Maintaining the independence of the Indian judiciary within the framework of political accountability to the people of the country is a conundrum that the institution has time and again tried to resolve. Dr. ANUJ BHUWANIA addressed the concern at the 35th Annual Dr. Ramanadham Memorial Lecture in his speech. The topic was ‘Judiciary and Democratic Rights’ organised by the People’s Union for Democratic Rights. Following are the excerpts from his speech at the event.
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THE Indian judiciary is one of the most powerful, however, its power hasn’t been used to hold the state accountable in recent times. In India, it performs a function with and for the state. Indian courts no longer work as a shield for the people, they work in close alliance with the executive.
India is witnessing a new kind of committed judiciary that works for the aid of state goals.
In 1788 Alexander Hamilton raised the question of whether the judiciary can ever be a threat to liberty? According to Montesquieu ‘there is no liberty if the power of judging is not separated from the executive and legislative powers.’
The executive is characterised by its force, the legislature by its will, and judiciary by its judgement. The recent judgments show that the court seems to have faltered on various accounts.
In John Rawls’ book, ‘Political Liberalism’, he talks about the public reason as one aspect which characterises constitutional courts. At present, the Indian Supreme Court is nowhere near normative constitutional behaviour.
More often than not American models of critiquing the judiciary are applied to Indian judiciary and across the globe. However, normative accounts of the judiciary in India are quite different from American ideas, especially since India is a transformative constitution.
The change brought about by the Indian constitution is that the constitution sits on top of political action.
We must understand the idea of normative judiciary in a transformative constitution. The three kinds of transformative constitution are:
1. Liberal transformation: An instance of the same is the idea of horizontal and vertical separation of powers by Montesquieu.
What is remarkable in the Indian constitution is the power of judicial review. The change brought about by the Indian constitution is that the constitution sits on top of political action.
Vikram Seth in ‘A Suitable Boy’ points out the change from suits to writs. There is accountability of the state that judicial review made possible.
2. Democratic transformation: The act of providing for the universal franchise in a country as hierarchical as India in terms of caste, gender and class. Ambedkar had noted ‘ India would be entering not only political equality but stark social-economic equality’. India has witnessed the embarking of political equality in the social structure itself.
3. Statist transformation: Indian constitution is a deeply statist one and nothing really illustrates it as well as the Directive Principles of State Policy (DPSP). DPSPs promote an activist and modern state that eradicates poverty. Such a state would civilise society and make it fit for liberal democracy. The ideas of social reform and transformation are really spread all over constitutional assembly debates.
In terms of judicial review, there is a conflict between expanded judicial review in the form of fundamental rights and the DPSPs which vests with the state. The conflict is not only about DPSPs, but about a strong centre and a weak federal structure.
HM Seervai in his chapter on DPSPs poses a stark question that, ‘what would happen if the DPSPs weren’t there in the constitution at all?’ and he answered that ‘nothing would happen’. But on the question of ‘what if fundamental rights were not there in the constitution?’ he said that, ‘the consequences would be catastrophic’.
According to Nehru, fundamental rights and judiciary are static while the Indian constitution is dynamic.
We need to teach constitutional legal pluralism. There’s a kind of a side lane of laws which is beyond the constitution.
The changing status of the directive principles set a new normative account of what judicial behaviour should mean.
The language of the DPSPs vests the state with the power to carry out social transformation, which Fundamental Rights cannot restrict. This battle continued for a while and caught fire in the 1970s with the Golaknath Judgement when the court declared the supremacy of Fundamental Rights over the rest of the constitution. Granville Austin calls this the ‘great constitutional war’.
The 1970s is when the apotheosis of the DPSPs was made possible. Starting from the 1971 elections itself, where SC struck down social reforms. In a state where the PM bows before the constitution, Mrs. Gandhi wanted to change the constitution itself.
The Indira Gandhi government eventually received the mandate, as a result of which 19 constitutional amendments were passed between 1971 and 1977. One of the most remarkable of these amendments was the 25th amendment which places socialist directive principles above the fundamental rights.
The discourse of a committed judiciary was articulated during this period. The period through the 70s is where we started seeing invocation of the aims of the constitution as enshrined in the constitution, stumping the text of the constitution itself. In this sense, the text of the constitution was an obstacle to the goals of the constitution.
In the 42nd Amendment, they went completely extreme and judicial review was truncated by introducing Article 31C in the constitution. In 1980, in the Minerva Mills case, the court struck down the amendment of 31C which held DPSPs above judicial review.
In the Minerva Mills judgment, Justice PN Bhagwati gave one of the most landmark dissenting opinions in Indian history and introduced a new common sense in the understanding of the constitution.
Justice Bhagwati said, “Fundamental Rights, though precious and valuable for maintaining the valuable way of life, have absolutely no meaning for the poor, downtrodden, and economically backward classes, which ultimately constitute the bulk of the people of India.” A similar submission was made by the Attorney General in the Aadhar Judgment where he called the Right to Privacy an elitist idea.
The changing status of the directive principles set a new normative account of what judicial behaviour should mean. The courts have to talk about their idea of how they make social justice possible in terms of directive principles and the interpretation of fundamental rights.
Such a close embrace between the executive and the judiciary is no longer anathema, but perhaps necessary for the socio-economic development of the country and to make state goals realizable
Article 21 is being interpreted in all ways except for the literal interpretation. This account of transformative constitutionalism provides for a different kind of normative standard for the judiciary. Such a close embrace between the executive and the judiciary is no longer anathema, but perhaps necessary for the socio-economic development of the country and to make state goals realizable.
If we continue in this vein we cannot expect the judiciary to guard the liberty of the citizens.
The transformative constitution is becoming more and more accepting, and these competing ideas of transformative constitutionalism i.e. liberal and democratic transformation are seen as important to the state. These competing ideas of transformative constitutionalism need to be explored if tendencies towards authoritarianism in alliance with the judiciary is to be resisted.
(Dr. Anuj Bhuwania is a law professor at O.P. Jindal Global University and has authored the book, ‘Courting the People: Public Interest Litigation in Post-Emergency India’.)
