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What is the Role of a Judge in a Polyvocal Court?

For a while now, commentators have remarked about the “polyvocal” character of the Indian Supreme Court. The Court comprises of 28 judges who sit, for the most part, in benches of two (or at most, three). For this reason, the Supreme Court – it is argued – is better thought of not as a single “Court”, but as many different courts of equal authority, who may often speak with different – or even opposed – voices on the same issue (consider, for instance, that time in the late 2000s, when Justices Sinha and Pasayat were handing down what were virtually duelling judgments on the death penalty). This, in turn, leads to patchwork jurisprudence, which is internally inconsistent, and invariably influenced by judicial personalities to a degree that is probably far greater than in other jurisdictions, where judges sit en banc, or at least, in a substantially larger number.

However, for all the problems of inconsistency (and even incoherence), the fact remains that any judgment handed down by a judge carries the authority of the Supreme Court of India. That judgment speaks for the Court, and by extension, for the other twenty-six judges not party to the judgment.

Keeping this in mind, I want to focus on an issue that is separate from the problems of institutional incoherence and contradictory jurisprudence, but which is becoming increasingly pressing. The polyvocal character of the Supreme Court would, under normal circumstances, be constrained by two centripetal forces: a respect for precedent – including judgments delivered by Constitution Benches from a time when two-judge benches were the exception rather than the norm – and the limited scope of the Court’s jurisdiction (i.e., the Court can only rule upon issues that are brought before it, and which concern questions of law). Institutional inconsistency, therefore, would remain a bounded inconsistency, both in terms of its content, and in terms of its subject matter.

In my view, at this point of time, both these centripetal forces (after having been consistently undermined for the last three decades, both in the Court and in the academy) are virtually non-existent. Constitution Bench precedents are regularly ignored, or distinguished on dubious bases, and the scope of PIL has now become so vast that the idea of a limit on the Court’s jurisdiction is almost laughable. This, effectively, concentrates great power in the hands of individual judges to shape or mould areas of law in a manner that is simply not contemplated in a functioning legal system.

To understand why this is a problem in the specific context of a polyvocal court, let us consider what Justice Dipak Misra (the second-most senior judge of the Court, and scheduled to become Chief Justice of India this August) has done to Article 19(1)(a) of the Constitution. In Devidas Tuljapurkar, he ignored fifty years of precedent and invented out of thin air a new standard of obscenity applicable only to “historically respectable personalities.” In Subramanian Swamy, he upheld the constitutionality of criminal defamation as it stood, ignored the conflict that the ruling set up with the coordinate bench judgment in R. Rajagopal vs State of TNconcerning the different standards in civil and criminal defamation law, and invented a mythical doctrine of “constitutional fraternity” to justify this. In his interim orders in the national anthem case, he has ignored the binding judgments of nine judges in Naresh Mirajkar and five judges in Rupa Ashok Hurra, as well as the basics of separation of powers, and has made the playing of the national anthem compulsory in cinemas before every film. In his interim orders in Sabu Mathew George, he has passed interim orders on the “auto-blocking” of keywords for sex determination, supposedly justified under the PCPNDT Act, but without any consideration of the 19(1)(a) issues at play (including those of intermediary liability). And in the Azam Khan case, which he is presently hearing, he has framed issues on whether political figures can be restrained from commenting on rape allegations, on the basis of another invented doctrine labeled “constitutional compassion” (and also goes against a line of judgments starting with Sakal Papers and ending with Shreya Singhal, which have made it clear that freedom of speech can be restricted only on the grounds listed in Article 19(2)). Out of the five cases mentioned above, four have come to the Court as PILs.

These five cases make it clear that Justice Dipak Misra does not consider the freedom of speech to be of much value. That is his personal prerogative; however, when in case after case, brought to the Court through flimsy PILs, he passes judgments that place vast swathes of speech off limits, through the invention of new doctrines completely untethered from constitutional text and at odds with clear precedent, it becomes a serious problem.

Now, in ordinary circumstances, to implement his views on free speech (or the lack thereof), Justice Misra would have had to convince a bench of five or seven judges to agree with him. However, as the senior judge in a two judge bench, he only has to convince one judge – and anyone who has spent any time in the Supreme Court knows that puisne judges rarely assert themselves against senior judges (there are exceptions, of course).

When, therefore, you combine the following features: decisions being rendered effectively by one individual (who is assigned these cases based on roster determinations by another individual, the Chief Justice), the declining importance of precedent, the evisceration of subject matter and jurisdictional limits, the fact that Article 145(3) (which requires that issues of substantial constitutional importance be heard by a bench of at least five judges) is more or less a dead letter (because the decision to refer is made by the judge hearing the case in the first place), and the predominance of PIL (which, as Anuj Bhuwania points out in his book, often amounts to the Court choosing a petitioner as much as it does a petitioner choosing the Court), you get the following result: the power to shape crucial areas of law, including fundamental rights, which impact peoples’ lives, rests in the hands of single individuals; and every institutional feature that might place a check upon those individuals’ predilections becoming the law of the land has been rendered virtually non-existent. The most basic and most important feature about a constitutional court – that its decisions ought to be rendered through a collegial process, involving give and take and compromise between judges of differing views – has completely gone.

This takes us to a crucial question, which arises simply because of what the Court has become: what about the responsibility of the other twenty-six judges who sit on the Supreme Court? For example, I suspect – and indeed, I would hope – that many of them have strongly different views on the role of free speech in a constitutional democracy, or at the very least, that they disapprove of the use of PILs to advance an anti-free speech jurisprudence that runs counter to precedent, text, and the separation of powers. In such a situation, it seems particularly problematic that a single individual (by virtue of the CJI-determined roster – and the concentration of power in the hands of the CJI will be the subject of a further post) gets to speak for the Court on issues of such great constitutional importance.

The Court as a whole, therefore, has the responsibility of evolving a mechanism that prevents this. Perhaps issues involving any article of the Constitution must compulsorily be sent to a five-judge bench, regardless of the referring judge’s opinion. Perhaps in issues involving constitutional articles, judges not on the two-judge bench should be able to write dissenting notes on the exposition of law involved – a radical suggestion, but this is a Court operating in an entirely unprecedented context. Whatever the solution, however, it is important to stress that the other twenty-six judges have to bear a substantial share of the responsibility: we cannot employ the fiction of “many different Supreme Courts” to absolve judges who, as part of the institution, acquiesce to judicial conduct and jurisprudence that they find contrary to the Constitution. Inaction must imply agreement.

I do not suggest that either of the two potential solutions outlined above will work; at the very least, though, this is a conversation that we must now begin to have.

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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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