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Deliver us from fear

‘Right against terror’ is a radical new formulation for constitutional law

January 27, 2009 2:12:43 am

We stand at the threshold of a new era in our constitutional history. A seemingly innocuous petition filed before the Supreme Court of India a few weeks ago promises to change the way Indian constitutional jurisprudence addresses terrorism. A number of petitioners including the eminent jurist Soli Sorabjee,seek orders from the apex court to better equip the police in the fight against terror. While the arguments advanced in this “public interest” petition stand in stark contrast to the original intent of the framers of the Indian constitution,its outcome will influence the fate of judicial activism and constitutional legitimacy in the coming decades. In more immediate terms,it threatens to herald the implicit recognition of a new right: the right against terror.

The petition filed in the context of the Mumbai terror attacks (which have been pejoratively nicknamed ‘26/11’,perhaps in imitation of American lingo,notwithstanding that the siege on Mumbai lasted for three whole days) is striking for its harmonisation of two leading Indian judicial devices which have defined Indian constitutional law in the last three decades: ‘substantive due process’ and ‘legislative void’ jurisprudence. The first doctrine,‘due process of law’ is derived from the fifth and fourteenth amendments to the American constitution,and enables constitutional courts to judicially recognise unenumerated ‘fundamental’ rights in invalidating legislation. For example,the right to privacy,though not found anywhere in the actual text of the American constitution,was considered a fundamental constitutional right by the United States Supreme Court in 1965. Historically,the framers of the Indian constitution had,on the suggestion of a US Supreme Court judge,deleted the words “due process of law” from the text of the Indian constitution,replacing them with the words “procedure established by law”. However,in a leading Indian Supreme Court decision in Maneka Gandhi’s case (1978),a new standard of judicial review was applied by an activist court against statutes that were required to conform with the substantive standard of being ‘reasonable,just and fair’. The result: what used to be a bare-bones ‘right to life and liberty’ under Article 21 now encompasses the right to a clean environment; the right to food,clothing and shelter; the right to privacy; the right to a speedy trial; and the right to education,among others.

Significantly,the old notion that judges interpret (but don’t create) law has been tossed to the winds in recent decades,as a steady stream of jurisprudence has emerged in India where courts declare “guidelines” which resemble legislation,in cases perceived to involve “legislative void”. Accordingly,courts have declared guidelines for addressing malnutrition,farmers’ suicides and sexual harassment at the workplace. What is striking about this new form of jurisprudence is that the court issuing guidelines periodically reviews the enforcement of its orders through the writ of ‘continuing mandamus’. However,most of the guidelines issued so far have involved an unenumerated,judicially recognized fundamental right.

The Mumbai terror petition is unique for its invocation of nothing more than the ‘right to life’ under the Indian constitution. In the weeks that follow,we may witness the birth of a new ‘right against terror’,which has potentially wide ramifications for the manner in which terrorism is addressed by the political establishment,and which threatens to give citizens a voice in the fight against terror. If the Supreme Court decides to intervene,constitutional courts in India may exercise greater powers in coming years,which may extend to the periodic supervision of anti-terror mechanisms,potentially including the proposed federal anti-terror authority.

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However,the court’s opinion in the case may further doctrinal criticisms leveled against the Supreme Court in recent years. Ran Hirschl claims an international phenomenon towards ‘juristocracy’ where the court’s power is allegedly used to further the ‘hegemonic self-preservation’ of the elite. The Supreme Court’s judicial activism and arrogation of power to do ‘complete justice’ has been criticized as the exercise by an unelected elite,the judiciary,of fundamentally undemocratic power. Alexander Bickel termed this the “counter-majoritarian difficulty”. “The root difficulty,” he said,“is that judicial review…exercises control,not on behalf of the prevailing majority,but against it”. Robert Borke,in his seminal work,The Tempting of America ,wrote: ‘we are increasingly governed not by law or elected representatives but by an unelected,unrepresentative,unaccountable committee of lawyers applying no will but their own’. This classical problem in constitutional theory is often resolved by conferring upon the elected representatives of the people the power to nominate judges,which democratically ‘legitimises’ their existence. However,judicial appointments in India in the past few years have been controlled by judges themselves,rather the ‘collegium of judges’,whose decision is binding on the executive. Although judicial independence is the bulwark of a vibrant adjudicatory tradition,absent a democratic ‘check and balance’ against the transgression of power by the judiciary,the political insulation of Indian constitutional courts raises crucial questions of judicial accountability and legitimacy in the context of their rising power.

The Supreme Court’s opinion in the Mumbai terror petition would accordingly have to balance its assiduous concern for citizens’ rights with traditional constitutional constraints. However,as John Hart Ely had elegantly tated,‘constitutional law exists for those situations where representative government cannot be trusted,not those where we know it can’. It remains to be seen whether the representative government in India can be trusted with protecting its people against terror.

The writer is a graduate student at Harvard Law School and a former law clerk to a Chief Justice of India

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