The Jurisprudence of Constitutional Structures

Chief Justice of India, Justice S.H.Kapadia gave an interesting lecture on the subject at IIC recently.  The webcast of the lecture is available here.  In his speech, the CJI alluded to the Supreme Court's judgment in In Re Ramlila Maidan Incident, delivered by a Division Bench comprising Justice Dr.B.S.Chauhan and Justice Swatanter Kumar, and asked whether judiciary  could enforce the right to sleep.  The speech has attracted criticism from some who feel that the CJI might have erred on the question of propriety.

Recently, a similar argument was advanced by  Arghya Sengupta, in The Hindu.  He argued that former Judge, Justice Ganguly's post-retirement utterances on the 2G case might suggest that our Court is turning political, and that his interaction with the media on the issue was uncalled for.  I disagree with both Arghya and the critics of the CJI.  Arghya is perhaps wrong in suggesting that our Court was non-political in the past, and that a 'political' Court is an anathema.  He is also unconvincing when he says that Judges are entitled to express their views after considerable passage of time from the delivery of their judgments, but not immediately.  But he is in favour of  release of  official summary of  the court judgments.  Can the Court release an official summary, without consulting the Judge who delivered it? What if the Judge disagrees with it, if prepared without consulting him?

The public display of differences between Justice Chandrachud and Justice Bhagwati has been well documented.  Upendra Baxi's book is a pointer that our Court has been a political institution. Justice Krishna Iyer has once said that it is not a sin that Judges hold political views, and even express them; however, it would have been a sin if they concealed it.

Readers know what happened to Justice Bhakthavatsala recently, when he had to be relieved of family court matters, following his sexist remarks in the Court.  Had his bias been known earlier, he could have been relieved of the family court matter long ago.  Our system does not encourage intense interrogation of Judges by the media on various issues of public importance, without touching the pending matters.  If the Judges volunteer to express their views, conservatives amongst us are outraged.

Judges have to be outspoken  before their appointment as the Judges, on and off the Bench.  Granted their off-the-bench utterances cannot influence the interpretation of their judgments, the public should not be deprived of an opportunity to assess the Judges' judicial philosophies, by this unreasonable self-imposed restraint.  The Judges can always refuse to reveal their minds if their views have any bearing on the pending cases, but why should they restrain themselves from going public on major issues, on the hypothetical prospect that some of them may become subjects of litigation?

On Judicial Activism

I have recently had the chance to collect some thoughts on activism by the Supreme Court in this recent article in the Times of India.

In this article, I argue that there are three key areas in which our SC differs significantly from its counterparts in other constitutional democracies. One of these differences with regard to justiceability of a subject matter clearly points towards greater activism. The second difference, pertaining to the volume of cases, suggests that our SC may appear to be more activist than it really is. Finally, in terms of intensity of review, I argue that our Supreme Court may actually be more deferential than activist.

I also note the special duty that academics have in holding judges to account:
"We must demand [of judges] that their judgments are based on sound reasons, and are unaffected by fear, favour or public opinion. Their accountability, however, is policed not by politicians but by the academy. Barring a few exceptions, our academia in general and legal academia in particular, has not always performed this scrutinizing duty diligently. However, the sheer volume of decisions makes it difficult for judges to write sound judgments and for academics to criticize them."

Three important issues that I did not discuss in this short newspaper piece: first, the important judicial appointments debate and its impact on judicial diversity and activism. Do women, dalit and minority judges decide differently? Do they tend to decide differently? Is the current appointments system less conducive to diversity?

Secondly, it will be interesting to see how many 'remedies' that appear in judicial orders, especially in socio-economic rights cases, were in fact just a judicial insistence that governmental policy (either already in place before the litigation, or crafted during the litigation and in response to it) be implemented. There may be an under-theorised dialogic model of adjudication already taking place in our courts.

Finally, we seem to have a majoritarian rather than a counter-majoritarian court. What else explains its relative success with socio-economic rights but a relatively poor record on civil liberties?

I will be grateful for comments.

Judicial Activism and the Bar

Asma Jahangir's election as the first woman President of the the Supreme Court Bar Association of Pakistan today continues to complicate the changing frontiers of judiciary/executive confrontation in Pakistan. The election was hotly contested with Jahangir scoring a narrow victory over Ahmad Awas by 38 votes.

While Asma Jahangir's credentials as a lawyer, human rights campaigner and public intellectual are impeccable, the election was also viewed as the playing out of two different but interlinked political movements. Some have viewed this as a conflict over over liberalism, with her opponent being as close to the religious right factions of the bar. Others, including her opponent have tried to present this as a debate over judicial activism. They have argued that Jahangir is the proxy government candidate, who hope that her victory will help them reign in Chief Justice Chaudhary and the Supreme Court. Jahangir had participated in the protest over the dismissal of Justice Chaudhary but had oft late urged judicial restrain and asked the court and the bar to restore neutrality. Commentators have deplored the politicization of elections to a professional association. This politicization and sustained media interest is not surprising.

Scholars of comparative law are only recently drawing the linkages between the bar and judicial activism. Terry Halliday, Lucien Karpik and Malcom Feeley have emperically established a connection between independent legal profession and the existence of social and political liberalism. They argue that an independent bar, even staffed with the most conservative lawyers, will come to the defence of basic political and civil liberties in a repressive regime.

I have come across very little research on the politics of the Indian bar, and would be grateful if I could be directed to any. I was also curious if the readers, most of whom have greater familiarity with daily legal practice, would agree with this formulation. Do Indian bar associations take up questions of judicial behavior or independence?

Supreme Court: Case updates

*PUCL v. UOI. W.P.(C) 196/2001. (Food security case) Order dated July 27. Next date of hearing: August 12, 2010.

*HT report on the hearing by Justice Katju Bench (M/s Nouveau Capitaland Fin.Ltd. v. State of Bihar, W.P.(C) 672/2004). Justice Katju has opposed SC-constituted monitoring committees.

*Supreme Court constitutes Second Forest Bench.

Courage Craft and Contention: Human Rights and the Judicial Imagination (Transcript of public lectures by Justice A P Shah and Prof. Baxi

On the 12th of June, the Alternative Law Forum (ALF) celebrated its tenth anniversary with a public lecture by Justice A P Shah and Prof. Upendra Baxi on the topic Courage Craft and Contention: Human Rights and the Judicial Imagination.

We are happy to share the transcript of the lectures here.

Legislating Rights: Parliament, Courts and Separation of Powers

In an interesting column in the Indian Express, Mihir Sharma ponders over 'The Four Rights that millennial India has promised its people — to information, to food, to education, and to (rural) employment' and notes that they 'aren’t just remarkably ambitious for a state that has never impressed with its efficiency. They also represent a shift in how we think about governance'. He claims that this is not a partisan agenda driven by 'Congress-under-Sonia': instead, he suggests that a BJP government would have done little different. We can only speculate on this claim, given that our Opposition parties mostly remain reactive to government policy - very rarely do we see them initiating policy debates proactively between elections.

But we can consider Sharma's other controversial suggestion that this move to constitutionalise socio-economic rights is a largely-judicial reaction to poor governance by other branches of the government (a phenomenon, he suggests, that can be seen globally rather than just in India). At least in the contemporary Indian context, this claim needs to be nuanced. While it is true that the constitutionalisation of socio-economic rights was driven by judicial pronouncements in the 1980s and the 90s, what we are witnessing in this century is something quite different. Unlike broadly-worded, unenforceable declaratory orders that courts made in recognising a constitutional right to food, shelter, employment, information etc, most of the current initiatives are legislative. They usually come complete with attention to details regarding enforcement, budgets and individual entitlements. The probable exception is the Right to Food case where the Supreme Court has tried to mirror a legislative intervention by not merely declaring a constitutional right to food, but identifying details of entitlements and overseeing implementation. But the right to food case is exceptional, and so it should remain (it appears, at any rate, that Parliament will take over the right to food agenda from the courts before too long). A deliberative legislative process is usually a much-better way of attending to details of entitlements and enforcement, even when they concern positive rights. That Parliament has finally decided to take this role seriously needs to be noted and commended.

This is not to suggest that the courts did not play their part. Perhaps judicial declarations of these goods as 'rights' laid the necessary groundwork for Parliament to build upon two decades later. Surely, it mattered that what was being legislated upon was not state largesse but a constitutional right. One has only to compare the usually top-down 'welfare' legislation of the pre-Emergency era which betrayed remarkable faith in honest implementation by benign bureaucrats with the broadly victim-driven, state-sceptic 'rights' legislation we now have. This claim regarding the movement from 'welfare' to 'rights' and the attendant difference in enforcement mechanisms, is, admittedly, based on generalisation and intuition rather than any serious research. But I suspect there might be some truth in it. At any rate, any story on these new social rights cannot afford to ignore the very important role that Parliament is playing in shaping and delivering them, even when it rightly acknowledges the courts for initiating the process.

Two implications follow. First, legal academics not only need to acknowledge, perhaps even celebrate, a resurgent Parliament, the often-ignored legislative process now deserves critical scholarly attention. This task has mostly been left with broadcast media, which loves noisy scenes in Parliament but has no time for MPs questions or work done in committees. State legislatures fare even worse in attracting legal scholars. Academic attention to the functioning of the legislative committees, to MPs/MLAs questions, to lack of transparency and consultation in the pre-legislative process, to private members' bills, to anti-defection laws, to executive non-notification of legislative acts etc is urgently needed. The folks at PRS have begun taking the legislatures seriously, but much more needs to be done by many more people.

Secondly, if my above-mentioned intuitions regarding the realisation of social rights in India are true, the traditional view of separation of powers where different branches of government battle it out for supremacy is too simplistic. Practice suggests a two-way conversation: not only does Parliament take more seriously what the courts declare as a 'right', constitutional courts often invite policy suggestions from executive and legislative wings of government and incorporate them in their orders. Co-operative and/or dialogic accounts of separation of powers might provide a better account of practice and make more sense normatively.