The judiciary, policy, and politics in India

Abstract

Introduction In 2009 a member of an opposition party who is a leading constitutional and criminal lawyer, a former head of police, a scholar, and three others petitioned the Indian Supreme Court to direct the central government to bring back about Rs.70 trillion black (unaccounted for) money stashed away by Indian nationals in tax havens. Subsequently, one of the Wikileaks revelations listed individuals, many of them Indians, who had black money in Swiss banks. In January 2011 the court chided the Indian government for treating black money as simply a treaty issue related to double taxation: ‘We are talking about mind-boggling crime. We are not on the niceties of treaties’.2 This and orders calling for investigative agencies to report to the court in specific cases have prompted accusations that the court has become activist, has usurped executive and legislative powers, and has taken over aspects of day-today government. ‘The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but has also taken over the implementation of the programme through non-statutory committees formed by it,’ said former Indian chief justice J. S. Verma in a public lecture in March 2007. The next month Prime Minister Manmohan Singh responded that ‘Compelling action by authorities of the states through the power of mandamus is an inherent power vested in the judiciary’, but he did warn that ‘substituting mandamus with a takeover of the functions of another organ may, at times, become a case of overreach . . . these are all delicate issues which need to be addressed cautiously’.3 Contrast the charges of activism and over-activism with an editorial in a prominent academic journal, The Economic and Political Weekly (2008):Supreme Court judgments in recent years do not indicate any uniform pattern that would either justify the fears of the other two wings of the troika, or strengthen the hopes of the citizens who may be banking on the judiciary as their saviour. The judiciary, the executive, and the legislature have generally managed to work out compromise formulae on disputes that pose a threat to the status quo, with the apex court intervening to save the situation.