ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – III: Aparna Chandra on Substance and Process

(We continue our discussion of Anuj Bhuwania’s new book, Courting the People: Public Interest Litigation in Post-Emergency India, that began with an introductory post last week, and then a critique. In this essay, Professor Aparna Chandra explores some of the themes of the book)

Anuj Bhuwania’s “Courting the People” is a book that needed to be written and one that should be widely read and debated. Bhuwania pulls no punches and offers a stringent critique of the dominant hagiographic narratives around PILs and its dramatis personae. He takes issue with the canonical view that PIL was a force for the good in its inaugural moment but has since been hijacked by those who are not in tune with its original philosophy; thus leading to problematic outcomes. Instead, Bhuwania argues that the PIL jurisdiction is problematic per se, both in its ideological orientation as well as its processual elements.

On Bhuwania’s account, in its early years, the Court had positioned itself as a checks and balances institution, oriented towards holding the state accountable for overstepping constitutional bounds. However, beginning in the late 1970s, the Court responded to sustained attacks on its legitimacy from populist political discourses by acquiescing in the demand for a “committed judiciary” that works alongside an interventionist government to advance the goals of the Constitution. The Court re-conceptualized its role as one that was not only a partner, but a leader of the social revolution envisaged in the Constitution. PILs emerged as part of this ideological move by the judiciary. To the extent that the state’s actions were advancing constitutional goals (predominantly those in Part IV of the Constitution), the Court would support the state. Where the state fell short, either through inaction, indifference, or otherwise, the Court would step in to push the state in the right direction.

The ideological shift in the Court’s role conception was accompanied by procedural moves that facilitated this new role. This procedural shift views procedures as unnecessary hurdles and mere technicalities that should be set aside in favour of substantively just outcomes in tune with the goals of the Constitution. Often captured by the phrase “procedure is the handmaiden of justice” the idea here is that procedures are useful only to the extent that they help the Court in achieving just outcomes – otherwise procedures can and should be done away with.

Bhuwania takes issue with both these shifts. He argues that the ideological grounding and procedural laxity of PILs have allowed judges to run amok and encode their biases and preferences, not only into norms, but into the lived and material realities of vast sections of the population. The problem of PILs is not the case of a few bad apples, but a more systemic issue with the kinds of politics and material outcomes it makes possible. He takes us through examples drawn from PILs relating to urban governance in Delhi to demonstrate how the PIL process vests such large and unchecked powers in courts.

Bhuwania provides a compelling critique of the PIL jurisdiction, and one that I agree with. In fact, as I argue below, I believe that Bhuwania does not go far enough in his critique. I also raise certain concerns with Bhuwania’s methodology, as a prompt to think about how best to understand the PIL jurisdiction and the appropriate conception of the judicial role.

Populism Across the Board

Bhuwania makes the point early on his book that “the delegitimization of legal procedure that companied the rise of PIL in India…has actually made it easier for courts to justify and overlook departures from the basic principles of criminal procedure that mark [draconian statutes that impact civil liberties].” Gautam Bhatia’s review of the book makes a similar point. While I agree with the substance of their concerns that the Court has weakened civil liberties protections in the name of larger goals such as national security (and have written on this before here, here, and here), I would argue that this has less to do with PILs per se, and more to do with the judicial role and method instituted in the late 1970s. The judicial populism that Bhuwania describes in his book translates into distinct conception of the judicial role, and a mode of judicial reasoning that is apparent not just in PIL cases but across the board. We can take away the PIL jurisdiction without disturbing this new logic. In that sense, I take issue with the causality that Bhuwania appears to be claiming between PILs and its impact on other areas of law. Judicial populism and distrust of formalism can be seen in teleological interpretative techniques; in the subordination of fundamental rights to directive principles (and increasingly to fundamental duties); in the invocation of public interest and national interest as grounds to justify state action or deny rights (including in fields as far removed from PIL as bail law); in the rise and expansion of the SLP jurisdiction (which in the words of the Court provides “untrammelled reservoir of power incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court being subjected to only one limitation, that is, the wisdom and good sense or sense of justice of the Judges.”); and in the expansion of the Article 142 power to do ‘complete justice” from a power aimed at “ironing out the creases” at the margins to address minor procedural issues, to a “plenipotentiary power” that can be used to set aside and supplant existing laws, or even create completely new jurisdictions.

The problem is not PIL per se, but a particular conception of judicial role and particular modes of judicial reasoning that the Court resorted to in its response to the political discourses of the 1970s. PIL is as much a symptom as of this new judicial discourse as the shifts in other areas of decision making. As Bhuwania himself finds, this new role and reasoning is tethered to outcomes – outcomes that advance the goals of the state and the larger interest of the national project, and views the role of the judiciary as part and parcel of advancing these goals. Consequentialist modes of reasoning and teleological justifications have become the hallmark of judicial method across the board. As such, the shift in discourse that created PILs has also introduced expanded judicial power, a disdain for procedure, and a subordination of individual rights to broader social goals universally. The challenge then is not PIL (or only PIL), but the role conception of the judiciary and the means and methods it employs. Bhuwania’s critique needs to be applied far beyond the realm of PILs.

The Substantive Transformations of PIL

Bhuwania claims that “PIL is primarily a revolution in judicial procedure” (p.12). I disagree. The ubiquitous presence of PILs was made possible by an expanded reading of rights. The Court had to ground its jurisdiction in Article 32, which allows it to entertain original petitions from citizens only for violations of fundamental rights. Therefore, an expanded reading of the scope of rights was integral to expanding the scope of PILs. This was achieved primarily through the expansion of the scope of Article 21, through reading in directive principles and international law norms into the provision. The interpretative techniques used to expand rights (but at the same time dilute limitations thereon) were grounded in the same teleological reasoning that is at the heart of PILs. So, while on the one hand Directive Principles gave content to the “right to life” under Article 21, they were also used to expand the understanding of “reasonable” law that could limit such a right under the “procedure established by law” clause of Article 21. Similarly, while Article 19 could be given an expanded definition, laws framed to advance DPSPs were viewed as “reasonable restrictions” on such rights. Both types of interpretations – of the scope of the right, and the extent of its limitation – were achieved through the same interpretative technique. This interpretative technique has expanded the power of the judiciary (by extending the kinds of claims that they can entertain), but at the same time expanded the power of the state to side-step fundamental rights. Ironically then, the expansion of rights has made rights less meaningful for the citizenry. This too, is part of the PIL story, and is likely to get lost in focusing only on the procedural aspects of PILs.

Process, Public Power, and Accountability

Bhuwania argues against Bhagwati’s consequentialist view of PILs. He opposes the idea that PILs can be evaluated only on the basis of whether one agrees with their outcomes. This, he finds, is a recipe for disaster – such a reading is what makes “bad” PILs possible in the first place. To make his argument, Bhuwania makes a strong case for the importance of process.

It is easy to misread Bhuwania as setting up a binary between process and substance, principally because he does not explain the value of process except as demonstrated through his case studies where the failures of process led to bad outcomes. I don’t read him as setting up such a binary but I do think it is important to explicate the substantive values underlying procedural norms. As Bhuwania shows through case studies, these values – of fairness, representation, participation, non-arbitrariness, etc – ought to be discarded at our own peril. Where Bhuwania does not venture, however, is the institutional value of process and the importance of norms and procedures as accountability mechanisms. Courts are public institutions, enjoying and dispensing public power, and therefore should be accountable to the public for the decisions they make. The major constraint on judges and a source of their accountability is the requirement for public reasoning in conformity with publicly available norms and procedures. Thus, process has value beyond its impact on outcomes. Without such institutional controls, we rely on blind faith in judges rather than holding them accountable to publicly accessible standards.

Two Methodological Concerns

Bhuwania’s case studies deal with PILs relating to urban governance in Delhi. He does not explain why these cases exemplify problems with PILs across the board. Further, and more importantly, Bhuwania’s case studies –the Delhi Vehicular Pollution case, the Delhi Industrial Pollution case (in its many iterations), and Delhi Slum Demolition cases – are all instances of bad process and bad outcomes. They instantiate Bhuwania’s points about the ways in which procedural safeguards are given a go-by in PILs and the impact that this has on the lives of those affected. Missing in this narrative are the counter-factuals that would explain why these cases were able to achieve what they did. Take for example Vishaka – by most accounts a good PIL in terms of its outcome. Why is it that the Vehicular Pollution case was able to wreck havoc on public transport in the city but Vishaka, despite its widespread celebration, had little impact on the daily lives of women? Why is it that the courts were able to get the state to take swift action in Bhuwania’s case studies (expect in parts of the Industrial Pollution case), but failed drastically in the implementation of the Vishaka guidelines so much so that the Supreme Court was itself in violation of the guidelines for 16 years?

Another example is the ongoing AADHAR litigation where the government is flouting the Court’s orders with impunity. What accounts for the devastating and immediate impact of some orders, and not of others? Is there a story to be told here about actors outside the judicial realm that make PIL possible? I believe there is a need to develop non-institutional accounts of PILs – of the ways and means through which the pronouncements of courts are enacted upon the lives of people, and the modalities through which they are resisted. In such a telling, PILs are not only about judges or amici, and change happens not only because judges decree it, or wield extensive contempt powers. The impact of PILs often stems from reasons beyond the judicial realm such as political will, consonance with dominant ideologies, etc. In Bhuwania’s own examples, he narrates the importance of particular political dispensations and executives who were in tune with the court’s own approach to urban governance – and the impact this had on the implementation of court orders. In this sense, it is not only the process of PILs that makes specific kinds of politics possible. PILs are as much about the out of court personnel and indeed the ideological realm in which the order is received. Counter-factuals like Vishaka, etc would have enabled such deeper interrogation of the operation of PILs.

Finally, if we agree with the problems posed by PILs, what is the alternative? Bhuwania argues for a judicial role conception grounded in John Hart Ely’s influential theory of representation-reinforcement – the idea that the proper scope of judicial review is to facilitate the working of the democratic process. Judicial intervention in decisions of the elected branches of government should be limited to those instances where the democratic channels are ineffective, and the mode of intervention should be such as to ensure that these channels are open to democratic practices. Those who are likely to be perpetual losers in majoritarian processes – like discrete and insular minorities – should receive greater attention and “heightened judicial solicitude” to ensure that their rights are protected within the democratic sphere.

Bhuwania unfortunately does not explain why Ely’s formulation of the judicial role is suitable for the Indian judiciary. It is important to recall that Ely’s work is part of a series of interventions that were responding to Alexander Bickel’s concerns about the “counter-majoritarian” difficulty in judicial review in the American context. Ely theory was formulated as a response to this legitimacy concern regarding judicial review. The entire model – the legitimacy concern as well as responses to it – are grounded in a very Anglo Saxon conception of the relationship between state and citizen and judiciary and other branches of government. As Bhuwania himself outlines in his initial chapters, India (and indeed many post-colonial constitutional orders) have adopted a different, more interventionist conception of the state. Why is this restrained model of judicial intervention appropriate for judiciaries in such states?

Bhuwania makes the point that just as we should not buy into the Anglo-Saxon model of judicial review simply because it provides a readymade template, we should not also celebrate departures from the model only because it is a departure. While this is true, and it is not my argument that the Indian experience is “incomparable” or that we cannot learn from Anglo-Saxon jurisdictions, there are other models that are more suited as comparators for India. The growing literature on global south constitutionalism which seeks to locate the role of courts in the particular political and material realities of third world countries might be more a relevant interlocutor on the issue of the appropriate role of the judiciary. After all, context does matter, even if it isn’t everything.

(Aparna Chandra is an Assistant Professor of Law and Research Director, Centre for Constitutional Law, Policy and Governance, National Law University Delhi. She teaches constitutional law, constitutional theory and human rights)

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3 Comments

Filed under Book Discussions, Courting the People, Public Interest Litigation, Uncategorized

3 responses to “ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – III: Aparna Chandra on Substance and Process

  1. Pingback: Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – IV: Suhrith Parthasarathy on the Case for the Defence | Indian Constitutional Law and Philosophy

  2. Pingback: ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – V: The Author Responds | Indian Constitutional Law and Philosophy

  3. Pingback: ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ — Roundup | Indian Constitutional Law and Philosophy

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