Of law and politicians

PRATAP BHANU MEHTA

back to issue

THE year 2005 saw an astonishing degree of political exasperation with the judiciary, openly and publicly displayed. After the Jharkhand judgment, the Speaker of the Lok Sabha, not entirely unjustifiably, accused the judiciary of trespassing on legislative privilege by trying to micro manage rules within legislative assemblies. Later in the year, the law minister publicly criticized the judiciary for ineffective functioning. Then apparently the President of India got into the act as well, or at least the press portrayed it this way. This is what President Kalam actually said in his speech on national literacy day:

‘All along it has been said that the executive is the third pillar of democracy which is independent of the other two. I, however, have a different view. Please do bear with me if I say that the independence that is expected of this pillar is only in theory and mostly eroded in actual practice.

‘How can we expect an executive to function independently when each of its actions is questioned and its functioning is made regularly actionable by, and accountable to, the independent powers enjoyed by the legislature and the judiciary? Large numbers of regulations exist to constantly keep the actions of the executive under the watchful glare of the legislature and the judiciary and that unquestionably takes away the much bandied about independence of the executive.’

This speech was more curiously enigmatic than a clear assault on the judiciary. Most commentators failed to notice that he was expressing as much consternation about the executive being made accountable to the legislature as he was worrying about the superintendence of judicial power. One ought to worry about a President who begins to think that a legislature is being over-watchful. In any case it is a rather odd judgment to suppose that our legislature is subjecting the executive to over-accountability. But these remarks, coming as they did right after the Supreme Court had declared the dissolution of the Bihar Assembly unconstitutional, were read as expressing some consternation at the rise of judicial power and its constraining the executive.

The points of conflict continued both institutionally and doctrinally. The court openly expressed its disappointment at the fact that the Law Ministry often did not release the names of judges appointed to High Courts at once, suggesting some manipulation of seniority. The minister in turn responded by suggesting that the judiciary itself consider why there is so much delay in filling vacancies; both conveniently ignoring the fact that the appointments of judges is one of the least transparent process in our system of government. In Inamdar, the courts decided to free the private sector from the clutches of the state, only to find themselves facing a prospect of a constitutional amendment to overturn the judgment. The government, with the support of all political parties, have now introduced a constitutional amendment that would enable states to reintroduce reservations in unaided private colleges.

 

If there is a challenge to this constitutional amendment, as is likely, it will set up a doctrinal battle between the legislature and judiciary of mammoth proportions. My own hunch is that the court will let the amendment stand. The only way in which the constitutional amendment could be declared unconstitutional is if it violates the basic structure of the constitution. Although the amendment may appear to be unreasonable to many, it will be difficult to make the case that it violates the basic structure of the constitution. No court in India – especially courts that continue to believe that education is not for business – is likely to think that the freedoms of private institutions are of such fundamental constitutional importance that any constitutional amendment tinkering with those should be held null and void. But there is certainly an interesting battle in the making.

But the real issues in this conflict may not turn upon doctrinal niceties. They may instead have something to do with the ways in which institutions jostle to expand their power. While the judiciary has expanded its domain of activity, the executive has responded with the one power it still carries, the power of the purse. For all the great expansion of judicial authority, the judiciary is still financially starved. It is indeed ironic that a judiciary that can make decisions that entail enormous costs has little authority to pressurize government into financial outlays that can improve the nuts and bolts of justice.

India is almost unique in the unprecedented governing role judges are playing in our democratic system. It would be difficult to think of a single issue relevant to politics of policy on which the courts have not left their indelible mark: from waste management to clean air, admissions policy to fees structure, from property rights to religious liberty and many administrative matters as well. The Supreme Court has set itself up as the final arbiter of the constitution, scrutinizing even parliamentary amendments. It routinely directs executive agencies and takes over what many regard as executive functions, and sees itself as the only antidote to legislative paralysis. Judicial pronouncements are becoming a routine mode of governance.

 

The weakness of the political process provides a propitious ground for judicial activism, and judges, keen to compensate for their abdication of democratic values during the Emergency, have avidly taken up the task of preserving the republic. In many instances the executive has almost invited the judiciary in – governments in many states routinely seek judicial dispensation to give them political cover for unpopular decisions they might have to make. But mostly such power as the courts have acquired proves the dictum that power flows to those who choose to exercise it. Judges have, in a sense, created their own power. In decision after decision, be it the authority to review constitutional amendments, or the mode of appointing judges, the court has created its own powers.

Judicial activism can mean many things: scrutiny of legislation to determine constitutionality, the creation of law, and the exercise of policy prerogatives normally reserved for the executive. But whatever its form, judicial activism raises two questions. Is it legitimate? Is it effective? The democrat in all of us is rightly suspicious of a few old (mostly) men assuming such broad powers over our destiny without much accountability. We may ruminate that we can throw the politicians out once in a while, but judges are shielded from accountability. On the other hand, our impatience with a debilitating political process whose usual results are inaction, makes us thankful for an assertive judiciary.

At least the judiciary can protect our rights, clean our air, call politicians to account and so forth. At the present conjuncture it would be difficult not to feel the pull of both sides of the argument. And it must be an unenviable task for judges to steer a middle course between usurping too much power on the one hand, and doing too little to sustain fundamental values on the other.

 

But the prickly question remains: what justifies judicial activism? One possible answer is that judicial activism is justified to the extent that it helps preserve democratic institutions and values. After all, transient majorities in Parliament can barter away our democratic rights; representative institutions are too often burdened with the imperatives of money, power or inertia, that to call their decisions democratic and in the public interest is often something of a joke. If judges use their power to restore integrity to the democratic process, to make our rights, including social and economic ones more meaningful, if they advance the public interest, an assertive judiciary can be an instrument of democracy. This is the most plausible defence of an assertive judiciary.

The trouble is that there is no reason to assume that judges, any more than politicians, will always protect our liberties. Just recall judicial abdication during the Emergency and the jurisprudence on preventive detention since. Equally, judges deciding the right level of air pollution, the appropriate fees that can be charged, the height of dams, or the choice of fuels, can by no means be justified if one is worried about the democratic authority of the decisions that govern us. Judges are often guilty of both populism and adventurism. Representative institutions are, after all, the essence of democracy, and judges do not stand in the same relation to us as legislators. It may be that we cannot trust representative institutions, but it would be stretching logic to pretend that the guardianship the courts exercise over policy is synonymous with democracy.

 

But faced with the messy abdications of politics should we not simply dispense with self-indulgent qualms about democratic authority and be more pragmatic? Does not judicial activism do good? Does it not produce outcomes we desire? The answer to these questions in part turn on what one thinks of as being in the public interest. Defenders of the judiciary often focus on the few success stories that result from judicial decisions. But the glaring defect in the entire debate over judicial intervention is this. We have no concrete, empirical sense of the effects of court interventions; there are still very few studies of enforcement of court decisions.

Courts can proclaim new rights as much as they want, but the proclamation of rights by itself does not produce results. Courts may achieve certain results like lowering air pollution, but do they achieve those results in a cost effective manner? Do they distribute the share of costs that these decisions impose fairly? Certainly, even the much celebrated achievements of the court like enforcing CNG norms in Delhi, leave these questions unresolved. Many court directives are often not financially prudent.

 

Court interventions could be judged successful if they help create a constitutional culture where certain fundamental values and aspirations become authoritative constraints on the behaviour of government or of citizens. There seems to be little evidence that this has occurred and it would be difficult to argue that general governance improves as a result of court interventions. There are many reasons to think that the courts cannot be harbingers of social change. The judiciary itself is in deep disrepair. The civil justice system gives the impression of being an arena where the law is subject to discretionary manipulation rather than being a conduit of justice. Most citizens regard due process itself as punishment enough to bother much about the actual decisions of the court. The Supreme Court’s attempts to create a more robust constitutional culture are compromised by the fact that even it more often seems to provide a modus vivendi between competing interests rather than settling issues on clear, decisive principles.

Upendra Baxi once memorably called judicial activism ‘chemotherapy for a carcinogenic body politic.’ And certainly judges have an important role in strengthening our democracy. But they will have to exercise great discretion and resist the intoxication that comes from the view that judges are the last and only hope of this republic.

 

No matter what the formal denials, there is a palpable tension between the judiciary on the one hand, and the executive and legislature on the other. Even the courts have joined in the fight: Chief Justice’s have consistently resisted giving the executive any role in making judges more accountable, and they are not yielding an inch on broadening and making more transparent the process of appointments to the Supreme Court. The executive on the other hand, has consistently starved the judiciary financially. Chief Justice Lahoti’s outburst after the Inamdar case that government might as well wind up the courts was, with all due respect to the Lordships, unwarranted. But it also reflected exasperation with the judiciary.

Judges will have to get used to the idea that their judgments will occasion serious controversy. Whenever the court takes a momentous decision, there is bound to be controversy and reaction. In a free and highly politicized society, all kinds of actors, including politicians, will rush to judgment and make various claims. And without impugning the motives of the court, citizens and legislators alike are free to express their assessment of its pronouncements; this is the inevitable noise a democracy generates. If our esteemed Lordships, to whom the country looks to uphold high principles, even so much as appear over-protective of their authority, it will only undermine their authority.

Indeed, as Arun Shourie, one of the more acute observers of the courts argued, the focus in judicial accountability should shift from a dispute over formal allocation of powers to scrutinizing courts more closely:

‘How is the judiciary in turn to be made accountable? By thorough, professional scrutiny of judgments. This has been a real lacuna in India, and the contrast with the way judgments are examined in the US and other countries is as sharp as can be. I do hope, therefore, that even as judges do their work of guarding the Constitution, as professionals we will strengthen the judiciary by analyzing judgments with the care that they deserve, and the proper working of our constitution requires.’

 

But the modus operandi of how the court itself puts forward reasons makes this exercise more difficult. Inamdar is a case in point. I am in broad sympathy with what the court was trying to achieve: give maximum autonomy to unaided institutions by interpreting the constitution in a broadly liberal manner. But the Indian Supreme Court’s judgments, by their sheer length and tendency to over-argue, spoils the core of their own case. In this instance, it would simply have been enough for the court to say that fifty per cent seat reservation for the government amounts to nationalization of unaided institutions, which violates the protections given to establishing and administering educational institutions under Articles 19 and 26. But the court then went on to make two remarks that even those broadly in sympathy with the judgment should find disquieting.

First, the court seems to simply declare reservations incompatible with merit. There may be an independent argument against reservations, but it is too facile to suggest that reservations are, by definition, an anti-merit principle. The fact that reservations entail a compromise with strict indices of merit does not automatically entail that they are anti-meritocratic. Merit should not be judged only by the criteria used for admission; merit can be judged also on the output side. And indeed, while the concept of merit should not be ridiculed, we ought to admit more complex criteria for determining merit than are currently allowed. And there is nothing in reservations that is per se incompatible with producing meritocratic students.

Second, the court also seems to think that merit as an issue applies particularly to professional colleges and not to other institutions like undergraduate colleges. This assumption that merit, whatever it is, applies more to a particular class of degrees is also a bit bizarre. A principle for facilitating access must not be confused with a claim about the merit of individual students who benefit from that access.

 

These observations on the relationship between merit and reservation confused things even more. If indeed reservations are as strongly incompatible with merit as the court thinks, why should only non-aided institutions be exempt from reservations? Why condemn public institutions? And if merit is the sole criteria why allow a special NRI quota and disallow reservations? On the other hand, the court could have easily exempted non-aided institutions simply on grounds of property rights arguments, and need not have pronounced on reservation. As often, the court obscured the force of its valid arguments by putting in a number of red herrings.

This point is not a trivial one in explaining the reasons why courts occasion so much controversy. Ultimately the court’s authority is premised upon the force of reason; the more its judgments carry clear argument and conviction the more likely it is to succeed. It is often said, not unjustifiably, that the problem with the Indian Supreme Court is that its judgments are too long; the torrent of words tends to obscure the clarity of the reasoning. And this only undermines the authority of the court because it gives the impression that any particular judgment may be more open to manipulation and interpretation than it should be.

 

There is also the worry that the court’s judgments are not as clear exercises in public reason as they should be. As Shourie point out, in many constitutional traditions, notably of the U.S., it is customary to ask questions about the judicial philosophies of Supreme Court judges. A judicial philosophy has two dimensions. The methodological dimension refers to a general conception of the law or constitutionalism that judges bring to bear upon their decisions. Of course, formally, judges simply interpret the law or the constitution (how many judges would admit to doing anything else?). But what the constitution means cannot be settled solely by reference to words in the constitution itself. And this is where the judge’s methodological propensities kick in. Are they originalists who suppose that the intention of the writers of the constitution can be determined and used as a guide to interpretation? Are they pragmatists, who believe that law should be interpreted according to its consequences, not the intentions of a bunch of dead people?

The second dimension is of a judicial philosophy that refers to substantive ideological commitments of judges. Are they liberals or socialists, radicals or conservatives? Usually there is an elective affinity between a judge’s methodological and substantive commitments, but the two often do not hang together neatly.

In the Indian context it is very difficult to characterize the judicial philosophies of judges. Very few jurists reflect on the methodological principles they bring to interpreting the constitution. But for the most part, this aspect of law has been ignored. Of the dozens of commentaries on Indian constitutional law, only Seervai’s magisterial, pugnacious and controversial Constitutional Law of India comes closest to being based on an underlying methodological and political philosophy. The rest are essentially little more than compendiums. Amongst eminent lawyers too, the tradition of thinking about the nature of law itself is probably on the decline. The Supreme Court has had some great judges, but very few have been great jurists, leaving a mark on the philosophy of law. This may in part be a consequence of the fact that most judges do not have to take constitutional law very seriously till they arrive on the Supreme Court. So for most judges the lines between regular adjudication and constitutional matters remain blurred; there is no special gravitas associated with constitutional cases.

 

Even ideological divides are not so easy to carve out. There are judges who have been identified with particular emphases: Gajendragadkar with social reform, Kuldip Singh with environmental activism, Khanna with liberty. There also have occasionally been judges like Krishna Iyer who, for want of better term, might be described as a socialist. Subba Rao probably came close to being a liberal in a classical sense. But these labels can be misleading as well. In Indian legal circles when people ask, ‘What is the orientation of the judge?’ they usually mean one of two things. Sometimes they mean how much of a disciplinarian the judge is in terms of handling the courtroom, how open to manipulation and so forth. The other classification usually deployed is ‘activist’ versus ‘non-activist’.

This is a peculiar way of assessing judges since it refers neither to the judges’ methodological orientation nor to their substantive views. At most what the label ‘activist’ suggests is hortatory concern for lots of good things like the environment, the rights of the poor and so forth. It suggests a judiciary determined not to let anything stand in the way of what they think the social outcome should be in a particular case. But it by no means implies clarity in outlook or the consistency of underlying principles. Remember, some of our ‘activist’ judges like Justice Bhagwati were quite meek in their concern for civil liberties. ‘Activism’ is no more an illuminating description of a judicial philosophy than the pitch of someone’s voice is a description of what they are actually saying.

 

This is a roundabout way of saying that our assessment of judicial arguments has to move beyond high pitched concerns about activism and concentrate more on jurisprudence and principles involved in judgments. But we do not have an intellectual climate that is propitious to this engagement; most discussion is reduced to debates over who should exercise power, not the normative content of that power.

The inner conflict within Indian Constitutionalism will continue. After Keshavananda, the question, ‘Who is the final arbiter of the Indian Constitution?’ remains unanswered. Parliament can pass legislation, the courts can pronounce on its constitutionality, parliament can amend the constitution in response, the court can pronounce that parliament has limited amending power and so on. That this ambiguity has not generated a full-blown crisis is more an artifact of our fragmented political system, not a consensus on the power of the courts.

 

Second, there is no higher judiciary in the world that has so shut out the executive or legislature in the process of appointments to the higher judiciary. It is a matter of considerable debate whether judges, in somewhat appropriating the appointments process to the higher judiciary, have in fact enhanced the quality of judges on the Supreme Court. And third, the rise of judicial power in India has complex reasons. Overall, we have to admit that, in many instances, the judiciary has conjured up its own powers. It bears repetition that representative institutions are the essence of democracy and judges do not stand in the same relation to us as legislators. It may be that we cannot trust our representative institutions, but it would be stretching logic to pretend that the guardianship the courts often exercise over policy is synonymous with democracy.

Towards the end of Inamdar, the court is suggesting, rightly, that the government bring in appropriate legislation to regulate unaided institutions. But the open question is, how much freedom will the executive have, given the court’s pronouncements? The court may, in its own mind, have merely interpreted the constitution. But when this interpretation represents a radical break with the past, the courts have to be prepared for a good deal of public discussion and even procrastination. India is almost unique in the power that judges are exercising. But then, as the Italian political theorist Gentili famously said, the existence of power is always a provocation. The tensions are likely to continue.

top