The fear of executive courts

India urgently needs the return of a thriving legal culture that uncompromisingly calls out political posturing

On Monday, Justice S.R. Sen of the Meghalaya High Court observed in a judgment that “anybody opposing... Indian laws and the Constitution cannot be considered... citizens of the country.” The case involved the denial of a domicile certificate. Justice Sen, however, thought it fit to further note that in 1947 India “should ... have been declared... a Hindu country”, and that “our beloved Prime Minister” ought to legislate to grant automatic citizenship to (non-Muslim) religious minorities “who have come from Pakistan, Bangladesh and Afghanistan”. He also noted that “our political leaders” in 1947 “were too much in a hurry to get the independence... thus, creating all the problems today”, and that “nobody should try to make India as another Islamic country”. In parting, Justice Sen directed the Assistant Solicitor-General to hand over a copy of his judgment “latest by 11-12-2018 to the Hon’ble Prime Minister, Hon’ble Home Minister, and Hon’ble Law Minister”.

It is tempting to dismiss this as an aberration, like the time that Justice Mahesh Chandra Sharma of the Rajasthan High Court observed that peacocks don’t have sex. Giving in to that temptation, however, would be a mistake. Justice Sen’s ill-advised and ill-judged diatribe is only the latest in a series of instances where judges have inserted themselves into fraught political controversies, and have deployed the prestige of judicial office to lend weight to one side of the controversy. This is an alarming trend.

The meaning of judicial independence

We normally think about judicial independence as independence from the government. Our Constitution is designed to ensure that judges can do their work “independent” of government influence: fixed salaries, security of tenure, and an appointments process that — through the Supreme Court’s judgments — is insulated from executive control.

Independence, however, means something more. It also requires that judges perform their constitutional role independent of personal biases, political and moral beliefs, and partisan ideologies. Of course, adjudication is a political task, and there is no doubt that a judge’s political vision will

inform her work. That, however, does not authorise the judge to turn into a politician. At all times, she is bound to maintain primary fidelity to the law and the Constitution: to the text of legal instruments, to the canons of legal interpretation, and to the body of judicial precedent that holds the field. These are crucial checks upon judicial power.

Judicial independence, therefore, depends on judges recognising that law, while being influenced by politics, is not reducible to it. Law and adjudication must remain autonomous from partisan politics in important ways. And the more we strengthen judicial independence in its first sense — independence from the government — the more attention we must pay to independence in this second sense. This is because control brings with it accountability. Politicians, for example, remain “accountable” to the people in at least some sense, because they depend upon them in order to continue in office after five years. Judges who are insulated from any external control are accountable only to themselves, and their own sense of the limits of their constitutional role.

Accountability only to oneself, however, is a very weak form of constraint. The temptation to overstep is always immense, more so when such immense power has been placed in one’s own hands. It is here that legal culture plays a critical role in establishing judicial accountability. By legal culture, I refer to a set of unwritten, but clearly established, norms that determine what is or is not acceptable in the process of adjudication. And a legal culture does not spring up out of a vacuum: it must be created and nurtured by judges, lawyers, legal academics, the press and the citizenry.

The roots of the crisis

Where, then, has the legal culture failed us? The answer takes us back a few decades. In the 1980s, there was a rapid expansion of judicial power. This expansion was motivated by a sense that the judiciary had long been a conservative institution, taking the side of landed interests against “the people”. This needed to change. In order to accomplish this, the Supreme Court began to dispense with procedural checks upon its power. Some of these steps were important and necessary, such as allowing “public interest” cases to be filed on behalf of those who were unable to access the courts. Others, however, were double-edged swords, such as diluting the evidentiary standards required to prove disputed facts, and vastly expanding the courts’ discretion to shape and fashion remedies.

The 1980s Supreme Court was highly praised for this. Influential legal scholars — whose views continue to hold sway in law schools today — lauded the destruction of pesky “Anglo-Saxon” procedural rules, which stood in the way of “complete justice”. Judges were painted as crusading heroes. In words that might have embarrassed Louis XIV, the Supreme court was called “the last refuge of the oppressed and the bewildered”. By the 1990s and the 2000s, under the misleading label of “judicial activism”, the court was beginning to engage in a host of administrative activities, from managing welfare schemes to “beautifying cities” to overseeing anti-corruption initiatives. The constitutional court had become a Supreme ‘Administrative’ Court. This, too, was justified on the altar of necessity: politicians were corrupt, bureaucrats were inefficient, and things didn’t move. Someone had to come and clean it all up.

A combination of viewing the judiciary as an infallible solution to all social problems, and viewing procedure — that would otherwise constrain judicial power — as an irritant that stands in the way of a truer, purer justice has created the perfect storm that we see today. The first allows a judge to project her own social and political views as universally valid and beneficial; the second allows her to ignore the barriers that stand between her and the implementation of those views. Wrapped up in patriotic zeal, a judge does not stop to think whether he is authorised to compel all cinema halls in the nation to play the national anthem; another does not consider whether he has the power to mandate that every student in Tamil Nadu must study the Tirukkural ; a third takes over the entire process of preparing a National Register of Citizens (NRC), with nary a thought about whether the Constitution ever contemplated a task such as this to fall within the judicial domain.

A frightening prospect

The record of the courts in protecting civil rights has been a mixed one. In far too many cases, courts have tended to defer to the executive and the government. However, judgments like the national anthem order, the Tirukkural order, the NRC process, and Justice Sen’s recent foray raise an altogether more frightening prospect: that of an “executive court”. By an executive court, I mean a court whose moral and political compass finds itself in alignment with the government of the day, and one that has no compunctions in navigating only according to that compass. Instead of checking and limiting government power, an executive court finds itself marching in lockstep with the government, and being used to set the seal of its prestige upon more controversial parts of the government’s agenda.

We are not there yet. But we urgently need the return of a thriving legal culture, one that uncompromisingly calls out political posturing of the kind we have seen this week. And this legal culture cannot pick and choose, criticising regressive orders like Justice Sen’s, while exempting judgments that equally cross the line, but nonetheless seem to have achieved a “right outcome”. Only a principled consistency in requiring that judges must always give reasons for their judgment can halt the transformation of the constitutional court into an executive court.

Gautam Bhatia is a Delhi-based lawyer