Conflict zone and juridicial power

By Sushil Jain

The UPA Government is facing the wrath of the trading com-mu-nity as well as the judiciary as the Supreme Court ordered sealing of shops in residential areas of the National Capital. The Government does not know which way to react, and after getting rebuked three times, it has been decided at a meeting of Group of Ministers to knock on Supreme Court door for leniency. Insiders in the Government hold the opinion that the judiciary since the time of chief justice R.C. Lahoti has become activist. They cite the example of the court's judgement upholding a Haryana government order that having more than two children should disqualify a candidate for running in local elections, which displayed neither constitutional sense nor 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. The former CJ certainly kept the Supreme Court interesting, but made both politicians and constitutional experts nervous.

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 hand together neatly.

In the Indian context, it is very difficult to characterise the judicial philosophies of judges. Very few jurists reflect on the methodological principals they bring to interpreting the constitution. It is perhaps no accident that jurisprudence is almost completely moribund in India. 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 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 not 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 not 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 yard-stick 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 characterising the judicial philosophies of individual judges. But if one were forced to characterize former CJ Lahoti's jurisprudence, the description might go something like this. Like with so many recent judges, he engaged 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 certain impatience with reality. So for instance, the judgement upholding the disqualification of candidates with more then 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 pre-creation 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 its, 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 sentiment expression in law. INAV