>Procurem divulgar ribas
ICONnectICONnect
>
> 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 governanceâ€. 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 adjudicatorâ€. 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.
>
>
>
Assinar:
Postar comentários (Atom)
Nenhum comentário:
Postar um comentário