Supreme Court judges leaving Modi in the dust

Ability to hand down swift decisions makes Indian court the world's 'most powerful'

NEW DELHI • As India's politicians bicker, its Supreme Court judges are taking the lead in shaping policy.

In the past six months, Indian courts had doubled a tax on commercial vehicles entering Delhi, banned bullfighting and, most controversially, struck down a Constitutional amendment that would give politicians a role in picking judges.

The speed at which India's courts are handing down decisions contrasts with Prime Minister Narendra Modi's struggle to push major legislation through Parliament, including a national sales tax.

India's judiciary is "acting like a legislature", according to Prof Surya Deva, an associate professor at City University of Hong Kong's law school, who has called India's Supreme Court arguably "the most powerful court in the world".

Judges can make laws, monitor implementation and resolve disputes, he said by phone.

Mr Rakesh Sharma, a public relations officer at the Supreme Court, said by phone that he would not comment on criticism that judges are amassing too much power.

As Prime Minister, Mr Modi is limited to setting policies that are then implemented by federal departments and India's states. To pass laws, his party must get them through both Houses of Parliament, where 776 elected members represent India's 1.3 billion people.

India's 26 Supreme Court judges, by contrast, are picked behind closed doors by five senior jurists.

They can review any law passed by Parliament, initiate legal proceedings and give multiple directives in cases that can stay open for decades. Their immense power stems from the introduction in the 1970s of public interest litigation, known locally as PIL. "This concept is unique to the Supreme Court of India only and perhaps no other court in the world has been exercising this extraordinary jurisdiction," the court says on its website.

Originally designed to allow the poor to directly ask the court to rectify injustices such as prisoner abuse, gender inequality and environmental destruction, the scope of PIL cases has widened over the years.

The court's decisions routinely affect companies. In 2012, the Supreme Court cancelled 122 telecom licences after deeming the allotment of spectrum "unconstitutional and arbitrary". Two years ago, it voided mining permits and asked for fresh auctions.

Every Supreme Court decision poses a threat to some companies and opportunities for others, according to Mr Girish Vanvari, head of tax at KPMG in India.

They can create uncertainty in the investment climate if rulings are made abruptly without detailed explanations and reasonable time frames for implementation, he said. The auto industry says that was exactly the case with the court's ruling on sport utility vehicles, which came as a blow to car manufacturers.

The court's "knee-jerk reaction" is not helping to improve air quality but "badly hurting some sections of the industry", Mr Vishnu Mathur, director-general of the Society of Indian Automobile Manufacturers, said by phone.

India's politicians have sought to rein in the courts. In 2014, lawmakers passed a Constitutional amendment to give the prime minister, law minister and opposition leader a voice in picking justices.

That would replace a "collegium" of judges that makes recommendations to the president.

But the Supreme Court struck down the amendment in October, saying it would violate the "basic structure" of the Constitution.


A version of this article appeared in the print edition of The Straits Times on January 22, 2016, with the headline 'Supreme Court judges leaving Modi in the dust'. Print Edition | Subscribe