So much for the notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly […] That is why the simplistic view of the Constitution devalues our aspirations, and attacks that our confidence, and diminishes us.
A week back, Justice David H. Souter, who stepped down from the US Supreme Court in 2009, spoke at Harvard on Commencement Day. He deliberated at length on the present day criticisms of the Supreme Court: “that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties”. Much of his remarks were directed against the ‘fair reading model’ which deems that constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively. Pointing out that the Court rarely receives cases that fit the bill easily, Souter emphasized the significance of the open-ended language in the Constitution: a reflection of the dynamic aspirations of the United States.
The debate on judicial activism is not new in India – the term ‘activism’ has often been substituted with ‘adventurism’. Yet, beyond our classroom and mainstream discussions on whether the Judge should “declare law as it is” or “make law”, we haven’t made much headway in defining the tendencies of the Indian Supreme Court.
The Indian Constitution has been careful to avoid ambivalence in expressions – the so called ‘open-ended’ language is few and far between. Stories of the Indian delegation to the US, and Felix Frankfurter’s opinion on the ‘due process’ clause have now become part of folklore. Justice Souter in his remarks, referred to the First Amendment that protects the freedom of speech and press (Congress shall make no law […] abridging the freedom of speech, or of the press). The Pentagon Papers case witnessed the birth of an argument that ‘no law’ cannot mean no law – the Court must consider not just the First Amendment, but the entire ambit of the Constitution. Basically, safeguards.
In India though, we have reasonable restrictions on Article 19 – more than an illustrative example, it is a stern reminder of the fact that the Supreme Court’s mandate is further confined to the template that created it. Yet, the Indian Supreme Court has become one of the most powerful institutions of its kind in recent times. Judicial activism is acknowledged, and the Court has constantly broadened the scope of its interpretive powers.
Is that good or bad for India’s millions? If there ever was a ‘hard case’, jurisprudentially or pragmatically, then this is it.
13 years ago, the Court laid down guidelines against sexual harassment in workplaces – the seeds of activism had been sown long before, but this was truly a momentous step. The Court was, for all practical purposes, legislating. Could you really complain that Vishakha was uncalled for? Or for that matter, propounding India’s version of the Miranda Rights in D.K. Basu? No one, with a sense of justice, could oppose the Court’s response to social problems. But that is exactly it. The Supreme Court has gone well beyond its mandate as a Court of Law, and now runs the risk of becoming a vigilante, driven by a sense of justice.
Before I scare you further, let me explain why. Right from the Bhagwati and Krishna Iyer years, the Court saw the necessity, and indeed, the urgency to adopt an enforceable paradigm to socio-economic rights when vast swathes of the population lived in abject poverty. Consequently, the right to health, education, shelter, access to justice and a clean environment all became part of one of our most venerable rights. This was a key step in helping our democracy flourish and ameliorating the living conditions of those who constantly fall short of the law.
However, there is a critical difference between access to justice and access to courts. The former is often saddled in emotional rhetoric and is a consequence, albeit important, of the judicial process. The right granted to the citizens of this country is that of access to courts, through a systematic and efficient system of obtaining remedies. But in its raging transformation to activist mode, the Supreme Court has emerged as the vanguard of public interest.
So much so, that at the high watermark of its activism, one of the Court’s own members had to put his foot down and say ‘Stop!’. In Divisional Manager, Aravali Golf & Anr. v. Chander Hass & Anr , the judiciary of this country went so far as to create a Government post – in order to secure amenities to a gardener who also worked as a tractor driver. So it was no surprise that Justice Markandey Katju said:
We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State. (¶17)
Yet, like the Dark Knight, the Indian Supreme Court was torn between the injustice prevailing in Gotham, and the problem of a vigilante taking the law into his own hands. Thus, a year later, the former CEO of our Supreme Court expressed concern over portions of the Aravalli judgment:
Can a common man go to the Chief Minister? Who will protect the life of the common man?
The issue of PILs has polarized public opinion, from those who believe that it is mostly frivolous, to citizens who remain firmly committed to realizing its potential. But beyond the debates which have hitherto focused on the opening of floodgates (or, from the other side, as to how little time and effort is spent on PILs), its time to see what the Court has achieved through its exercise.
When the Supreme Court wore the mantle of a protector of rights, even though the rights were in their infancy, it would seem that the Justices were responding to the massive transition taking place in our country. When they emphasized that the procedure established by law must also be fair and reasonable, it was a move towards checking the arbitrary exercise of power by the Executive. But when the Judiciary decided to swoop down on overcharging by Delhi auto drivers, the size of speed breakers, traffic guidelines for roads, admission guidelines for schools and monkey menaces in cities, it was slowly encroaching upon the administrative machinery.
Its attempts to identify with the anguished masses took a new shade when the Supreme Court issued a notice to the Union Government, asking it to explain the steps taken to improve conditions of Indian students living in Australia. Foreign policy, undoubtedly, but the Court felt the need to alleviate genuine concerns of our citizens on racially motivated attacks.
One Op-Ed in the Hindu believes that this is dialogic judicial activism, where Court actions “set the tone for public discourse and debate”. Another argues that activism is a safety valve, to ensure that justice is not beyond reach. With due respect to these opinions, the Court cannot be a public institution that serves as a moral compass to the Government of the day. It is not the famous Greek agora, where philosophers and free thinkers churned some of the most progressive, democratic ideals known to humanity.
The first signs of change are already here. In the State of Uttaranchal v. Balwant Singh Chaufal (2010), the Supreme Court has laid down a set of guidelines to entertain Public Interest Litigation. Not surprisingly, the emphasis is on weeding out ‘frivolous or vexatious’ suits – an important concern, no doubt. But no guidelines or framework can be a substitute for the Courts’ decision to restrain itself from wandering into the confines of the Government, even in public interest.
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Very well written, although I am inclined to disagree with you on one fundamental point.
The Supreme Court has been the vanguard of public justice, as rightly pointed out by you; and in it’s role as protector of the Constitution it has consistently fought hard against an executive/legislature hell bent on altering the same to suit its own ends. It is in this context, that as unfortunate as it is, the Court has had to step in to ensure that the lethargic, inept and extremely incompetent fools in Government do their job.
Kudos to the Court for doing that.
1. On the open-ended language of the Court, I think to defend or attack an argument such as
“The Indian Constitution has been careful to avoid ambivalence in expressions – the so called ‘open-ended’ language is few and far between”
…would require us to focus on both aspects: whether the Constitution makers were careful to avoid such ambivalence (in other words, whether the open-endedness of the terms Prasan mentioned was intented), and secondly, the question of whether such terms are few and far between, and how important such open-ended terms are with respect to the rest of the Constitution.
I think the second question is very sticky, for there is no way of knowing which parts of the Constitution are more important than the others, but the first question is determinable primarily by looking at the CADs. As Arun says, words such as liberty, equality etc find themselves in most Constitutions. However their mere presence/absence cannot adequately demonstrate any intention of the Constitution-makers to actively provide or remove ambivalence. The best way we can defend or attack that assertion, I would think, is to find out whether questions of ambiguity and interpretational doubt arose at the drafting stage and whether these questions were settled by the CA deciding to retain a version that they knew to be ambiguous for subsequent generations to interpret. I do not have much information about the CADs, and would be glad if someone would inform us of what they say on this point.
2. On Article 19 I broadly agree with Prasan. Article 19 does not provide any limitation on the law-making power of the Court. What Article 19 does provide is a limitation in the power of the Court to declare a legislation void in terms of Article 13 – and this limitation comes in the form of RR. Therefore I would think RR limits the ability of the Court to strike down laws – which is obvious from a reading of the Article – but does not say anything about judicial activism per se. In fact it is arguable that necessitating restrictions to be “reasonable”, a standard to be determined by the Court, allows the Court even more power to decide what is reasonable and what is not, thereby expanding its powers. But the power in this case is not that of legislation or law-making, it is the power of striking down legislations under 13.
3. On the difference between “legislating” and “law-making” – I agree with Prasan to the extent that Courts also “make” law each time they interpret a law. The problem as I understand it comes when Courts choose to (a)interpret laws according to standards that we think are not found in the law itself, or (b) as in the case of Vishaka, “make laws” in the absence of any legislation in the field at all. Category (b) to my understanding is absolutely unacceptable, as it is beyond the scope of the judiciary in any sense. Category (a), that of activist interpretation, finds support among its defenders from the DPSPs and other provisions of the Constitution.
Be that as it may, both terms “law-making” and “legislating” should probably be qualified. Law-making, as Prasan pointed out, is an activity that occurs regardless. However legislating, by definition, is something only legislatures can do – so there cannot definitionally be any problem at all. We would do better off to identify what aspects of “what legislatures do” are unacceptable for the Court to be doing, and using these to qualify either term.
These will be my final comments.
1. These “terms” are part of the “language” employed in the Constitution. If your argument is to say that reasonable restrictions therefore limit what the Courts can do, that is fair. But that does *not* tell us whether Courts should be making law or not. It does not tell us how to interpret the Constitution. It tells us little else apart from – this is the *content* of the law. The Courts are still supposed to interpret those parts of the Constitution.
2. There is no ‘literalist’ interpretation involved. “Shouldn’t the Court confine itself to the text?” I have made no argument for or against that. Because that is the *outcome* of a theory of interpretation. And you seem to think that the Constitution has a theory of interpretation built in. That is false. It does not. The text of the Constitution does not tell anyone how to interpret the text. I’m not arguing for or against judicial activism. I don’t understand how my comments indicate that I am.
3. The conceptual distinction I drew is, in my view, a correct one – so that we may understand what we are dealing with. It is important to make normative arguments. But what I had said was that normative arguments are not questions of law. They are questions of substantive moral and political argument. Your solutions will be based on a mistake if they are argued from conceptual mistakes.
Thanks for your response. Let me club some of your criticism from the first and second comments and perhaps try to address it more articulately.
1. ‘Open-ended language’ – For one, I’d request you to read the terms in context. Admittedly, the phrases that you’ve mentioned are very ‘open’ to interpretation. Romantic as it might be to see the controversial open-endedness of equality, liberty and such like, I am talking about a situation where the “language” is open ended. “Terms” like these will invariably find themselves in all Constitutions of advanced democracies. Let me elaborate on the example given in the post. In the US constitution, exceptions to the First Amendment are a judicial creation – while it has been explicitly mentioned in the Indian one. Therefore, there is lesser leeway for the judge to base a verdict on a ground, apart from the reasonable restrictions.
2. Art. 19 limiting the mandate of the Judiciary argument – You have conveniently used the text of the Art to prove that the “State” shall not abrogate any of these rights with respect to RR. Consequently, you argue that it is a mandate confining to the State, but not the Courts. On such a blatantly literalist interpretation, I am forced to concede to your point.
Why then is the Court reading “procedure established by law” as “fair and reasonable procedure established by law”? Shouldn’t the Court confine itself to the text? Ergo, shouldn’t this literal interpretation go against the very grain of judicial activism that you’ve espoused so eloquently?
My argument is only that the limitation imposed on the State to make laws is exempted in the form of RR. Which means that the Court *must* gauge the law in terms of the parameters of RR, and nothing else. Of course, I would gladly agree that the text is exactly what it must be – but you’d have a tough time convincing the Courts that.
3. I really appreciate the fine differences that you’ve pointed out on judicial legislation and law-making. At the risk of intellectual evasion, let me re-emphasize my position and explain why I need to be ‘normative’.
You’ve said that Judges indulge in ‘law-making’ all the time. Instead it is ‘legislating’ that is different, and the job of the legislature. If this difference is based on the procedure of legislative activity in Parliament or its democratic credentials, it becomes an argument for the sake of it.
On the other hand, if you differentiate the concepts based on some other criteria, please let me know.
But at a fundamental level, I’ve argued, there is little way to find difference in these ‘concepts’. Therefore, I have argued to look at the practice of ‘law making’ or ‘legislating, as you will, and see where the Court must draw a line. Only then can we arrive at solutions, when solutions and not conceptual identity is what we need.
I have to concede that this is not an exhaustive list of areas that the Court must keep away from, but I believe it is certainly an indicator.
I look forward to your comments.
You are entitled to disagree with opinion, but with reason. Furthermore,
1. The point about open-ended terms in the Constitution, is a *fact*. I stated that when you point out that in the Indian Constitution open-ended terms are few and far between, it is a false statement of *fact*. This is not a question of opinion.
2. On the Courts limited mandate – the *content* of the law has little to do with the court’s limited power. The fact that the Constitution limits the powers of government has nothing to say either way about judicial law making. It is a common mistake to link provisions of the constitution (except perhaps Art. 31) with judicial power. Article 19 has *nothing* to do with the mandate of judicial power. You would have to prove through an argument why the the content of Article 19 has anything to with judicial power. This is not a matter of perspective.
3. Law- making and legislation – It is not a matter of semantics. It is a conceptual issue. Don’t brush aside important conceptual distinctions by saying they are semantic. That is *intellectual evasion*. When you talk of *what* the Court is legislating you are not saying anything about the conceptual issue, you are making a normative argument about what the Court should or should not be doing. The reason why I drew that *conceptual* distinction is because your normative argument rests on a conceptual mistake. Legislating is necessarily something that *legislatures* ought to be doing. Law-making is not done only through legislation, but also through judicial decisions. So Law-making is a broad category and both Courts and Legislatures and perhaps even the executives do it. And this is a common conceptual confusion – that fail recognize these distinctions. That was what I had said. I don’t see what problems I have *walked* into.
The overall conclusion might be the same. But you are making confused arguments for the conclusion. These are not to be brushed away as matters of perspective. You have to show why those premises are A. true, and B. really relate to your conclusion.
Thank you for your comments, Prasan. As far as I can see, there doesn’t seem to be any contradiction either in facts or for that matter, to the overall conclusion.
Points on the open-ended terms, on the Court’s limited mandate, law making and judicial legislation are all well-taken. I respect your opinion in these counts, but again we’re differing on just that: opinion. Honestly, terms like equality and liberty are indispensable to any modern Constitution -instead i’m talking about words/phrases that could have been defined in comparative circumstances.
However, it would be great if you could let me know how the limited mandate aspect and the judicial legislation bit are products of common confusion.
You’ve said that reasonable restrictions define the scope of the Govt, and not the Court. Unless you have an non-jurisprudential argument on the issue, I’d see it as a matter of perspective. When I say non-jurisprudential, I mean the CADs, or any sign/intention to support the stand. By jurisprudential, I mean theories to suggest that the Constitution is a systemic check on the powers of the Govt.
By dwelling on the judicial law-making, or legislation, as you will, you’ve walked into the same problems as have been discussed in the post. I’ve not written a word against either judicial legislation, or the merits of it, but only on the question of ‘what’ the Court is legislating. The semantics and its import, I’ve suggested, be abandoned, and we could focus then on what the results have been.
1. “The Indian Constitution has been careful to avoid ambivalence in expressions – the so called ‘open-ended’ language is few and far between”
False. Here is a list of *some* words/phrases whose meaning is controversial and therefore indicates *open-ended language*
Art. 14 – “Equality”
Art. 15 – “socially and educationally backward classes”
Art. 19 – “speech”, “expression”, “decency and morality”, “interests of the general public”
Art. 21 – “life”, “personal liberty”
2. “In India though, we have reasonable restrictions on Article 19 – more than an illustrative example, it is a stern reminder of the fact that the Supreme Court’s mandate is further confined to the template that created it”
False. How does the ability of the Government to impose reasonable constraints translate into a limited mandate for the Court? This defines the scope of the power of the Government, not the Courts. Your argument rests on a common confusion. Part III does not impose limits on judicial power except perhaps in Article 31. The fact that the Constitutional text says something does not by itself tell the court that it should or should not “make law.”
3. “However, there is a critical difference between access to justice and access to courts. The former is often saddled in emotional rhetoric and is a consequence, albeit important, of the judicial process. The right granted to the citizens of this country is that of access to courts, through a systematic and efficient system of obtaining remedies. But in its raging transformation to activist mode, the Supreme Court has emerged as the vanguard of public interest.”
Am I missing something here. There is a critical difference between AoJ and AoC. Fair enough. So why does that have anything to do with the *raging* transformation to activist mode? And isn’t the fact that there is a vanguard of the public interest better than there being none? Of course there are countervailing moral and political considerations. But if access to courts is a right, it is only an instrumental one. The right may have no intrinsic value. It’s value lies in access to justice.
4. There is another massive but common confusion. Judicial activism is not about “law-making.” Judicial activism is about “legislating.” Courts make law all the time. Whether you like it or not. When a court gives a statute a particular meaning, it makes law. It gives the words a meaning they did not have. That is “making law.” Courts are unique institutions because they have both law-applying and law-making characteristics. How much law you want them to make is a different story. And that entails understanding why we value the political process of democracy and legislation. But that does not take away from the fact, that at the appellate level, courts usually make law much more than we think.
5. “With due respect to these opinions, the Court cannot be a public institution that serves as a moral compass to the Government of the day.”
Why not? Isn’t that what Courts inevitably do when deciding on Constitutional issues? Isn’t that the reason why one has judicial review in the first place?
So the arguments regarding “judicial activism” are not legal. The Constitution (with a few exceptions) does not tell us which way to go as regards judicial power. Neither does the practice of the Courts. The arguments are political and moral.
But yes, I agree broadly that there should be limits to the exercise of judicial power. But very little about that flows from the nature and description of the Constitution.