Saturday, May 17, 2014

The Election and Theories of Supreme Court Behavior

One of the prominent theories of why the Indian Supreme Court is so powerful when compared to other courts around the world is that its rise mirrored the rise of coalition politics in India in the 80's, 90's and '00's. As the country's ruling coalitions became more fractured at the centre the Supreme Court encountered both a governance vacuum and less organized opposition - and in this climate it could issue its often expansive opinions. Under this theory, the recent BJP victory, giving the BJP the largest winning margin in Parliamentary elections since Rajiv Gandhi's government came to power in the wake of Indira Gandhi's assassination, should impact the Supreme Court's behavior. One would expect the Court to become less activist and confrontational with the new government because it sees its legitimacy reduced, or rather the legitimacy of the new government as higher compared to previous governments that held power with more precarious coalitions.

This type of realpolitik theory has a certain intuitiveness to it, but there are both descriptive and normative objections that critics might raise. Many would counter that the Court's behavior is embedded in legal, institutional, and political traditions that are unlikely to bend significantly even when faced with a new political calculus - indeed some would act aghast even at the suggestion that an election could effect judicial behavior (or the behavior of how political parties respond to the Court's decisions). Others might answer that the Court does respond to politics, and needs to ensure its decisions have legitimacy within this context, but since the BJP still won only a minority of the popular vote the Court will continue to feel it has significant allies in the public, civil society, the media, and amongst opposition political parties that will provide it with the space to continue to legitimize the type and style of decision making it had before this election (plus the BJP knows that its fortunes may swing in the next election and it may benefit from a powerful Court if it is out of power in the future). Still other observers might claim that the new NDA government will be less corrupt, better at governing, and less likely to violate citizens' rights than the outgoing UPA and therefore if the Court becomes less active in its judicial decisions it is not because of a changed political landscape, but because of a different governance landscape that gives the Court less reason to act.

Normatively, many will likely object that courts should not change their behavior depending on election results. It seems particularly ironic that if courts are supposed to be counter-majoritarian institutions they are less likely to enforce rights against strong governments and more likely against weaker, less majoritarian, governments. But such a view is not universally held.  Some may counter that particularly when discussing the often sweeping orders of the Indian Supreme Court that the judiciary should give more deference to a government that commands more seats in Parliament. The people have spoken, at least for a while, and so the judiciary should act under more limited conditions.

I do think that the Supreme Court's behavior is deeply interlinked with the political context within which it has operated. It would be surprising if a large shift in the political landscape did not have repercussions for the judiciary. For those who theorize about these matters I think it is an important time to hypothesize about the future. We will not be able to take stock of larger shifts in the Court's behavior for some time - perhaps a year or two, or perhaps even after another election cycle. Even then what has caused change in the Court's behavior, or caused it to remain unchanged, will remain contested. Still, if we cannot come up with some theories about how this election will change the Court's behavior that can then be examined in the years ahead that is a serious indictment of the state of studies of the Indian Supreme Court.

More practically, for those worried about the excesses of a government with a large majority it might be useful to think about what policies may be able to help shore up the judiciary. For example, I think if a true opposition party emerges and a leader is appointed then reforms like the Judicial Appointments Commission still makes sense - which relies on the government in power, the opposition, and the judiciary to all take part in judicial appointments. However, if the leader of the opposition in this new political landscape looks less oppositional than one would have predicted a few months ago than it might call into question this entire proposed method of appointing judges.  For those concerned about the potential for the new government to amend the Constitution in a way that may undermine its secular spirit an embrace of the Basic Structure Doctrine takes on new tactical relevance and it may make sense to work to give the Doctrine stronger theoretical foundations. Those fearful of the potential actions of the new government may become less likely to criticize the Court, not wanting to inadvertently undermine an institution they may need to shortly rely on, while others may think judicial reform is more necessary now than ever to ensure it is as a healthy an institution as possible if it needs to later face down the government.

In the immediate aftermath of an election it is almost impossible to predict what a government in power will do - opponents suspect the worst and supporters the best - but in the coming weeks and months following how the Court reacts to a government with a majority unseen for some time will be an important barometer of the health of India's democratic institutions.
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