Wednesday, April 18, 2007

Mehta's assessment of Supreme Court politics in India

The April 2007 issue of the Journal of Democracy has a feature on "India's Unlikely Democracy" which includes an article by Pratap Bhanu Mehta titled "The Rise of Judicial Sovereignty." Mehta's piece reiterates some of the analysis that he has advanced in his previous writings, and has the advantage of being a short and succinct overview of the role of the judiciary in post-independent Indian politics. Apart from its helpful descriptive analysis, the article contains many of Mehta's typically provocative and insightful comments. A sampling of these is included here, but the article as a whole is a good resource for those seeking an understanding of the important role played by the judiciary in India. Mehta makes the important point that

"[a]lthough most studies of Indian politics pay almost no attention to the courts, disputes between the judiciary and the other two branches have been as important a fact about Indian political life as any."

Mehta asserts that the Indian Supreme Court's body of work is characterised by what he calls "three profound ironies" which he describes as follows:

“First, even as the nation’s most senior judicial panel engages in high-profile PIL interventions,
routine access to justice remains extremely difficult.
India’s federal judicial system has a backlog of almost twenty million cases, thousands of prisoners are awaiting trial, and the average time it takes to get a judgment has been steadily increasing. There is a saying in India that you do not get punishment after due process—due process is the punishment.

The second irony is that even as the Supreme Court has established itself as a forum for resolving public-policy problems, the principles informing its actions have become less clear. To the extent that the rule of law means making available a forum for appeals, one can argue that the Court has done a decent job. To the extent that the rule of law means articulating a coherent public philosophy that produces predictable results, the Court’s interventions look less impressive.

The third irony is that the Court has helped itself to so much power— usurping executive functions, marginalizing the representative process— without explaining from whence its own authority is supposed to come. In theory, democracy and constitutionalism can reinforce each other, but in practice their relationship is complex and even problematic.

The question of where one begins and the other ends has taken on global significance in light of the widely observed trend toward “postdemocracy,” according to which representative institutions are losing power to nonelected centers of decision making the world over. In India, unelected judges have effectively replaced the notion of the separation of powers among three governmental branches with a “unitarian” claim of formal judicial supremacy. The concept of the rule of law is supposed to legitimate this claim, but whether judicial supremacy— either as such or as exercised by the Indian Supreme Court—actually upholds the rule of law remains an open question.”

For me, the most insightful and simultaneously provocative part of the article was where Mehta makes the following claim:

"It is no accident that Indian constitutional law has been relatively unstable, or that the same courts which appear assertive in some areas seem weak in others: strong enough to spark the passage of many constitutional amendments meant to confound judicial rulings, but so easygoing
that no major politician has ever been charged in any of the numerous corruption cases that the Supreme Court has been supervising for years. The legitimacy and power that India’s judiciary does enjoy most likely flow not from a clear and consistent constitutional vision, but rather from its opposite. The Supreme Court in particular has given enough players enough partial victories to leave them feeling as if they have a stake in keeping the game of political give-and-take going. This, more than any ringing defense of principle, is the Court’s signal contribution to Indian democracy. (Emphasis added)."

My immediate reaction was to find this analysis persuasive, and I would be curious to know how others who have studied the Court's work would react to such an assessment of its functioning. The one worry I have with such an interpretation, however, is that it seems to suggest that the Indian Supreme Court is a homogenous institution, whose members work in concert with each other in designing the gameplan of the organisation and that this 'strategy' was conceived and implemented by the institution as a whole. The practical reality of a 26 member institution whose membership is constantly in flux, and which sits in benches of 2 or 3 judges must make us a bit wary of accepting Mehta's analysis uncritically. This is all the more so because Supreme Court judges are in theory supposed to work independently of each other, and each case is supposed to be decided on its own merits, by judges who have been randomly assigned to the bench deciding the particular case. The idea that judges adopt an overall strategy towards cases of a certain type, or that they discuss with other judges (who are not part of the particular bench) the approach or strategy that they should adopt in reaching a certain decision, would offend at least some of the accepted understandings about the judicial role. While the Court does have an overall institutional strategy on some issues, the fact is that it does not have very much control over its docket (unlike say the U.S. Supreme Court which controls access through grants of certiorari). While the Indian Supreme Court can control its docket (by deciding, for instance, not to grant SLPs in a certain category of cases) being simultaneoulsy a general court of appeal, its ability to do so is hampered.

I also worry that this analysis may lead to people becoming sanguine about individually egregious decisions of the Court, as they may think that the particular decision is just a part of a larger trend of cases that the institution is focusing on. This may lead, also, to a dilution of attention that should be focused on the justificatory reasoning advanced in support of each individual decision.The fact remains that given the nature of adjudicatory processes, decisions are made on an individualised, case-by-case basis, and the justification advanced for every decision should be capable of standing alone, instead of being understood as part of some overall utilitarian calculation.

The individualised character of litigation and adjudicatory processes makes the Court different from other political actors which can make policy decisions in the abstract. I believe that Mehta's analysis, while compelling as a general hypothesis, does not pay sufficient attention to this aspect of the Supreme Court's functioning.

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