at least a hearing there.]
By Jeffrey Gettleman, Hari Kumar and Kai
Schultz
 |
|
Unlike the
United States Supreme Court, which agrees to hear only about 70 cases
a year, the various panels of the Indian
Supreme Court hear up to 700 legal
matters a day.
Credit Anindito
Mukherjee/Reuters
|
NEW
DELHI — Following the
headlines, you might get the feeling that India’s Supreme Court is everywhere
at once, all the time. You wouldn’t be far off.
On Thursday, the court struck down a
colonial-era law making adultery a crime. Just the day before, the judges
tactically pruned back the country’s sweeping Aadhaar national ID program to
reflect privacy concerns. Earlier this month, it overturned a ban on gay sex
that had stood for 150 years.
The court is one of the most vital
institutions in a vast and chaotic democracy of 1.3 billion people, weighing in
on wild dogs, killer tigers, mob lynchings, garbage dumps and Muslim divorce
rules — hot potatoes that Indian politicians won’t touch.
It loves juicy social debates, often siding
with victims and wielding dramatically worded rulings designed to capture
maximum attention. (In a recent case about a young woman pushed to suicide by a
suitor, it ruled that “No one can compel a woman to love.”)
And unlike the United States Supreme Court,
which agrees to hear only about 70 cases a year, the various panels of the
Indian Supreme Court hear up to 700 legal matters a day. By law, any petitioner
who wants to appeal to the country’s highest court has the right to at least a
hearing there.
So how does the court do it?
Every
day is rush hour
Established after independence in 1947, the
Supreme Court has always been one of India’s most important public
institutions, the tip of a very large pyramid of local and appellate courts.
The Supreme Court currently has 25 judges who typically sit in panels of two or
three, across about a dozen courtrooms.
Its campus, in the heart of New Delhi, is graced
with rose-color buildings and stately gardens. But it feels more like a railway
station at rush hour. Thousands of people pour through the court’s gates each
day, a blur of briefcases, stacks of dog-eared paper files and long black
robes.
On a recent day, TV screens mounted on the
walls displayed the cases unfolding in different venues simultaneously, like a
judicial Olympics. Inside the packed courtrooms, the robed lawyers stood 15
deep, mopping the sweat from their foreheads with folded handkerchiefs as they
waited to present their cases.
Governance in India suffers from the
country’s sheer size and the fact that power here is highly diffuse. Its
democracy is relatively young and intensely federalized. Decision making often
falls through cracks that divide the central government, 29 states and seven
union territories.
The Indian Parliament is so split by
poisonous divisions along caste, religious and regional lines that elected
public servants are notorious for squabbling with one another and accomplishing
little — while stealing countless billions of taxpayer rupees along the way.
In response, public interest litigation has
exploded. Frustrated about the government’s failure to deliver the most basic
public services, such as functioning hospitals, drinkable water and waste
removal, Indians have turned to the courts.
“Everybody gets their little moment in the
sun,” said Chander Uday Singh, a prominent lawyer.
The
court in the age of Modi
For decades, the Supreme Court has nurtured a
reputation for independence. But that is being tested under Prime Minister
Narendra Modi, the head of the most powerful executive branch India has seen in
decades.
Mr. Modi has asserted himself into Indians’
everyday life — his white-bearded face on new public toilets and billboards
everywhere; his party popular, solidified and divisive. He came to power as a
rallying figure for Hindu nationalists, and his supporters have aggravated the
longstanding fault line between India’s majority Hindus and its minority
Muslims.
Legal analysts said the court had shown that
it was willing to stand up to Mr. Modi in some important cases. Recently, the
Delhi state government complained that Mr. Modi’s central government had been
infringing on its powers. The Supreme Court more or less backed up the state
government, which has been at odds with Mr. Modi for years.
The court has not universally bucked the
prime minister, though.
Take the example of Judge Brijgopal Harkishan
Loya, who served on a special investigative court overseeing a sensitive case
involving accusations against one of Mr. Modi’s closest allies, Amit Shah.
After Judge Loya died in 2014 in circumstances that many people believed were
suspicious, the Supreme Court denied requests to set up a special
investigation.
One of the critical cases looming before the
court is the Babri mosque dispute, an epic controversy between Hindus and
Muslims about who owns a site that was home to a historic mosque and also
possibly an ancient Hindu temple.
Many on Mr. Modi’s side want the court to
take the Babri mosque site away from Muslims. Similarly, some of Mr. Modi’s
allies are pushing the Supreme Court to nullify special protections for India’s
biggest Muslim-majority state, Jammu and Kashmir.
“Where the government doesn’t have a major
political stake, the court has been generally progressive on social issues,’’
said Prashant Bhushan, a renowned public interest lawyer.
But the court is not fully independent, he
said, and it is falling under more political pressure than it has in decades.
Without the court, said Ashutosh Varshney,
the director of the Center for Contemporary South Asia at Brown University,
India would be “ruled frightfully by societal prejudices and government
excesses.”
A
novelty on the world stage
In many developing nations, the top court is
usually far from the public eye.
But in India, the courts play a special role
in trying to stay true to the ambitious values forged during the struggle for
independence from Britain. The Indian Constitution, for example, calls for
equal pay for men and women, and warns about the concentration of wealth.
“In both cases, the courts have risen to this
challenge,” said Bruce Ackerman, a comparative law professor at Yale,
“generating a complex dialogue with the political branches.”
With a wide mandate, India’s judges often go
far beyond the complaints in the lawsuits and set up fact-finding committees
and special panels to monitor specific issues, such as land use, that they feel
are being neglected or mishandled.
The Supreme Court has gone after smog-spewing
coal plants and mandated that public buses, taxis and motorized rickshaws in
the capital be powered by compressed natural gas, which helped decrease air
pollution — though Delhi’s air pollution is still horrendous.
India’s Supreme Court judges are selected by
other judges, and because the retirement age is 65, their tenure is usually
less than a decade. In October, the current chief justice, Dipak Misra, will
step down.
The verdict on him is mixed. This year,
several associate judges took the rare step of criticizing him in public,
accusing him of abusing his authority of assigning cases to get the verdicts he
desired.
Some judges have carved out specialties for
themselves, such as Judge Madan Lokur, one of the court’s most senior, who has
emerged as a champion of wildlife.
The judges’ salaries are well below those of
high-flying lawyers, but they enjoy nice perks, like classy bungalows in
Delhi’s nicer neighborhoods.
In other ways, too, the court is not very
representative. It has been overwhelmingly Hindu, upper caste and male. Today,
there are only two Christians and one Muslim on the court. Twenty-two of the 25
judges are men.
If the justices themselves often remain
obscure, the catchy language of their rulings keep the court in the spotlight.
“Girls and women are getting raped left,
right and center,” read one ruling in August.
In their decisions, the dramatic and the
obscure often intersect: A few weeks before, the court warned that lynchings
were becoming a “Typhon-like monster.” (A Typhon, for the record, is an
extremely dangerous creature in Greek mythology, and the root for the word
typhoon.)
So
what’s the court’s weakness?
The big question for India’s Supreme Court is
follow through. Often, its lofty decisions are simply ignored.
Delhi’s garbage crisis is one of the most
glaring examples. Eighty billion pounds of trash are stacking up in the
capital. After some Supreme Court judges read an article about a child who died
from a mosquito-borne disease (which may have been exacerbated by all the soggy
garbage lying around), the court stepped in.
This was another case where the court got
involved because other government agencies were clearly failing to do their
jobs. The court prepared hearings, set deadlines and demanded that the federal
and municipal government agencies quit squabbling with each other and come up
with solutions — fast.
But
little changed.
“What is the use of passing the orders when
no one is bothered to implement it?” the judges said. “India will go down under
the garbage one day.”
The court had again nailed the perfect sound
bite, trying to shame government agencies to do something. But the garbage
mountains continue to rise.
“The government should not require
arm-twisting by the constitutional courts,” said Ritwick Dutta, an
environmental lawyer. “But unfortunately in India, they require it all the
time.”
Vindu Goel contributed reporting from Mumbai,
India.
