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The judiciary as a resource for Indian democracy

 

A celebratory understanding of the Indian Constitution as a robust text or entity that has worked and survived for sixty plus years suggests the world-historic importance of the Indian Constitution as the modern world’s first postcolonial constitution which has impacted on many other forms that emerged later. It also extols the fact that the Constitution has found general acceptance with the political classes, though often grudging the interpretive supremacy of the Supreme Court of Indian (SCI) and, as compared with constitutional experiences in South Asia and global South generally, the Indian armed forces have never questioned the constitutional idea of India.

There are indeed many good reasons for describing the Indian Constitution (IC, hereafter) as an inaugural postcolonial form.First, even as it replicates many aspects of the Government of India Act, 1935, the IC creatively modifies the idea of constitutionalism by combining four key ideas. The Constitution is about governance but it is also about social development and further, about the pursuit of rights and justice. These four ideas remain in dynamic tension, at times even in contradiction, with each other. Governance is grounded in the right of the people to adult suffrage (to contest and to vote at elections); representation is the key to the idea of just governance. The idea of human and social development stands enunciated in the founding values of the Preamble, the Part IV Directive Principles of State Policy, and now Part IV-A enshrining fundamental duties of all citizens: the IC simply insists on the understanding of development as those plans, processes and policies thatdisproportionately benefit the worst-off Indian citizen-peoples.

Second, the IC describes Part III fundamental rights as rights to freedom – a right to state and law-free spaces. Yet Parliament may by law reasonably regulate or limit these rights and this may not be done without the reasoned cooperation of the Supreme Court. Constitutional reason often differs crucially from political reason influencing the decision to restrict basic human rights. A rights culture thus instituted is always crisis-ridden, putting Parliament often in opposition to the SCI and the peoples of India in opposition, at times, against the executive/judicial combine. The question here does not concern merely the distribution of the law-saying power of legislatures and courts but entails the contestation about the justness of rights (Baxi, 2010) especially when the constitutional-haves claim all the rights and have-nots not even a tattle of basic human rights and freedoms.

Third, the IC innovates the distinction between rights here and now enforceable and those left to the ‘tender’ care of elected public officials. In the debate over parcelling rights into Part III and Part IV (the social and economic rights named as Directive Principles), the confounding fathers (since there were few founding mothers!) battled endlessly to enact a wish list for Part IV rights, leading T.T. Krishnamachari to warn the Constituent Assembly not to convert the Indian ‘social revolution into a dustbin’ (see Austin, 1966; Baxi, 1967). This divide between two kinds of human rights anticipates the development of the International Bill of Human Rights via the regimes of the Covenant on Civil and Political Rights and the Covenant on Economic, Social, Cultural rights.

 

The SCI and the High Courts have over time chipped away this constitutional ‘Berlin Wall’! Adjudicatory leadership now steadily transfers Part IV rights to Part III enforceable rights – the most notable examples being the rights to livelihood, shelter, literacy and education, and to environment as integral aspects of the Article 21 rights to life and liberty (see Sathe, 2002; Baxi, 2001; Fredman, 2008).

Fourth, no serious-minded assessment of constitutional experience and development may ignore the fact that the IC was written in the holocaust of the Indian Partition. Understandably then, rights of cultural, religious and educational minorities often acquire the visage of near-absolute rights. The normative concern for the human rights of the indigenous peoples is indeed remarkable: the 6th Schedule of the IC even goes so far as to suspend state and national legislation in favour of preserving the integrity of indigenous law and custom. All this now stands recontemplated by the insistence on women’s rights as human rights.

Fifth, and using here Michael Walzer’s notion of ‘complex’ (rather than Marc Galanter’s ‘competing’) equalities, one may note briefly the ways in which the IC (and adjudicative leadership) seeks to render the ideas about equality before law compatible with equal opportunity of access as well as result for all.

This occurs in three broad ways. The first mode is the system of reservations which prescribes numerical quotas for access to education and state employment, not just for the Scheduled Castes and Tribes but also for socially and educationally backward classes and ‘other backward classes.’ While the political state proceeds to identify ‘class’ with ‘castes’, the constitutional state, especially as represented by the appellate judiciary, has had considerable difficulties with this conflation. The SCI has thus found it necessary both to limit the overall quotas to no more than 50% and to progressively exclude the creamy layers, an act of adjudicative leadership fully contested by the political state.

 

The second mode is that of constitutional secularism (see generally Jacobsohn, 2003; Sen, 2007) which while providing all citizens with an equal right to freedom of religious belief and practice, restricts it in relation to the dominant religious Hindu tradition. ‘Untouchability’ is declared by the IC as violative of the right to equality of all citizens. The term is left intentionally undefined but derives its core meaning from the freedom of temple entry and worship by the untouchables – a main plank of freedom struggle as led by Mohandas Gandhi.

Over the years, the Indian judiciary has interpreted non-discrimination on the grounds of ‘untouchability’ as inclusive of right to access to the sanctum sanctorum as well as to sustain the claims of Dalit appointment as head priests in Hindu temples. The exclusion of menstruating women from entering certain Hindu religious shrines (such as the Sabarimala temple) has been judicially held to violate the IC prohibition of immunity from discrimination on the ground of gender and untouchability.

Babasaheb Bhim Rao Ambedkar conceived equality of opportunity beyond the ritual to violent social exclusion. The IC, as it emerges from the labours of the Constituent Assembly, attacks both forms of exclusion. The audacious normativity of the IC not merely declares the practices of discrimination on the ground of untouchability as constitutionally illegitimate but also, for the first time in world constitutional annals, enacts constitutional criminal law (Article 17). The Constitution makes it an offence to take recourse to such practices (as well as those offending ‘rights against exploitation’ in Articles 23 and 24). The concern about empirical efficacy surely remains important, even as one highlights the normative audacity (see as regards the pollution-purity enforcing role of the dominant castes, Rao, 2009; and Pratiksha Baxi, 2005). Articles 17, 23 and 24 constitute the bleeding heart of Indian constitutionalism.

 

The third mode was Ambedkar’s imagination of participation as the vehicle of complex equality beyond ‘reservations’ in public services; as such he sculpted the principles of reservations of SC/ST communities on the representation principle. The constitutional right of adult suffrage was qualified as regards the right to contest (only designated citizens belonging to the scheduled castes and tribes may contest elections at which all may vote). Although Ambedkar thought of this as a temporary measure, it has now become an essential feature of the IC, and even a part of the basic structure. Studies indicate different perspectives on how far legislative reservations have worked to the advantage of the worst-off among these communities; and successive efforts at creating 33% legislative reservations for women in Parliament and state legislatures remain mired (justifiably, in my view) over whether this should not privilege the most disadvantaged women belonging to the most depressed strata of Indian society.

 

Lawpersons, and even political theorists, study the federal principle, design and detail in terms of power-sharing between the Centre (the Union of India) and the constituent units of the federation. Even so, understanding this in terms of multi-level and multicultural governance has yet to fully emerge.

Like most postcolonial constitutions, the IC furnishes patterns of asymmetrical federalism. On this register, changes in the political state have meant a more genuine respect towards the federal principle. For a long while the dominance of a single political party at the federal level (the Congress) signified an excessive invocation of the (Article 356) power to declare President’s Rule – by dissolving or suspending state legislatures. The growth of regional parties at the state level led to a strident demand for constitutional reform, displaying a more sincere respect to states within the Indian Union. It is only the rise of a coalitional form of federal governance that now compels this deference. Of note remains of course the subjection of Article 356 power to the discipline of the Constitution in the Bommai case – federalism being declared as an essential feature of the democratic republican Indian constitutional state.

The redemocratizing role of the SCI has not fully addressed the dimensions of economic federalism. Neither the constitutional nor the political state has been able to address adequately a just distribution of natural resource use. Revenues from ‘oil’ rich Indian states have not been equitably shared; nor have the regimes of exploration and exploitation of other resources such as coal, iron ore, precious metals, and forest wealth. This is a large story not narrated here; yet this planned failure at equitable resource sharing, though not quite leading to the indictment of the Indian Union as causing/fostering distinctive practices of ‘internal colonization’ has also led to the movements for self-determination, fuelling the fire of insurgent counter-politics.

Even so, the success story of the linguistic reorganization of the constituent states is always worth revisiting, because outside this India would have ceased to exist altogether, if the suppression of linguistic and cultural identity was elevated as a master governance principle. In this sense, the question of federalism emerges at a deeper level in terms of encoding multiculturalgovernance. Multilevel governance, now restoring constitutional deference to urban and village level self-governance, imbues a new future for the IC.

All this fully said, we need to grasp a whole lot better than seems the case the features of asymmetrical federalism. This may not be achieved by any insistence requiring us to understand the IC as a monolithic edifice. We need to pluralize the idea of the IC itself!

 

India has from the beginning a dual constitution – the civil and the military. Both are born together and have coequally developed since Independence. The states of insurgency in the North East and Jammu and Kashmir, and for a short while in Punjab have, for example, continued to haunt the spirit and the letter of Indian constitutionalism. This has been further aggravated by the steady, even exponential, rise of armed opposition groups (by whatever name) that now constitute de facto extra-constitutional political formations in one-third of India’s districts opposed to the de jure Indian constitutional state.

Without any further elaboration here, it needs saying that Indian constitutional development may not be understood outside the multitudinous Ground Zero thus perennially constituted and the specific practices of the Indian wars on, and of, terror. The militarization of Indian governance and politics is a larger story and it is a mistake to think that the 1975-77 Internal Emergency experience marked the beginning and end of the narrative of constitutional authoritarianism in India. Question marks continue to surround the judicial and juridical redemocratizing potential of the Indian adjudicative leadership, if only because the SCI has sustained the constitutionality of dragnet of preventive detention, security and now the anti-terrorism laws (Singh, 2009.) May be, one would wish to say that the Indian Constitution and its ways distinguish themselves from some related postcolonial experiences in Asia, Africa and Latin America; if so, at the very least, we need to essay a further comparative understanding, as yet not in sight.

 

Further, alongside with this long-standing conflict between the civil and military constitutionalism, one needs to trace the seismic shifts that the Constitution has undergone, so much so that we may not speak of a single Indian Constitution but have to address a multiplicity of constitutions of India.

On my count there are at least seven Indian constitutions: (i) the text adopted in 1950; (ii) The Nehruvian constitution, demanding a compelling respect by the SCI for parliamentary sovereignty; (iii) the 1973 Kesavananda Bharati constitution, a decision that confers constituent power on the SCI, including the power to annul a constitutional amendment otherwise duly made by Parliament; (iv) the state Finance Capitalist constitution presaged by the Indira Nehru Gandhi constitution, via the nationalization of banks and insurance industries and the abolition of the privy purses; (v) the Emergency constitution of 1975-77; (vi) the post-Emergency constitution which marks both judicial populism as well as the emergence of expansive judicial activism; and (vii) the Neo-liberal constitution which redefines India as a vast global market fully at odds with the first, second, third, fourth, and the sixth constitutions.

You may wish to say that these are distinct constitutional ‘moments’, not by any means many avatars of the IC. However, the languages of many constitutions alert us more sharply to the nature of discontinuities within which judicial and citizen interpretation of the IC must occur.

 

For example, the post-emergency (sixth) constitution may not have occurred outside the legacy of Jayaprakash Narayan’s total revolution movement which mobilized a distinctly pro-people understanding of participatory reform of constitution and governance, such as the demand for proportional representation, renovation of Indian police as human rights friendly structure and process, and a right to recall errant and corrupt legislators. However, such movements are difficult (to say the least) in the seventh constitution of a neo-liberal, hyperglobalizing India.1

In any event, underlying the seven forms are the ways of doing Indian constitutional, and extra constitutional, politics. To grasp this more conceptually, one needs to explicate distinctions between the constitutional and political state forms. The constitutional state (the normative and aspirational framework enunciating the desired social order) is almost always heavily at odds with the political state (as framework of competition for political power, or even the struggle to capture the constitutional state). In a profound sense then, justices as primary articulators of the constitutional state must always be in confrontation with the leaders, agents and managers of the political state. The latter have always insisted on some or other notion of the ‘committed judiciary’.

 

With Jawaharlal Nehru, parliamentary sovereignty was the norm by which the judges were judged; indeed, the very First Amendment that he initiated, in so many words excluded judicial scrutiny of laws included in the Ninth Schedule even when they violated fundamental rights. Justice Hidayatullah was later to describe ours as the only constitution that ‘needs protection against itself.’

With Indira Nehru Gandhi what mattered was the language of the ‘committed judiciary’ – the idea was much the same: the apex justices may not contest the interpretation of the Constitution offered by the supreme executive. When pushed to the wall, as it were, Indira Gandhi (and her arch-advisers) said that ‘commitment’ after all meant commitment to the constitution as established by law (see Austin, 1999). This shred to pieces the very idea of IC as a ‘higher law’. Indeed, the situation of this sort of commitment was well delineated by an ‘underground’ Emergency period cartoon which depicts a haughty disdain by a bookseller who when asked for a copy of the latest IC admonished the customer to go next door, saying: ‘Sir, we do not sell periodicals here.’2

 

In case you were to find the distinction still unclear, it needs reiteration that it is the IC which determines the validity of laws and executive action, and not the other way around. Like it or leave it, the fact remains that the Constitution is what the justices say it is. And what matters decisively here (for the future of Indian democracy and of human rights in India) is the powerful idea that justices may not, in deciding the meaning of the IC, follow the election results.

Put another way, holders of high judicial powers ought always to elevate the constitutional idea of India beyond its regime sponsored and expedient versions. Justices may occasionally fail to so do; were they to systematically fail to translate high judicial power into a fiduciary power (as a form of social trust), the very idea of constitutional India would disappear.

Still, in the seventh constitution, the languages of committed judiciary assume a new visage. In the neoliberal India of today, Manmohan Singh constantly urges justices not to cross the ‘Lakshman rekha’ between the making of ‘policy’ and ‘applying’ law. When we recall that this phrase is the brand name for killing cockroaches as well, we realize that this rekha(bright-line) metaphor is also intended as a remedial pest control measure for judicial activism.

Prime ministers often tend to think that they are the embodiment of constitutional patriotism, such that the chief justices of India (and the companion justices) ought always to follow their very own understanding of the meaning of constitutional commitment. Fortunately, barring a handful of pusillanimous personages, the Indian chief justices have steadfastly maintained that even when the interpretations offered by the supreme executive remain eligible for the highest regard, this may not displace the constitutional power and obligation of justices to say what ‘rights’ and ‘justice’ require. In no event is this power coupled with a duty exhausted by judicial subservience to regime-favouring/fawning adjudicatory leadership, as unfortunately happened during the days of the Internal Emergency of 1975-77.

Put summarily, if the prime ministers are leaders of the political state, the apex justices ought always to remain the custodians of the constitutional state. And it has been India’s good fortune, overall, that the latter have internalized this obligation.

 

Adjudicatory leadership is, of course, interpretive leadership, but in my view also includes organizational and managerial leadership of the judicial system as a whole.3 The interpretive leadership of the SCI and the Indian High Courts is of a very high order and has impacted on the South Asian and some other Global South jurisdictions. The third and the sixth Indian constitutions mark world-historic contributions. The doctrine of the basic structure of the constitution whose essential features may not be amended even by a unanimous Parliament (the third constitution) has travelled well to Pakistan, Bangladesh and Nepal, contributing to a renaissance of the constitutional state over the intransigent political state. The SCI has extended the doctrine beyond its original purpose: it has been held to apply to exercises of constitutional powers (such as the powers to declare President’s Rule over the states) and even as a canon of constitutional interpretation (Krishnaswamy, 2009).

 

It is in the sixth constitution that we find an implosion of judicial activism, most notably via social action litigation – SAL (still miscalled public interest litigation – PIL.) The SCI creates a new jurisdiction – the epistolary jurisdiction (a process where citizens may write letters to SCI which stand treated as writ petitions for the enforcement of fundamental rights). The SCI not merely relaxes the concept of standing but radically democratises it; no longer is it important to show that one’s fundamental rights are affected to move the Supreme Court or the High Courts, but it remains sufficient to show that one argues for the violations of the worst-off Indian citizens and persons within India’s jurisdiction. Other-regarding concern for human rights has now become the order of the day and this concern has prompted a creative partnership between active citizens and activist justices (see Sathe, 2002; Baxi, 2001).

New human rights norms and standards not explicitly envisaged by the first constitution stand judicially invented such as the right to privacy and dignity, the combined reading of which gives us the recent Delhi High Court Naz Foundation decision by Chief Justice A.P. Shah and Justice Muralidhar, which declares as unconstitutional the criminalization of the right to sexual orientation and conduct among consenting adults. Further, the SCI brings back into the realm of the constitutional state (rights?) features often declared to be unsuitable by the emerging political state (such as the right to speedy trial, bail, compensation for injurious state action or conduct). This is scarcely an occasion to narrate the achievements any further (see Baxi, 2001 and literature therein referred; and Fredman, 2008).

 

There is no question that judicial pronouncements of the SCI and High Courts have often been ignored by the political state; indeed, how may it be otherwise? Yet, the SCI has variously deployed its ‘hope and trust’ jurisdiction to persuade the recalcitrant executive, and when this rhetoric has failed, taken some determined steps to discipline and punish an errant executive.

Even more crucial remains the constitutional space provided by the SCI and High Courts for the practices of human rights and social movement activism; this judicial creation of space-time for activism has contributed to the growth of staying power of civil society interventions against the sovereign prowess of the Indian state which transforms itself from the ‘post’ to the ‘neo’ colonial formation, the latter so acutely described by Kwame Nkrumah as ‘power without responsibility, and exploitation without redress.’ In a sense, when the SCI and High Courts take cognizance via SAL of activist petitioners, and as much time they take to finally decide on contestations, they also bestow on them a measure of immunity from the repressive powers of the local political state. This aspect is often unfortunately obscured by studies engaging judicial outcomes concerning contested developmentalist projects.

 

The seventh neoliberal constitution may ‘best’ be described as achieving this systemic result. The fierce essence of neo-liberalism, Indian-style, means a near-complete adjudicative reversal of the sixth constitution, in which form taking human and social suffering seriously was understood as a necessary condition for taking human rights seriously. This is no longer the case, and one has only to consider the quarter century old unredressed sufferings of the Bhopal-violated (see Baxi, 2010a).

The complete cancellation by the SCI of its own proud record of protecting minimal human rights of organized and disorganized (a more accurate expression than the ‘unorganized) workers provides another sphere of structural adjustment of Indian judicial activism. So do, despite some rare surviving displays of judicial valour, Indian High Courts and even the SCI aided forms of physical exile and the symbolic invisibalization of India’s impoverished (in India’s global cities, poignantly testified by judicial indifference to these in the run-up to the Commonwealth Games, 2010).

At the same moment, the SCI has made some valiant strikes against the regimes of governance corruption and regime sponsored mass atrocities (as in Gujarat, 2002). It has in both the situations insisted on human rights-based governance. The SCI has displayed, in some recent narratives, a judicial will to power to combat governance corruption. More may be said concerning this, but one must here desist because of space constraints, save that a new form of partnership between justices and human rights and social movements activists is at display under the seventh constitution.

 

As one historically privileged to initiate the SAL, and before the notion of demosprudence was coined, I insisted on saying that the SAL has converted the Supreme Court of India into a court for the worst-off Indian-citizen peoples.

‘Demosprudence’ is an emergent and fully contested term of art in US constitutional theory. This rubric at last takes more seriously the finite yet complex ‘dialogic relationship between the courts and the people’ (Guinier, 2008). As happens always with hegemonic modes of production of constitutional knowledges, the notion remains entirely US-centric. Its proponents seeno comparative advantage in making any reference to the imagination and experience of transformative constitution-making and development in the Global South (Baxi, 2001, Baxi, 1989; see also Ray, 2010.) In my view this new discursive term needs to situate respect for the non-Euro American others as worthy of dignity of discourse. Until the comparative constitutional theorists begin to lisp the legendary name of Justice Krishna Iyer, their understanding of ‘demosprudence’ may not even begin its itinerary.

Judging the judges is a favourite pastime in India today: everyone has something unkind to say about our justices and in the full knowledge that they may not respond back to such criticism, outside a difficult recourse to the contempt of courts law and jurisprudence. How far such criticism contributes to judicial accountability and autonomy is an important question which should engage us all.

Episodic criticism is plentiful in many public fora: parliamentary debates on judicial conduct and decisions, fully protected by the privileges of Parliament; 24/7 mass media, newspaper editorials and articles; party ‘intellectuals’; social movement and human rights activist constituencies, and the Bar. Critics of justices, however, rarely articulate standards by which we may arrive at a socially responsible criticism of justices at work – a task presumably reserved only for the law academics. So, we end up with plenty of criticism but no real critique. Some recent outpouring on the Allahabad High Court decision on the Ayodhya case illustrates this poignantly, where critics rush to print or television, while acknowledging that they have yet not had the time to read the entire judgment.

 

The Indian Bar claims to be a judge of judges, an inheritor of the English tradition. However, it may only fulfil this vaunted role were the Bar to recover its character as a learned profession (marked by self-regulation and rectitude) and incrementally shed the acquired paradoxical traits of business and trade union of sorts. This means that the market for legal services convert itself away from being a seller’s market and further that the profession cease to be a very striking ‘profession’ – in the sense that it resorts to strikes, often of long duration, for all kinds of causes and often in the process lowering the dignity of the profession and of courts by acts of verbal and even physical violence and intimidation. No doubt, the leaders of the Bar condemn such incidents, but neither they nor the justices remain able to ameliorate the situation in the long run.

 

Overall, the Indian Bar may not claim to be the best ‘judge of judges’ without addressing its own pathologies – the endless manipulation of adjudicative time via adjournments, practices of tutoring ‘witnesses’ (witness-proofing), converting sworn affidavits as forms of client-favouring tissue of falsehoods, thus setting at naught the law against perjury, and weak self-regulation. The Indian Bar has no doubt been in the forefront of the exposé of judicial corruptibility, yet it has never found a right moment to cleanse its own Aegean stables! Judicial corruptibility is an evil that needs combating; but how may this be ever fully accomplished outside an ethical cleansing of the Indian legal profession?

In sum then the tasks that lie ahead suggest that we all develop articulate public standards for judging our judges; the public sphere cannot be constituted only by traffic of ad hoc opinions. And no judicial reform agenda will ever fructify until the asymmetry of power between justices and the legal profession are at least minimized.

Criticism of judicial performance is no doubt an inestimable democratic virtue but it is also hard work. Easy-minded criticism of justices at work do not replenish either the Indian democratic future or the future of human rights in India.

*The Writer is Professor of Law, University of Warwick, and former V-C of University of South Gujarat and Delhi.

 

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