Friday, January 30, 2009

Pratap Mehta’s talk “On the Nature and Limits of Judicial Authority”

At the first plenary session of the recently concluded LASSNET conference in New Delhi, Dr. Pratap Bhanu Mehta, President, Centre for Policy Research, New Delhi, gave an insightful talk about the “rule of law” and what he called as “ruptures in our experience of the law”. He began his remarks with the assertion that today the idea of the “rule of law “or “concept of law” seems to be under some stress. In some ways, the idea of the rule of law is some form of theodicy. Yet today, particularly in the Indian context, what is most evident today is the law’s impunity, ineffectiveness and inaccessibility. He spoke about the anxiety that the law evokes in us, referring to Kafka’s formulation that “The process [of law] itself is the punishment”.

He then went on to articulate what he saw as five ruptures associated with “law”, stating that at one level, these ruptures exist in our theoretical understanding of the scope/thought of law, but at another level, they are also ruptures in our experience of the law. He argued that the resolution/reconciliation of the issues produced through these ruptures will not come through a theoretical engagement with the concept of law but by thinking practically as to how law relates to the world.

1. Law and Order: Prof Mehta stated that order is what the law cannot achieve because it demands some sort of sacrifice and yet increasingly, law is being asked to create its own order. The likely outcome of this process is not that there will be more order in society but that the integrity of the law will be compromised in achieving this order. In some senses, our engagement with the law is wavering between the two extremes of violence and law.

2. Law and Authority: The rule of law depends upon the recognition of the authority of enacted laws. Yet law itself has never lived up to its idealized manifestations. While its authority depends upon its ability to resist gross manipulations, sometimes law gives in to such manipulations. Our society today is characterized by conflict and increasingly we are asking law to mediate differences. But does law have the power to adjudicate between these deep differences of opinion? Plato’s nightmare was that in a democracy, everyone would be entitled to their opinion. However, as can be seen from contradictory committee reports on the Gujarat riots, one condemning and the other absolving Modi, today law’s capacity to adjudicate the very facts that it relies upon is in doubt. This mocks the idea of public reason which is at the very core of the idea of law.

3. Law and representation: As Hobbes, Rousseau, Kant all perceived, law’s authority and legitimacy depends upon its being representative. The central problem of modern theories of law lies in identifying in what way enacted laws are “ours”. In an apparent reference to judicial decisions overturning legislation/intervening to hold representatives with criminal/corruption records accountable, he stated that we are increasingly dealing with a world where law is mostly an antidote to representative politics, insofar as representative politics is itself under strain. There is both radical and populist scepticism about the idea of representation.

4. Law and Justice: The question as to how law relates to justice is an age old one. The conditional obligation that lawmakers impose is not that of “justice” in the abstract but that of “justice in relation to law”, which sometimes seems to produce unjust outcomes.

5. Law and Legitimacy: Old social contract theories still ground the legitimacy of law. Why do practices of popular authorization not produce laws that are legitimate? Why is it that laws are enacted in our name and yet we are not satisfied with the outcome?

These five ruptures determine not just our theoretical predicament but also our practical experience of the law. What then remains of the idea of rule of law? According to Dr. Mehta, law provides us a shifting set of modus vivendi. He concluded his remarks by stating that our dilemma is that we are looking at law to resolve the crisis in our society, and yet the crisis in law derives from a wider crisis in society.

It appears to me that the five “ruptures” that Dr. Mehta spoke about are true of law at any given stage and time of its evolution and history. Yet, perhaps what makes these ruptures especially significant in India today is that our expectations from law and the institution that administers it, i.e. the judiciary have risen due to the larger crisis of public institutions in our society. It is when law/the judiciary fails to meet our expectations because it is inherently and institutionally incapable of meeting them that we perceive a crisis in the “rule of law” and experience outcomes that make a “mockery of public reason”. Therefore, we need to resolve the crisis in our society by reforming public institutions that stand for each of the values which the law seeks to attain and which are simultaneously seen in rupture with the law in our practical experience of the law. In my opinion, these include:

· Order (police reform);
· Authority (judicial autonomy and accountability as well as executive compliance with judicial decisions);
· Representation (reform of electoral and other processes to prevent election of criminal/corrupt representatives and ensuring that our elected representatives are truly representative of all their constituents and not mere exploiters of caste/religion vote banks);
· Justice (reform of civil and criminal procedure and enhancement of judicial capacities to ensure a reduction in delays in administration of justice)
· Legitimacy (reform of the legislative process, strengthening of legislative capacities, greater involvement of civil society in the law making process, perhaps supra majority requirements for highly contentious laws).

Clearly then Dr. Mehta’s talk goes beyond the issue of the nature and limits of judicial authority and is in fact more fundamentally a call for reform of public institutions in India, whether legislative, executive, judicial or political. In light of the recent Satyam scandal discussed in detail on this blog here and here, I think the call for reform extends to private actors like corporations that due to their sheer size and the magnitude of their impact on people’s lives are “public” in a very real sense of the term.
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