ArpitGarg's Weblog

An opinion of the world around me

How Supreme Court nomination is different in US and India

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courtIf you follow the global news, you would have come across two major stories this past week, Thailand Cave Rescue and US Supreme Court Justice nomination. For Indians, it is tough to comprehend the reason behind the protests and rallies in the US just for a Supreme Court Justice nomination. The system in India and the US works a lot differently. Let me explain how.

To begin with, you might recall a recent press conference by four Supreme Court justices in India against the case allotment by CJI. In my opinion, the four Justices didn’t do an outstanding job; they didn’t explain the reasons to the common public clearly if that is what they wanted to do. Most people remained confused as to what the justices were aiming to do. They were protesting against CJI for assigning cases to benches according to his preference, which I might add has been going on since inception. But it brought out the murky workings of the highest court. Please indulge me for a moment; it’s not so simple.

The constitution is a written document, which can be interpreted by different people differently. Political, religious and social beliefs of justice come into play. Most lawyers know which way a Justice has opined in the past and hence these top lawyers try to get their case heard by a particular bench, called “bench shopping.” If you are able to get your case heard by a particular bench, work is mostly done as you know that the bench leans ideologically on your side. Let me add, it’s not a question of corruption, against the common misconception. It’s about ideological, political and religious leanings of different judges. There is no limitation or penalty on justices for “interpreting the constitution” as they so, please. Also, the system that we have, these interpretations becomes written law (called precedent) for the future. Take for example article 377 (criminalizes same-sex relations), it was in the past struck down by Delhi HC and the verdict later overturned by SC (different interpretations).

In India this is not a significant issue mostly because Justices have a limited tenure; they retire at the age of 65. Any CJI does not hold office for more than 2-3 years (they reach the age of 65 and retire). So even if a CJI leans say liberal or conservative on an issue, next one might lean differently. The turnover is high. It is in stark difference to the US. Here Supreme Court justices are appointed for life; they can occupy office until their death. Hence turnover is low. Last year Justice Gorsuch was appointed because Justice Scalia died in office. And the current nomination is happening as Justice Kennedy chose to retire at the age of 80. He could have gone on as long as he wanted to.

In the US, justices hold more powers than anyone else. They are mightier than the legislature (Congress/Senate) and the executive (President). Also, the appointment process is political. President nominates a person of his choice and Senate confirms him/her. In India, since 1993, justices of Supreme Court (collegium) had taken over this duty (having learned from the dark chapter of emergency, when SC cowed down to Indira Gandhi). Thus, political interference is kept to a minimum.

Hence we see less public interest in SC appointments in India than in the US. Here it’s a matter of life and death. Given that the Constitution in the US is around 230 years old, it does not qualify the issues of the day, giving way to multiple interpretations. The political ideology of the Justices becomes all too important. A large number of cases are decided by 5-4 majority (along partisan lines). It reflects the society in most ways.

Complicated business!

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Written by arpitgarg

July 11, 2018 at 10:58 pm

Posted in Political

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