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Consistent with the highest esteem, I have for Pratap Bhanu Mehta (whose weekly columns in The Indian Express I read with great admiration), I am willing to start a debate on what was said in the last paragraph of his article discussing the national anthem case (‘Unconstitutional patriotism’, IE, December 3). We are all often disappointed, even distressed, by the judgments of the apex court and are fully entitled to exercise free speech as a fundamental human right.
True, even a solitary judgment may damage the basic structure and essential features of the Constitution: Justice H.R. Khanna’s moral dissent in the infamous Emergency decision denying habeas corpus stands as a beacon. I do not focus here on the national anthem case but I doubt whether the entire democratic achievement of the court as an institution is best summated by focusing on a single decision.
In his conclusion, Mehta berates the court for making judicial independence “an excuse to create a judiciary that is poor in quality, undiscerning in its judgment, not aware of basic moral distinctions, populist rather than legal, sentimental rather than reasoned, casual in its understanding of when rights are being violated, impractical in its orders, but most of all, imperious in the way it usurps all powers for judges”. Judging our justices is a socially-responsible task, which may not be performed by indignation entrepreneurship. It should, at least, be acknowledged that to cure the ills of judicial idiosyncrasy, the court has invented a historically unprecedented curative jurisdiction. Already, major cases (such as the LGBT decision) are subject to such jurisdiction and those unhappy with the anthem judgment can invoke the same. Should this jurisdiction prove dilatory, or costly, or inefficient, better ways may be devised.
Does judicial independence tend to become an “excuse” for “poor decisions”? I think not because deciding individual cases is different from prescribing an architectural principle. Relative autonomy from the state and the market is indispensable for judicial review. This autonomy is constantly endangered and while it is not preserved by “poor” decisions, academics and the media should also recall the differences among commentators or opinionators about what constitutes public reason, generally, and the quality of institutional reasons.
“Impractical in its orders”, the court certainly is. But the court thinks that the political and bureaucratic resistance to its orders can be gradually overcome. In its charismatic phase, social action litigation (SAL, still miscalled as PIL) was described as a jurisdiction of “hope and trust” (in the immortal phrase of Justice P.N. Bhagwati). Instead of massive contempt proceedings against recalcitrance and political apathy, the path of symbolic reiteration was preferred and pursued over a long time, through the grudging cooperation from other agencies of the state.
If justices were overly concerned with immediate effectiveness, not a single SAL order would be ever possible. Politics may well be the “art of the possible” but the passion for making the impossible now possible alone justifies the politics for human rights in the first place. And this is writ large in judicial orders since the inception of judicial activism.
Is the court “casual in its understanding of when rights are being violated”? Pending empirical studies spanning seven decades, qualitative evidence discredits this assertion. The doctrine of basic structure and essential features, with and since Kesavananda Bharati, stands as a bulwark of fundamental rights and human freedoms. Article 21 no longer subjects the rights of life and liberty to the tyranny of “procedure established by law”, even when due process remains an unruly horse making a somewhat bumpy ride towards a constitutionally desired social order.
The court has been able to restore some human rights denied by even the Constituent Assembly (like the right to a speedy trial), transport to the part on fundamental rights many a basic right declared merely as directive principles of state policy and invent new rights (like the right to information, and right against sexual harassment at workplace) which Parliament has now recognised through laws. All this and more normative happenings negate the accusation at the threshold.
Some judicial decisions may remain “sentimental rather than reasoned” and it is right to criticise them when they are “poorly reasoned”. But there is a wider and a central question: Should sentimental reason not also qualify as reason? Or should public reason be hard and male? Mehta is no doubt aware that feminist and postmodern philosophers have established sentimental reason as a form of public reason. Habermas’s category of “constitutional patriotism” is certainly a fine blend of sentimental and rational reason.
“Not aware of basic moral distinctions, populist rather than legal” are additional accusations which the entire normative judicial history simply does not support. The real gravamen of “judicial imperiousness” which “is now threatening so many values and institutions” (or of “judicial sovereignty” of which Mehta has been an unsparing critic) raises the question whether the court has, in its long history of constitutional interpretation, indeed done so.
Clearly, the role and the wisdom of representative institutions should not be undermined. The doctrine of basic structure does not discard the representative voice and impose a veto on constitutional amendments; it only allows a reasoned judicial deliberation on whether the amending power has been properly exercised.
Even the NJAC decision does not take away the power of Parliament to sculpt a differently constituted national appointments commission respecting decent constitutional niceties. By accepting delegated legislation as a constitutionally valid exercise of power, the court has sustained large swathes of rule-making powers in the executive. And who would want President’s rule in states to be imposed solely on the grounds of sheer political expediency?
Judicial despotism (deciding merely per individual judicial will) certainly endangers democracy. But so do all political despotisms. Do the apex justices collectively threaten the democratic rights and powers of the people? Or, do the political mangers and masters who (to adapt a phrase of Jacques Derrida) “sleepwalk into the vicinity” of absolute power?