Activist verdicts

In three recent judgments, the Supreme Court echoes the broadly construed “public sentiment” in cleansing politics of its criminal elements.

Polling officers checking the electronic voting machine at a distribution centre in Howrah, West Bengal. A file picture.

THE Supreme Court has handed down three seminal judgments in the past three months concerning elections, which have considerable potential to usher in a new kind of politics in India. In Chief Election Commissioner vs Jan Chaukidar (August), it held that incarcerated persons cannot contest parliamentary or Assembly elections. In Lily Thomas vs Union of India (July), it decided that if a sitting Member of Parliament or a Legislative Assembly was convicted, he would be disqualified immediately, that is, such disqualification will not remain suspended until an appeal or revision application against the conviction is disposed of. In a judgment on September 27, in People’s Union for Civil Liberties vs Union of India, it directed the Election Commission of India to provide a “None of the Above (NOTA) option in electronic voting machines (EVM), allowing voters the right to reject all the contestants. These judgments, notwithstanding their salutary effect on elections, have invited the criticism of judicial activism and judicial overreach, that is, deciding matters beyond the judiciary’s legitimacy and competence. Whether such criticisms are valid and what implications the judgments will have on the triadic relationship between the people, the judiciary and the elected organs of government require deeper scrutiny.

In India, judicial activism has, over the past three decades, been seen as synonymous with an accessible, sympathetic and humane Supreme Court, a “Supreme Court for Indians”, as Upendra Baxi rightly described it. Over time though, this activism has taken on a more pejorative connotation, referring to the court’s expansive legal interpretations and constant judicial oversight of its own orders in popular causes, both of which have given rise to concerns of judicial legitimacy and competence. This is in keeping with a broader global discourse about activist courts, widening their remit to achieve desirable ends. In the context of this contemporary understanding of judicial activism, it is imperative to ask: Do the three election-related judgments fit in with this trend or buckle it?

The decision in Jan Chaukidar , using the logic that any person confined in prison is not able to vote under Section 62 of the Representation of the People Act, 1951 (RPA) as the basis for not allowing him/her to contest elections (Section 2 read with Section 16 of the RPA, 1950), is patently flawed. Persons in prison or police custody cannot vote for practical reasons, and to conflate that with being disqualified from voting in principle and hence from contesting elections defies legal logic and common sense. At the same time, the order is seemingly oblivious to its obvious possibilities of misuse—the likelihood of temporarily detaining honest candidates in order to bar them from contesting elections by misusing police power is significant. The lack of substantive consideration to such practical issues and the sketchy justifications offered make it a flawed judgment, one that the Supreme Court itself has rightly decided to review. But to call it an activist judgment would be off the mark. Undoubtedly, the order purports to get rid of criminal elements in public life in India, a worthy and popular cause. But the court does not do so in a manner that widens the judicial remit, enforcing its own orders or using an expansive interpretation that raises concerns of legitimacy and competence. On the contrary, its justifications are ostensibly based on legal reasons, albeit of severely doubtful validity. The fault lies not in the court’s activist zeal but rather in its legal reasoning.

In Lily Thomas , where the court ordered that disqualification of a sitting MP or MLA would operate immediately upon conviction, doubts, if any, regarding the judgment revolve around a single legal issue—did the court adequately consider the precedent that it was bound by in this matter? Earlier, in K. Prabhakaran vs P. Jayarajan (2005), the Supreme Court had upheld the exception carved out in Section 8(4) of the RPA for the benefit of sitting legislators who were convicted while in office. Such disqualification, the court had held, would operate only after an appeal or revision pertaining to such conviction had been disposed of. This was unlike candidates aspiring to be elected who had no analogous benefit if they had a conviction under appeal or revision. In striking down the same section upheld earlier as constitutional, the Supreme Court in Lily Thomas held that it was not bound by Prabhakaran since it was decided in a different context. Arguably this was right, but legal propriety might have demanded that the matter be referred to a larger Bench for an authoritative pronouncement. As is evident, this concern has little to do with the court being activist. On the contrary, it is a purely legal question of precedent-following that emerges as the contentious issue for analysis in this case.

PUCL, on the other hand, is an open-and-shut case that ought to raise no concerns regarding either its substantive validity or criticisms of judicial activism. In PUCL , the court held that the provisions of the Conduct of Election Rules, 1961, which require mandatory disclosure of a person’s identity in case he/she intends to register a no-vote, is unconstitutional for being violative of his/her freedom of expression, which includes his/her right to freely choose a candidate or reject all candidates, arbitrary given that no analogous requirement of disclosure exists when a positive vote is registered, and illegal given its patent violation of the need for secrecy in elections provided in the RPA and widely recognised as crucial for free and fair elections. None of these issues is remotely contentious or raises any concerns of overreach. Further, the court’s order that a NOTA button be introduced in EVMs is left to the Election Commission to enforce with the assistance of the government. In passing such an order, the court pays due respect to the expertise of the Election Commission in this matter and does not mandate a judicially supervised enforcement mechanism. It is thus a salutary judgment, one that has far-reaching effects on empowering the citizenry, achieved in a manner that is squarely within judicial legitimacy and competence.

Despite their particular difference, the three judgments taken together exemplify a discernible realignment of the triadic relationship between the people, their representatives and the judiciary. In traditional separation of powers theory, and in the contemplation of the drafters of the Constitution of India, the judiciary is envisaged as a counter-majoritarian institution. Jawaharlal Nehru, speaking in the Constituent Assembly, conceived of the Supreme Court as having judges “who can stand up against the executive government and whoever may come in their way”. In conceptualisation and design, the court was thus seen as the nation’s conscience, upholding the Constitution against temporary aberrations caused by populist governments. But the election judgments tell a different story. In these three judgments, all public interest litigation (PIL), the Supreme Court echoes the broadly construed “public sentiment” about cleansing politics of its criminal elements. It does so in a legally tenable manner in PUCL,arguably not so in Lily Thomas , and patently incorrectly in Jan Chaukidar . The common theme running through these cases is an alignment of the Supreme Court with the public, with differing degrees of justifiability, turning the notion of the court as a counter-majoritarian institution on its head.

The matters at issue in these judgments—issues of direct, personal interest to politicians—demonstrate why such realignment is taking place. When faced with unfavourable decisions in Jan Chaukidar and Lily Thomas , members of the political class reacted with hostility, threatening amendments to overturn both judgments. Both the instinctive reaction to overturn judgments that seemingly enjoy popular support and the curious circumstances that led to the withdrawal of the ordinance overturning the Lily Thomas judgment reveal the gulf that exists today between the people and their representatives. In a clear sign of blatantly privileging personal interests as a political class over the wider public interest in having a clean polity, the political class demonstrated its petty and self-serving tendencies by proposing such an amendment in the first place. Even the ultimate withdrawal of a shockingly unconstitutional ordinance to overturn the Lily Thomas judgment hardly provided redemption, revealing the true nature of a government that cares more about its party leadership than the people it ought to serve. It is thus unsurprising that when faced with a recalcitrant political class ready to go out on a limb to protect criminal elements within its ranks rather than serve its constituents, the Supreme Court is taking up cudgels in the public interest.

Changing patterns of PIL The effects of such realignments are yet to be seen in full force, but I offer three issues that the court must carefully consider in positioning itself as a protector of the public interest against the political class. First, it must be more careful in its understanding of who constitutes the public and, consequently, the issues that it takes up in PIL. An existing discourse, led by Nivedita Menon, Aditya Nigam and Usha Ramanathan, has noted how the egalitarian project of PIL has morphed into a middle-class project over time. These scholars, with some variations, make a similar point—with liberalisation, the judges of the Supreme Court too changed tack—privileging the environment over people, development over the environment and the middle classes over the poor. This is a weighty claim and one that I cannot examine on its own terms in this piece. But a recent paper by Varun Gauri based on an empirical analysis of changing patterns of PIL cases in India confirms the view that indeed the nature of PIL is changing. More PIL cases are now filed by advantaged communities, and with significantly higher win rates, than those filed by the poor and the marginalised. While arguably the interest in having criminal-free politics is one that ought to be shared by the entire citizenry, the court must be careful that the broader realignment with the public interest that its judgments in this regard signify does not unwittingly become an elitist exercise, ignoring issues concerning the poor and the deprived, the raison d’etre of PIL.

Second, much of the attention in the Supreme Court becoming populist has focussed on whether it is activist or not. It is important for the court to take a step back and first consider whether its decisions in support of popular causes are legally tenable in the first place, which is the basic prerequisite of a well-functioning judiciary. While it is crucial for the court to respect the autonomy of other branches of government and not overreach, it is important that it performs its function in accordance with the highest standards of judicial excellence. While the PUCL judgment demonstrates such standards, the Jan Chaukidar and Lily Thomas judgments fall far short. Whereas Lily Thomas required greater justificatory argument from the court as to why the precedent set in Prabhakaran does not bind it, Jan Chaukidar was egregiously erroneous. A popular court must sustain its popularity on the strength of its reasoning and not simply because of widespread public dissatisfaction with the political class. This requires ensuring not just the independence of the judiciary, which is a widely articulated concern of judges, past and present, but, equally importantly, its high quality. Any failure to do so will trigger a backlash from the elected arms of the government seeking to whittle down the power and independence of the court.

Finally, the PUCL judgment contains the kernel of a radical transformation of politics in India. It provides an immensely empowering device to register a growing dissatisfaction with the political class. It does so in a manner that blunts any possible criticism from political parties, given its legally sound process of reasoning. However, while the court has been trail-blazing in initiating such a process, to sustain it the citizenry and the political class have to respond appropriately. Any reinvigoration of the political process can only be half-hearted if the citizens do not actively exercise their franchise and political parties heed the signals and herald cleaner politics. Relying solely on the court to effect this transformation, an inherent danger in the current realignment, must be avoided consciously. Central to this is the court’s own recognition of its constitutional responsibilities and, equally importantly, its own limitations. The need for the court is not just to remain cautious about being overly activist but also to do its job as the final arbiter of legal disputes in a manner that is sound in principle and efficacious in practice.

Arghya Sengupta is Fellow, Vidhi Centre for Legal Policy, and a D.Phil candidate in law at Oxford University where his doctorate looks at independence and accountability of the Indian higher judiciary.