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Book Review: A Question of Design — Chintan Chandrachud’s “Balanced Constitutionalism”

In 1996, a three-judge bench of the Supreme Court was called upon to decide the constitutionality of certain provisions of the Chota Nagpur Tenancy Act of 1908, which effectively excluded women from inheritance in certain areas in Bihar. In Madhu Kishwar vs State of Bihar, a majority of the Court observed that “nonuniformities would not in all events violate Article 14“, and that it was refraining from striking down (this very obviously discriminatory Act) “as this would bring about a chaos in the existing state of law.” Instead, the Court issued “directions” the State of Bihar to “comprehensively examine the question on the premise of our constitutional ethos and the need voiced to amend the law.”

Madhu Kishwar vs State of Bihar is an almost incomprehensible judgment to those who think of judicial review as being about protecting fundamental rights and invalidating legislation that violates those rights. The Court upholds a statute with reasoning that would ensure a failing grade in Constitutional Law 101:

“… an activist court is not fully equipped to cope with the details and intricacies of the legislative subject and can at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading it to awaken, march and reach the goal… however much we may like the law to be so we regret our inability to subscribe to the means in achieving such objective. If this be the route of return on the Court’s entering the thicket, it is for better that the court kept out of it. It is not far to imagine that there would follow a bee-line for similar claims in diverse situations, not stopping at tribal definitions, and a deafening uproar to bring other systems of law in line with the Hindu Succession Act and the Indian Succession Act as models.” 

What has any of this got to do with the Constitution, you might ask. In a new book called Balanced Constitutionalism, Chintan Chandrachud argues that judgments of this kind are a feature, rather than a bug, of constitutional systems ostensibly committed to judicial supremacy (that is, Constitutions that grant the judiciary the last word on the meaning and scope of constitutional rights). It is unrealistic to think – or to hope – that judges will not decide cases with a view to the potential practical consequences (even though their protestations are generally to the contrary, and Madhu Kishwar is a bit of an outlier in that “social chaos” is made an express ground for upholding an Act that otherwise appears to violate the Constitution). And when judges are faced with a stark choice between upholding a law or striking it down, they will hesitate from choosing the latter option when it would lead to great disorder in the legal system. In such situations, Chandrachud argues that judges will “mask” their rights-reasoning (that is, their genuine understanding of whether or not the impugned statute violates rights) in order to achieve a sustainable outcome. The system of judicial review-judicial supremacy, therefore, constrains judges from giving effect to their genuine understanding of what the Constitution requires, and crimps judicial reasoning in important constitutional cases.

Introduction

What is the alternative, you might ask. Surely not Parliamentary supremacy, where rights are reduced to “playthings of the majority“? No: the comparison Chandrachud draws is not with pure Parliamentary models, but with the “hybrid” or “balanced” model, the best example of which is the United Kingdom. In the UK, the Human Rights Act effectively codifies the European Convention of Human Rights into domestic law, and allows the Courts to issue a “declaration of incompatibility” in situations where it is absolutely impossible to reconcile domestic legislation with a Convention right (the structure and mechanics of the Human Rights Act are explained by Chandrachud in the opening chapter). A “declaration of incompatibility” is not tantamount to striking down a law: in fact, it has no legal force at all. In theory, the UK Parliament can entirely ignore a declaration of incompatibility, and presumably, the only potential cost will be the (debatable) political cost of having clearly defied a court’s finding that domestic law violates a binding international convention. However, as Chandrachud points out, practice invariably departs from text. Balanced Constitutionalism, then, is a comparison between the UK and Indian constitutional models as they work in practice. As the first comparative analysis of this kind (between two Parliamentary systems, one of which follows the old judicial review model, and the other the new hybrid model), it marks an important point of departure, and will hopefully provide fertile ground for the continuation of what is an important and long-overdue conversation.

Chandrachud’s comparison between the UK and the Indian models proceeds along two metrics: which model, he asks, allows Parliament more freedom to articulate its “genuine understanding” of rights? And which model allows Courts more freedom to do the same? The model that “wins” on these metrics is the more “balanced one” (the underlying assumption, of course, is that the separation of powers in a parliamentary-constitutional democracy works at its best when both organs – the parliament-executive and the judiciary – are able to articulate their understandings of constitutional rights most freely.

What Parliaments Do 

Chapter One of Balanced Constitutionalism lays out this basic normative argument. Chapter Two discusses the range of political options available to the Indian and UK Parliaments in cases where Parliament wants to respond to the exercise of judicial review. In India, responses include constitutional amendments (after Kesavananda Bharati, constrained by the basic structure), placing laws in the Ninth Schedule to the Constitution, which makes them immune from a fundamental rights challenge (after I.R. Coelho, also constrained by the basic structure, although Chandrachud draws an important distinction between Ninth Schedule basic structure review and fundamental rights amendments basic structure review), passing Ordinances, and of course, filing review and curative petitions in the Supreme Court itself. To Indian readers, this is a familiar story, and Chandrachud’s account is comprehensive. As far as the UK is concerned, Chandrachud argues that, contrary to first impressions, “the space for political responses to declarations of incompatibility is much narrower than that which is assumed” (p. 64). This is not only because of a political climate in which judicial opinion is given great weight and respect, but also because judges themselves are strategic actors par excellence when deciding whether to issue declarations of incompatibility. Chandrachud shows how such declarations are often issued when there are already existing proposals to amend the impugned law, and are sometimes accompanied by “soft suggestions” to Parliament about what route the amendment might take to address the incompatibility. The result is that “responses to declarations of incompatibility have been made either through remedial orders or primary legislation in almost every instance” (p. 83), and State action after a declaration of incompatibility has focused on “how to act“, rather than on “whether to act at all.” This situation is heightened by the existence of the European Court of Human Rights at Strasbourg, which also has the power to find the UK in breach of its obligations under the ECHR. The possibility of a declaration of incompatibility being followed up with the initiation of proceedings before the ECHR provides further incentives to the State to act in response to such declarations.

This suggests, therefore, a convergence between the two models. In India, where judicial supremacy (ostensibly) holds sway, Parliament has developed a range of responses to ensure that it is not merely a passive actor when it comes to interpretation and application of rights. In the UK, where Parliament seemingly has unbounded discretion to respond or not to respond to the Courts’ interpretation of rights, actual practice reveals that the discretion is curtailed due to a range of institutional factors. In Chapter Three, Chandrachud focuses the question further by asking which model of judicial review “engenders a more balanced allocation of powers” (p. 97). After teasing out some of the different ways in which the two Parliaments have actually responded, Chandrachud focuses on what he calls the “Time Factor“: how long does it take for Parliament to respond to, or revise, judicial understanding of rights? Through graphs, Chandrachud demonstrates that – counterintuitively – “the Indian Parliament’s response time is slightly quicker than the Westminster Parliament’s response time.” This undermines the suggestion that the hybrid UK model is “better” than the Indian judicial review model because it allows greater ease of response to Parliament. Chandrachud concludes that on the Parliamentary metric (see above) neither jurisdiction “wins” over the other.

What Courts Do 

In Chapter Four, Chandrachud turns to the Courts. His argument – which I highlighted at the beginning of this review – is that the Indian Supreme Court operates in the “shadow” of its power to strike down law. Perhaps paradoxically, it is the existence of this power – and the inevitability of its usage consequent to the finding of a rights violation – that prompts the Court to “mask” its true understanding of fundamental rights in a manner that does not happen in the UK. To make this point, Chandrachud compares three sets of cases. First, in Namit Sharma vs Union of India, while responding to a constitutional challenge to various provisions of the Right to Information Act on grounds of Article 14, the Court backtracked on its own previous findings of presumptive unconstitutionality – followed by some creative “reading in” of principles into the text of the statute to save it – and ended up upholding most of the Act even while expressing unease about its compatibility with Article 14. In R v Thompson, on the other hand, the UK Supreme Court issued a declaration of incompatibility with respect to a provision of the Sexual Offenders Act that put offenders on notification requirements for life, without possibility of review. Chandrachud argues that the Right to Information Act and the Sexual Offenders Act were similar insofar as they were both of recent vintage, qualified as “social reform laws”, were deemed to be “landmark” laws by Parliament, and – perhaps most importantly – set up complex statutory regimes to deal with a social problem. What this meant was that invalidating a provision of either of the Acts would have a ripple effect upon the system as a whole. Here, the Indian Supreme Court was unwilling to cause legislative disturbance on such a scale, while the UK Supreme Court had no similar compunctions, because a declaration of invalidity would not invalidate the statute.

Chandrachud makes a similar argument when comparing Koushal vs Naz and Bellinger vs Bellinger. He attributes the recriminalisation of homosexuality by the Indian Supreme Court in Koushal to its fear that, by striking down Section 377 of the IPC, there would be a legislative vacuum as far as child sexual offences were concerned; on the other hand, in a case involving the right of a transsexual person to a post-operative marriage with a person (now) of the opposite sex, the UK Supreme Court had no difficulty in holding that the relevant provisions of the Matrimonial Causes Act, which only contemplated marriage between parties respectively “male” and “female”, were incompatible with the Human Rights Act. Chandrachud argues that what united these cases was the consequence that there would be a “series of effects across the legal system” in case the provisions were invalidated. Here again, the impossibility of “invalidation” allowed the UK Supreme Court to interpret rights with full freedom, while the Indian Supreme Court “masked” its reading of rights.

And lastly, Chandrachud compares Kartar Singh vs State of Punjab with the Belmarsh Prison Case. In the former, the Indian Supreme Court upheld an anti-terror statute that allowed for a wide departure from the rights guaranteed to accused persons under the CrPC and the Evidence Act, despite voicing unease with the legislative measures in question. At the same time, Belmarsh was also an anti-terror case, where the UK SC found that certain detention provisions of the Anti-Terrorism, Crime and Security Act, passed in the aftermath of 9/11, were incompatible with the Human Rights Act. Here, the argument is obvious: the possibility of a vacuum in anti-terror laws was a prospect that the Indian Supreme Court could not stomach.

Through these cases, Chandrachud makes the point that the Indian Supreme Court is constrained in its rights-reasoning in a manner that the UK SC is not, because of the consequences that accompany a finding that a particular statute violates constitutional rights. He goes on to argue that the Indian Supreme Court is constrained from fashioning new and effective “remedies” that go beyond the binary of striking down/upholding because of the text of the Constitution (which does not envisage such innovations) as well as institutional constraints (Parliamentary inaction despite judicial advice to amend or modify a statute).

This is an important point, and I would like to briefly extend it: in fact – as Chandrachud notices – the Supreme Court has tried to fashion new remedies, often relying upon Article 142 of the Constitution. These include the now-legendary “continuing mandamus”, and of course, the ubiquitous “guidelines”. In fact, Kartar Singh – and other similar cases – buttress Chandrachud’s argument in an even stronger fashion than is expressly acknowledged in the book: the very fact that the Supreme Court is compelled to pass “guidelines” is evidence of that fact that it has found a constitutional infirmity (whether it admits it or not), and is trying to cure that infirmity by substituting itself for the legislature (or the Executive, as the case may be), instead of having to perform its constitutional function of striking down the law. And of course, there is a very good reason why this simply does not work: the Court is venturing into fields (legislation or administration) that it is fundamentally unsuited to be in. That, however, is an ongoing debate: the point here is that the ubiquity of guidelines is further evidence of the Court’s “masking” its rights reasoning: (legislative) guidelines instead of (judicial) invalidation has come to define the Court’s constitutional responses.

In his last chapter, Chandrachud looks at “collateral institutions” (the JCHR in the UK and the European Court of Human Rights, and the National Human Rights Commission in India), and finds – unsurprisingly – that the robustness of the former is matched by the toothlessness of the latter. He concludes, therefore, by arguing that the UK model is a more “balanced” model of constitutionalism than the Indian, on the singular metric of the extent to which Courts can freely articulate their genuine understanding of constitutional rights.

Thinking Through Issues of Design 

Balanced Constitutionalism is an important book in that it goes beyond an analysis of constitutional doctrine, and places adjudication – and constitutionalism – in its political context. Ever since Ronald Dworkin’s Taking Rights Seriously, there have been complaints that constitutional theory is too focused on appellate Courts, and ignores the role of the other organs of State. Chandrachud avoids that trap: his book is about the relationship between Parliament and the Courts, and gives equal weightage to Parliamentary debate, statutory amendments, and legislative responses and non-responses, as it does to judgments.

This helps us to understand that court judgments ought not to be read in a vacuum, but as part of an existing political ecosystem that conditions and structures the way judges act. Balanced Constitutionalism demonstrates that when we do this, the results may be surprising and counter-intuitive: systems that are formally very distinct can converge at unexpected places, and diverge at still more unexpected places. We think that the UK Parliament is supreme, and the text of the Human Rights Act suggests that, but in practice, we find that it is about as constrained as the Indian Parliament in its response to adverse judgments. And, on the other hand, we may think that a system of judicial supremacy vests great power in courts; but it turns out that the very existence of this power creates a reluctance to use it, and constructs constraints that, in some ways, are even more cloying than in systems where the power doesn’t even exist. Balanced Constitution, therefore, pushes us to think more deeply about crucial issues of constitutional design, how constitutional design is embedded in the political structures of a society, and how that – ultimately – impacts outcomes.

Points of Disagreement

In conclusion, I would like to point to two arguments where I disagree with Chandrachud.

(a) Koushal vs Naz

I believe that Namit Sharma and Kartar Singh illustrate Chandrachud’s point about the Court “masking” its rights-reasoning well. However, Koushal vs Naz does not. Chandrachud suggests that the Supreme Court upheld Section 377 because of its fear of a legislative vacuum that would allow child sexual abuse to go unpunished. This is, indeed, mentioned at one point in the judgment but, in my view, was pure eyewash by the Supreme Court. This is not only because the 2013 amendments to the IPC covered the issue (which Chandrachud points out), but also because the case was never about whether S. 377 should be struck down. The High Court had only “read down” the Section to exclude consenting same-sex intercourse between adults in private; for the rest – including child sexual abuse – 377 continued to exist. Consequently, the core of Chandrachud’s argument – that rights-reasoning is masked because of the consequences of striking down – doesn’t work for Koushal, because the case was never about striking down at all.

Secondly, it is difficult to read Koushal as a case where the Supreme Court believed a statute was unconstitutional, but didn’t strike it down because it was afraid of the consequences. Everything in the judgment suggests the exact opposite: the Court refused to return any finding on Article 21 (the right to privacy) and Article 15(1) (the right against discrimination on grounds of sex), and spent exactly two paragraphs in a 98-page judgment dealing with Article 14. In its Article 14 analysis, it held that S. 377 punished acts and not persons, and therefore there was no issue of inequality. The poverty of this line of reasoning has been discussed extensively by now, and I don’t want to go into it here; the basic point is that the Court very clearly believed that S. 377 did not violate fundamental rights, and this is more than clear by a re-reading of its notorious labels: “the so-called rights” of the minuscule minorities.” Chandrachud does hint towards the end of his discussion that the Court was guided by ideological considerations; however, I think that on a dispassionate reading of Koushal vs Naz, there is no other way to describe it other than an utterly bigoted judgment, where contempt for rights is clear and evident, rather than Chandrachud’s reading of an uneasy Court trying to reconcile its sense that the statute was unconstitutional with the consequences of striking it down. This is not to say that the argument is incorrect; indeed, Madhu Kishwar vs State of Bihar (in my view) is an excellent example of a case in which the Court expresses its unease in clear terms, but upholds a law because of the possibility of “social chaos”.

(b) Response Time

Chandrachud argues that the time taken by Parliaments to respond to adverse judicial decisions is an important indicator in determining how free they are to articulate their understanding of rights. However, I believe that his actual discussion comparing India and UK leaves out a few important variables: for instance, response time is affected by the quality of deliberation, and there is no doubt that, at present, because of various structural and institutional features, the quality of legislative deliberation is much better in the UK than it is in India (Chandrachud himself mentions plenary bottlenecks at various points). Furthermore, response time is surely affected by the anti-defection laws, which spares the ruling party the necessity of having to convince its own back-benchers to vote for a (possibly controversial) law. Consequently, it seems to me that simply comparing response times without taking into account these other factors does not do enough for the argument that Chandrachud is trying to make.

Conclusion

In sum, therefore, Balanced Constitutionalism presents an detailed comparative analysis of the systems of judicial review in the UK and in India. The obvious commonalities between the two Parliamentary democracies make this comparison a topical and important one. Going forward, Balanced Constitutionalism will undoubtedly be a point of departure for discussions about constitutional design, and the relationship between design and how Parliaments and Courts interact over issues of rights adjudication.

Balanced Constitutionalism is available to purchase here.

(Disclaimer: The writer of Balanced Constitutionalism is a friend of the author).

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Book Review: Kenji Yoshino, A Thousand Times More Fair: What Shakespeare’s Plays Teach Us About Justice

(This is a Guest Post by Danish Sheikh, a researcher and advocate at the Alternative Law Forum, primarily working on sexuality and anti-discrimination law. He recently co-taught a course titled “Measure for Measure: Themes of Justice in the Plays of William Shakespeare” at NUJS, Kolkata. Email address: danish@altlawforum.org; Twitter: @dsheikh726)

I first encountered Kenji Yoshino’s A Thousand Times More Fair: What Shakespeare’s Plays Teach Us About Justice more than two years ago, as a relative Shakespeare novice. I flipped it open to the chapter on Merchant of Venice, the only Shakespeare play I’d engaged with textually at that point, and was electrified. Portia, fair Portia, heretofore my beacon of lawyerly virtue was being eviscerated by the author with the most measured grace. Turning to the chapter on Othello, I further relished Yoshino’s evincing of parallels with the trial of OJ Simpson – how novel, I remember thinking.

Two intervening years marked by increasingly fervent Bardolatry that culminated in co-teaching a course on Shakespeare and Justice have somewhat dampened my views on Yoshino’s work. I cannot anymore term it an outright success, but it has enough engaging readings of the plays and infectious enthusiasm for it to earn a recommendation. But first, why Shakespeare and the law?

Well, for one, Shakespeare’s life was permeated by legal institutions. As the son of the high bailiff of Stratford he was born into a world where the legal trial existed as a communal spectacle. As an Elizabethan playwright making his fortune in London, he was often called upon to stage productions in the Inns of Court and the Royal Courts. When John Madden’s Shakespeare in Love ends with the queen commissioning ‘something more cheerful’ for Twelfth Night, it is a winking reference to records of an actual production of the play that took place in the Court.

Unsurprising then, that his plays have much to say about the law and justice. Trials and legal symbolism abound both within the courtroom and out – Shylock’s suit against Antonio in Merchant of Venice; the ocular proof of the heroine’s chastity in both Othello and Much Ado About Nothing; the love trial at the start of King Lear and the mock hate trial near its close, to name a few.

If the output of critical work on Shakespeare is gigantic – George Steiner noted back in 1964 that it requires a fair-sized library to house the critical canon – scholarship on Shakespeare and the law comprises a small subset of this work. Where early Shakespeare-and-law scholarship tends to skew towards a dry analysis of the representation of the law in the plays, later efforts more creatively work through legal themes both explicit and implicit. What often remains lacking is a unified authorial vision of themes of justice across Shakespeare’s different works. Most of the writing exists piecemeal, in anthologized compilations that bring together vastly different styles and approaches. There’s a measure of satisfaction that comes from watching an author make their way across the varying Shakespearean narratives, and it’s something that Shakespeare-and-law scholarship just doesn’t have enough of.

Yoshino’s book then is a welcome addition to the canon. The central conceit is simple: nine plays, that cut across a cross-section of genres, each with a dedicated chapter that fleshes out a core theme related to ideas of justice. This is usually followed by linking the play to a contemporary problem that the author feels helps us better illuminate both. Yoshino simultaneously limits and expands his enterprise at the outset. “I do not have a definition of justice” he tells us, thus taking away from us the expectation of a central argument. What he does instead is pick up on a different theme with each play: for Titus Andronicus it is revenge and the rule of law; for Merchant of Venice it is the figure of the lawyer as the corrupter of discourse; for Hamlet it is the perils that are fraught in the delay of justice.

The book is at its best when Yoshino chooses to engage purely with the texts of the plays – I’ll go back to the two I began with. In the Merchant of Venice chapter, we find the author working through the prevailing mistrust of lawyers as skillful rhetoricians by looking at the figure of Portia. Long admired as the model lawyer and gifted with one of Shakespeare’s most quoted speeches as she beseeches Shylock towards the quality of mercy, Portia tends to walk away a perfect heroine. Yoshino is more skeptical – through a reading of three key passages corresponding to three trials in the play, he points out how Portia repeatedly runs rhetorical circles around her competition. “A hot temper leaps o’er a cool decree” she tuts at her dead father’s somewhat unreasonable will before going on to cannily subvert it. Next of course, is the famous flesh trial of Antonio, where she intervenes with one of the most painfully literal readings of a bond in contractual history. Finally, there is the trial of the ring where she hoodwinks her husband into parting with the ring she herself has given him in a test of his loyalty. As the play progresses, Portia gradually rises in her manipulation of the law, so that, as Yoshino notes: “I initially admire Portia because only she can stop Shylock. By the play’s end, I wonder who can stop her”.   Whatever be the document that binds her, fair or foul, she manages to will her way out of it – a lawyer so verbally proficient that ultimately no law can bind her.

From a play rooted in the rule of law to Othello, which is merely haunted by the specter of justice. This is again a play that stages a trial, except one that happens in closed chambers and without the chief accused’s testimony. What Yoshino is concerned with examining is the manner in which the play contrasts two kinds of fact-finding – one that is communal and rational, and one that is isolated and impassioned. The former is seen in the tribunal that grants Othello leave to be with Desdemona at the start of the play; the latter in Othello acting as judge, jury and executioner to Desdemona based upon Iago’s spurious evidence. As I have noted, this is fairly engaging material, and was even more exciting to me initially without much prior knowledge of Shakespeare.

The problem comes when Yoshino tries to link each play to a contemporary narrative – or, in some cases, simply a larger theme. The opening chapter attempts to link the revenge fuelled blood-feuds in Titus Andronicus to the post 9/11 war on terror. The escalating cycles of revenge in the play are contrasted with the attack of Afghanistan and then Iraq. Does this serve to better illuminate the war on terror? Not quite. Does it serve to contemporize Shakespeare in a productive way? Only if one is ready to leach away much of the complexity of the narrative.

For that matter, let’s go back to the Merchant of Venice example. So intent is Yoshino on making his point on the evils of rhetoric-abusing lawyers that he ends up flattening out the wonderfully layered character of Portia, who ultimately does save a man from death. It isn’t such a crucial point then that Portia stands in for lawyers and lawyers inevitably corrupt discourse – for then we’d have to see the counter of Isabella in Measure for Measure, another character advocating for mercy, and actually exhibiting it. The strain in making the plays accrue to one core theme is most egregious in his chapter on King Lear: what begins as an absorbing discussion of the two trials animating the play ends with the baffling generalization that the play prepares us for the inevitability of death. This is certainly not a point that we need King Lear to illuminate for us, and attempting to affix that particular meaning to this particular play robs both of much of their heft.

One of the great joys of doing law and literature is discovering the mutually generative reaction that the two disciplines have on each other. If literature allows us to open out new worlds within the singularity of the law, the law also allows us to give a kind of shape to literature, to excavate narratives that may have otherwise floated past cognizance. One would expect a book on Shakespeare and Justice that aims to speak to the contemporary to then provide an illumination both on the plays themselves as well as the issue they’re purportedly speaking to. Instead, Yoshino’s framing works to chip away meaning where it should supplement or transform it.

My other more minor quibble lies more broadly with the books featured choices – not so much what it puts in but rather what it leaves out. Of the 9 plays covered, 5 are tragedies, along with one representative each from the comedies, problem plays, romances and histories. And yet the title of the play comes from a comedy; a delightful verse from the Merchant of Venice spoken by that wily lawyer Portia herself:

“You see me Lord Bassanio where I stand,       

Such as I am; though for myself alone             

 I would not be ambitious in my wish           

To wish myself much better, yet for you,             

I would be trebled twenty times myself,             

A thousand times more fair …”

As he notes in the book’s epilogue, Portia use of these words captures a quietly extraordinary thought: our desire, when we entire a community of love, to be better people than we are. In other words, the notion of how love might draw us towards justice. This is an idea that tends to be fore-grounded in Shakespeare’s comedies with their love-shook plots, and with their marginalization in this book, Yoshino leaves this tantalizing thought under-developed, in the pursuit of slightly more weather-beaten ideas of justice.

And yet, despite its flaws, A Thousand Times More Fair teems with absorbing readings of Shakespeare’s sparkling verse. It’s a book that deserves to be engaged with, and certainly one that will spark many an impassioned debate amongst those interested in the law, regardless of their prior knowledge of Shakespeare. Ultimately, if we are going to be arguing about the law, why not do it with words that are “fretted with golden fire”?

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Book Review: Kalpana Kannabiran, “Tools of Justice”

Tools of Justice: Non-Discrimination and the Indian Constitution, Routledge 2012, available for purchase here.

This is a densely-argued, interdisciplinary work, focusing on non-discrimination under the Indian Constitution. The overall framework of the book centres upon Articles 15 and 21, and the link between discrimination and the deprivation of liberty. The materials that Kannabiran works with are historical, sociological, anecdotal and legal. Discrimination is examined from the perspective of numerous constituencies: disability, caste, sex, ways of life (adivasis/tribals), religion, and sexual orientation.

Clocking in at 450 pages, an overall survey in a brief review is close to impossible. What I will focus upon is a few of the key, important themes that emerge out of the text.

(i) Norm and Nature: Throughout the course of the book, Kannabiran demonstrates how the Indian judiciary, when examining discrimination cases, operates with a set of political and ideological norms, which it considers as natural. A claim of discrimination will succeed if the Court perceives that the differential treatment violates this norm, and it will fail if the Court is of the opinion that it coheres with the norm. The starkest examples are present in cases involving sex-determination. Kannabiran shows how the Court’s judgments are repeatedly driven by a set of ideas about the role that men and women do – and ought – to play in society, as well as their aptitudes and talents: women’s primary role lies in the domestic sphere, as carers, while the role of men is to actively participate in the exchange economy. Therefore, for example, where workplace regulations attach disabilities (loss of job, downpayment etc.) to pregnancy, they have been upheld by the Courts (as reinforcing the norm of the separate spheres occupied by men and women).

In other realms, it is more difficult to isolate the norm, as well as its political foundations, perhaps because the norm has become more deeply ingrained in our consciousness as natural. For instance, in the case of caste-based reservations, the Supreme Court has justified reservations on the ground that they fulfill a vision of substantive equality as opposed to mere formal equality (N.M. Thomas), and has then sought to balance the demands of substantive equality with the goal of maintaining efficiency in the civil services (Article 335 of the Constitution). The unarticulated major premise underlying this set of cases is that “efficiency”, as a normatively desirable goal, has certain requirements, which are best fulfilled through “merit-based” selection procedures. Kannabiran skilfully interrogates the assumptions that ground this idea of merit; in this way, what comes out is the fact that understanding reservations as a departure from the basic requirement of efficiency-through-merit, which must then be justified by the principle of substantive equality (and thereby putting limits on the quantum of reservations), is simply one, consciously-chosen framework that automatically defines and restricts the manner of arguments that can be made. This comes out with particular clarity in the Balaji decision, where Kannabiran points out that despite studies showing that reservations had no discernible impact on efficiency, the Court was so firmly in the grip of this belief, that it simply dismissed the findings, and created a legal fiction to the effect that reservations were simply bound to have an effect on efficiency, whatever the studies actually said.

Similarly, in disability law in the workplace, the norm is that of the “able-bodied worker”; the Courts never challenge that assumption that links the actual needs of the workplace (and associated concepts of efficiency, profit-making etc.) and the requirement of being able-bodied, and therefore miss the fact that (quoting Minae Inahara) “[the] binary categorical system which defines disability in opposition to an able-bodied norm and suggest[s] that the disabled body is a multiplicity of excess which undermines this able-bodied norm… the complexity of disabled ability does not fit into able-bodied notions of ability.” 

(ii) The Transformative Constitution: A crucial point that Kannabiran makes at the beginning of her work, and returns to repeatedly, is that the interpretation of constitutional provisions cannot be untethered from its historical context, and the goals and values that the framers were seeking to achieve. Previously on this blog, we have discussed extensively the interpretive issues that arise in the case of a “transformative Constitution” – i.e., a Constitution that is written with the express goal of transforming the political institutions or values of a society. Kannabiran points out that the purpose of the Constitution was to create “an order that displaces the unfreedoms internal to the society as well as the unfreedom of colonization… the constituent assembly, in recognition of the fact that the constitution was being introduced in an unequal and discriminatory society, debated and drafted the constitution with the explicit purpose of dislodging the status quo.”

This has important interpretive implications for the interpretation of colonial-era statutes, as well as questions of clashes between fundamental rights and a claimed public morality (where the argument is to restrict or narrow the scope of fundamental rights so that they cohere with public morality – an argument made in Naz Foundation). For instance, it is questionable whether colonial-era statutes, based upon an entirely different set of values, should enjoy the presumption of constitutionality; and, as Kannabiran points out, it becomes rather problematic when the Court, in some of its judgments, invokes the authority of Manu as a “lawgiver”, given that, arguably, one of the goals of the Constitution was to reverse the hierarchical and stratified nature of society, which, in theological imagination, is believed to owe its existence to the edicts of Manu.

This issue, however, requires far more historical excavation than is provided in the book. It is trite wisdom that no period, however revolutionary, marks a complete break with the past. Every Constitution has transformative as well as conservative elements. For instance, in the recent Tax Tribunals judgment, the Court was probably right when it held that the “Westminster model of governance”, in the specific context of judicial independence and the separation of powers, was a continuation from colonial times – and that therefore, the interpretation of constitutional provisions setting out the structures of governance would be enriched by turning to common law. Thus, we must be wary of too facile an invocation of the “transformative Constitution”: each interpretive claim must be backed up by rigorous historical reasoning.

(iii) Historical retrieval: The most interesting aspect of this book (for me) is Kannabiran’s challenge to the dogma that concepts of equality, anti-casteism, women’s rights, and so on, are imported Western concepts, and that in interpreting the Constitution, due regard must be paid to indigenous ideas of nature and society. There are two ways of responding to this claim, both of which were invoked by critics of the Supreme Court’s Koushal judgment last year. One is to argue that these “traditions” ought to play no role in constitutional interpretation; the constitution has explicitly committed itself to political liberalism through its bill of rights, judicial review and other such substantive, as well as structural, provisions. The other is to take the claim from tradition head on, and argue that it rests upon a narrow and cribbed reading of Indian history, religion and philosophy. In Tools of Justice, Kannabiran takes the latter tack. She argues that throughout Indian history, there have been powerful, dissenting Indian voices against the caste system, inequality, sexual subordination, and so on. Drawing upon the Bhakti movement, Kabirdas, Periyar, and many others, she argues that if, indeed, we are going to take into account Indian history, religion and philosophy when we interpret the meaning of our Constitutional guarantees, then this particular history has as much a claim to our attention as its opposite, dominant strand.

In his six modalities of constitutional interpretation, the legal scholar Philip Bobbitt lists tradition as one of them. In American constitutional jurisprudence, the Supreme Court treats as suspect any legislation that impinges upon rights that are “deeply rooted in American history and tradition” (e.g., the right to jury trial). Insofar as tradition is – and has been – a tool of interpretation invoked by the Indian Courts, Kannabiran argues for a radical re-reading of that very tradition.

These three themes, I think, make Tools of Justice stand out as a highly important and relevant work of recent times. I do feel, however, that often the book falls short of the goals that it lays out in its theoretical and methodological framework. It presents detailed sociological and historical analyses of caste and sex discrimination, for instance, but does not tell us – or at least, does not adequately tell us – the implications that would have for constitutional interpretation, or how it would change the outcome in specific cases. The idea of weaving in sociology and history into constitutional interpretation is a laudable one; but there must also be a distinct, legal peg on which to hang them. Or, in other words, there should be legal, interpretive tools – tools within the legal tradition that can justify and create a space for sociology and history to enter into our analysis of constitutional provisions and cases. It is in this respect – that is, in linking sociology, history and law into one, coherent interpretive scheme that is legally defensible – that Tools of Justice sometimes falls short. But for all that, it is a book that repays close study, and is highly recommended.

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Book Review: Giorgio Agamben, State of Exception

(One of the classic Constitutional chestnuts is the story of how Ambedkar believed that Article 356, which provides for emergency powers, would never need to be used, and would remain a dead letter – and how then next sixty years have demonstrated how wrong he was. Given the now-ubiquitous presence of Article 356 in national life, along with Article 370 and the use of the AFSPA throughout the country, emergency powers have now become woven into the fabric of constitutional law. In this context, it becomes important to engage with works like Giorgio Agamben’s 2005 monograph, “State of Exception”, which is amongst the most famous theoretical treatments of emergency powers in constitutional states.)

In State of Exception, Giorgio Agamben is concerned with theorising the use of emergency powers (the “state of exception”) by modern constitutional states. Ever since the German jurist, Carl Schmitt, argued that the sovereign was best understood as the entity who had the power to decide upon the state of exception, the concept has been treated as a political fact, incapable of juridical analysis. As the Stanford Encyclopedia summarises the argument:

No legal norm can govern an extreme case of emergency or an absolute state of exception. In a completely abnormal situation, the continued application of the law through the normal administrative and judiciary channels is going to lead to haphazard and unpredictable results, while preventing effective action to end the emergency… if the applicability of material legal norms presupposes a condition of normality… a polity must be entitled to decide whether to suspend the application of its law on the ground that the situation is abnormal.”

Therefore, as Agamben understands it, the justification for the state of exception is that it calls for ” a suspension of the order that is in force in order to guarantee its existence…  it is as if the juridical order contained an essential fracture between the position of the norm and its application, which, in extreme situations, can be filled only by means of the state of exception, that is, by creating a zone in which application is suspended, but the law, as such, remains in force.” He characterises this as a distinction between “norm” and “decision”; in situations of so-called normalcy, it is norms that govern action – norms that are characterised by being general, prospective, abstract – leaving very little space for individualised, particularistic decisions, based on particular facts (see this article by John Rawls for an analytical account of this distinction). In the state of exception, that relationship is reversed, and it is the decision that becomes the primary form of political action.

This reversal characterises another staple feature of the state of exception, that Agamben calls the “force of law“. The standard understanding of “law” (as we know, for instance, from Fuller) is precisely that it operates through norms – with its defining characteristics being its generality, formal equality, and so on. In the state of exception, however, Agamben points out that “decrees, provisions, and measures that are not formally laws nevertheless acquire their “force”. From a technical standpoint, the contribution of the state of exception is the separation of “force of law” from “law”. It defines a state of law in which, on the one hand, the norm is in force but is not applied (has no force), and on the other, acts that do not have the value of law acquire its force…” This distinction, and the understanding of suspended norms during states of exception, also leads to important insight that the acts undertaken during that period have no legal character – that is, they are neither transgressive (illegal) nor illegal, but exist sui generis, in a sense, beyond the reach of law (consider, for example, the immunity provisions in the AFSPA).

When we consider these features of the state of exception, and how at odds they are with our common understanding of how law ought to work, it becomes clear that – as the word “exception” would seem to signify – their only justification (if any) can lie in their temporariness and specificity. As Agamben argues, however, through the course of the twentieth century, the state of exception has become – paradoxically – the norm. He takes as his point of departure, Walter Benjamin’s famous observation in his Theses on History:

The tradition of the oppressed teaches us that the ‘state of exception’ in which we live. We must attain to a concept of history that accords with this fact. Then we will clearly see that it is our task to bring about the real state of exception, and this will improve our position in the struggle against fascism…”

While Benjamin was writing in the context of Nazi Germany (a twelve-year state of exception), Agamben locates the change at the beginning of the 20th century (although the concept of the state of exception itself, he traces from the Roman practice of iustitum, through the French Revolutionary Constitution, and its Napoleonic successors), where the idea of necessitywhich was originally understood to be a “single exception that justified not obeying existing law… in the first half of the twentieth century… came to be seen as the ultimate source of law.” That is to say, if the overall justification of law is necessity, then the state of exception is no longer a state of “exception”, but one instantiation of what necessity requires in certain circumstances.

Agamben charts the evolution of the states of exception through the twentieth century, demonstrating how – instead of being single, isolated instances – the came to gradually become the norm, used for such diverse purposes as wartime preparations, fighting the great depression, and suppressing worker-movements. “The voluntary creation of a permanent state of emergency has become one of the essential practices of contemporary states, including so-called democratic ones…” This is primarily marked by a breakdown in the classical separation of powers: going back to the force-of-law idea, the executive is conferred with greater and greater powers to issue decrees having the force of law (again, recall the warrantless-arrest provisions of the AFSPA). For Agamben, this reached its apotheosis in the Bush regime’s infamous Guantanamo Bay executive order, which has since resulted in “radically eras[ing] the legal status of the individual, thus producing a legally unnameable and unclassifiable being. Neither prisoners, nor accused, but simply detainees, they are the objects of a pure, de facto rule… what Judith Butler calls bare life reaching its maximum indeterminacy.

The book, then, has two rather bleak morals: states of exception occupy a continuum along the history of post-Enlightenment constitutional democracies, starting with revolutionary France; and that in modern times, they have become the default rather than the exception, although – crucially – they have taken a new form: “declaration of states of exception has gradually been replaced by an unprecedented generalization of the paradigm of security as the normal technique of government.” In other words, the national security state – with its ubiquitous surveillance mechanisms and police procedures, is the 21st-century instantiation of a now-permanent state of exception (along with its more extreme and brutal forms that remain territorially and spatially limited, such as the permanence of the emergency-measure AFSPA in numerous parts of India – again, making the emergency the default rather than the exception). But perhaps, as Benjamin believed, a clear understanding of this fact is the essential first step in working against it.

Malcolm Bull with an infinitely more erudite review in the LRB, here.

A brief piece, considering how the Schmitt-Benjamin debate plays out in Agamben’s work, here.

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Book Review: Jeremy Waldron, The Harm in Hate Speech (and the relevance for Indian free speech law)

(There is no question that India’s “hate speech” laws – S. 153A and 295A IPC, S. 66 IT Act et al. – are problematic. Recall, however, that hate speech legislation as such is a staple feature of constitutional liberal democracies. Indeed, in prohibiting all regulation of hate speech, the United States is an outlier; hate speech laws, of some sort, are envisioned in the ICCPR and the ECHR, and provided for in the laws of South Africa, Canada, England, Australia and other western European nations. The problem in India, therefore, is not the existence of hate speech laws per se, but their infelicitously broad wording (sometimes, but by no means always, a colonial legacy), and their rampant abuse. Two things follow: first, even if – through legislation or through the Courts – S. 295A and the rest are repealed or struck down, they will almost certainly be replaced with something else. And secondly, until that time, it becomes even more important to carve out a legal/judicial hate speech doctrine that comports with the legislation on the statute books, and is consistent with basic liberal principles. One way of doing that is by engaging with the work of prominent liberal defenders of hate speech laws, and perhaps amongst the most famous of them writing today is Jeremy Waldron, who published his book, The Harm in Hate Speech, in 2012).

Jeremy Waldron’s The Harm in Hate Speech is a liberal defence of hate speech laws. It asks whether it is morally consistent for a polity based upon principles of political liberalism – that is, committed to upholding individual autonomy, personal freedoms and according equal respect and concern to all – to place restrictions upon the speech of its citizens. Waldron answers that it is.

According to him, there are two related values that hate speech damages. The first is the public good of inclusiveness. In modern pluralist democracies, there is a diversity of ethnicities, races, religions and ways of life. The public good of inclusiveness entails a general assurance each person, qua person and qua member of any particular group, can lead a regular life in the polity without facing “hostility, violence, discrimination or exclusion by others.”  In essence, it is a “sense of security in the space that we all inhabit” – and naturally, by that reason, it is something we all work towards building and sustaining through our daily conduct.

The second value is that of dignity. Waldron defines dignity as the confirmation of equal membership in a society, or one’s “basic social standing… as a proper object of society’s protection and concern” (or, in Dworkin’s language, democratic legitimacy springs from the community according “equal respect and concern to each of its members).

In order to grasp how precisely hate speech harms these values, Waldron asks to understand it as a form of group defamation. In the American case of Beauharnais v. Illinois, for instance, it was prohibited to portray the “depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion.” The defendant’s criminal conviction for distributing pamphlets calling upon white people to resist the “encroachments of… the Negro” was upheld by the United States Supreme Court on the ground that libel deserved no free speech protection. Waldon argues that this, precisely, is the best conceptual frame for understanding the issue.

At the heart of Waldron’s arguments is his vision of “public order” in a liberal society: a state of affairs in which each person’s social status, as a citizen of equal moral worth and the possessor of inalienable dignity – is protected. The point of group defamation laws, then (drawing an analogy to individual defamation laws) is to “uphold against attack a shared sense of the basic elements of each person’s status, dignity, and reputation as a citizen or member of society in good standing – particularly against attacks predicated upon the characteristics of some particular social group.”

It is hardly surprising, then, that Waldron draws much of this theoretical ammunition from feminist arguments against pornography, in particular, the work of Catherine MacKinnon. Like MacKinnon, Waldron believes that speech is, in some sense, constitutive of social reality. Words don’t merely express states of affairs, they do things. In particular, he argues, it is the permanence of certain forms of expression – the written word, in particular – whose “apparently ineradicable presence makes a massive difference to the environment in which [we] live our lives.” In an environment rife with hate speech, therefore, the message that is conveyed to its targets – the message of exclusion and insult – becomes part of the very look of that society, and thus breaks down the assurance of inclusiveness that Waldron considers to be a basic public good.

Having established, then, that hate speech violates individual dignity, the problem of the slippery slope looms large – how do you cut off “dignity” from all the other ways in which free speech might affect people? Waldron’s answer is to draw a sharp distinction between “dignity” and “offence”. Being offended refers to subjective feelings of hurt, shock or anger, whereas a person’s dignity depends upon their objective standing vis-a-vis society. There is thus a conceptual difference between protecting someone from a certain kind of “effect on their feelings” (impermissible), and protecting “the assurance of their decent treatment in society” (permissible and warranted). In the context of religion, for instance – and this is something reflected in the religious hate speech codes of liberal democracies – the distinction is between attacking a system or a set of beliefs (e.g., questioning or ridiculing Christ’s resurrection), and attacking the civic status of a religious group qua religious group (“all Christians are scum”).

In essence, then, hate speech codes are about protecting an environment in which the equal citizenship of all individuals – and especially those belonging to unpopular minority groups – is respected, or at least, preserved. It is an intuitively powerful argument, narrowly tailored, and seems justified by the history of communal, ethnic and race-based strife throughout the last two hundred years, much of which has been stoked by incendiary expression (see, for instance, Prosecutor v. Nahimana, on the incitement to genocide in Rwanda).

It is in addressing counter-arguments, however, that some of the possible weaknesses in Waldron’s architecture are revealed. He responds to Edwin Baker’s argument from autonomy by performing a simple balancing task – balancing the autonomy concerns of stifling a racist’s self-expression with the harms described above. He fails to acknowledge, however, that the autonomy claims in this case are not just of the speaker, but also of the listeners. As Scanlon has argued, for instance, our fundamental intuitions of individual responsibility hold persons accountable for their actions, unless coerced. Consequently, what causes the dignity and inclusiveness harms – in the sense of moral and legal responsibility – is not hate speech, but all the individuals who listen to it and – as autonomous persons – allow themselves to be convinced by it.

Equally, it is no answer for Waldron to reply to Dworkin’s argument that the legitimacy of non-discrimination laws depends upon letting racists (for instance) have the full opportunity of rebutting them, by pointing out that racists can object to anti-discrimination laws through non-racist speech. Dworkin’s legitimacy argument, indeed, has a simpler response, and one that has repeatedly been made by feminists in the context of pornography: if the whole point of pornography and hate speech is to systematically distort the free speech of certain participants (women, minorities), then obviously, legislation that emerges out of such a distorted public sphere itself can lay no claim to legitimacy. The argument can then be turned against Dworkin by contending that free speech codes remedy the expressive inequalities created by hate speech (as one element in a system of structural inequality and hierarchy), and thus bolster the legitimacy of laws that arise out of a more equal and fair public sphere.

Somewhat unsatisfactory, as well, is Waldron’s response to Mill’s argument, that the truth needs constant opposition if it is to survive in a living and vibrant manner, as opposed to sinking into runic, doctrinaire formalism. Waldron responds by arguing that, whereas at some point the “race question” was a point of contestation in the framing of social policy, when racist arguments were a part of public discourse, “it would be fatuous to suggest that it is the importance of our continuing engagement in a debate of this kind that requires us to endure the ugly invective of racial defamation in the marketplace of ideas. In fact, the fundamental debate about race is over – won, finished. I find this argument problematic because it accords to government the power to decide what debates are finished and what debates are live, what argument is on the wall and what argument is off the wall – and that is an extremely dangerous proposition. As the American Smith Act trials show – indeed, as Arthur Miller’s Crucible shows more eloquently than anything else – it is in the interest of momentary majorities to declare as many debates possible as finished, and then write their convictions into law.

Lastly, Waldron responds to Robert Post’s argument that the very meaning of democracy entails that “even the most cherished norms of our community to be challenged democratically in a contest in which it is possible that they might be denigrated and even rejected.” Here again, Waldron’s reply that you can challenge laws (norms) against discrimination and hate speech without engaging in hate speech simply will not do – because one of the very norms under challenge is precisely  the norm that objections to existing norms are not permitted to be expressed through hate speech (the specter of infinite regress loom here, but we can stop at this point). And the challenge to this norm, logically, can only be made through hate speech.

Despite these objections, Waldron’s account remains a powerful and important account of justifying hate speech codes within the rubric of political liberalism. In particular, his distinction between causing offence and undermining dignity is particularly crucial for India, because of our over-broad speech statutes. s. 295A IPC, for instance, criminalizes “insulting” the religion or religious beliefs of a particular class. One possible argument, I suggest, is to focus on the word “insulting”, that has been preferred to “offending”, and argue that it clearly signifies objective content. We can then argue, for instance, that “to insult” must necessarily mean to invoke those social conventions that have been historically used to subordinate, or deny the equal status of, particular groups (e.g., calling a community “dogs”) – and nothing less. This, then, provides a clear conceptual distinction, grounded in liberalism, that can allow us to distinguish, statutorily and constitutionally, mere “offence” (without the causing of which free speech can hardly exist), and attacks on equal citizenship and dignity, which there are strong reasons to protect.

It is also an elegant way of making sense of the Constitution. Naturally, S. 153A, 295A, 66A and the rest must be consistent with Article 19(2), if they are to remain constitutional. On this blog, we have argued before that the best interpretation of the “morality” restriction under Article 19(2) is to understand it neither as personal nor as public morality, but as constitutional morality – morality that is grounded in constitutional principles. One of the principles of the constitution – as evidenced from Articles 14, 15, 21 and 25 – is the principle of equal concern and respect. That is precisely what the Waldronian conception of hate speech laws seeks to protect. In this way, therefore, S. 295A et al – or some other avatar – would remain both constitutional and fundamentally liberal in their interpretation and application.

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Book Review: “The Shifting Scales of Justice: The Supreme Court in Neo-Liberal India”

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 Morchawith 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

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