Wednesday, October 04, 2023

Deferential Interpretation in the Indian Supreme Court

Guest Blogger

For the Balkinization Symposium on The Chevron Doctrine through the Lens of Comparative Law

Raeesa Vakil 

Indian courts do not formally acknowledge deference to executive interpretations of law. Underpinning American scholarship and debate on the potential outcome of Loper Bright v Raimondo is an explicit understanding that executive interpretations of the law can, and sometimes, should, carry more weight than the opinions of judges. In India, this idea is nominally, an absurdity: the Indian Supreme Court repeatedly affirms itself as the ‘ultimate interpreter’ of not just the Constitution, but of all law, and particularly, statutes. For example, in 1982, the Supreme Court held: “After Parliament has said what it intends to say, only the Court may say what the Parliament meant to say. None else. Once a statute leaves Parliament House, the Court’s is the only authentic voice which may echo (interpret) the Parliament.” Although the Court in this case held that executive interpretations of the law “…do not speak for Parliament,” when testing the validity of laws, scholars have recognised that India’s separation of powers is looser than America’s. In practice, when a majority constitutes a government, it means that parliament and the executive can be closely aligned. In these circumstances, executive interpretations of the law in India function chiefly as an “admissible and significant aid for interpretation by the court,” particularly in technically complex matters (such as taxation) or on issues involving economic policy. Judges, therefore, accommodate deference primarily through interpretation, adopting executive interpretations as their own instead of deferring to them directly. In this post, I lay out the ways in which deferential interpretation occurs, and consider the risk engendered by the lack of articulated limits to such deference.

The Supreme Court of India is often perceived as powerfully independent, not only in the exercise of judicial review over statutes, regulations, executive acts, and constitutional amendments, but also in its willingness to relax standing rules and accept a wide variety of ‘public interest matters,’ establishing itself as a quasi-governing body when it perceives deficiencies in executive action. Reinforcing the centrality of courts is a rapid expansion of administrative agencies in India, coupled with a notoriously fragile legislative process. Consequently, inevitable regulatory conflicts are usually resolved by litigation, whether they involve the scope of regulatory power stemming from the interpretation of governing statutes, determining jurisdictional conflicts between regulators, or reviewing regulatory action. Two decades ago, their vocal affirmation of socio-economic rights and willingness to entertain any complaint, including those sent in via postcards, made the Indian Supreme Court the ‘most trusted institution’ in the country. The Court was also willing, at this time, to limit deference by engaging directly in programmatic policy reform and review: instructing the government on how to auction natural resources, cancelling licenses granted to telecommunication companies, monitoring deforestation for decades through interim orders, and deciding to institute a process and create a monitoring authority for how civil servants are transferred, despite executive objections.

In present times, this approach has undergone a great change. The Supreme Court of India increasingly faces charges that it acts as an ‘executive court’. Scholars have argued that the Court was willing to embark in projects of ‘good governance,’ and increase justiciability on socio-economic issues, but their interpretation of political and civil rights has been consistently deferential to the executive, particularly in matters such as preventive detention and anti-terror legislation. Structural issues compound the problem; the Court’s willingness to extend judicial review to nearly any question of law and hear appeals from ‘any court or tribunal’ in the country, has resulted in tremendous backlog and delays (currently, the Indian Supreme Court has 80,344 cases pending). 34 judges sit in simultaneous benches of two and three to hear these cases, with larger bench opinions binding smaller ones; in practice, larger benches are rarely constituted, leaving key questions undecided for decades. The appointments process is opaque: the higher judiciary has been, by its own orders, largely self-appointing since 1993, controlling the composition of the courts in secrecy and resisting attempts to reform this process. Resistance to accountability also reflects in the Court’s internal functioning, and particularly, their disgraceful handling of sexual harassment allegations against judges.

The last decade has demonstrated that this structural and institutional design lends itself to deference in five key ways.

First, the Supreme Court’s Chief Justice has absolute power to control the allocation of cases to judges. In 2018, four Supreme Court judges held an unprecedented press conference, publicly raising concerns about the way the Chief Justice assigned cases ‘having far reaching consequences for the nation’. Resisting criticism, that Chief Justice declared himself the undisputed ‘master of the roster’, and recent accounts show that Chief Justices continue to use this power strategically in assigning cases. Because the Supreme Court has imposed requirements on regulators to staff themselves with retired judges when engaging in adjudicatory work, additional incentives to decide cases favourably to the executive can operate in the form of post-retirement jobs, as well as the chance to be appointed governors or receive nominations to the legislature.

Second, the Supreme Court’s absence of procedural guidelines in disposing cases allows the Court to indefinitely delay sensitive or controversial interpretive questions, often rendering the original case redundant. The refusal to grant either interim relief, or actually hear and adjudicate politically significant cases is a form of ‘judicial evasion’ (as one scholar calls it), and allows executive interpretations of statutes to prevail without opposition until judicial action can no longer provide remedies. Examples of this abound. The Court has not scheduled hearings or allowed stays in a case questioning a scheme that has allowed anonymous political financing in election campaigns since 2017, or on challenges to a politically contentious amendment to India’s citizenship laws, enacted in 2019. It did not review a challenge to changes to agricultural laws that sparked nation-wide protests for months, and is only now hearing a challenge to the alteration of the federal status of one Indian state that was enacted in 2019. Evasion and deference are also enabled through other procedural means, such as the judicial constitution of committees of experts, appointed by the Court to advise them on how to proceed. Hearings are delayed until such committees complete their work, which may take months, and are composed of members chosen unilaterally by the Court. Two examples demonstrate the point: one scholar describes the work of a committee, staffed entirely by government officials and appointed by the Court to examine questions of law in an ongoing dispute, as an act of ‘judicial abnegation’. Additionally, in the aforementioned dispute concerning agricultural laws, a committee constituted by the Court was charged with negotiating with the parties after talks with protestors and the executive failed. Critics pointed out that all four members of the Court’s committee had previously expressed support for the reforms being challenged; these concerns were ignored, and their final report unsurprisingly reflected this affirmation of the executive’s view.

Third, the Supreme Court’s own adoption of inconsistent standards in judicial interpretation and review have allowed room for the expansion of executive power, as well as lapses in holding the executive accountable. A notable example of this is Indian courts’ affirmation of the proportionality standard, even though the actual test deployed is often, in practice, a weaker and more deferential form of review, including variations on the British concept of Wednesbury unreasonableness (a deferential form of review similar to the American approach in Williamson v. Lee Optical). Although Indian proportionality nominally requires courts to consider the legitimacy, suitability, necessity, and balance of any measure restricting rights, in practice, courts simply ignore the complex reasoning required to apply proportionality, and defer to a weaker standard while continuing to devise increasingly complex theoretical frameworks of proportionality. This dichotomy between the standards that Indian courts affirm, and the ones they apply, lets them engage in unacknowledged deference. Moreover, the evidentiary standards adopted under Indian proportionality review also tend towards deference to the executive ; this was most notable in the Court’s decision to largely allow the implementation of a nation-wide biometric identification program, even as it ‘uncritically accepted’ the state’s argument on the effectiveness of the program. Deference in assessing evidence is exacerbated by the increasing practice of accepting evidence from the executive in a ‘sealed cover’ and adjudicating without disclosing this material to opposing parties, citing security concerns.

Fourth, the absence of frameworks for promulgating either legislation, or regulations, allows administrators in India to devise their own individual procedures. Legislative accountability for executive action is largely non-existent, and attempts to implement requirements such as notice and comment prior to enacting legislation have met with patchy responses. India does not have any equivalent to the American Administrative Procedure Act and instead, applies common-law ‘principles of natural justice’. This results in frequent review as courts determine the exact scope and application of these common law rules, often on a case-by-case basis. A three-step trap results: courts are the only form of control over executive interpretations of law but depend on the initiation of review to work; governing legal frameworks to guide interpretation are weak or absent, and judges themselves often apply procedural standards inconsistently and erratically. The judiciary thus creates room for executive interpretations to prevail, even as it asserts judicial independence.

Fifth, the Supreme Court’s periodic refusals to enforce its own findings of illegality allow executive interpretations to hold sway even when the judiciary disagrees. The most significant example of this is Maneka Gandhi v Union of India, which established the foundations for substantive review of legislation and executive action in 1978. Despite holding that an administrator’s actions in impounding the petitioner’s passport were, in fact, illegal because they had failed to grant her a prior hearing, the Court ruled that this voided act could be ‘cured’ by a post-decisional hearing following the case. This stance was irreconcilable with existing administrative law at the time, which would have required the Court to find the executive’s actions void and thus incurable; instead, it has since become accepted practice without acknowledging the inherent contradiction. In 2023, the Supreme Court allowed the head of an agency to continue holding office, despite ruling thrice that his extension of tenure was illegal, by accepting the executive’s argument that this was vital to a ‘smooth transition’. This ‘illegal but permissible’ jurisprudence allows the Court to position itself as independent by asserting jurisdiction, even as it defers to the executive’s interpretation of law in practice.

A recent case acutely demonstrates most of these vulnerabilities. On 8 November 2016, the Indian government abruptly and overnight decided to withdraw 86% of Indian currency in circulation, forcing a largely cash-driven economy into crisis, costing millions of jobs, and dramatically affecting economic welfare. Petitions immediately filed at the Supreme Court challenged this move, arguing it lacked legal authority and violated constitutional guarantees on liberty, professional freedom, property, and fair procedure. The Supreme Court delayed hearings until 2022, by which time, it was largely accepted that the exercise was a fait – and failed – accompli. Adjudicating the case required the Court to interpret the Reserve Bank of India’s governing statute. Ultimately accepting the executive’s interpretation, the Court validated this demonetisation, even as it has to surmount the Union of India’s preliminary objection that the exercise was now ‘academic’. Although Court limited their review to the questions of the procedure followed in this case, their deference was couched in a weak application of their own articulated test of proportionality, which allowed them to discount the legal consequences of demonetisation (including multiple deaths) under the justification that “every noble cause claims a martyr”.  Evaluations of the judgment (1, 2, 3) point out that this form of deference adheres to a formal affirmation of judicial power, while allowing the executive ‘unguided discretion’ (as the single dissenting opinion in this case noted).

The Indian experience demonstrates that judicial deference to executive interpretations can be pervasive even without the formal establishment of tests such as Chevron. Although this may appear to be the product of a very specific set of institutional and structural circumstances, it contains a potent warning. Critics of Chevron cannot divorce their arguments from an institutionalist understanding of constitutional courts, particularly as questions about the accountability of American judges are raised. Unaccountable judges, operating in conditions of opacity, may choose to act deferentially in ways that are unarticulated in doctrine, and indeed, despite doctrine.           

I am grateful to Professor Susan Rose-Ackerman, Dr Oren Tamir, and Prashant Reddy for comments on a draft of this post.

Raeesa Vakil is a post-doctoral fellow at the Centre for Asian Legal Studies at the Faculty of Law, National University of Singapore.

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