—Rohit De, University of Cambridge
On 12th September, 2012, the Supreme Court of India in the case of Namit Sharma v Union of India, ruled on a constitutional challenge to the new Information Commissions set up under the Right to Information Act.
The court was responding to a public interest petition that challenged the eligibility criteria for Information Commissioners. The activist petitioner had complained that these posts were being dominated by retired bureaucrats, which was counterproductive to the goal of ensuring greater government transparency and freedom of information. The Right to Information Act (RTI) provides that the Information Commissioners must be ‘persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance”. The Supreme Court while upholding the provisions of the RTI constitutional, proceeded to ‘read’ certain requirements into them, namely that the Commissions should be understood as performing judicial as opposed to ministerial functions, and therefore be manned by persons with judicial knowledge and experience’. The Supreme Court required that the every Commission must consist of two members, atleast one of whom was trained in law. They also held that the post of Chief Information Commissioner at the centre and in every state could only be occupied by a former of current Supreme Court judge or a Chief Justice of a state High Court. Furthermore, they required that these appointments had to be made in consultation with the Chief Justice of India or that of the respective higher court.
The judgment caused consternation in both government and activist circles. Commentators have critiqued it for essentially rewriting legislation and disrupting the separation of powers. Others have cynically pointed out that this was to create a retirement home for judges. However, I would argue that the decision was entirely predictable keeping in mind the two trajectories that undergird judicial behavior in India and remain key to understanding the growing power of India’s Supreme Court- the assertion of judicial review over attempts to exclude it and the control over judicial appointments.
The Indian Supreme Court has often been described as the most powerful in the world. However, its path to power defies most dominant theories of juristocracy that suggest the process of judicial empowerment is led by legislators and other political elites. Ran Hirschl for instance argues that in multi-ethnic democracies, like Israel, South Africa and Canada, judicial empowerment is led by threatened political elites who want to preserve their policy choices. Other variations of the argument suggest that judicial empowerment is a product of a competitive electoral market. When a ruling party expects to win elections repeatedly, the likelihood of judicial empowerment is low. However, the Indian Supreme Court remained an assertive player in Indian politics from its establishment in 1950, confronting executive preferences, intervening in legislative policy and even striking down constitutional amendments, during a thirty year period when India was effectively governed by a single political party with a centralized leadership. With the fragmentation of electoral politics since 1991, the role of the Supreme Court has become even more visible. However, this heightened power was not granted by political parties, who across ideological lines have expressed concern about ‘judicial activism’. The Indian Supreme Court effectively empowered itself.
Comparative law scholars who emphasize judicial agency tend to focus on the role and predilections of individual judicial entrepreneurs in expanding the role of the court. The Indian Supreme Court becomes a difficult institution to study through this model. The political preferences of judges are quite opaque. It is it is difficult for any individual judge to influence the court as a whole, given that the court consists of thirty one judges who sit in division benches ranging from two to thirteen. The office of the Chief Justice, which can play a critical role in deciding composition of benches, is determined by strict seniority and several Chief Justices have terms that are under a year.
Namit Sharma pushes us to conceptualize the higher judiciary in India as a professional class, invested in maintaining professional standards and maintaining a ‘closed shop’. As I demonstrate in a forthcoming paper, the Supreme Court since its earliest days has been assiduous in defending judicial review. The best known example of this is the development of the ‘basic structure doctrine’ which gives constitutional courts in India the power to review or strike down procedurally sound constitutional amendments which are in ‘conflict’ with the basic structure of the constitution. This was in response by a series of constitutional amendments by the executive that sought to insulate several laws and causes of action from judicial review. Recent scholarship has sought to underplay the effect of the ‘basic structure’ on judicial supremacy by pointing out that the Supreme Court has actually struck down very few state actions using the ‘basic structure doctrine’. However, by frequently invoking the basic structure doctrine (even though it found state action compliant with the basic structure), the court has reserved its right to review constitutional amendments.
Furthermore, almost all the amendments that have actually been struck down sought to exclude judicial review in some form or the other. See Bhatia International v. Bulk Trading South Africa  1 LRI 703, Global Engineering v. Satyam Computer Services Ltd.  4 SC 190. The courts have been particularly suspicious of the growth of special courts and administrative tribunals that exclude the jurisdiction of the High Court’s and Supreme Court, even partially by limiting the possibility of appeals. The Supreme Court halted the move towards commercial arbitration in India by ruling in 2002, that despite the wording in the Arbitration Act, they had the power supervise international commercial arbitration being held outside India and could annul foreign arbitral awards if they violated Indian ‘public policy’. See Bhatia International v. Bulk Trading South Africa  1 LRI 703, Global Engineering v. Satyam Computer Services Ltd.  4 SC 190
Along with asserting the right of judicial review, the courts have defended the judicial composition of tribunals and special courts. Since the beginning of tribunalization in the 1980’s, the courts have expressed their anguish over the quality of justice dispensed by the tribunals. Critically examining the appointments of ex-bureaucrats to the Customs, Excise and Gold Control Appellate Tribunal, the Supreme Court noted that while former bureaucrats may be experts in their field, judicial adjudication was a special process that required to be administered by an experienced judge. The Court recommended the provision of appeals from the tribunal to the High Court to assuage the feeling of injustice to litigants who were being denied judicial expertise. R.K Jain v. Union of India and others, AIR1993 SC 1769. While the Supreme Court recognized that tribunals could include non-judicial members who brought in specialist knowledge, they noted that preference in favour of non-judicial experts would reduce the efficacy of the tribunal as an alternative to the jurisdiction of a High Court. L.Chandrakumar v. Union of India, AIR 1997 SC 1125. Through a series of little studied decisions, the Supreme Court linked the the also also linked service conditions of judges to the constitutional guarantee of judicial independence. They laid down detailed service conditions for the entire subordinate judiciary, holding that judges with higher pay, better libraries, housing and allowances will attract better candidates and make them less likely to succumb to external pressure. In the process they also assumed some budgetary control from the executive, and bolstered their own autonomy. All India Judges Association v. Undion of India, (1993) 4 SCC 288.
In 2010, the Supreme Court began to apply these standards to existing tribunals by holding the National Company Law Board in violation of these standards. The Supreme Court noted the necessity of technical experts but reminded the government that “a lifetime of experience in administration may make a member of the civil services a good and able administrator, but not a necessarily good, able and impartial adjudicator”. The court then ruled that only judges and advocates who have practiced for ten years were eligible for appointment as a judicial member of the board. More significantly, it rejected the composition of the Selection Committee under the statute which comprised of the Chief Justice of India, and the Secretaries of Finance, Company Affairs, Labour and Law and Justice. It provided for a new selection committee consisting of an equal number of judges and bureaucrats, with the Chief Justice having the casting vote. Union of India v. R Gandhi, CIVIL APPEAL NO.3067 OF 2004, on 11th May, 2010. The takeover of the appointments procedure by the courts despite contrary legislative provision mirrors the trajectory of the Supreme Court. Art 124(2) of the Constitution of India vested the power of appointment of judges with the President. The President was required to consult the Chief Justice, but was not required to follow the Chief Justice’s advice. However, in 1993 the Supreme Court interpreted this to mean that such the President could not make an appointment without the concurrence of the Chief Justice. It also ruled that the Chief Justice’s recommendation was not formed unilaterally but after consultation with the four seniormost judges of the Supreme Court, once again emphasizing the judiciary as an institution rather than an individual. Supreme Court Advocates-on-Record Association Ors. v. Union of India (1993) 4 SCC 441.
The Right to Information Act has been a transformative legislation, democratizing governance processes, exposing several cases of corruption and nepotism and has unsettled governmental authorities. The Supreme Court which was the first to recognize the right to information, found itself the target of RTI enquiries and has sought to exempt the office of the Chief Justice from the purview of the act. Seen in this light, the Supreme Court’s decision in Namit Sharma is entirely in accord with its existing practice.
The Supreme Court is at present considering similar challenges against the constitutionality and the composition of several other influential tribunals, including the Competition Commission of India, the Competition Appellate Tribunal, the Telecom Disputes Settlement and Appellate Tribunal, the Central Information Commission, the Securities Appellate Tribunal and the Central Administrative Tribunal. The Madras High Court is also considering a constitutional challenge to the Intellectual Property Rights Appellate Board. These decisions will determine future trajectories of judicial power in India.