The author is professor of philosophy, law and governance, Jawaharlal Nehru University, New Delhi
India is almost unique in the unprecedented governing role judges are playing in our democratic system. It would be difficult to think of a single issue relevant to the politics of policy on which the courts have not left their indelible mark: from waste management to clean air, admissions policy to fee structure, from property rights to religious liberty and many administrative matters as well. The Supreme Court has set itself up as the final arbiter of the Constitution, scrutinizing even parliamentary amendments. It routinely directs executive agencies and takes over executive functions, and sees itself as the only antidote to legis-lative paralysis. Judicial pronouncements are becoming a routine mode of governance.
The weakness of the political process provides a propitious ground for judicial activism; and the judges, keen to compensate for their abdication of democratic values during the Emergency, have avidly taken up the task of preserving the republic. In many instances the executive has almost invited the judiciary in; in many states, governments routinely seek judicial dispensation to give them political cover for unpopular decisions they might have to make.
But mostly such power as the courts have acquired proves the dictum that power flows to those who choose to exercise it. Judges have, in a sense, created their own power. In decision after decision, be it the authority to review constitutional amendments, or the mode of appointing judges, the court has created its own powers. Judicial activism can mean many things: scrutiny of legislation to determine constitutionality, the creation of law, and the exercise of policy prerogatives normally reserved for the executive. But whatever its form, judicial activism raises two questions. Is it legitimate' Is it effective'
The democrat in all of us is rightly suspicious of a few old (mostly) men assuming such broad powers over our destiny without much accountability. At least, we ruminate, we can throw the politicians out once in a while, but judges are shielded from accountability. On the other hand, our impatience with a debilitating political process, the usual result of which is inaction, makes us thankful for an assertive judiciary. At least the judiciary can protect our rights, clean our air, call politicians to account and so forth. At the present conjuncture it would be difficult not to feel the pull of both sides of the argument. And it must be an unenviable task for judges to steer a middle course between usurping too much power on the one hand, and doing too little to sustain fundamental values on the other.
But the prickly question remains. What justifies judicial activism' One possible answer is that judicial activism is justified to the extent that it helps preserve democratic institutions and values. After all, transient majorities in Parliament can barter away our democratic rights, representative institutions are so often burdened with the imperatives of money, power or inertia, that to call their decisions democratic and in the public interest is often something of a joke. If judges use their power to restore integrity to the democratic process, to make our rights, including social and economic ones more meaningful, if they advance the public interest, an assertive judiciary can be an instrument of democracy. This is the most plausible defence of an assertive judiciary.
The trouble is that there is no reason to assume that judges, any more than politicians, will always protect our liberties. Just recall judicial abdication during the Emergency and the jurisprudence on preventive detention since. On the other hand, judges deciding the right level of air pollution, the appropriate fees that can be charged, the height of dams, or the choice of fuels can by no means be justified if one is worried about the democratic authority of the decisions that govern us. Judges are often guilty of both populism and adventurism. Representative institutions are, after all, the essence of democracy, and judges do not stand in the same relation to us as legislators. It may be that we cannot trust representative institutions, but it would be stretching logic to pretend that the guardianship the courts exercise over policy is synonymous with democracy.
But faced with the messy abdications of politics, should we not simply dispense with self-indulgent qualms about democratic authority and be more pragmatic' Does not judicial activism do good' Does it not produce outcomes we desire' The answer to these questions in part turns on what one thinks of as being in the public interest. Defenders of the judiciary often focus on the few success stories that result from judicial decisions.
But the glaring defect in the entire debate over judicial intervention is this. We have no concrete, empirical sense of the effects of court interventions; there are still very few studies of enforcement of court decisions. Courts can proclaim new rights as much as they want, but the proclamation of rights by itself does not produce results. Courts may achieve certain results like lowering air pollution, but do they achieve those results in a cost effective manner' Do they distribute the share of costs that these decisions impose fairly' Certainly, even much celebrated achievements of the court like enforcing CNG norms in Delhi, leave these questions unresolved. Many court directives are often not financially prudent.
Court interventions could be judged successful if they help create a constitutional culture where certain fundamental values and aspirations become authoritative constraints on the behaviour of government or of citizens. There seems to be little evidence that this has occurred; it would be difficult to argue that general governance improves as a result of court interventions. There are many reasons to think that the courts cannot be harbingers of social change.
The judiciary itself is in deep disrepair. The civil justice system gives the impression of being an arena where the law is subject to discretionary manipulation rather than being a conduit of justice. Most citizens regard due process itself as punishment enough to bother much about the actual decisions of the court.
Even the Supreme Court’s attempts to create a more robust constitutional culture are compromised by the fact that the court often seems to provide a modus vivendi between competing interests rather than settling issues on clear, decisive principles. The idea that the judiciary is a source of progressive change is itself part of a myth which judges sustain by their own authority. But it is also a myth sustained by lack of empirical research and evaluation of the justice system.
Upendra Baxi once memorably called judicial activism “chemotherapy for a carcinogenic body politic”. And certainly judges have an important role in strengthening our democracy. But they will have to exercise great discretion and resist the intoxication that comes from the view that judges are the last and only hope of this republic. And those who repose too much faith in the courts ought to attend to the American jurist Learned Hand’s warning. When asked of the role courts can play, he memorably replied: “You may ask what then will become of the fundamental principles of equity and fair play which our Constitutions enshrine; and whether I seriously believe that unsupported (by the Courts) they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whe-ther they will serve only as counsels; but this much I think I do know — that a society so riven that the spirit of mo-deration is gone, no Court can save; that a society where that spirit flourishes no Court need save; that a society which evades its responsibility by thrusting upon the Courts the nurture of that spirit, that spirit will in the end perish.”