“We are under a Constitution, but the Constitution is what us – the Judges, say it is.” – Justice Charles E. Hughes
November 21, 2018
Over a hundred years have passed since the Chief Justice of the United States of America – Justice Charles Evans Hughes, whilst addressing the Chamber of Commerce, proclaimed that the judiciary was the sole possessor of the keys to interpreting the Constitution. Granted that such statements are savoured at large by those who perceive the judiciary as the bastion of preservation of socialist-democracy and are well-received by the liberal media, who justify judicial constitutional review on the grounds of achieving social justice and protecting the peoples of a country – especially the minorities, from the pits of tyranny that totalitarian politics is susceptible to descend into. Nonetheless, it is imperative to understand that this “conventional wisdom”, as Ran Hirschl argues, is devoid of any empirical support.
Hirschl, an eminent scholar and expert in the field of comparative public law, through the means of his paper titled – ‘Towards Juristocracy: The Origins and Consequences of the New Constitutionalism’[1] identifies a trend in the past few decades, pertaining to a meteoric rise in the instances of constitutional review among Courts globally. Hirschl records that:
“Around the globe, in more than eighty countries and in several supranational entities, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries … a force of social change removed from the constraints of political power.”[2]
It is through the means of this essay that I intend to scrutinise the growing trend of judicial sovereignty with special emphasis on constitutional review. Constitutional review in itself, is a system whereby the judiciary in cases whence they deem a law to be unconstitutional, have the power to strike down laws passed by the Parliament. In addition to this, I shall also be dwelling into the theme of how post-modern politics in liberal democracies has paved the way for juristocracies – as a form of governance and shall be analysing the current Indian judicial scenario. For the purpose of this opinion essay, I have studied and analysed the works of renowned academicians – Dr. Ran Hirschl on Juristocracies and Dr. Pratap Bhanu Mehta on Judicial Sovereignty to understand and analyse the aforementioned themes.
Returning to Hirschl’s criticism of those justifying the practice of constitutional review on the grounds of achieving social justice in a way perhaps similar to Dworkin’s noble dream, he sarcastically regards this “conventional wisdom” to be bereft of any empirical support. He argues that constitutional review is primarily an instrument of safeguarding the preferences of the society’s elite from any form of democratic challenge and rather deals with ‘hegemonic preservation’. The interests of threatened political elites and economic elites and the judiciary’s interests in self-empowerment have been accredited by Hirschl as the driving forces behind the phenomenon that is constitutional review.
He proceeds to shed light upon the trend of transition from an originalist to anti-originalist interpretations of the constitutions, as a majority of jurists have abandoned the classical textual interpretations and desist from sharing the same hermeneutical framework as law-makers. Staunch critiques of the originalist school of interpretation includes Ronald Dworkin – who asserts that the jurists must adjudge cases according to the society’s prevalent notions of morality and not what an ancient piece of paper claimed was the law[3] – along with Joseph Raz – who advocates that the cumulative alteration of law by judges is legitimate, despite the prospect of such rulings culminating in radical and revolutionary ramifications.[4] Justice Krishna Iyer, Justice P.N. Bhagwati and more recently, Justice D.Y. Chandrachud – are archetypical of the jurists Dworkin and Raz spoke about.
Hirschl’s findings include five ‘phenomena’ that are commonly prevalent in countries whose judiciaries of late have been indulging in non-originalist and liberal interpretations of the Constitution. Firstly, he anticipates the appropriation of the rhetoric of progressive minority protection and the effect of such annexation on the political discourse. Secondly, he claims that rights – be it individual or socio-economic ones – are conceptualised in a classic libertarian manner, wherein the State is depicted as an intruder of the sphere of privacy entailing the rights of citizens. Thirdly, Hirschl hints at a “well-orchestrated judicial empowerment game” – a deliberate process of cross-jurisdictional connections and collaborations, especially prevalent among common law states, of complementing their counterparts’ drive for expansion of jurisdiction and endeavouring to incorporate similar changes in their dominions. Fourthly, political hullabaloos are recast as questions of law under the framework of Constitutional review. Finally, Hirschl argues that jurists tend to display a predilection for a neoliberal understanding of rights with negligent contribution towards redistributive justice or upholding ‘subsistence’ socio-economic rights.
A detailed analysis is deductive of the finding of how astoundingly accurate the phenomena identified by Hirschl are to the current trends that are characteristic of the Indian judicial framework at large. I shall be addressing these trends at a later stage in this essay.
Notwithstanding the phenomena highlighted by Hirschl pertaining to the prevalent trends exhibited by jurists worldwide, Dr. Pratap Bhanu Mehta in his article titled – ‘India’s Unlikely Democracy: The Rise of Judicial Sovereignty’[5] makes further inroads into the theme with a specific emphasis on the Indian judiciary.
Mehta regards the innovation of Public Interest Litigation or as they’re referred to in common parlance – ‘PILs’, as the single-most important instrument for the augmentation of the powers of the Indian judiciary. Inspired by the Gandhian populist politics, this innovation facilitated judges to formulate policy and enforce its implementation on the executive. He notes how in certain cases the judiciary has expanded its’ own powers in a highly overarching manner so as to encroach upon the powers and jurisdiction of the other two arms of the State – the executive and the legislature. This consolidation of power by the judiciary, notwithstanding their undisputable contributions to the furtherance of democracy, however is not bereft of any controversy. Mehta critiques the Indian judiciary on three counts or the “three ironies” as he calls them.
Firstly, despite the introduction of public interest litigation and the liberal interpretation of locus standi by jurists in such matters, the access to justice to the common person till date continues to be a vehemently taxing process. The pendency of cases continues to skyrocket at an unprecedented rate, with slightly over thirty-three million cases still pending,[6] waiting for ‘the sluggish harbingers of justice’ to come knocking at their doors, doing justice to the popular saying that “in India, you do not get punishment after due process—due process itself is the punishment.”
The second irony pertains to the principles applied by the Courts that guide their actions. In spite of the Courts establishing themselves as a forum of disentangling public-policy issues, the principles and philosophies giving sanction to such rulings, are in many instances seen to be suspect of well-defined and coherent articulation. The wording in the landmark Puttaswamy judgement[7] upholding the ‘right to privacy’ became a talking point among many legal and academic circles for its open-ended and abstract usage of “against Constitutional morality”, with respect to the non-recognition of an ‘implicit fundamental right’ – effectively setting as precedent wordings invokable in a plethora of Constitutional cases.
The final irony identified by Mehta is linked to one of the main arguments addressed earlier which was also observed by Hirschl in his findings, pertains to the fact that the Courts have accumulated and in certain cases, even usurped power from the executive and legislative wings of the State and in doing so, have marginalised the representative process. Granted that democracy and constitutionalism are meant to reinforce themselves however, whilst carrying out the aforementioned functions, the Courts have failed to explain or address from whence its’ authority to do so originates from.
At this conjecture, it is imperative that before testing the waters of the extent of the judiciary’s Constitutional authority, the history behind this inadvertent ‘Constitutional coup’ subverting the Constitution and with it – the powers of the legislative and executive, is appreciated. As the hegemonic domination of a single party in India came to a halt, the country for about twenty years following the emergency and the assassination of a former prime minister was plagued with weak coalition governments. It was at this time that the Supreme Court stepped up to “protect” the Constitution and through its own making became the most powerful among the three branches of the State. The deployment of ‘judicial activism’ as the obligatory duty against injustice was hailed by Constitutional scholars of every hue and colour. However, notwithstanding the positive outcomes and consequences of such ‘Constitutional development’, the actions of the judiciary have been at best self-aggrandising.
The Constitutionally suspect and obscure origins of the authority that the judiciary wields with respect to certain powers are inextricably connected to the equivocality on judicial appointments of Article 124(2) of the Indian Constitution:
“Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”[8]
The scope and extent of the Article couldn’t have been made clearer – the power to make appointments is clearly bestowed upon the President, and the consultations made with the judges are prima facie merely discretionary. Yet, following the ‘Third Judges case’[9] in 1993, the Supreme Court in their quest for ‘judicial independence’ adjudged that a “lion’s share of power” to appoint new judges to the Apex Court was vested with the Chief Justice and the next four senior-most judges. Ergo, the judiciary successfully carved out a ‘collegium system’ out of thin air where effectively judges appointed judges. The very perversity and hypocrisy of this move would be realised by simply flipping to the other side of the coin: What would be the populace’s reaction if the Lok Sabha passed a bill facilitating the members to appoint their successors? The words of the architect of the Constitution Dr. B.R. Ambedkar are significant in understanding the crystal-clear intent of the framers of the Constitution:
“To allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day.”[10]
The process of appointments in the collegium system is opaque and with no proper criteria or committee before whom the subject is weighed in, has become infamous for its indulgence in nepotism and personal patronage. The NDA government by virtue of the 99th Constitutional Amendment attempted to fix the gaping hole by establishing the National Judges Appointment Committee (NJAC) – which although beleaguered with its own issues of law, had attempted to increase the transparency to the process. However, the Supreme Court struck down the amendment holding it to be unconstitutional.[11] This was met with mixed responses from lawyers and academicians alike as it was remarked that the judiciary might have fortified its autonomy notwithstanding the fact that this came at the cost of its transparency and by virtue of which, perhaps its legitimacy.
The Supreme Court and the High Courts have also in recent times been guilty of expanding the scope of their jurisdictions by their own volition and whims and fancies, duly casting over them a semblance of the instruments of governance, with a multitude of legislations and policy-making decisions falling under the judicial scanner. Additionally, this has also cast a shadow on economic development by frequent disruptions to trade and commerce as was seen in the problematic judgement of banning liquor shops within five hundred metres of national highways, the practicality in enforcing such order – especially in the mountainous and hilly regions of Uttarakhand, Himachal Pradesh and Sikkim – causing the judgement to be amended multiple times, was duly realised.[12] The blanket ban on the sale of fireworks in Delhi last year to curb air pollution, weeks before Diwali caused ruin to a plethora of traders who had already purchased wholesale the firecrackers anticipating sales for the festive season – with some even committing suicide having invested their life’s savings in the business.[13] The mandatory playing of the National Anthem in the theatres was another such order pronounced by former Chief Justice Dipak Misra that became a subject of huge controversy, which too was later amended to make it optional.[14]
New York Times’ columnist Gardiner Harris aptly sums up judicial activism in India and the judiciary’s never-ending power struggle with the executive:
“India’s judges have sweeping powers and a long history of judicial activism that would be all but unimaginable in the United States. In recent years, judges required Delhi’s auto-rickshaws to convert to natural gas to help cut down on pollution, closed much of the country’s iron-ore-mining industry to cut down on corruption and ruled that politicians facing criminal charges could not seek re-election. Indeed, India’s Supreme Court and Parliament have openly battled for decades, with Parliament passing multiple constitutional amendments to respond to various Supreme Court rulings.”[15]
The current tribulations of judicial law-making and regulation pose a highly problematic scenario threatening the very tenets of democracy and republicanism – the foundation this great nation was built on. Failing to address the situation could see India making the transition to a post-modern democratic structure, wherein the mounting influence of the unelected jurists effectively restructures the conventional ‘separation of powers’ with a “unitarian claim of formal judicial supremacy” – exhibiting at a rudimentary level, certain characteristics synonymous with ‘juristocracies’ or ‘kritarchies’, the conundrum which Pratap Bhanu Mehta has aptly phrased as a tussle between “the rule of laws or the rule of men”.
[1] Ran Hirschl, Towards juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, Mass: Harvard University Press, 2007).
[2] Ibid.
[3] R. Dworkin, Justice in Robes (Harvard Univ. Press 2006).
[4] J. Raz, ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’, in L. Alexander (ed.), Constitutionalism: Philosophical Foundations (Cambridge Univ. Press 1998).
[5] Pratap Bhanu Mehta, India’s Unlikely Democracy: The Rise of Judicial Sovereignty, JOURNAL OF DEMOCRACY, 70-83. (2007).
[6] Harish Nair, 3.3 crore backlog cases in courts, pendency figure at highest: CJI Dipak Misra, INDIA TODAY, (Jun 28, 2017), https://www.indiatoday.in/india/story/3-3-crore-backlog-cases-in-courts-pendency-figure-at-highest-cji-dipak-misra-1271752-2018-06-28.
[7] Justice (Retd.) K.S. Puttaswamy v. Union of India, (2014) 6 SCC 433.
[8] INDIA CONST. art 124, cl. 2.
[9] S.P. Barucha, In re Special Reference 1 of 1998, INDIAN KANOON, (Mar 14, 1998), https://www.indiankanoon.org/7438/fnu6v7n43n.
[10] Complete Writings & Speeches of Dr B R Ambedkar, MINISTRY OF EXTERNAL AFFAIRS, Volume 13, Page 589.
[11] Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 28.
[12] Simar Singh, No Liquor Shops on Highways from April 1: Supreme Court, (Dec 11, 2017) https://sites.ndtv.com/roadsafety/no-liquor-shops-on-highways-from-april-1-supreme-court-1590/.
[13] Harish Nair, Supreme Court set to decide if you can have a ‘blast’ on Diwali, INDIA TODAY, (Aug 2, 2017) https://www.indiatoday.in/mail-today/story/supreme-court-set-to-decide-if-you-can-have-a-blast-on-diwali-1303310-2018-08-02.
[14] Ananthakrishnan G., National anthem in cinema halls is no longer compulsory: SC modifies order, THE INDIAN EXPRESS, (Jan 10, 2018), https://indianexpress.com/article/india/national-anthem-in-cinema-halls-is-no-longer-compulsory-supreme-court-modifies-orderv-5018334/.
[15] Gardiner Harris, India’s Supreme Court Restores an 1861 Law Banning Gay Sex, THE NEW YORK TIMES. (Dec 11, 2013), https://www.nytimes.com/2013/12/12/world/asia/court-restores-indias-ban-on-gay-sex.html.
Bhrigu A. Pamidighantam 
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