sexta-feira, 14 de dezembro de 2012

Judicialização na India

>Procurem divulgar ribas



> Jurists Prudence: The Indian Supreme Courts response to institutional

> challenges



> 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. Â 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.

> Â 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. Â 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 [2002] 1 LRI 703, Global

> Engineering v. Satyam Computer Services Ltd. [2008] 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 [2002] 1 LRI 703, Global Engineering v. Satyam Computer Services

> Ltd. [2008] 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. Â 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. Â Union of India v. R Gandhi, Â 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. Â 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.




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