JUST IMPATIENT - Can a jurisprudence of exasperation sustain the court?s authority?

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By Pratap Bhanu Mehta The author is president, Centre for Policy Research
  • Published 17.10.05

In a recent discussion of India?s judiciary, the topic veered around to the question: how would one assess the legacy of the judge, R.C. Lahoti, as chief justice? The usual considerations were offered. He has tried to make the Supreme Court receptive to outside ideas by encouraging judges to listen to experts from other fields. On the other hand, he has barely addressed the core problem of the judiciary: its complete lack of accountability and transparency. This is evident in the way transfers have been made, judges have been appointed, the inordinate delays in appointing chief justices or filling vacancies to the Supreme Court. The entire process remains inscrutable.

But what of his impact on jurisprudence? He catalysed some significant opinions that range from indefensible to potentially revolutionary. For instance, the court?s judgment upholding a Haryana government order that having more than two children should disqualify a candidate for running in local elections displayed neither constitutional sense or policy sagacity. In the Jharkhand affair, he overdid matters enough to raise concerns about trespassing on legislative prerogative. The decision on the Illegal Migrants (Determination by Tribunals) Act also waded into choppy political waters. The decision in Inamdar to take Article 19 seriously was potentially liberating, but marred by some ad hoc observations. He certainly kept the Supreme Court interesting, but made both politicians and constitutional experts nervous. But other than recounting specific judgments, can one describe him as having a judicial philosophy?

In many constitutional traditions, notably the United States of America, it is customary to ask questions about the judicial philosophies of supreme court judges. A judicial philosophy has two dimensions. The methodological dimension refers to a general conception of the law or constitutionalism that judges bring to bear upon their decisions. Of course, formally judges simply interpret the law or the constitution. (How many judges would admit to doing anything else?) But what the constitution means cannot be settled solely by reference to words in the constitution itself. And this is where the judge?s methodological propensities kick in. Are they originalists who suppose that the intention of the writers of the constitution can be determined and used as a guide to interpretation? Are they pragmatists, who believe that law should be interpreted according to its consequences, not the intentions of a bunch of dead of people? The second dimension is of a judicial philosophy that refers to substantive ideological commitments of judges. Are they liberals or socialists? Radicals or Conservatives? Usually there is an elective affinity between a judge?s methodological and substantive commitments, but the two often don?t hang together neatly.

In the Indian context, it is very difficult to characterize the judicial philosophies of judges. Very few jurists reflect on the methodological principles they bring to interpreting the Constitution. It is perhaps no accident that jurisprudence is almost completely moribund in India. In scholarship, the brilliant if sometimes elusive Upendra Baxi, and to lesser extent Rajeev Dhavan and S.P. Sathe, have kept the flickering flame of jurisprudence alive. But for the most part, this aspect of law has been ignored. Of all the dozens of commentaries on Indian constitutional law only H.M. Seervai?s magisterial, pugnacious and controversial Constitutional Law of India come closest to being based on an underlying methodological and political philosophy. The rest are all little more than compendiums. Amongst eminent lawyers too, the tradition of thinking about the nature of law itself is probably on the decline. The Supreme Court has had some great judges, but very few have been great jurists, leaving a mark on the philosophy of law in the way Benjamin Nathan Cardozo or Oliver Wendell Holmes or Learned Hand did. This may in part be a consequence of the fact that most judges do not have to take constitutional law very seriously till they arrive on the Supreme Court. So for most judges the lines between regular adjudication and constitutional matters remain blurred; there is no special gravitas associated with constitutional cases.

Even ideological divides are not so easy to carve out. There are judges who have been identified with particular emphases: Gajendragadkar with social reform, Kuldip Singh with environmental activism, Khanna with liberty. There also have occasionally been judges like Krishna Iyer who, for want of better term, might be described as a socialist. K. Subba Rao probably came close to being a liberal in a classical sense. But these labels can be misleading as well. In Indian legal circles when people ask ?What is the orientation of the judge?? they usually mean two things. Sometimes they mean how much of a disciplinarian the judge is in terms of handling the courtroom, how open to manipulation he is and so forth. Or the other classification usually deployed is ?activist? versus ?non activist?. This is a peculiar way of assessing judges since it refers neither to the judge?s methodological orientation nor to their substantive views. At most what the label ?activist? suggests is hortatory concern for lots of good things like the environment, the rights of the poor and so forth. It suggests a judge determined not to let anything stand in the way of what they think the social outcome should be in a particular case. But it by no means implies clarity in outlook or the consistency of underlying principles. Some of our ?activist? judges like Bhagwati were quite meek in their concern for civil liberties. ?Activism? is no more an illuminating description of a judicial philosophy than the pitch of someone?s voice is a description of what they are actually saying.

But there is a deeper sense in which the distinction between activist and non-activist judges has been rendered meaningless. The expansion of formal judicial power is now so complete that it is not clear what ?activism? means. One yardstick by which activism is judged is a concern for the formal allocation of powers enshrined in a constitution. But when was the last time there was a case, with significant implications, where the judiciary said, ?intervening in this matter will involve trespassing on the separation of powers?? The Supreme Court rarely refuses to intervene on the grounds that a matter is not within its jurisdiction. A promiscuous use of Article 142, by judges of all kinds of persuasions, has allowed the courts to expand their jurisdiction so that everything falls within their ambit. What does ?activism? mean in such a context?

There are, therefore, some general difficulties in characterizing the judicial philosophies of individual judges. But if one were forced to characterize Lahoti?s jurisprudence, the description might go something like this. Like with so many recent judges, he engages in what might be called the jurisprudence of exasperation. The function of law in this view is to express, both literally and figuratively, exasperation at the state of affairs. This is not a jurisprudence based on a concern for the formal allocation of powers. Nor does it consider carefully the actual consequences of law. Rather, it expresses a certain impatience with reality. So for instance, the judgment upholding the disqualification of candidates with more than two children was not interested in justifying the constitutional principle; nor did it really ask whether preventing a small number of people from running for office would have such an impact on our procreation propensities as to justify a drastic abridgment of rights. It ended up deriving a position from consternation at the rising population.

Or take Inamdar. Much of it, especially the invocation of Article 19 was argued on principle but in the end the observations about the relationship between reservation and merit was more about an exasperation with what the judges think of as mediocrity, than a considered argument. Much in our society would prompt us to tear our hair out in exasperation. Judges now see it as their job to give these sentiments expression in law. But how far a jurisprudence of exasperation will sustain the authority of the court remains to be seen.