Analysing activism

CONTEMPORARY discourse on the Supreme Court of India has given birth to a few catchy phrases: judicial activism, judicial overreach, judicial encroachment and judicial usurpation. In a sense, these expressions suggest the varying degrees of judicial intervention in legislative and executive domains in recent times. Examples in case law will not be wanting if one chooses to seek justification for each of these phrases even though their normative content may be debatable.

From three different perspectives, three recent books approach the controversy over whether the Supreme Court has exceeded its jurisdiction as envisaged in the Constitution. In Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, the editors, Varun Gauri and Daniel M. Brinks, adopt a comparative method by contrasting the Indian experience with that of South Africa, Brazil, Nigeria and Indonesia. The authors of the country-specific chapters offer a rich analysis of the case law in their countries that has influenced the social and economic rights of people. The authors took the right to health and the right to education as the focus of their studies.

What emerges from this comparative study is a fascinating account of how court interventions in various contexts led to a perceptible change in governance. Justice Richard J. Goldstone, former justice of the Constitutional Court of South Africa, in his foreword to this book, comments that judges of India have imaginatively fused social and economic rights with civil and political rights. As second-generation rights, social and economic rights are not justiciable but that has not prevented the court from goading the executive into ensuring that these are realisable goals. Civil and political rights, such as equality and the freedom of speech and of assembly, are considered first-generation rights.

Traditionally, as Goldstone explains, only first-generation rights, which are otherwise called negative rights, are enforceable, and the courts are regarded as not having the jurisdiction to adjudicate positive rights. The argument in defence of such a position is that judges cannot be involved in second-guessing decisions on social and economic rights, which should be left exclusively to the legislative branch of government. However, as Goldstone points out, the majority of citizens are not primarily concerned with first-generation rights.

After posing the question in the introduction, Is it desirable to use the courts to enforce social and economic rights? the editors prefer, however, not to answer it in the concluding chapter. They suggest that it is not easy to find a general answer to this question because each countrys legal and political landscape is unique, and the manner in which it responds to the huge claims for distributional benefits, if social and economic rights are made justiciable, could vary. Also, the editors suggest that the effects of making social and economic rights justiciable depends crucially on institutional factors beyond the constitutional text, its interpretations, and the forms of remedies that courts choose to adopt. This would seem to many readers like an unresolved paradox in the book.

What is interesting is that the editors seem to answer this paradox, implicit in what they call their first lesson, in their second lesson. According to them, judges depend on the state far too much, not only for resources but for the very outcomes their rulings pursue, to tread routinely on the terrain of legislators or executive agencies without a democratic invitation to do so. The editors add that judges forays into the legislative field are on the rise in many countries but whether this will be useful and equitable will depend on the broader legal and institutional environment. But the forays are extremely unlikely to be revolutionary, perhaps to the disappointment of advocates, they suggest.

The chapter on India has been authored by Shylashri Shankar and Pratap Bhanu Mehta, both of the Centre for Policy Research, New Delhi. The authors find that in health and education, the High Courts and the Supreme Court have a low impact on policies because judges are reluctant to penalise government providers, and non-governmental organisations do not emphasise litigation as a strategy to obtain social goods. The authors interviews with right-to-food campaigners suggested that litigation was time-consuming, costly and relatively ineffective compared with traditional mobilisation strategies. In this regard, the authors disagree with the general perception that there is judicial activism. The allocation of cases by the Chief Justice, the lack of capacity for enforcement, and the emphasis on collaboration rather than dissent in two- or three-judge panels encourage conformity and status quo behaviour, they believe. Hence judges only pick battles they can win less complex issues that pit the court against private providers rather than the government, they say.

Towards the end of the chapter, however, they make a puzzling statement: The declaratory language of the judgments focused on the strength of the right rather than the remedies. Perhaps that is all overburdened and understaffed courts in countries like India can do. Do the authors believe that having more judges in our courts will make a difference? Perceptive observers have attributed the high caseload in the higher judiciary to reasons other than the number of judges.

Shylashri Shankar seeks to correct this rather simplistic understanding of the courts process through her empirical study in Scaling Justice: Indias Supreme Court, Anti-Terror Laws, and Social Rights. She finds that the Supreme Court judge makes his/her choice within the scope and opportunities offered by four elements: the presence and content of laws, institutional experience and norms, political configurations, and public concerns. She suggests that the process of judging involves constant negotiation with the multiple identities of a judge as a component of a state institution, as a member of a judicial structure with its own norms, as a citizen, and as a member of society. A judge, she says, is not insulated from politics or society; rather, he/she is susceptible to the fluctuating influences of political machinations, public opinion, and national crises.

The Supreme Court of India, she seeks to show, is a body comprising pragmatic and fairly like-minded (on most issues) individuals for whom judging is a matter of problem solving and maintaining good relations with their colleagues, the Bar, elected representatives, other state agencies and the general public. She continues this generalisation to conclude that in the last six decades, successive judges negotiated with the four elements to create judgments that were non-confrontational and supported the rights and aspirations of citizens.

She sustains her conclusion through her statistical and qualitative analysis of the Supreme Courts performance on social rights and security laws. Thus, she finds that in anti-terror cases judges were more pro-accused after 1977 but became pro-state after 2001. In 1977, the court was eager to refurbish its liberal image, which had been tainted by its obeisance to the state during the Emergency. On the other hand, 2001 witnessed a terrorist attack on the countrys symbol of sovereignty, the Parliament House, and this forced the court to take an uncompromising stand, consistent with public opinion, against terrorism.

Shylashri Shankar takes her Supreme Court is not activist thesis further by borrowing a definition of activism advocated by some Western scholars. According to it, the activism of the courts has to be measured in terms of the number of judgments that find government actions unconstitutional: more such judgments point to a relatively activist judiciary. Using this criterion, she suggests that the Supreme Court is not activist in anti-terror, health and education cases. But what explains the courts reluctance to use expanded judicial autonomy in favour of an activist role? Is the court merely taking into account the states concerns about budgetary and implementation constraints, as she believes? Clearly, one could read in this reluctance more than what she easily infers.

At a time when the Central government is under tremendous pressure to enact strong anti-terror laws, Shylashri Shankars book sounds a note of caution. Her study finds that over half the cases should not have been tried under anti-terror laws. The results of her study demonstrate, according to her, a chilling inclination of the law enforcement agencies to use the preventive detention clause in these anti-terror laws to try criminals and village-level murders unrelated to state security.

The chief merit of Sudhir Krishnaswamys book Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine is its revisiting of the debate on the basic structure doctrine (BSD) with a fresh and strong theoretical understanding of what constitutes judicial review, which has the seeds of judicial activism. A 13-judge bench of the Indian Supreme Court articulated the BSD in its famous judgment in Kesavananda Bharati vs State of Kerala in 1973. The judgment set an important precedent for the court even though six of the 13 judges dissented in that case and the stand of one of the majority judges, Justice H.R. Khanna, was unclear.

The doctrine, in its original form, states that Parliament has no power to amend the basic features of the Constitution. As the author points out, the Supreme Court is still unclear whether the doctrine can be used to test the validity of ordinary laws and executive actions, beyond constitutional amendments, as the court has taken different stances in different cases. The book makes an important contribution in that it clarifies that the BSD can be usefully applied to test the validity of ordinary laws and executive actions.

A key criticism of the BSD is that an unelected court arbitrarily tends to decide what the basic features of the Constitution are, and this is contrary to the principle of popular democracy. Sudhir argues that the court is right to refuse to provide an exhaustive catalogue of basic features in a legislative mode. The court, he claims, has committed itself to a common-law, case-by-case technique to discover the basic features of the Constitution. In each case the court considers, in the circumstances before it, whether the basic feature claimed to be damaged in the case is adequately supported by the textual provisions of the Constitution.

I found the following explanation on how the court identifies basic features especially useful: Where such a feature is thus supported by the constitutional text taken as a whole, the court evaluates arguments from the Constitutions underlying moral or political philosophy, the political history of the freedom movement, and more particularly speeches in the Constituent Assembly Debates, to assess whether such features are basic or foundational to the normative identity of the Constitution. Sudhir suggests that basic features are best understood as constitutional values as expressed in the Preamble to the Constitution.

Sudhirs original contribution to the debate lies in his exposition that while the BSD deepens the entrenchment of some constitutional values against constitutional amendments, it retains the option of radical constitutional change by the people. In other words, as he explains, the doctrine envisages a dualist model of democracy, which distinguishes between a decision by Parliament and a decision by the people. This is because in Kesavananda, the court did not deny the democratic principle or the power of the people to change the Constitution. That is, the people will still have the freedom to change the Constitution by electing a new Constituent Assembly for the purpose but not through the existing Article 368 of the Constitution relating to procedure for amendment, which is bound by the BSD.

Sudhir notes a steady increase in the invocation by the court of the BSD from its inception in 1973 to the present day. However, on closer scrutiny, he says, if the cases in which the Supreme Court strikes down state action using the BSD are tabulated, it would be seen that they constitute a very small number. Therefore, he suggests that any claim that the BSD establishes judicial supremacy runs counter to the evidence available.

Taken together, these three works seem to question the popular perception that the Indian Supreme Court seeks an activist role for itself.