Judges Dredd

What is the point of judiciary in a modern functioning constitutional democracy? Are they merely the rottweilers of the Constitution – loyal protectors of the Law shepherding the citizen flock? Are they the ultimate arbiters of legal (and moral) good? Or activists who can break new ground and set new precedents where angels fear to tread?

It seems like these days and for some time – roughly from mid 80s when Public Interest Litigations (or PILs) became common place in India – they have been all three. Rottweiler, moral police and activist.

Much of Indian Twitter has been celebrating the de-criminalization of homosexual relations, of adultery and making it mandatory on Hindu temples (cf. #Sabrimala) to let menstruating women enter the sanctum sanctorum (if the latter so wish) – decisions coming from the Supreme Court on the trot. Chief justices seem to be the new rockstars; except maybe Indu Malhotra, who was the sole voice of dissent on the Sabrimala verdict. She was criticised a lot for it and her “loyalty” to her own gender questioned (as if it makes any sense at all). Though she got a fair amount of support for her sole dissenting voice too. And her point, that the Supreme Court setting the precedent to tell what temple trusts can/cannot do will eventually extend to patronizing mosques and dargahs and churches too, did put the proverbial ants in the pants of some.

I think that supporting such decisions is a question of how consequentialist one is prepared to be. Is the manner of judicial activism justified because the end result, ostensible equality of entry in a temple, is morally good? Should courts also opine on entry in private clubs or houses or buildings maintained by private trusts/individuals? How about mosques? Or policing the dress code in churches? Besides there’s the matter of courts effectively legislating – which is not really their function at all. Do these ends justify the means? It is a hard problem of moral philosophy and source of many interesting conundrums. I am not about to solve it, of course, but invoked it to bring into sharper relief why deciding one way or another on this is hard.

Indian politicians and parliamentary processes are routinely described as ineffectual and weak, which does make judicial activism rather de rigueur.

Yet the pendulum has also swung for the judiciary. From total acquiescence during the Emergency of 1975-77 judges are now too keen to show their activist side. Judge Dredds of the Republic arising from the ashes as it were.

In typical fashion, the executive colludes in many cases. Shooting from the judiciary’s shoulder to muscle through unpopular political decisions, with the best interests of the citizens in mind of course. In effect, the Indian judiciary has created space for its power-broking that is almost unheard of in similar Western democracies. Setting unnerving precedents to accord itself the final authority on constitutional amendments and even the process of choosing judges.

It seems obvious to people who understand the basic point of democracy (removal of bad leaders from power without violence) that judicial activism of this nature is not legit. It is a bad means to whatever ends the bench decides is good for the citizens. The judges act as an unaccountable cabal, akin to the feudal panchayat of chaudharies of olden days or the European Commission of modern day, that can make and sometimes execute laws without the need to seek re-election and sell their decisions to the public. Yet their role enjoys a lot of good samaritan popularity esp among the cosmopolitan Indian middle class. Largely reflective of our impatience with drawn out legislative processes and executive inaction, or (as is the case with Modi’s BJP) fear of retrogressive action.

The cosmopolitan elite feel that the judiciary can do (and is doing) what our politicians usually pussy-foot around: dragging reluctant and indolent Indians, kicking and screaming, into the 21st century by their forelocks. They protect the rights of our minorities, set limits on and police political corruption and even save our environment. It is a persuasive argument but not entirely clinching, not for me at any rate. The true nature of the price we are paying (in terms of precedents set and democratic norms violated) for expediency is unclear to me. I am not sold on the consequentialism, and still waiting to see how Indian democratic setup evolves out of this quandry in the future (if at all).

Edit: Since there has been an insinuation in the comments section that this topic ought to be discussed by law graduates lest the immaculate robes of judges aren’t unnecessarily crapped on, I’d link Pratap Bhanu Mehta holding forth on the topic:

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16 Replies to “Judges Dredd”

  1. I believe that there is a complete misunderstanding of the Indian Penal Code, the Indian constitution and how it can be amended and sections annuled in this article. It also confuses the constitutional issues with local cases such as Sabarimala which do not have much to do with the other issues.

    The Indian Penal Code is not directly a part of the constitution but is the law via article 372. The Indian Penal code was written by a committee headed by Mccaulay by around 1861 and is almost entirely enforced. Various sections of the Indian Penal Code are controversial. They are challenged in courts because they against constitution of India as was written in 1950. Also there is demand for abolition of some controversial IPC sections completely or partially. Thus, both the government (e.g. the criminal tribes act), parliament, and private parties (e.g. 377= homosexuality, 497 (women as proert/adultery), not to mention all the death penalty cases 120 121 ) war against the Government of India), 122 (mutiny), 194 (false evidence to procure conviction for a capital offence), 302, 303 (murder), 305 (abetting suicide), 364A (kidnapping for ransom), 364A (banditry with murder), 376A (rape) have death penalty as punishment. As the world changes each and every one of thes eIPC code cases are subject to review by the people, the government and the states. It is expected a case wil go up to the supreme court an dthey will be repealed.

    The Sabarimala case is not against any aspects of the constitution or IPC. It is an entirely local case and one off in the Kerala temples act. It is a against the constitution to bar temple entry to any caste, group of people. If the sabarimal act is enforced, rules can be implemented to bar SC/ST into temples, Hindus into mosques etc.

    The Indian constitution is the most verbose in the world next only to state constitution of Alabama; together with the IPC, it needs major amendments and annulments and it will be the job of the parliament and judiciary to maintain it.

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    1. You are felling strawmen. I am making a larger point about judicial activism and never mentioned the constitution re Sabrimala. Maybe it would make more sense if you read the piece again and not read imaginary inferences into it.

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      1. I do not think you are following our issues with the laws and just lashing, and so I will stop interacting but these are the points:
        1. The constitution, especially 39A allows PILs explicitly. The fact that no judge admitted a PIL until 1979 was an impact of the earlier emergency when attempts by prisoners to approach HC was summarily rejected.
        2. The constitution, the IPC and the state laws are in explicit conflict in many cases, and need beyond-government resolutions, and can only be resolved by people.
        3. Frivolous PILs are not allowed with financial penalties.
        4. For you, these are some Kabuki acts playing out in a remote arena; for us, with actual business, and monetary and legal considerations, goint to a court, even without a PIL, and resolving some basic issues affects us day-to-day. example in point, resolution of Aadhaar limits. the fact taht there was a case and some clarity in a reasonable time is a basic relief. For the poor people, decriminalization of adultery, homosexuality, resolution of AADHAAR issues, are a great relief. Consequentialism is a philosophical term, not legal.

        Beyond this, there are any number of bizarre statements made here without a basic understanding of legal proceedings:
        “The judges act as an unaccountable cabal, akin to the feudal panchayat of chaudharies ”
        “In effect, the Indian judiciary has created space for its power-broking that is almost unheard of in similar Western democracies” (Is anyone watching the supreme court nominations; every democracy has a conflict between judiciary and parliament)
        “The cosmopolitan elite feel that the judiciary can do” (why does the author think that the poor do not appreciate de-criminalization of homosexual relations, of adultery; is the author’s opinion that the non-cosmopolitan love the IPC 1859).

        I stand behind my statement that this is a “conservative-looking” article written without a basic understanding of the Indian constitution, the Indian Penal code, PILs and the role of judiciary. I still think someone with a law degree or some experience in Indian law or otherwise could have done a better job than crapping on judges.

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        1. I am with Slapstik. Courts should narrowly interpret the constitution and English common law where the constitution does not override it.

          Courts should stay in their lane, generally speaking, and avoid de facto legislating or micro-managing executive enforcement of legislation.

          I say this despite having deep reservations over narrow interpretations of English common law and specific parts of the Indian constitution.

          You are correct that the Indian constitution is far too verbose and internally contradictory, which by definition expands the scope of the Supreme Court to interpret it.

          As an aside, Slapstik is knowledgeable about law and I would rather that insinuations to the contrary not be made.

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        2. Your comments are a textbook example of changing goal-posts and wilful misrepresentation. You first imputed things to me I did not say (Sabrimala v Constitution) and you continue to personalize the debate by saying stuff like:

          For you, these are some Kabuki acts playing out in a remote arena; for us, with actual business

          What do you know about me and how “remote” any of this is to me? It seems to me you are shadow-boxing with a caricature with some putative motivations (cf “crapping on judges”). I actually am not crapping on them. I think their task is unenviable, but it comes at a price. The comparison with chaudharies (and EC) was in lighter vein. In any case, since when were Indian judges holy cows?

          I would have responded in detail, but your inappropriate ad hominem remark and gratuitous stay-in-your-lane relativism (apparently one needs a law degree to speak about Indian judiciary now!) makes me wonder what’s the point. Tant pis!

          As it is, I don’t know what to say to anyone who thinks that Indian judiciary has not exercised power inappropriately (and sometimes in collusion with the executive).

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        3. Clearly, judges are authorized to adjudicate PILs, but I thought Slapstick was talking about judges, in effect, creating laws and almost unilaterally amending the Constitution, which is supposed to be the sole prerogative of Parliament. Ideally, judges ought to refer a Constitutional question raised by a PIL back to Parliament unless it’s crystal clear that an institution (like the temple in your example) is violating a Constitutional provision.

          Also, when you talk about “resolving basic issues”, I guess you are talking about lower courts, like sessions courts? Clearly they have a different role (and scope) than the Supreme Court; the latter needs to be very careful with its decisions, as any slip-ups will lead to a lot of uncertainty in the country.

          Today, we may like the verdicts the judges have handed down, but tomorrow we may not. Are we content to live under such an arbitrary system of rule? And what is the use of having a Parliament at all then?

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  2. The issue is not just that the courts are arbitrating it, but also how they are arbitrating it. On the Sabrimala case as well as the mosque case(where its was ruled praying in mosque is not a essential part of islam) it has gone further down a dangerous road where “secular” institution (Judiciary,executive) have taken upon themselves to arbitrate cases based on “theological” reasoning and not on “constitutional” reasons. This will come back to bite everyone, even the ones who are cheering this activism .

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    1. However, judges are arbitrating cases every day; because law is not a detailed recipe. Bear with me about a case that is blowing up for all of us.

      Euro-IV was made the norm in India as BS-IV by 2015. At this time, almost every diesel engine made is failing the 0.25 NOX and 0.025 PM (in spite of what the companies are telling you) because the cycle tests are not performing well in Indian conditions of high temperature and Indian fuel which has variability in S and Benzene; there is a PIL out there and there is a temporary restraint by some judge that says the present tests are OK and averaging between X cycles are OK. However the same tests run in Chennai are producing 1-2 NOX.

      Now the Government of India says that we should be EUro-VI compliant in 2 years. That is 0.008 NOX and 0.,005 PM in 2 years. The Euro-6 compliant diesel is supposed to have 10 PPM sulphur but it is 10-50; there is no diesel engine on the earth (ok, BMW) that can meet these conditions in 2 years. What can the companies do? appeal to the government and the court.

      The court may say one of three things:
      1. Must comply
      2. Give relief to some diesel engines
      3. delay or postpone

      All three are acceptable to industry: they will stop making small diesels, or make an intermediate control like urea. However a resolution will be needed at some time. Now you can call that judge activist and say that he is destroying (enviroment or industry depending on viewpoint). BUT that was what he is called upon to do.

      Every day judges have to make decisions on written laws that impact a lot of people. The important thing is a decision that aligns with constitution. We can run with it. Calling judges Dred etc is nonsense by people who have no dollar in the game.

      Coming back to your secular example, there is a whole background to this case involving SC entry into temples, but since I am not versed in this case, I will not comment. But judges can arbitrate it in a way that depend on previous cases.

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  3. I am troubled by the Indian supreme court intervening in the management of temples. To intervene at this level, the supreme court needs a detailed understanding of temple shastra (including various Agamas and Padma Purana), which the court lacks. Some temples restrict access to the inner sanctorum and require people to get darshan or viewing from a distance. If there is legitimate scriptural grounds for this; this has to be allowed.

    In many temples, only woman are allowed in the inner sanctorum. In others only men. It depends on the exact type of temple.

    It is not demeaning to woman to require menstruating woman to view the deity from a distance for certain types of temples.

    Note in other types of temple menstruating woman are allowed to enter the inner sanctorum.

    There are subtle energies in temples, especially ones that practice various types of Tantra. It can be dangerous for menstruating woman to go inside the inner sanctorum at certain times when certain procedures are being practiced.

    There are also some (a minority to be sure) male brahmacharya celibacy temples. In these temples too, woman de facto were allowed to view from a distance because of the nature of Hindu society with its powerful matriarchal forces. But woman were asked to keep a “symbolic” distance. Albeit this might have been relaxed for grandmothers.

    Temples are not places for worship. They are suppose to be technological facilities that engage in subtle types of energetic brain therapy and sound brain therapy. These ancient scientific claims should be meticulously tested with modern technology. But none the less, the exact prescribed rules should be followed unless a qualified apta (spiritually evolved person) who has a deep understanding makes a work around.

    If precise rules are not followed, human beings can blow out their brain and nervous systems or severely damage their physical health. For example Hinduism uses psychedelic chemicals to induce deep meditative states (the human body creates a cacophony of psychodelic chemicals in meditation) . But unless practiced precisely these procedures can lead to severe health damage or death. In much the same way temple technologies influence the creation of specific psychedelic chemicals inside human beings, affect the parasympathetic and autonomous nervous system (including through influencing the two Vagus nerves).

    Many members of the intellectual dark web and fascinated by this subject or involved in researching it. Stanford is spearheading a lot of this research in close collaboration with many Hindu and Tibetan Buddist masters and mediators.

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  4. I am hardly an expert in this, nevertheless, I believe the current system of judges electing their own (collegium) was set up after the previous more democratic system was abused to the point of bringing the whole thing down. The rise of regional parties meant a lot of corrupt incompetent lackeys got elected to the high court benches and even became chief justices. The collegium system was instituted so that there might be atleast some control over judiciary by the incumbents and a semblance of integrity/balance might be maintained. You think the current judges have problems? Think of the ones Mulayam, Lalu or Mamta might push into the HC and SC systems. Remember people, it can always get so much worse than you think possible.

    In a sense this is like the abolishment of jury trials in India (and there is no one advocating for a comeback because they know how it wil turn out). Sometimes you just can’t have nice things.

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    1. India is far more advanced and mature now than in 1947. Why won’t Jury trials work in India? India has no shortage of qualified jurors 🙂

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      1. Sorry, I don’t trust the average Indian to judge the evidence presented in trials in a dispassionate, bias-free manner. Every jury trial in India will resemble 12 Angry Men without Henry Fonda to save the day.

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  5. Are Indian judges building dams? Disqualifying elected prime ministers? You guys are in the minor leagues.

    Courts as the anti-democratic saviour of the urban bourgeoisie is a pan South Asian thing. Does not happen in South East Asia, Africa etc. Why here and not there?

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    1. Ikram, you are getting wrong ideas here. The Indian judges are just hacking through the cobwebs of the IPC, and bizarro laws that are all conflicting with each other. Anti-democratic savior of urban bourgeoise is an uncharitable description for the Indian SC. Across all spectrum of the population, there is no love for anti-gay and anti-adultery sections of the IPC, neither is a large number of people suddenly turning anti-aadhar, nor is there a huge number of ordinary people asking that a temple in the south again close its doors for menstruating women. There is some congruence between what the people accept, the government will accept, and the courts, not that they are aligned.

      I do not know anything about dams and Pakistani justices, but the heavily conservative/Hindu-leaning contingent on BP thinks that the Indian SC is going wild.

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  6. I’m not familiar with the particulars of the Sabarimala case, so can anyone comment is the decision was specific to that temple, or to religious institutions in general (encompassing mosques, churches, etc., not to mention all other Hindu places of worship)?

    Our Constitution is (probably inevitable given its verbosity) self-contradictory when it comes to religious and individual rights. It says that religious freedom should be absolute yet mandates no discrimination when it comes to gender (and other things.)

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