The Battle of Poona was won on Diwali in 1802. Yashwantrao Holkar of Indore marched to Pune, consolidating his position in the Maratha Confederacy and emerged victorious against his Pune counterpart in the battle fought outside Hadapsar. This accumulation of political wealth by Indore was soon to be threatened by outside interests. Elsewhere in 1802, two oceans and three continents away, the Supreme Court of the United States under Chief Justice Marshall was gearing up for a forward push to consolidate its position as a political institution in the face of the newly elected Democratic-Republican government.
On the nature of things
The Indian Supreme Court is necessarily a political entity. In places like the United States of America, where judicial appointments are explicitly political, this claim may be better palatable. But the Constitution is a political document, and constitutional questions are inevitably political. Courts exercising judicial review are often thrust into the realm of the politick—whether they acknowledge it or not.
The recent decisions in the Section 377 case, Sabarimala entry case and the Privacy case, may facially seem to reinforce the view that the Court is still the (self-proclaimed) sentinel qui vive, defender of fundamental rights or basically, a counter-majoritarian institution. However, the inconsistency of the Court to come to the aid of the weak while employing formalistic, balancing exercises of competing interests shakes this view. Kashmir.
Testing this claim in the lead up to the constitution bench hearings on the interpretation of Section 24 of the 2013 Land Acquisition Act, here is a perspective. The attempt here is to map the political landscape where the eventual decision of the constitution bench will have to be located. Not just for its impact on farmer's rights in this country, but as much on the disposition of the Supreme Court.
Briefly, on the 2013 Land Acquisition Act
The 2013 Act is a landmark, oft-ignored contribution of UPA-II. Passed during a term marred by controversial scams, activated civil society movements, and consolidation of majoritarian opposition and the imminent rise of a regional leader on the national stage, the Act, which was seen as a massive election effort, is arguably one of the most significant welfare legislations since the dawn of the new millennium. Its passage also came at a time when the Supreme Court had become the situs of contestation for the legitimacy of the then government, with orders passed in the coal scam and the 2G spectrum cases. The Court was revered for these orders which caused considerable embarrassment leading to the eventual ouster of incumbent government. Surrounded with narrative of a "dirty" government, one equally embraced by the media as well as by Narendra Modi and his party, the orders of the Court sounded a death knell to UPA.
Pune to Indore via Delhi
Before his accession as the Chief Justice of India, R.M. Lodha delivered (sitting in a combination of three) a decision on Section 24 of the 2013 Act—Pune Municipal Corporationv. Harakchand Misrilal Solanki ("Pune case"). Section 24 provided for the application of the new, favorable 2013 acquisition framework to lands undergoing incomplete acquisition under the earlier regime of 1894. The intended lapsing of previous acquisitions was subject to certain prescribed conditions. While the bench headed by Justice Lodha had given a progressive interpretation to these conditions back in January 2014 in the Pune case, Justice Arun Mishra (sitting in a combination of two, and then later, three) took a more restrictive approach to it in Indore Development Authority v. Shailendra ("Indorecase"), four years later. It is not uncommon for benches to differ on interpretations of law and for consequent reference to larger benches to resolve such conflicts.
Shortly after Justice Lodha's bench delivered the decision in the Pune case a tsunami hit India—wiping out most of the Indian National Congress from the Parliament and shoring in a strong, majoritarian central government. Gopinath Munde, Modi's first Rural Development Minister, a day after his swearing-in spoke to the press and affirmed the commitment of the newly elected government to continue the 2013 Act "in its (then) present form". A week later, his untimely death passed the reins of this portfolio to Nitin Gadkari.
With the passage of the 99th Constitutional Amendment and the National Judicial Appointments Commission Act (NJAC) in August 2014 the government set off cannons against the Court. Later in December 2014, and during the pendency of the NJAC challenge before the Court, the new Government swiftly sprang into action to attack the 2013 Act by way of an amending ordinance. Seen as "anti-farmer", these amendments, among other things, had a provision watering down the effect of the lapsing provision viz. Section 24. This ordinance and the proposed Bill (which was close on the former's heels) naturally received the ire of various stakeholders, including the Indian National Congress. The immense political backlash on the amendments occasioned a retreat from the Government, after it was defeated in passing the bill in the Rajya Sabha. Narendra Modi remarked that his government decided to drop the changes after farmers were "terrorized" due to "misconceptions" raised surrounding the amendment. The bill is still pending before a Joint Parliamentary Committee constituted in May 2015. Shortly after, the Court forced further retreat striking down the NJAC and 99th Constitutional Amendment. Unsurprisingly, no further legislative/executive attack was launched on the 2013 Act by the present dispensation which is constantly on an aggressive election mode. The situation in the courts, however, is a different story altogether.
Pune to Indore: Searching for underlying values
The decision in the Pune case was not remarkable by any measure. The Court applied long-established lenient rules of construction in favor of a beneficial legislation and applied the law as it found it on the statute books. A long line of over 25 decisions of the Court that followed the Pune case upheld the spirit underlying the legislation to repel consistent efforts from the state to restrict the conditions for lapse of delayed acquisitions under the earlier regime. Notable in this line of decisions is DDA v. Sukhbir (September 2016). Justice R.F. Nariman speaking for the bench noted:
"What the legislature is in effect telling the executive is that they ought to have put their house in order and completed the acquisition proceedings within a reasonable time after pronouncement of award. Not having done so even after a leeway of five years is given, would cross the limits of legislative tolerance, after which the whole proceeding would be deemed to have lapsed." (emphasis supplied)
A somewhat early retreat in this march came with the decision in Yogesh Neema's case when the present Chief Justice framed a question for reference to a larger bench as to whether a party to the litigation (State in this case) ought to suffer for the delay occasioned in the process of acquisition due to interim orders passed at various stages by judicial authorities. This decision, which resonated with the pending bill, came in January 2016. Only a month before, the Court had reasserted itself in its quest for independence with the decision in the Fourth Judges case.
Come August 2017, a more discordant note was struck in a short order passed by a bench headed by Justice Arun Mishra in Rajiv Jain's case. The conduct of the landowner in not receiving compensation (even under protest) was found relevant to distinguish the Pune case. A month later, the same bench elaborated the 'conduct restriction' in Mahavir's case. Consider this paragraph from the judgment:
"In our opinion, the cases in which there is deliberate action of the owners for not collecting the compensation and they do not want to receive it, Section 24(2) of the 2013 Act does not come to their rescue as provisions are to help those persons who are deprived of compensation but not for those who deliberately had not received it and litigated for decades for quashing of proceedings avoiding to receive compensation by wilful act. The failure to deposit in court under Section 31(1) in such cases would attract only interest as envisaged under Section 34 of the Act and the provisions of Section 24 cannot be so invoked in such cases." (emphasis supplied)
Finally, the decision of Justice Arun Mishra's bench in the Indore case (February 2018) plunged the Court into an embarrassing divide when the bench instead of referring the matter held that the Pune Case was per incuriam. More about the divide a bit later.
A notable shift in the central values underlying the interpretation of Section 24 and the 2013 Act is evident in this observation in the Indore decision—"State authorities are not expected to retain the money with them and run after the landowners and match with their dilatory tactics with vigil to find out that one ultimate day, the litigation would attain finality." The "unscrupulous" landowner who files "frivolous" litigation to stall the fruits of a land acquisition by the State seems to resonate in the mind of the Court throughout this decision. The Court there possibly failed to appreciate that a regime-change had put the landowner at the center of land acquisition laws. By providing for consent-based processes and increased compensation for deprivation of private land through acquisition, the underlying objective of the 2013 Act was to address the power imbalances between the State exercising eminent domain and the individual.
The question of recusal
While each Judge who authored the main judgment in the above cases have been mentioned by name here, they speak, in our system, for the Supreme Court as a whole. This fiction we suppose is that even though smaller benches decide cases, each bench represents the entire institution. There have been times when benches have disagreed with each other and thus, the practice of referral to a larger bench to resolve conflicts. Trying not to enter too much into the debate around the validity of the recusal request in this case made by some of the parties, a brief mention of a peculiar episode leading up to this case is relevant.
When the Indore decision was delivered in February 2018, there was a backlash within the Court from another bench headed by Justice Madan B. Lokur, along with Justice Kurian Joseph (these judges formed the rest of the composition in Pune Municipal along with Justice Lodha). On an argument raised by certain counsel that the decision in Indore's case was binding on the present bench, Justice Joseph was reported to have commented, "I don't want to remain silent on this issue. There are certain virgin principles which cannot be deviated from. The system exists on these holy principles. This Court should function as one institution." The retreat in central values governing interpretation of Section 24 effectively shook the supposition that the Court always spoke in one voice. The 200 and odd paragraph opinion in Indore and the unsettling of previous decisions of the same Court forced this bench to pass an order requesting "concerned benches" dealing with similar matters to refrain from passing a decision until resolution by a larger bench.
A constitution bench headed by Justice Arun Mishra will finally decide the conflict.
In defense of Context
Indore's invasion of Poona revealed something precarious about the Maratha Confederacy, which the East India Company readily exploited to consolidate its position in much of India with the Second Anglo-Maratha War. The in-fighting revealed holes that the Company exploited to breach the Confederacy, which was barely greater than a sum of its parts.
Wars are inevitably fought over land, and seldom on land.
Narratives in the Indian legal landscape allows for discussions on the political repercussions of a decision, or the mapping of judges (largely posthumous) and their processes. Or even careful (and almost dexterous) commentary on the executive onslaught of the judiciary. There is also the brand of technical engagement (oftentimes colorless) by mostly lawyers and academics—true to their training. The personalities and the political climate surrounding these controversies before the Court—perhaps in an attempt to preserve its "objective arbiter" image—are often ignored.
There is a sea change in Indian polity. Every decision where the top litigator of the court is involved—the Government—ought to be located in its political context. No recommendations here to enter any speculative arena on whether the courts are "under the spell" of the executive or other such imaginative designs. However, the attempt here is certainly to suggest that it makes for more honest engagement with the Court, as an institution that responds to the political winds of the day. Maximizing political capital is not uncommon for any political branch—the Marshall Court in the early days of the US Constitution and the Bhagwati Court are examples of higher courts having done this. Timely foregrounding and calculated retreat are all valid strategies in the ontological phase of an institution.
Today, it is a valid concern and a relevant question to ask whether the time-honored precedent in Roe v. Wade will be respected by the present Republican SCOTUS? Also, whether Chief Justice Roberts will preserve institutional integrity than be true to his philosophy when revisiting earlier precedent? Look to India, and in our system where judges 'come and go', is the conflict between individual philosophy and institutional integrity one that requires mitigation and if so, can it be mitigated? Are the judges, or is the court political? Does a political court garner less legitimacy as a defender of fundamental rights? Is critical engagement with the Court as an institution devoid of political context, dishonest?
Our Supreme Court is only a little older than its present members. Before Holden Caulfield imagined himself as the catcher in the rye, he wrestled with existential questions and did a good measure of soul-searching. May yet be good piece of advice for all of us.
(Govind Manoharan is an advocate at the Supreme Court of India, presently on a break from practice pursuing his master's at Harvard Law School. Views expressed are personal)