Over the last few years, and quietly since the 1990s, the Supreme Court has indirectly made out a case for a benevolent and populist dictatorship: itself.



As it intervenes in more and more areas of policy, law-making, policing and regulation (yesterday it wanted to have a go at banks’ bad loans problem), the court has taken on powers never envisaged by our constitution-makers. It has upset the delicate balance of power between executive, legislature and judiciary.

The police and the bureaucracy are accountable to the executive, the executive is accountable to the legislature, and the legislature is accountable to the people, but who is the judiciary accountable to? This is what makes it a “benevolent dictator” of sorts when it takes on roles that go beyond interpreting the law.



A “benevolent” dictator is one who appoints himself to power (it could be through a coup or any other means not prescribed in the law). He rules basically by making out a case that elected politicians are untrustworthy and corrupt, that the whole system is dysfunctional, that an impartial (but unelected) ombudsman can do the right things instead of being guided by vested interests, as he can appoint competent people to jobs without fear or favour, etc, etc.

All populist dictatorships derive their legitimacy from being seen as doing the right things. Pakistan’s army has repeatedly staged military coups using the unpopularity of elected politicians as an excuse. It has often been welcomed by the public for it.



Now consider the case of the Indian Supreme Court.



It is unelected and largely unaccountable to anyone. It appoints its own judges and they can’t be removed easily.

Thanks to Indira Gandhi’s internal emergency, when the government made the judiciary subservient to itself, the Supreme Court - through two judgments in 1993 and 1998, called the second and third judges cases – arrogated to itself the job of appointing upper judiciary judges. Governments could protest, but could do nothing if they didn’t like the judiciary’s choices. The executive’s role has been reduced to that of the typist who composes the appointment letter.



These judgments were in clear violation of the spirit of article 124 of the constitution which says that the President (i.e, the government) shall appoint judges to the higher courts in consultation with the Chief Justice and/or other judges. When the NDA government, with near unanimity in parliament, tried to claw back some of its old powers by enacting the National Judicial Appointments Commission (NJAC) Act 2014, the Supreme Court shot it down. It killed a law where it was itself an interested party when it could have read down the provisions which could have dented its independence.



So the first point, that the judiciary is effectively its own appointing authority, is clear. It has staged a constitutional coup. It is also effectively accountable to no one but itself, since the procedure for removal is so difficult under article 124 (4). Both houses of parliament must impeach a judge for “misbehaviour or incapacity” with a two-thirds majority – two charges that are difficult to prove in the first place, leave alone cobble together a two-thirds legislative majority in both houses that are not known to work effectively with each other. Fact is that since independence not a single judge has been removed via this procedure.

But more insidious is the way in which the Supreme Court has inserted itself into decisions that are in the domain of the executive or the legislature or both.



Yesterday (12 April), the Supreme Court came close to telling the Reserve Bank of India how it should run its business, and it seems likely that it will now influence the handling (or mishandling) of banks’ bad loans. After perusing the list of loan defaulters submitted by the RBI in a sealed envelope, the Supreme Court bench headed by Chief Justice TS Thakur, asked: “Are you not supposed to keep vigil? Is RBI not supposed to maintain information and act on how public sector banks are advancing loans? These banks are supposed to act prudentially but if they have been doing it by flouting norms and without ensuring adequate assets as securities, are you not supposed to take actions against them? RBI is the regulator… you must act as a watchdog.”