The Supreme Court must avoid turning into the executive
On February 13, a three-judge bench of the Supreme Court passed an interim order in an ongoing case involving the Forest Rights Act. The court directed various state governments to ensure the eviction of forest dwellers whose claims to rights over forest land (as granted by the Act) had been rejected. After the order was made public on February 20, reports indicated that more than one million indigenous people and other forest dwellers — some of India’s most vulnerable and marginalised citizens — were under imminent threat of eviction.
What was the case before the court? At its core, it had nothing to do with evictions. In 2008, soon after the passage of the Forest Rights Act, which recognised the rights of adivasis, indigenous, and other traditional forest dwellers over forest land, some conservation groups challenged its constitutional validity. That dispute has now been pending for the last 11 years.
How then did the Supreme Court turn into a Supreme Eviction Authority? While the dispute remained pending, the conservation groups filed a number of applications asking the court to “monitor” the implementation of the Act. Under the almost limitless powers exercised by the court under “public interest litigation”, it is open to judges to pass sweeping and wide-ranging orders that have little to do with adjudicating disputes or settling rights. As Anuj Bhuwania notes in Courting the People, a magisterial study of public interest litigation in contemporary India, in such proceedings, affected parties often go unheard, and hugely consequential orders are issued without considering or sifting through evidence.
The Supreme Court’s order of February 13 exhibits all these shortcomings. A decision as disruptive as the eviction of one million people does not even record the arguments made by the parties. Furthermore, the order repeatedly mixes up situations where a claim under the Forest Rights Act has been “rejected”, and where an eviction order has become “final”. These are, however, two very different things, because no law requires that eviction follow immediately and automatically upon the rejection of a claim. This issue is particularly salient under the Forest Rights Act, where there have been widespread accusations of faulty procedures being put to use in adjudicating forest rights claims.
The problems with the Supreme Court’s order, however, are deeper than these clear flaws. The purpose of judicial authority is to adjudicate legal issues that are brought before it, and declare the legal rights and liabilities of the contesting parties. Often, in the process, the court will be called upon to consider the legality of executive or administrative action that has allegedly deprived individuals of their rights. When, however, the court itself begins to play the role of an executive or administrative authority — as it does when it orders evictions — it takes on a task that it is institutionally unsuited to do: often, it will be the administration that will be more sensitive to conditions on the ground, and to the very real consequences of evicting vulnerable people who have nowhere else to go. But moreover, by merging judicial and executive functions, the court deprives individuals of their right to challenge the latter before the former. Where does a person go if she feels aggrieved by the Supreme Court’s eviction order, except back to the very body (the court) that passed the order in the first place?
In recent years, we have seen more and more instances in which the Supreme Court has taken upon itself the task of the executive, in cases where there are serious issues of rights involved. In the ongoing National Register of Citizens proceedings, for example, the entire process — involving consequential matters of citizenship rights — has been taken over and driven by a two-judge bench of the court, often through sealed covers. And when the body charged by the Constitution to protect our rights begins to act like the government that it is meant to protect us from, we should all start to worry.
Disclaimer: The author represented one of the indigenous groups before the court in these proceedings, between 2015 and 2017
Gautam Bhatia is an advocate in the Supreme Court
The views expressed are personal