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Court at crossroads
Pratap Bhanu Mehta : Fri Apr 26 2013, 00:28 hrs
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Like other institutions, it shows a crisis of identity and leadership

In a discussion on the relationship between the judiciary and
democracy, Justice Verma once wryly observed that the main challenge
for the judiciary was not saving Indian democracy , it was saving
itself. As we commemorate the 40th anniversary of Keshavanada, it is
important to acknowledge the landmark doctrinal contributions of the
judiciary. But there is a more profound sense in which the judiciary
is at a crossroads in its relationship with Indian democracy. As with
Indian democracy, there is no imminent threat to the institution; but
there are more than a few questions about quite what it is up to.

There is a legal Whig narrative, which, to simplify, goes something
like this. The Supreme Court used to be a relatively black-letter law,
conservative institution, which sometimes stood in the way of social
change. Then came the Gajendragadkars of the world, who transformed
the court into an agent of social change. Then faced with increasing
political corruption, the judiciary, through doctrinal innovation,
saved the basic structure of the Indian Constitution. Sure, it
capitulated somewhat during the Emergency, but then made up for it by
converting itself into a people's court, a voice for the voiceless.
And then, in its ever-growing contribution to Indian democracy, it
became a new source of rights, and a governance institution to enforce
accountability. Of course, many legal niceties were compromised in the
process, fine distinctions were blurred, but the court soldiered on,
the knight in shining armour.

But the reality has always been messier. Earlier courts were never as
conservative as has been made out; and contemporary courts are not as
radical as the explosion of rights language would lead one to believe.
Through the ups and downs, the court has had to carve out its own
political legitimacy. It tried to do this by expanding its normative
ambit and setting itself up as an institution of redress on many
fronts. It also sensed an opportunity that the public scepticism of
politicians was such that the courts could carve out their independent
institutional niche. It is only against the backdrop of the political
excesses of the 1970s that judges could get away with the idea that we
would be safer if only judges appointed judges. The court has to be
seen to hold executive power to account, but in a way that does not
fundamentally challenge that power. Even in the post-Emergency period,
when the court was rehabilitating itself, the dual game was going on:
the same Justice Bhagwati who was a judicial innovator in many
respects also paid craven homage to Indira Gandhi. Through an artful
combination of populism and deference to the executive, the court
carved out a political place for itself. It saved democracy by saving
itself.

But the elements that allowed the courts to carve out their authority
are severely strained. Institutions often gain legitimacy, not by
first principles, but by the concrete fears that animate citizens at
the time. When the fear of executive usurpation was high, the court
could get away by declaring itself to be its own lord and master. It
says something that the dominant fear of executive usurpation has now
been replaced by the fear that there is no accountability within the
judiciary. But this change was not a doctrinal change. It was rather
an acknowledgment that the judiciary had a chance to set its own house
in order and blew it. The hope that autonomy would produce sterling
appointments was dashed. There are some notable exceptions. But the
shadow of mediocrity seems to hang over the Supreme Court more than in
the past. The court's own capacity to discipline the judicial system
is in doubt. Hence, there is growing legitimacy for the idea that
judicial accountability and appointments need to be placed in a wider
structure like a judicial accountability commission.

The second element of the court's authority was positioning itself as
an instrument of accountability. Again, the court was innovative in
its use of "continuing mandamus"; in its facilitating the supervision
of the CBI. But no matter what those with excessive faith in legal
remedies might say, the blunt truth is that those legal innovations
did very little to enhance accountability of the executive. For all of
the court's attempts to create some autonomy for the CBI and CVC,
senior politicians were not successfully prosecuted for decades.
Indeed, it is arguable that the recent spate of successful
prosecutions has come only against the backdrop of social movements on
the ground, not because of institutional changes the courts thought
they had produced. There were some interesting gains in social rights
and environmental litigation. But even here the court is swiftly
running up against the limits of law as an instrument of social
change. Lawyers and economists are amongst the smartest specimens of
the species. But they can be curiously alike in that the formalism of
both disciplines can sometimes lead to an exaggeration of the impact
of changing formal rules or rights on society.

The third element of the court's authority was its capacity to
articulate a broader constitutional vision. This function is breaking
down under its own institutional weight and the politics of
constituting benches. Major constitutional controversies remain
undecided, and even the ones that are decided seem more like a
patchwork of hurriedly cobbled compromises than evidence of serious
constitutional depth. At the end of the day, more than the outcome,
the imprimatur of quality matters.

The court, like other public institutions, is also manifesting a
crisis of identity and leadership. Rather than compensating for
political confusion, indecision and corruption, other institutions are
also reflecting the same tendencies. Even if the legitimacy of
politicians slides, it would be unwise to assume that the legitimacy
of judges or bureaucrats or regulators is rising as a result. Add to
this a wider social pressure. Learned Hand once wrote something that
seems like an apt description of the wider context: "A community is
already in the process of dissolution where each man begins to eye his
neighbour as a possible enemy, where non-conformity is a mark of
disaffection, where denunciation, without specification or backing
takes place of evidence, where orthodoxy chokes freedom of dissent,
and where faith in the eventual supremacy of reason has become so
timid that we dare not enter our convictions in open lists." What it
will mean for the court to enhance its authority in this social
context is very much an open question. It will require great judicial
statesmanship to steer the court through these choppy waters.

The writer is president, Centre for Policy Research, Delhi and a
contributing editor for 'The Indian Express'

express@expressindia.com

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