Judicial process and democracy in India: A critical analysis

Judicial process and democracy in India: A critical analysis

 

By

Saheb Chowdhury

Research Associate, National law University, Assam

 

Abstract

Judicial Process, in general, is understood as what is done by the judges and the court in the process of delivery of justice. Basically it is confined to the study of “is” and “ought” of the law. It is the whole complex phenomenon of court working. So, judicial process is what the judges or the court do in the process of dispensation of justice. However, is the function of the court confined to mere dispensation of judgments or does it play a greater role than that? Is the role of judiciary only adjudicatory? In recent times there has been an increasing trend in the direction of judges giving decisions in matters which trench on policy and politics. These new territories which the judges are venturing are considered to be the domain of the elective legislators. No wonder, the question has been raised by many as to whether such exercises of power by the judiciary are democratic or not. It is not to be denied that the judiciary has been vigorously protecting the basic rights of the people, but there have also been instances in which certain judgments had the effect negating these rights too. In this clash between the dialogues of democratic legitimacy and political legitimacy, this present work is an attempt at looking into the question of the protection of certain basic rights of the most vulnerable sections of the society.

 

It is the general assumption that in a democracy it is the power of legislators, who are elected by the people, to exercise political power. Judges are not elected by the people and hence should not tread into this domain, and if they do, such exercise of power will be undemocratic, since they are not accountable to the people. According to this argument the function of judges is only to interpret the law and not the creation of laws. So, when a judge goes towards that direction the question of legitimacy of such decisions arises.

So, is the question above that the judges giving decisions on matters trenching on policy and politics is undemocratic true or is it too simplistic a view to argue that policy and political functions are confined to the legislature and that judges have no role to play? Before we go any further, it would be pertinent here to bring another debate on judicial review within this larger discourse of judicial process. The usual criticisms directed against judicial review are that it is antidemocratic and that it is against popular majority. The justifications of judicial review, however, focus more on the outcome of the process. Jeremy Waldron specifically criticizes the judicial review of legislation on two grounds. First, he questions the judicial review process itself as being the better protector of the rights, and then challenges the democratic legitimacy of the process.¹⁾Jeremy Waldron, ‘The Core of the Case Against Judicial Review’ [2006] 115 Yale LJ 1348 . Waldron’s case against judicial review is predominantly towards the legitimacy of the process. Richard H. Fallon Jr., in reply to Waldron’s work says that instead of the confrontationist picture as depicted by Waldron, judicial review should be taken to be an additional protection of rights along with the legislative protection. ²⁾Richard H. Fallon, ‘The Core of an Uneasy Case for Judicial Review’ [2008] 121 Harv. L. Rev. 1693 Fallon believes that judiciary, together with legislature, provides increased protection for the rights. Fallon’s question is not about the propriety or legitimacy of the process, but the greater purpose of protection of the rights itself. In this clash between purpose and process, what still remains bare is the question of protection of the basic rights of the people. Fallon’s idea of multiple veto works only if it could always be said that the judiciary will protect the rights of the people. In fact, his belief that the judiciary does so is apparent from the use of the refrain of ‘over-enforcement’ in respect to judicial review. Thus, his entire idea of multiple veto points rests on his steady faith in the judiciary for the protection of rights. This confidence might be coming from the record of the judiciary in the US. What if, however, that is not the case elsewhere?

Let us take up the case in point i.e. India, where the judiciary is the vanguard of guaranteeing fundamental rights to the citizens. So, it is here that the foundation of judicial review lies in India. However, just as Waldron argued about bland rhetoric of the Bill of Rights ³⁾Waldron (n1) in the US, the rights mentioned in the Constitution of India are generic and subject to interpretations. These rights get different interpretations based on the different ideologies and understanding of the individual judges. For instance, a judge with broader outlook might enlarge the meaning of the right to life guaranteed by the Constitution to include protection of environment⁴⁾M.C. Mehta v. Union of India (1987) 1 SCC 395 and the right to livelihood of the pavement dwellers.⁵⁾Olga Tellis & Ors.Vs. bombay Municipal Corporation & Ors. Etc.(1986) AIR 180, (1985) SCR Supl (2) 51On the other hand, a judge with a restricted view of the idea of right to life might narrow it down to the extent of almost negating it, as is apparent in the Narmada Dam case⁶⁾Narmada Bachao Andolan vs Union of India and Others (2000) 10 SCC 664 and the Kudankulam nuclear power project case⁷⁾G.Sundarrajan vs Union Of India & Ors, (2013) 6 SCC 620 The reasons given in these cases by the judges have been, as opposed to the usual criticism of judicial review being counter-majoritarian, very much majoritarian in the sense that most of their decisions were given on some idea of ‘larger interest of the society’, for which they were ready to sacrifice what they thought were some minor violations of rights of a few.

So, the reality seems to be that judicial review is not only about the idea of protection of the rights of the people; it is rather about the interpretations of these rights given by the individual judges and their unpredictable rationalisation. Be it Waldron’s nonchalant faith in just one institution or be it Fallon’s cautious approach of multiple veto, what is really at stake are the basic rights of the common people. In fact, a possible subversive attitude of the judiciary towards rights might have a cumulative effect in invalidating the rights of the people leaving no remedy for them. This might seem like a cynic scepticism, but the rights of the people need much more than just judicial philanthropy and judicial indeterminacy. Richard Bellamy, however, presents a very radical political definition of rights by highlighting the disagreements within the rights realm.⁸⁾Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy, ( first published 2007, Cambridge University Press, 2007) 20For him rights do not have any inherent value or sanctity beyond the political and his concern is only the legitimising ground of procedural fairness. This however, seems to be a very treacherous terrain to be relied on for rights. Unlike an ideal picture as depicted by Bellamy, there are actual problems of lack of political agency of the vulnerable section in the society we live in. Such an approach could mean denial of justice to them.

In the light of the predicament it would be pertinent to inquire into a few important points. Are rights subordinate to ideas of democratic legitimacy and judicial rationalisation, or do they have their own inherent fundamental value the keeps them above all else? What new justificatory grounds and standards can be set before basics rights are sacrificed? Can rights themselves be redefined and re-standardised as to be beyond governmental frivolity and judicial indeterminacy?

We will deal with the above question by starting a relook at some important case decisions given by the courts in India. Let’s start by looking at whether judicial process is antithetical to democracy or whether it is complimentary to it.

The Modern concept of democracy and the Judiciary in India

In order to answer the question as to whether judicial power is antithetical to democracy, we need to understand the modern changing concept of democracy. The concept of democracy, in modern times has changed from the concept of mere majority rule. It is not as simple as it might seem. In today’s times, new concepts have made inroads in to it like that of Human rights, Minority rights, inclusive justice etc.

The premise that people should only be governed by the laws to which they have given their consent doesn’t hold true in many cases in India. Most of the major Acts, like the Indian Penal Code, The Evidence Act, The Civil Procedure Code, to name a few, are British Legacy, to which most of the Indians have not given their consent, if we follow the above logic. Is there a question of implied consent here or is it the outcome of the general will of the people of India? Even in cases of many laws passed by the parliament in India itself and many other regulations made are not really accepted and resisted by the people. Does this non-acceptance lead to invalidity of such laws? Well, that has hardly happened till now. If agency of the people and the representation of their ideas is the grand rationale then it doesn’t take much effort to show the vices of this system too. To name a few are the dominance of parties over people, the influence of the larger than life political personalities on the people, continuing governmental crises, the emptiness of parliamentary debate, the declining standard of manners of the politicians in the parliament, ideological obstructionist attitude of parliamentarians, the disorderly conduct of the members (the latest being the violence in the Kerala Legislative Assembly), the poor attendance in the House etc.

The Second contention is that “rule of majority” which has been argued to be the essence of democracy has not been able to differentiate it from other form of government. Taylor says that this is one of the aspects which it shares with fascism, communism and other populist form of totalitarian government. So, if democracy has been the solution to the vices of these forms of government, then it can’t be promoting that which it is supposed to prevent. What had happened in Nazi Germany had the popular support, what is the guarantee that the same would not happen in a democracy, if only majority rule were the distinguishing factor of democracy. This means that popular consent is only one important aspect of democracy and not “the only one” aspect of democracy. Similarly, the virtues upheld by the constitution of India, like Secularism, Minority rights would not have been possible, and our nation would not be the largest democracy in the world and would have fallen apart, had majority rule been the only defining factor of democracy. So, the history of the recent past and our own experience in India prove that democracy is not only about majority rule but much more than that.

 

Democracy is a form of government in which everyone has equal stake and therefore everyone equally participates in it. It is not dictatorship of the majority. It is a form of government that respects the rights of everyone. It has various ingredients in it like Human rights, rights of Individual, Rights of communities, fairness, justice, transparency etc. It is these elements which differentiate democracy from other form of governments that failed to last in the past century.

Taylor very aptly says:

“As our understanding of the nature of the modern democratic government improves, it becomes increasingly apparent that majority rule, while an essential ingredient of the system, can operate in ways which are as undemocratic as the rule of minority- that democracy has to do with not only with who exercises the power of the state, by and for the people, but also with the manner in which the state treats those who seeks its assistance, or are obliged to submit to its authority, and with what the state allows people to decide and do of, by and for themselves” ⁹⁾Martin Taylor, “Making and Changing the Common Law: The Essential Democratic Functions of the Court”, (unpublished) (1996) PL 31

The third important development of the twentieth century is the development of Human Rights. It may be Individual Rights or Group Rights like Minority Rights. It goes without saying that had the independent judiciary been not standing with the bastion of protection of these rights, the over enthusiastic legislature and the executive would have easily made a mockery of these rights. The case of Maneka Gandhi ¹⁰⁾Maneka Gandhi v. Union of India, AIR (1978) SC597is in point, when the Supreme Court held that any state action affecting the life and liberty of a person has to be ‘ right, just, fair and reasonable and not arbitrary or fanciful and oppressive’. This was, however, just the beginning step of the era of protection of human rights and judicial activism in India. After this decision the judiciary had taken bolder decisions for the protection of Human Rights. It invented many new instruments for the protection of the rights of the poor and the downtrodden. Epistolary jurisdiction is one such new invention. It is a strategy adopted by the court to protect the rights of the poor and the vulnerable section of the society. Under this system, the court entertains a letter as writ petition ignoring all procedural norm and technicalities.

The Judiciary has further developed it in cases like Olga Tellis v. Bombay Municipal Corporation ¹¹⁾Olga Tellis & Ors.Vs. bombay Municipal Corporation & Ors. Etc.(1985) SCR Supl (2) 51, Bandhua Mukti Morcha v. Union of India ¹²⁾Bandhua Mukti Morcha v. Union of India AIR (1984) SC802, Sunil Batra v. Delhi Administration¹³⁾Sunil Batra v. Delhi Administration AIR (1980) SC1579 etc. There is no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life and personal liberty. But the judiciary has evolved a right to compensation in cases of illegal deprivation of personal liberty. Rudal Shah v. State of Bihar¹⁴⁾Rudal Shah v. State of Bihar AIR (1983) SC1086 is an instance of breakthrough in Human Rights Jurisprudence. The Court granted monetary compensation of Rs.35, 000 against the Bihar Government for keeping a person in illegal detention for 14 years even after his acquittal. The Court departed from the traditional approach, ignored the technicalities while granting compensation. In Bhim Singh v. State of Jammu and Kashmir¹⁵⁾Bhim Singh v. State of Jammu and Kashmir AIR (1986) SC494 the Court awarded Rs.50, 000 as monetary compensation by way of exemplary costs to the petitioner to compensate him. In M.C. Mehta v. Union of India, ¹⁶⁾M.C. Mehta v. Union of India AIR (1987) SC 1086 the Supreme Court held that the power of the Court to grant such remedial relief may include the power to award compensation in appropriate cases.

The Supreme Court has done a commendable job while elaborating the scope of the right guaranteed under Article 21 in Francis Coralie Mullin v. Administrator, Union Territory of Delhi ¹⁷⁾Francis Coralie Mullin v. Administrator, Union Territory of Delhi AIR (1981) SC746.It observed that right to life cannot be restricted to mere animal existence. It means something more than just physical survival. Right to life includes the right to live with human dignity and all that goes along with it.

The above mentioned cases are some among the innumerable number of cases in which the Supreme Court has taken pro-active role in protecting the rights of the weak and vulnerable sections of the society, which the legislature and the executive had totally failed to protect. The courts or the judiciary is an independent organ of the government. If they are subject to the whims and fancies of the legislature then proper justice cannot be dispensed. This would always lead to the minority or Individual rights being ignored and relegated to least of priorities and the state would be utilitarian institution, which is not what democracy really means.

It has also been noticed umpteenth times that there are various areas in which the legislature fails to legislate, which has led to severe violations of individual rights. These are the loopholes or legislative blanks that a court must fill to ensure fair and equal treatment of every individual in the society, which would ensure the survival of true democracy. Some major instances of legislative vacuum filled by the judiciary in India are as follows.

In an unprecedented manner the Supreme Court, in D.K.Basu v. State of W.B ¹⁸⁾D.K. Basu Vs. State of West Bengal, AIR (1997)SC610 issued 11 requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf. The requirements were held to be flowing from Articles 21 and 22(1) of the Constitution. This exercise of power has been described by many as judicial hyper-activism, rather than commending such an unprecedented step taken by the court to protect the basic human rights, which such indiscriminate arrest had made a mockery of. The detractors of this judgment had critiqued the judgment merely on the ground that such decisions are violation of separation of power, which has been mentioned nowhere in the constitution of India. It has also been critiqued that the judiciary, in the name of protection of human rights, has under the guise of interpreting the constitutional rights has trespassed in to the field of another organ. The question in such situation is that when the other organs have blatantly failed or were unwilling to fulfill their duty, should, in such scenario, the judiciary be a mere passive spectator, or should it be the protector of the rights of every individual and take some pro-active steps in reminding the other organs of the duties that they have deplorably failed to fulfil?

Judicial filling of legislative blank seems in such cases to be necessary for the fair treatment of individual rights which is the quintessence of democracy and therefore, judicial law-making does not seem to be an enemy of democratic form of government.

McCormick says: “democracy is not just about majoritarianism; it is also about individual and minority rights, about limits to what even a large and determined majority can do. Therefore, there is a sense in which a strong and independent judiciary is democratic – not because the courts are overly democratic in their organization or their selection or their process (they are not), but because they are the mechanism that serves this ‘other face’ of democracy.”

The above discussion, however, shows just one aspect of the Judiciary. Let us now take a few cases which point to the other direction. The judgment in the case of G. Sundarrajan vs. Union of India ¹⁹⁾G. Sundarrajan Vs. Union of India and Others, CIVIL APPEAL NO. 4440 OF 201(Arising out of S.L.P. (C) No.27335 of 2012) and others is an important one to look at. The judgment is about setting up of a nuclear power plant at a place called Kudankulam near the sea in the southern state of India called Tamil Nadu. The said power project received huge amount of protest from the local community that also included the local fisherman whose life could be affected by the said nuclear power project. The judgment of the court talks about educating the people about the need for power generation through nuclear power projects and emphasizes on removing people’s misconceptions and misgivings about it. Such a view goes against the democratic ideals of the nation. It is even more necessary to look at the part where the court weighs between Public Interest and Human Rights. While talking about the right to life guaranteed under Article 21 of the constitution of India of the people living in and around the Kudankulam Nuclear Power Project, the apex court says that it will uphold the right to life in a larger sense. Then it further goes into weighing between benefits arising out of power project with the right to life and property, and the protection of environment including marine life and says that the balance lies in favor of production of nuclear energy as it thinks that it is necessary for the economic growth of the country, alleviation of poverty and generation of employment. Thus, it puts its idea of larger public interest above what it considers to be a smaller violation of the right to life guaranteed under Article 21 of the Constitution of India. In a nation where the basic rights, most importantly the right to life, of the deprived and the downtrodden are always at the risk of being undone and ridden a roughshod over, the role of the judiciary have been to give an expansive meaning for their protection. However, in this case the court had come up with an artificial gradation of the degrees of violation of the right to life. Thus, this judgment has tried to decrease the ambit of the protection provided in the constitution.

While the above case can be called as that one of judicial oversight or ignorance leading to the chances of sacrifice of the basic rights of the people, the next judgment we are going to look at is that of judicial overreaching or adventurism or in milder terms of that of Judicial over-activism, which can also equally undermine the basic rights of the people and also could lead to catastrophic destruction of the natural environment. The judgment was given “IN RE: NETWORKING OF RIVERS”²⁰⁾Supreme Court of India, In Re : Networking Of Rivers vs Unknown on 27 February, 2012, Bench: S.H. Kapadia, A.K. Patnaik, Swatanter Kumar, Arising out of WRIT PETITION (CIVIL) NO. 512 OF 2002 along with WRIT PETITION (CIVIL) NO. 668 OF 2002. in regard to Interlinking of River arising out of two writ-petitions filed in 2002. Whereas in the previous case we’ve discussed above the judiciary was shying away from making intrusion into policy matters, in the current case it did the exact opposite and went to the extent of issuing directions and guidelines to the executive government about implementing the Interlinking of River projects. It directs the union executive to constitute a Special Committee for Interlinking of Rivers for the purpose of carrying out the said task of interlinking. The judgment further gives minute details as to how many times the committee is to meet and also asks the union cabinet to take necessary steps and directions expeditiously. Finally, the judgment gives liberty to the learned petitioner to file contempt petition in the said court in case there is a default or non-compliance of the directions given in the order. In doing so it has clearly ignored and undermined the public debate about the project. It has further failed to take into consideration the implication of such projects on the life of the people, especially the indigenous people whose very historical, social and cultural identity and their livelihood depends upon such rivers. Besides, such a diversion project could lead to irreversible ecological damage leading to wiping out of marine life and vegetation in the lower riparian area on which the livelihood of people depend. There could also be other adverse effects like that of falling water table, reduced alluvium deposit and siltation etc. The learned court didn’t feel it necessary to look into these aspects of the project let alone leaving it to the right branch of the government to determine.

To take the argument forward it’d be pertinent to mention one more recent judgment of the apex court. In contrast to the last judgment discussed, in the judgment given in Suresh Kumar Koushal and another Vs. NAZ Foundation and others the court again harks back to its idea of judicial restraint. This decision had arisen out of a special leave petition under the civil appellate jurisdiction of the Supreme Court from an earlier decision of the Delhi High Court in a writ petition filed by a Non-governmental Organization named Naz Foundation challenging the constitutionality of section 377 of the Indian Penal Code. In this case, when it was most needed, the Supreme Court had taken up the notion of judicial restraint in determining the presumption of constitutionality of sec 377 of the IPC, which makes consensual sexual activity between two persons of same sex punishable. The court had rationalized that since there has been no amendment by the legislature to revisit the said section either by deleting it or modifying it, the court should implicitly know its limit and be guided by it. Thus, it is apparent as to how the court had shied away from taking an assertive position on the rights of the homosexual people and had acceded to the vague notion ‘accepted morality’. These ideas of ‘accepted morality’ are generally the moral ideas of the majority, without any rationale behind them.

The judgment seems to be majoritarian as it said that sec 377 of Indian penal Code affects only a minuscule fraction of country’s population. In this argument the court seems to be oblivious of basic rights of the minority. The very fact that this group of people is a minuscule fraction of the society there is even more chances of their rights being undermined and trodden upon, which necessitates that it is exactly in such cases the court asserts and exercises its power given under the constitution and protect the fundamental rights of the vulnerable minority and not leave their fate subject to fancies and caprices of the majority and the indecision and apathy of the legislature.

Now, as the above cases show that the judiciary has been protector of the basic rights of the people, but it has also at number of times abdicated its power to assert for the basic rights of the most vulnerable sections of the society, whose voices remain unheard amidst the political harangues and cacophonies. Democracy, although not the ideal, is the next best option for the people where they have agency and their voices get heard. However, in truth it is far from the idealist depiction of it as has been discussed above. In such situation judiciary is the hope for those people whose voices remain unheard and unrepresented. Looking back at Richard Bellamy’s idea that rights themselves are political which shows the disagreements within the rights realm, it is necessary to add that even though rights are of political nature we can deny the fact that such political definition would probably be practical where people are at least on a reasonably equal pedestal to assert for them. Unlike an ideal picture as depicted by Bellamy, we have actual problems of lack of political agency of the vulnerable section in the society we live in. In such situation we probably need to look towards an idea of justice which rises above the questions of mere democratic legitimacy but also looks at the necessity of creating a political legitimacy. Carrying forward this idea let us look at idea of justice from the postmodern perspective.

Justice through a Postmodern Perspective

One of the most important contributions to the post-modern inquiry was made by Jacques Derrida. His idea of deconstruction is a critique of Idealism ²¹⁾Jacques Derrida, Deconstruction in a Nutshell, (first published 1997, Fordham Univ Press 1997) 125It is a type of anti-foundationalism, which believes in critical understanding of things rather than blindly believing unfounded sanctity of transcendental ideas. Derrida’s idea of deconstruction has a great impact on our understanding of justice. In fact, when asked, Derrida said that “deconstruction is justice.”²²⁾Ibid He said that deconstruction is justice’s own word, if it had a voice or word. To explain this further, we have to inquire into two very important questions. Does justice necessarily flow from abiding the law? Is justice practiced per se, when the law is enforced? We will find the answer in our following discussion.

Derrida, in order to make the concept clear, sets the distinguishing factor between Law and Justice. Law is something that has been constructed. It comes out of some form of authority, like legislature. The problem here is that we can never know the intentions of these authorities. They are mystical and esoteric and therefore subject to deconstruction. So, the Judges have to do a deconstructive reading of the laws in their written form. Here, the deconstruction of the law is in between the reading of the laws as they are and our own perception of what it is. Thus, by deconstructing law, what we do is to re-invigorate it. Thus, we apply our deconstructed interpreted version to each singularity of situation, and it becomes flexible and revisable. Deconstructibility of law, thus, keeps an inventionalist eye open. Justice, on the other hand is underconstructible. It is the purpose of deconstruction of law to bring justice. Justice is amorphous in nature. It is this very amorphous nature of justice and its singularity is what makes it just.

Thus, deconstruction of justice is all about being open to the possibility and change. It is about finding the decidable for the moment within the undecidability. It is about not following the black letters but of applying those letters to do justice for each singularity of case. It is the real purpose of a decision maker or a judge to do justice based on each individual case. A decision should be always open to possibilities, because justice can’t be stuck in the moment. Thus, it is the continual enterprise to achieve the individual singularity of moment, which is more important than to give our own permanent interpretative form to justice.

The concept of deconstruction shows us the fallacy with logic of strict separation of power. It is true that legislature is better equipped to make laws. It has various instruments in its hand to do that, like commissions, consultations etc. These are some advantages that a legislature has over the judiciary and there is no question about that. Judiciary, however, plays a different role altogether. They do make law but in a different way by dissecting them and deconstructing them. They develop the law to meet new and changing needs of the society. Courts play an important role in interpreting the law in a way that is in congruence with the necessity of that amorphous justice. If the plain application of law leads to clear injustice and would lead to the very negation of the idea of justice, it would be the duty of the court to use the interpretation that leads to at least giving voices to the voiceless.

Conclusion

As we have discussed earlier, rights in a constitution are generally cast in broad and elastic terms, which require the judiciary to interpret and determine the ambit of it. Therefore, judiciary would definitely be involved when a case involving the interpretation of rights arises. When a piece of legislation compromises the rights of people, the court would invariably be involved. In such a situation what the court could probably do is not let the voices of the marginalized and the unheard be subdued. In doing so the court would definitely promote a counter hegemonic dialogue which would definitely be a healthy sign for our revered idea of democracy.