There is a well-known narrative that explains the trajectory of the Supreme Court in the last quarter of the 20th century. Habeas Corpus (1976), with its abject capitulation to the Executive, was the low point – four judges, either desirous of currying political favour, or fearful of the consequences (or both), failed in their fundamental duty to protect the civil liberties of India’s citizens. The crisis of legitimacy that this generated drove the Court to look to another forum to re-establish itself. That forum became the PIL, a substantive and procedural revolution: loosening the rules of standing, combining it with an expansive interpretation of Article 21, and bringing in the Directive Principles into constitutional adjudication, the Court spent the 1980s solicitously tending to the social and economic needs of the most marginalized sections of society. But then, with the 1991 economic turn to neo-liberalism, there was a parallel change in judicial values. Now the PIL became the instrument of choice for a newly-assertive, rising middle class, and it was the interests of that class – prefaced with grand perorations of economic development and progress – that the Supreme Court found itself giving most attention to – and that, at the expense of the most marginalized. If Bandhua Mukti Morcha, with its powerful and moving use of the PIL to free bonded labourers living in conditions of abject depredation, characterized the former phase – then Almitra Patel, contemptuously equating encroachers on public land (normally desperately poor people with nowhere else to go) with “pickpockets” – marked the Brave New Supreme Court: neoliberal and corporatist.
This narrative fits in with two theories. One is the theory of institutional vacuum, which posits that if one wing of the State retreats from its proper sphere of functioning, its place will be taken by another. The other is Robert Dahl’s famous argument to the effect that the judiciary is not, and has never been, a “counter-majoritarian institution”: on the contrary, much like the legislature, the judiciary also comes to reflect majoritarian values. Legislature and judiciary are not so much in opposition, then, as much as sometimes separated by a lag: more often than not, they will be on the same side of a concrete issue.
On these accounts, it was the legislature’s continuing, supine inaction that allowed the Court to step in and consolidate itself in performing functions that, under classical separation of powers theory, are paradigmatically within the institutional competence of an elected body. And once established, it is hardly surprising that the Court’s actions reflected the same neoliberal values that animated the legislature through the 1990s, and beyond.
Of course, this is much too simple to be the whole story. The structure of the Court – its size, that it sits in panels, and its (at best) loose adherence to precedent – makes it nigh impossible to consider it as a social actor qua Court. And more broadly, neoliberalism itself has had a rocky road in India, coming in by fits, implemented by starts, and always faced with popular resistance. A full account of the Court’s career through the 90s, then, must be far more nuanced than the simple narrative we have discussed above.
The Shifting Scales of Justice: The Supreme Court in Neo-Liberal India is a collection of eight essays interrogating various aspects of the simple narrative. In Embedded Judiciary, Aditya Nigam compares specific cases from the two eras: Olga Tellis, for example, which famously read in the “right to livelihood” into Article 21, and allowed for evictions of pavement dwellers only if alternative accommodation could be found for them – gave way, fifteen years later, to the notorious Almitra Patel, with its pickpocket analogy. A similar transformation is witnessed in labour-rights cases; essentially, the judiciary converts rights-bearing citizens to rightless subjects, whom the government can treat as it wills, without constitutional impediment, in the quest for economic growth.
Usha Ramanathan continues the theme in In the Name of the People. Both writers stress that the transformation in the Court’s jurisprudence has come about under a broad rubric of continuity. The Supreme Court has never said that it has changed course, or changed values, but it has done so nonetheless. Ramanathan locates the change in Article 21: in PIL 1.0, “life” stood for “dignity, health, livelihood and shelter”; in PIL 2.0, under the imperatives of “structural adjustment, liberalization, privatization and globalization”, it came to stand for “growth and development”, which was often at odds with the earlier set of values. In order to be able to rule on such issues, which seem prima facie the domain of the legislature, the Court undertook to aggrandize its own power, doing so through the Sheela Barse case, where it struck of the petitioner from a PIL and assumed control over the proceedings, and in the Nadiad and Bhopal Review cases, where it created out of Article 142’s (circumscribed) “complete justice power” a carte blanche for far-reaching policy-making judicial action.
Nivedia Menon’s Environment and the Will to Rule completes the triumvirate. Through cases such as Almitra Patel, Godavarman, Narmada Bachao Andolan, and so on, Menon identifies a clear hierarchy in the neoliberal Court’s scheme of priorities: development > environment > people. She argues that when it comes to a confrontation between extractive industries and indigenous people’s rights (Vedanta, for instance), the Court embarks upon a utilitarian calculation, pitting the needs of development against peoples’ land and forest rights, a calculation that comes out in favour of the former. We may make an additional observation here: whatever you may think of the outcome, the very fact that the Court is making these utilitarian calculations is a problem in and of itself, because this is exactly what the legislature is supposed to do. Recall Dworkin’s famous distinction between rights and goals: a polity’s goals are for the legislature to decide, as the elected body and responsive to the people, whereas the Court’s task is to ensure that in pursuit of these goals, the legislature does not infringe citizens’ rights. The moment the Court gets into policy-balancing acts, rights-talk no longer makes sense. And not only is the Court ill-suited – institutionally – for making these judgments, but – invoking Dahl again – it means that marginalized communities are going to lose twice over: first, in the legislature, where they don’t have adequate access or influence; and secondly, in the judicial process, where the Court, instead of vindicating their rights, puts them in the balancing scale, and comes to the same judgment as the majoritarian organ. This demonstrates starkly the grave peril of the Court’s entry into the legislative arena. Once it starts thinking like a legislature, the Court loses sight of its primary, exclusive and most crucial task: to protect the rights of precisely those individual and groups who don’t have recourse with the legislature.
Varun Gauri, in Fundamental Rights and Public Interest Litigation in India, puts an empirical spin on the above arguments, demonstrating through statistics the relationship between the social class of PIL petitioners and their likelihood of winning in Court, that there has been a reversal of sorts between the 80s and the 90s, in terms of advantaged and marginalized communities. At the same time, however, Madhav Khosla and Sudhir Krishnaswamy, in Social Justice and the Supreme Court, strike a cautionary note: symbolic cases such as Bandhua Mukti Morcha and Almitra Patel do not paint an accurate picture, they argue. The basic question is whether a claim framed in the 1990s would have a less chance of succeeding than if it had been framed in the 80s. Anecdotal evidence cannot tell us that, and nor is there reliable evidence to suggest that that is the case. Nonetheless, in Swallowing a Bitter PIL, Arun Thiruvengadam cleaves to the accepted model, that locates a transformation in the Court’s jurisprudence – both in the type of constituencies it favours as the beneficiaries of the PIL, and in the way it structures constitutional priorities. The thrust of Thiruvengadam’s piece, however, is to advocate for continued engagement with the judicial process, notwithstanding the number of setbacks that have begun to pile up over recent years.
The last two essays examine two specific – and hugely important – areas. In A Meandering Jurisprudence of the Court, Philippe Cullett examines the approach of the Court to water laws, and finds it to be – unsurprisingly – wildly inconsistent. While the Supreme Court has, from time to time, held the “right to water” to fall within Article 21, and held water to be in “public trust”, it has not shrunk from allowing alienation of that trust in development cases. And while the Court has continued to develop its Article 21 jurisprudence with respect to water, cases such as Narmada Bachao Andolan and Wazirpur Bartan Nirmata Sangh demonstrate that when it is a question of displacement in the name of development, the Court once again enters into a utilitarian thicket, and emerges from it bearing a defeat for the oustees.
Perhaps fittingly, we end with democracy. In The Judicial Nineties, Ujjwal Kumar Singh compares the Court’s active, interventionist stance in the right-to-know election cases with its hands-off, deferential, near-obsequious approach in terrorism and national security cases. In the PUDR-PUCL series of cases, the Court held that under Article 19(1)(a), a voter had the right to know the antecedents of candidates, including assets and criminal records, and that the Election Commission had the power to enforce this; when the legislature tried to amend the RP Act to take the issue out of the purview of the EC, the Court struck it down on constitutional grounds. On the other hand, when it came to the constitutionality of the AFSPA, POTA, TADA, MCOCA and the rest of the national security legislation, the Court allowed the legislature to eviscerate the Constitution in the name of fighting terrorism, deferring not just to the legislature’s estimate of the threat, but also the extent to which it deemed fit to abrogate civil liberties to meet the alleged threat – thus giving an eloquent proof of that old Latin chestnut, inter arma enim silent leges. There is thus a clear tension between the Court’s grand perorations upholding procedural democracy in the right-to-vote cases, while allowing the executive to trample all over fundamental rights in national security cases.
Naturally, these sketchy summaries do not do justice to the eight essays. They are worth engaging with, and together, they form a coherent and fairly comprehensive body of work examining a crucial period in the Court’s history We may add to the range that they cover, the additional point of the Court’s pressing into service the Directive Principles of State Policy into service post-Habeas Corpus. Previously, the DPSPs had played little to no role in constitutional interpretation. With the advent of the PIL, they became formidable interpretive tools to flesh out the contours of Article 21, and to re-imagine concepts of equality, reservations, reasonable restrictions upon trade, etc. We may also add the Court’s invention of the continuing mandamus, particularly in the PUCL right to food and the Godavarman cases, that allowed it to play a near-executive role in not only framing policy, but implementing it as well.
Judicial Nineties is thus an important book, in order to understand how the Supreme Court has come to stand where it does today; but also, perhaps, to understand its trajectory in the short-term future.
Mayur Suresh and Siddharth Narrain (eds)., The Shifting Scales of Justice: The Supreme Court and Neo-liberal India (Orient Black Swan 2014); Rs. 650. Available here.