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Monday, November 29, 2021

With due respect, Lordships

The evidence of judicial overreach is now too overwhelming to be ignored

Written by Pratapbhanumehta |
March 11, 2007 11:43:54 pm

The Indian judiciary has performed, in many respects, a vital function in sustaining democracy and promoting accountability. That is why it is all the more disconcerting when there are headlines that do not reflect well on the judiciary. To take an example, consider three stories from the last couple of days: the controversy over the appointment of Justice Bhayana; the Delhi High Court pulling up the government for proposing to levy congestion charges at peak hours at airports with heavy air traffic; and the remarks from an honourable justice of the Supreme Court to the effect that it would be desirable to hang a few people from the lamp post to deter corruption. Why should these incidents cause concern?

We can debate the merits of levying congestion charges. But we ought to be shocked that a court can so causally assume that this is a matter that falls within its jurisdiction. Think of the extraordinary consequences of courts acquiring the power to say that a particular government levy was “passenger unfriendly”. Most things that governments do, is in some senses citizen-unfriendly. But under what law, what conventions of democracy, what counsels of prudence, should courts pronounce on these matters? The Delhi High Court’s interventions are typical of what high courts across the country are doing: interfering with policy in ways that are injudicious. These trends raise significant questions about the judicial system.

It is becoming apparent that the Supreme Court is losing grip over judicial interventions made at the high court level. The apex court has on occasion gestured at the fact that policy decisions are the prerogative of the executive. But this lesson seems not to have percolated down the system, perhaps in part because the fundamental question of what falls within the courts’ domain has become confused in law and practice. When was the last time judges even so much as asked whether they should be pronouncing on policy matters that involve no legal technicalities or constitutional ramifications? It is simply not the court’s business to decide what the appropriate age of admission to schools should be, or whether the government should introduce differential time pricing at airports.

The second issue is this. Often judicial interventions, unless disciplined by a law and carefully crafted, produce worse outcomes. In some ways judicial policy-making magnifies rather than corrects for the deficiencies of executive policy-making. The fiasco over admission policies in Delhi schools is a case in point, where our honourable judges did not pay due attention to how incentives operate under different regimes, what the connection between cause and effect is in producing desired outcomes. Ad hominem interventions, based on nothing more than confidence in the judges’ good intentions, are no substitute for a policy-making process.

Third, the more capacious judicial intervention becomes, the more the judiciary will undermine its own authority. If much of what the judiciary does becomes more like discretionary and arbitrary exercise of policy choices rather than enforcement of the rule of law, the whole integrity of law is undermined. What remains of the central elements of the rule of law: consistency, predictability, integrity, constitutional morality and proper authorisation?

Fourth, John Selden once remarked that we see that “judges look like lions but we do not see what moves them”. This remark can be variously interpreted. At its most cynical, it refers to the extraneous considerations that may drive judges. The extent of corruption in the system is debatable, but the judiciary should worry about the perception that there is corruption; and the more arbitrary the conduct of judges, the more this perception grows. But more jurisprudentially, it is becoming less and less clear what canons of judicial reasoning drive judicial interventions. What are the philosophies of constitutional interpretation that judges bring to bear upon their reasoning? In many instances, what seems to be driving judges is what I elsewhere called the jurisprudence of exasperation. Judges are often exasperated at the world, the executive, and sometimes even society. Their legal interventions and observations are an expression of this exasperation rather than carefully thought-out arguments based on the law’s possibilities and limits. The point about hanging a few people from the lamp posts is a perfect example of that.

But such expressions of exasperation are dangerous. They can spoil even some landmark judgments. The courts will have to deal with so many delicate issues, and it is important that their judgments display the integrity and clarity of judicial reason, rather than be a patchwork of compromises and predispositions. Second, they are another example of judicial policy-making which is not evidence-based. (China executes hundreds on corruption charges, and corruption does not disappear.) But most importantly, they signal that the judiciary is not amenable to deeper self-reflection and principled argument.

Enhancing the authority of the judiciary is largely within the judiciary’s control. For one thing, the Supreme Court or states’ chief justices will have to impose some discipline on runaway high court interventions. Second, the enormous power judges wield makes the question of transparency in the appointments process more rather than less urgent. Judicial appointments are a tricky matter, but there is a sense amongst the public that this process has become too immune from scrutiny. Authority without virtue is a dangerous state of affairs; unfortunately virtue has to be established through a process rather than simply assumed. Ovid once wrote that the “judge’s duty is to inquire about the time as well as the facts”. While much has been written about the infrastructural issues that lead to delays in justice, the plain truth is that many of the causes for judicial delay are squarely in the hands of judges: time discipline on arguments, ease of granting adjournments, and so on. The judiciary’s general exasperation with us would be more credible if it understood our exasperation with its functioning.

It has to be admitted that the line between appropriate judicial intervention and judicial overreach is often tricky. Sometimes the charge of judicial activism can simply mean a judgment we disagree with. But the evidence of judicial overreach is now too overwhelming to be ignored. Courts are doing things because they can, not because they are right, legal or just.

The writer is president, Centre for Policy Research, New Delhi

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