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.
#IndiaDevelopmentDebate | #SabarimalaForAll
Lord Ayyappa is a celibate deity and the burden of carrying celibacy must lie with himself. No women must be refrained from entering a space on the basis of the argument that someone else will be tempted: @anujachauhan@SupriyaShrinate pic.twitter.com/7jS72706cw
— ET NOW (@ETNOWlive) September 28, 2018
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: