In recent years, some of the most dramatic situations in Indian public life have arisen in the higher judiciary – an arm of the state ideally characterised by collegiality, scholarship, predictability, and remoteness from raucous politics.
From the disregard of principles of natural justice and public squabbling among the judges to the politically consequential activism around the National Register of Citizens (NRC) and unpredictable reasoning in judgments (treatment of money bill argument in the Aadhaar case, and ignoring of evidence of low fatalities in the liquor ban case), the reality of the higher judiciary is increasingly divergent from the ideal conception. These situations also remind us how difficult it is to hold the higher judiciary accountable.
French philosopher Michel Foucault wrote: “People know what they do; they frequently know why they do what they do; but what they don’t know is what what they do does.”
Ultimately, this is about the evolution of culture in the institution, which is significantly shaped by how the society reacts to it in everyday conversations and commentaries that legitimise or delegitimise what the institution does.
The role of courts: theory and practice
First principles stipulate that legislatures can amend the Constitution, and make and amend laws, while the courts are supposed to adjudicate specific matters using established canons of interpretation. If appropriate, the higher judiciary can strike down laws that violate the Constitution.
There are good reasons for these principles. For differences of substantive values, there is no one right answer that judges can discover. The moral and political understanding required to make new laws is dispersed in the society. Therefore, whenever it is necessary to make law on issues involving such differences, legislative action is required. For judges, reason and restraint must go hand in hand.
Today, these principles have fallen by the wayside.
“First, consider how the fundamental right to privacy was “discovered” by the Supreme Court recently. The government argued to the five-judge bench in the Aadhaar case that since two earlier judgments from larger benches had ruled against such a right, it cannot be a ground to rule on Aadhaar.
In an unprecedented move, the Court then constituted a nine-judge bench, including a member of the Aadhaar bench, to clarify whether there is a Constitutional right to privacy. Judges rely on past law. They do not ask their colleagues to write new law when they confront some legal ambiguity.
The bench issued a voluminous judgment 36 days after it was constituted and five days after the arguments were completed. This haste was perplexing, given how consequential the specific formulation of privacy right is for the balance between individualism and the demands of social and political order.
The judgment reached into the legislative domain and gave a comprehensive doctrine on fundamental right to privacy. To do this, it constructed a treatise on the philosophy of privacy rights. Why is it the court’s prerogative to choose only those strands of philosophy that bolster its argument? What canons of statutory interpretation was it following?”
Second, public interest litigations have been systematically used to get the courts to rule on matters in legislative or executive domains. In the right to food case, the Supreme Court issued orders converting government schemes into legal entitlements, and even appointed commissioners to monitor implementation of those schemes. In another case, the National Green Tribunal used a fiscal instrument when it imposed a tax on trucks entering Delhi.
Even if one agrees with them, the question is: should courts be taking such decisions? Rights under Part III and the powers of the Supreme Court under Article 142 have been stretched beyond reasonable limits. This has come at the cost of the judicial discipline essential to common law.
The activists often describe the courts as conservative, perhaps because the courts are not radical enough for them. In any case, the problem is not that the courts are activistic in most cases. It is that they enjoy considerable discretion in choosing when to overreach — by creating new laws and expanding the scope of their own powers.
Consequences of judicialisation of political issues
That an institution wants to expand its influence is no surprise, but why has the civil society not vociferously criticised such a tendency?
The responses to the above-mentioned cases show that in our political culture, ideological victory is prized above respect for institutional integrity. For instance, the ideological victory and the battle over Aadhaar were considered too important to bother about norms neglected in the right to privacy case. When people approach the judiciary to settle ideological debates, the power of the Supreme Court is glorified, and its proper role in society is forgotten.
When neglect of basic norms about the role and functioning of judiciary is tolerated, how can we expect the judiciary to follow other, subtler norms?
This elevation of the judiciary has larger consequences.
First, each time the judiciary makes new laws, it crowds out democratic politics. In spite of the polarising nature of political ideologies, democratic politics forces us to consider other viewpoints, and make compromises. Democracy has placed us on equal and independent footing as self-governing citizens. If allowed to work, the democratic process itself can, over time, effect profound psychological and social changes. As French political scientist Alexis de Tocqueville observed, democracy is mild but not weak. It can break the hold of old hierarchies and transform societies, by placing liberty and equality at the centre of our political life.
However, many among us do not believe in the power of democracy or lack the patience required for it. Instead of transformations effected by the working of democracy, they prefer transformation of society by courts. Their conception of constitutionalism supplants the democratic spirit of mass politics by the aristocratic spirit of the higher judiciary. Most of the reasons given for this can be summarised in one word – history. Since the courts rely extensively on “natural” right, they should consider the pitfalls of citing “history” to step outside their own natural role.
Second, judicialisation of ideological conflicts can exacerbate certain harmful tendencies of our political culture. The winner-take-all prospect of a court case creates incentives for taking absolutist positions, and makes us less interested in understanding other viewpoints to find common ground. This process increases cynicism about the nature of the political, understating the possibility of compromise, and exaggerating the differences.
When a few unelected individuals in a courtroom settle substantive questions of values, some ideology is imposed on all of us without political contestation and compromise. Perhaps they see themselves as shepherding us towards a version of modernity they consider indisputable. But people can differ on what constitutes progress, and what must be conserved. As Oliver Wendell Holmes wrote – a Constitution is made for people of fundamentally differing views.
Third, the inflated role of judiciary makes it difficult to hold the judicial system accountable. In many ways, India’s legal community operates like a self-serving guild enjoying influence and privilege at the cost of the society. Privilege can take many forms. In constitutional law, a few lawyers and judges in the higher judiciary enjoy the privilege of being able to impose their ideological preferences on society even in matters involving common moral reasoning. In this ecosystem, doctrines like “the living constitution” or “transformative constitutionalism” primarily become terms that help give intellectual legitimacy to this privilege, rather than function as any true canon of statutory interpretation.
Absent external pressures, members of a guild have no incentive to reform it. Perhaps the society might have found ways to hold this community accountable, if a halo of “legitimacy through activism” was not projected onto the judiciary from folks outside that community, especially the activists. This has led to a situation where any discussion on judicial accountability is treated as an existential threat to the judiciary.
To make matters worse, the court’s power of contempt has a chilling effect on legitimate criticism. Criticism of individual judges and judgements is sometimes treated as an attack on the integrity of the judiciary. When the court adjudicates substantive values, using contempt powers to stifle dissent is wrong.
The proposition that the people, who are sovereign, should sleep while the courts make new laws is not morally tenable in a democracy. As Justice BN Srikrishna often says, if in a game of cricket, the batsman is performing poorly, the umpire should not start batting. In our system of self-governance, real and sustainable progress towards the common good requires us to work things out as a political community.
The authors are with Carnegie India. Views expressed here are personal. The authors would like to thank Ajay Shah, Milan Vaishnav and Shubho Roy for reviewing a draft of this op-ed. Views are personal.