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.