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‘[! e a" itude of Supreme Court judges is] technically unpredictable, not unin# uenced by imitative cosmopolitan habits, conditioned by native instinct to a depth not yet predictable by a psychologist or documented even by the novelist, the dramatist or the $ ction-writer, and su% ering & om an over-sensitive opinion of their lonely and unparalleled position.’1

! e present writer believesIt is possible to discover and explain the choices made by India’s Supreme Court judges. ! e empirical analysis con" rms the negotiated nature of judicial behaviour in India. ! e Supreme Court judge makes his choice within the scope and opportunities o# ered by four elements: the presence and content of laws, institutional experience and norms, political con" gurations, and public concerns. ! e process of judging involves constant negotiation with multiple identities of a judge$as a component of a state institution, as a member of a judicial structure with its own norms, as a citizen, and as a member of society. A judge is not insulated from politics or society; rather he is susceptible to the % uctuating in% uences of political machinations, public opinion, and national crisis. ! e Indian Supreme Court is a body comprising of pragmatic and fairly like-minded (on most issues) individuals for whom judging is a ma& er of problem-solving and maintaining good relations with their colleagues, the Bar, the elected representatives, other state agencies, and the general public. In the last six decades, successive judges negotiated with the four elements to create judgments that would be non-confrontational, and support the rights and aspirations of citizens. Social rights cases allowed judges to achieve both objectives$they enabled the Court to develop a pro-citizen reputation, and were compatible with the Executive’s goals. ! at such an a& itude

1 Dhavan (1977).

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conformed to what Baxi (2007) calls a ‘thick’ notion of a rule of law is incidental. A' er all, the initial impetus for transforming social rights into legal rights came from the government, including (ironically) the Emergency regime, which had enacted several progressive laws.2 Social rights provided a welcome avenue to show a citizen-oriented face of the judiciary, as well as the benevolent face of the State. ! e judiciary had two concerns in the decade a' er the emergency: " rst, it had to regain legitimacy; and second, the experience of authori-tarianism made the court wary of open con% ict with the executive. Public criticism of the court’s behaviour on civil rights during the Emergency and the institution’s experience with the court-curbing manoeuvres of a dominant executive, Prime Minister Indira Gandhi, was deeply implanted in the Supreme Court’s institutional memory. Corrobora-tion for the court’s a& empt to regain legitimacy comes from an analysis of the judgments, and the memoirs of judges. Judges like Krishna Iyer (1985) and Jaganmohan Reddy (1986) said that the court realized that it needed the support of the public against future a& empts by the executive to undercut judicial power. ! e Court had to overcome the

‘anti-social justice’ image constructed by Indira Gandhi’s government in the 1970s. ! e executive’s justi" cation for appointing ‘commi& ed judges’ through the supercession of more senior justices hinged on that claim, as did Prime Minister Indira Gandhi’s a& empts to get the court to overrule the Kesavananda judgment so that the Parliament could amend the Constitution and deliver socio-economic justice. ‘! e criticism that the Judiciary does not help the poor in India is greatly blunted by this innovation’, wrote Reddy (1986: 195), referring to the PIL method.3 Others like P. Jaganmohan Reddy and Tulzapurkar (1983) also spoke out publicly against these a& empts to vilify the court. ! e second imperative followed by judges was to avoid con% ict with the government. A majority of the judges chose to uphold those social rights that already had a legal basis. Scholars like Dhavan (1980: 202) said that the court, a' er the emergency, ‘resisted confrontation with the government’ and opted for a ‘wide measure of mutual accommodation’ that had ‘a whisper of politics as well as a whisper of pragmatism’.4

2 Sathe (2002), p. 263 3 Reddy (1986), p. 195. 4 Dhavan (1980), p. 202.

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! is is re% ected most vividly in the probability analysis on social rights (Table 6.1). ! e judges were reluctant to punish government providers for failing to ful" l their obligations, preferring instead, to use weaker remedies (like commi& ees) to correct de" ciencies in the state’s provision of public utilities like clean water and sanitation, among others.5

Both imperatives played out in the " rst judges’ case, just a' er the Emergency, where, the issue was one of judicial autonomy from the executive. Responding to a senior advocate’s challenge on the transfer of judges, the majority opinion stated that the executive (in practice, the Prime Minister) had the last word on judicial appointments to the higher courts.6 [! e] judgment has spread gloom and does not forebode well for the judicial independence which is so much the cherished objective of our Constitution. If Judges can be transferred by an executive " at which has the primacy and if the Executive can also appoint them overruling the views of the Chief Justices so as to accord with the philosophy of the late Mohan Kumaramangalam which he enunciated on behalf of the government in defence of the supercession of the judges, is it not a ma& er for concern and gloom?’7

But in the same judgment, the court legalized an expanded notion of standing that allowed NGOs and others to bring cases on public interest concerns to the court. Justice Bhagwati, writing for the majority, said that the Court would ‘unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the le& er of the public minded individual as a writ petition and act upon it.’ Constitutional scholar Upendra Baxi points out that the court deliberately used the judgment to legalize the PIL mode of litigation because they wanted to draw closer to the Bar Association,8 which had initially opposed the expanded nature of standing devised by judges.9 ! e ruling re% ects the emphasis by post-emergency judges on collaborating with other legal bodies and the executive, and shows that the judges knew exactly how far they could go.10 In the three decades a' er the experience with authoritarian rule, the Supreme Court has

5 Model 4, Table 6.1. 6 S.P. Gupta v. Union of India. 7 Reddy (1986), p. 196. 8 Private communication with the Author. 9 Ibid. 10 Sathe (2002), p. 262.

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cautiously appropriated autonomy from the political wings, but without directly challenging the government. ! ese two imperatives$to regain legitimacy and avoid con% ict with the political wings$were also responsible for the Court’s a& itude towards civil liberties. In their interpretations, judges followed the proclivity of the Indian Constitution towards giving the state immense power to discipline and punish recalcitrant individuals. As an institution of the state, the judiciary functioned in tandem with the other arms of the government in achieving this objective. ! e fact that very few torture cases have come to court because the procedural rules require the state to bring these cases is an instance of the pro-state orientation of legal rules. As Iyer (1993) said, judges are " rst and foremost part of the state institutional set up, and have always acted as if the government and its men should not be dealt with harshly, that they should be treated as slow learners.11 Hence, the reluctance of judges to question the state’s incursions into individual liberties, particularly when other state agencies cited security concerns as the reason for the arrest. Questioning the validity of detentions under anti-terror laws would pit the judiciary against the other wings of government, and could even tar the institution with an anti-national and anti-citizen image$a charge the judiciary was desperately trying to reverse in the post-emergency period. Even in anti-terror cases, however, the post-Emergency Supreme Court judges sought to rejuvenate civil liberties in the process of which they made a distinction between the religious faith of the litigant and political goals of separatism and punished only those espousing separatist goals. Judgements were signi" cantly less likely to favour the State against a Muslim litigant without separatist ambitions, but more likely to support the State when Kashmiri separatists were in the dock. ! is stance, which is evident from the 1950s onward, intensi" ed a' er the emergency and remained even a' er the heightened fears of terrorist strikes in 2001. In deciding cases on health and education, judges followed the lead set by the executive, preferring to uphold those rights that already had a legal basis. Judges were also deferential to the other wings of the state$evident in the reluctance to penalize government providers for not complying with their obligations. Once the memory of the

11 Kannabiran (2004), p. 74.

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emergency had receded a' er 1988/90, judges reverted to a more conservative stance on social rights. In anti-terror cases, judges were more pro-accused a' er 1977, but became pro-state a' er 2001. ! is behaviour re% ects a dynamic process of judicial decision-making through an interaction between the four elements. Let us now assess the implications of our statistical and qualitative analysis of the Supreme Court’s performance on social rights and security laws for theories of judicial behaviour.

J!"#$#%& A$'#(#)*Feeley and Rubin (1998) de" ne activism as the impact of the decision on society or non-government institutions, whether or not there is a textual basis on which the decision rests. However, this de" nition does not allow us to separate the impact of the court from that of other government and non-governmental actors, nor does it tell us how to measure the impact. Let us unpack the notion of activism. As Kmiec (2004) points out, activism has di# erent de" nitions.

(a) Disabling Policy ChoicesStriking down arguably constitutional actions of other branches or the ‘practice of disallowing policy choices’ by other governmental o( cials or institutions that the Constitution ‘does not clearly prohibit.’12

! e rejection by India’s Supreme Court judges of challenges to the constitutional validity of preventive detention and anti-terror laws does not indicate activism in the area of civil liberties. In the broad arena of social rights too, the post-Emergency court did not strike down statutes or disallow policy choices$more accurately, the judgments may have enhanced the likelihood of some policy choices. For instance, the judgments mandating a switch to compressed natural gas fuel for commercial vehicles in Delhi to decrease air pollution may have shut out other forms of fuel. ‘! e concern of the Supreme Court in passing various orders [on pollution control] since 1986 has only been one, namely, to protect the health of the people of Delhi’, said the Court.13 ! e Delhi government was unhappy with the verdict because it had created serious short-term problems for future transport policies$the judgment forced the city’s public transport to depend on a single fuel

12 Cass Sunstein (2002), quoted from Kmiec (2004), p. 1464. 13 MC Mehta v. Union of India (2002) 4 SCC 356.

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mode which came primarily from one state (Gujarat).14 ! e govern-ment had to speed up work on the other modes of transport like building the metro rail system, and had to delay privatization because of its inability to ful" l the private sector’s preconditions such as a ten-year guarantee on fares and technology. But invalidation alone, as Kmiec points out, reveals li& le about the propriety of a judge’s decision. ! e mere fact that the Court struck down a law does not mean it has engaged in judicial activism. ! e Constitution contains ambiguities that are susceptible to di# erent de" nitions depending on the viewpoint of the judge or citizen. ! erefore, the line between judicial review and judicial activism depends on the speaker’s understanding of what the Constitution does not clearly prohibit. It is also unclear how many invalidations it would take to call the court an activist judiciary. ! e disagreement about judicial activism in India stems from competing views on the timing and nature of such activism. One view is that the Emergency providing the trigger for judges to engage in transforming social rights (Dam, 2005; Peiris, 1991). ! e second view is that the roots of post-emergency judicial activism can be traced to the pre-Emergency era.15

Choudhary and Hunter (2003) rightly criticize scholars for using judicial activism as ‘a notoriously slippery term, which variously means the departure from well-established precedent, adjudication based on judicial preferences, or the judicial reallocation of institutional roles between the courts and other branches of government, depending on who is employing it and in what context.’ If we adopt Choudhary and Hunter’s (2003) de" nition of activism as meaning that the more the number of judgments that " nd the government actions unconstitutional, the more activist the courts, then judges of the Indian Supreme Court have not been activist in anti-terror,

14 Author’s interviews with Reghunathan, Chief Secretary, Delhi Administration, and Khullar, Transport Commissioner, Delhi, August 2002. 15 Sathe (2002: 53) cites a ruling in Basheshar Nath v. Commissioner, Income Tax (AIR 1959 SC 149, 183) in a petition by a tax payer to obtain exemption from paying tax$a case unrelated to the poor. But the judge, in the decision, alluded to the duty of the court to protect poor people ‘not yet conscious of their rights’. Sathe argues that this showed that the Court was willing to interpret the Constitution and particularly the provisions guaranteeing fundamental rights in the light of socio-economic realities. But Sathe too admits that in ma& ers of economic regulation, the court deferred to the judgment of the legislature.

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health, and education cases. Indian judges were practising restraint, not activism, since their judgments did not con% ict with the choices of other decision-makers. For instance, a judge could ask the government to set up a commi& ee to suggest measures to reduce water pollution. While some would classify it as an anti-government decision, it might be more " & ing to see it as a collaborative decision where the state’s concerns about budgetary and implementation constraints were also taken into account. Even the tenor of judgments was less an order and more of a request to the government to devise remedies. Some theories of judicial activism expect that the expansion of judicial autonomy would produce more activist judges; our analysis shows that the court will not necessarily use that autonomy to become activist. Judgments on social rights were consistent with, and not opposed to the promises and laws formulated by successive governments.

(b) Ignoring PrecedentJudicial activism can be used to describe the process of ignoring or disregarding precedent$vertical and horizontal. Vertical precedent requires lower courts to abide by the controlling decision of the Supreme Court (for example, the ruling that students did not have a right to strike), and horizontal precedent requires the apex court to follow its prior rulings in similar cases. We have already noted the di( culty of " nding one precedent and agreeing on its meaning (for example, the con% icting views on the Gopalan judgment). One could argue that Indian justices in the 1980s were activist in the broader category of social rights because they did not follow the precedent of treating directive principles as subsidiary to fundamental rights. A textual analysis of their judgements, however, shows that judges like Bhagwati talked of the symbiotic relationship between parts III (Fundamental Rights) and IV (Directive Principles) of the Constitution but their decisions were limited by the existence of a law on a particular social right. Baxi calls such behaviour ‘juristic activism’$the obiter dicta of judges where the judgments include grand theories and speak to the future of law-making but the actual decision does not re% ect it.

(c) Judicial Legislation Judges are called judicial activists when they legislate from court. Again, the predilection of Supreme Court judges to adopt weak remedies (for example, commi& ees) in public health cases shows that they were careful

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not to usurp the functions of other wings. A critic might ask how one can say that the Indian Supreme Court was not activist when the spate of recent judgements suggests the contrary. First, most of the judgments cited as evidence for activism come from the recent judgments issued by the high courts, particularly the Delhi High Court.16 ! e Supreme Court, on the other hand, has expanded its power of judicial review (even over the hitherto sacrosanct Ninth Schedule) but has used the power sparingly to challenge government policies. Second, the bulk of rulings by the higher Judiciary reinforced the content of the right and the statutory obligations of the State rather than creating new duties for the government. ! ird, our statement about lack of judicial activism holds true only for health (excluding environment), education, and preventive detention cases. Smithey and Ishiyama (2002) argue that courts which decide more cases across a range of issues should be considered more activist than those that decide a smaller number of cases across a narrower range of subjects. Similarly, Ginsburg (2003) points out that a high equilibrium court frequently gives judgments against the government, has a heavy caseload, and high compliance. India’s Supreme Court has ruled in a broad variety of issue areas, but we don’t have the " gures of anti-State rulings in all the areas, nor do we know the level of compliance (but one suspects it is not very high) to make a call on the general activism of the court.

Our Conclusions and + eories of Judicial Activism! e court’s lack of activism on health and education rights is puzzling if theories about the conditions for activism are right.17 ! ere are two sets of theories: juristocracy theories focus on the motives underlying the creation or empowerment of the judiciary by legislators or other elites.18 ! e argument is that political elites transfer power to judges

16 We must make a distinction between high court and Supreme Court judges. Some of the more contentious judgments were by high court judges. For instance, the judges did not recognize practitioners of alternative medicine as doctors since they had not been certi" ed by the Indian Medical Council. Rajesh Kumar Srivastava v. A.P. Verma and Ors (MANU 2005); Charan Singh and Ors Etc. v. State of UP and Ors (MANU 2004); Electro Homoeopathic Practitioners Association of India and Anr v. A.P. Verma, Chief Secretary, Government of UP and Ors (MANU 2004). ! e Delhi High Court has been the most active of all the high courts. 17 Hirschl (2004); Gillman (2002). 18 See Voigt and Salzberger (2002) for an overview.

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in the hope that they will be conservative and/or protective of rights. In India, the tradition of passing on ‘the burden of its decision-making to the Court’ goes back to independence era.19 In the late 1970s, Sikri even commented on the parliament’s tendency to allocate new jurisdictions to the judiciary.20 Successive governments expanded the court’s jurisdiction over administrative tribunals (industrial labour, income tax, and civil services) bringing the apex court into policy areas previously reserved for the executive branch. ! is practice expanded to include di( cult political questions such as a( rmative action when the government acceded to court rulings on which groups should bene" t from the a( rmative action (Galanter 1978)$issues of religious discrimination, status of disputed sites like Ayodhya and the more recent controversy on the Ram Sethu bridge.21

! e Indian experience partly belies this theory because the Supreme Court seized autonomy by appropriating (through its judgments) the power to appoint itself; political elites did not transfer power to judges. ! e conservatism of the court was less a product of judicial empowerment by political elites, and more a result of its institutional norms and memories about the perils of challenging executive power. ! e emphasis of institutional norms on consensus and collaboration, rather than dissent, coupled with the vast caseload, and short stints on the apex court produce an overworked judge who barely has the time to " nish his work, leave alone nurture his pet projects. Even the protective a& itude towards the civil liberties of vulnerable citizens, particularly some minorities (see Table 4.1) occurred before, not a' er the court seized more judicial independence . Conversely, the second set of theories a& ributes judicial empower-ment to the legal choices of judges rather than to the short- term self-interest of elected power holders (Tate and Vallinder 1995). In India, however, judges in the immediate a' ermath of the emergency supported health and education rights in the text of the judgment, but the " nal rulings followed the lead of the legislature. Judgments issued during coalition rule were less likely to favour health and education rights, thus disproving theories about fractured governments generating more room for the expansion of judicial power, or post-crisis judges engaging

19 Baxi (1980), p. 13; Beller (1983), p. 518 for a list of examples of such behaviour by parliament. 20 Dhavan (1977), p. 114. 21 Ibid.

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in activism (Tate 1995). Gillman (2002) points out that these scholars saw activism as inconsistent with the preferences of legislators. Have Indian judges become policy makers? Have they usurped the functions of the elected and administrative bodies? Ferejohn argues that courts are institutionally well suited to make some types of policies like legislating in areas that require special a& ention for the rights of minorities, or in areas where a deliberative process is desirable.22 Courts, he says, are ill-suited to make other types of policies like decisions about farm subsidies or the best ways to control air pollution because of the special technical expertise, political give-and-take, and the bargaining they require. Several scholars argue that judicial control of legislative policy is a ‘commonplace feature’ of the predilection of the Indian judges in the sphere of PILs; that involvement in the minutiae of administrative detail poses a ‘fundamental problem’ to the boundaries of judicial functions.23 For instance, Nobel prize winner, R.K. Pachauri criticized the Supreme Court judgments mandating the conversion to CNG in Delhi for the high costs and the problems of changing over to a single fuel mode.24 ! ese are genuine concerns that also emerge in the ways in which the court has dealt with public health concerns and the right to food. Arguably, using a commi& ee-style approach forces the Judiciary in India to monitor the ni& y gri& y of everyday decisions.25

Courts can have a direct or indirect e# ect on policies (Vallinder 1995). A direct e# ect implies that courts are asked to give their consent to a policy (by vetoing laws, shaping content, ensuring e# ective application of other policies, or acting as as alternative societal representative by instituting PILs); an indirect e# ect is when a mere threat of court action may prompt actors to alter policies to avoid judicial action (Sousa 2006)26$both juridisize the legislative process (Stone 1992). A second way to conceptualize a direct e# ect is when the court’s directives force the government to adopt a policy, while an indirect e# ect is when

22 Ferejohn cited from Clayton (2002), p. 74. 23 See Peiris (1991) who cites Rakesh Chand v. Bihar, where the court outlined detailed directions to improve the functioning of mental hospitals in the state. 24 R.K. Pachauri, ‘A Hasty Decision: Clean Diesel is a Be& er Bet’ (! e Hindustan Times, 8 April 2001). 25 C.f. 480. 26 Mariana Sousa (2006) argues that courts can be veto players if they have the power of judicial review and a high level of judicial independence$a necessary but not su( cient condition for judicial activism.

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the court’s suggestions are adopted by the government. ! e Indian Supreme Court’s e# ect has been indirect for most part. To paraphrase Rosenberg, the court’s rulings were cited by the government only when it was ready to undertake a policy. Even the ‘right to education’ that the court articulated in a 1992 judgment became a constitutional amendment only a' er it appeared as an election promise of a political party and " nally passed ten years later. Similarly, the lack of activism on the rights of detainees under anti-terror laws was consistent with the hawkish position of successive governments that national security trumped civil liberties, and the web of laws governing judicial behaviour on this issue. As Kannabiran (2004: 217) points out, it is in the activist role that the judiciary has been de" cient, ‘rather it has proceeded on the path of aggrandisement of power’.27

‘Judicial activism is not always easily detected, because the critical elements of judicial activism either are subjective or defy clear and concrete de" nition’, said O’Scannlain, and rightly so.28 But as Kmiec (2004) points out, when explained carefully, the term ‘judicial activism’ can be a starting point for a meaningful discussion about judicial cra' . Is activism (de" ned a la Choudhary and Hunter) a natural by-product of more judicial power? Is there an automatic, link between judicial independence, judicial activism, and the expansion of rights? While the Supreme Court has expanded its power of judicial review, it has not used the power to frequently overturn laws. Rights do not necessarily increase as executive power decreases (Belge 2006). Judges, in fact, became more conservative on social rights a' er judicial independence (Model 2, Table 6.1). Our analysis only con" rms that fragmented political con" gurations allow the Supreme Court to appropriate more autonomy. ! e 1993 judgment (Second Judges case) came during a minority government, and the third judgment (! ird Judges case) was issued during coalition rule. It does not corroborate the point that more autonomy will produce more challenges to the political wings. Second, increased operational judicial independence has led to more careful decisions.29 ‘Compelling action by authorities of the states

27 Kannabiran (2004), p. 217. 28 Quoted from Kmiec (2004), p. 1441. 29 As Russell (2001) points out, judicial independence can refer to the institutional autonomy of judges$collectively and individually$from other individuals and institutions, and to behavioural autonomy of judges.

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through the power of mandamus is an inherent power vested in the judiciary’, said India’s Prime Minister, but warned that ‘substituting mandamus with a takeover of the functions of another organ may, at times, become a case of over-reach … these are all delicate issues which need to be addressed cautiously.’30 Manmohan Singh was speaking at a conference of regional chief ministers and high court chief justices in April 2007. A similar point was made by a former CJI in March 2007 who cautioned the courts on legitimate and illegitimate intervention. And by the Speaker of the legislature who said ‘I will be failing in my duty if I do not point out that there has been an encroachment in the legislative arena’. ! ese warnings indicate that the judges have been over-active and even ursurped the power of the other wings of the state. Our evidence, however, suggests that while India’s Supreme Court has become more powerful, the apex court has been very careful about how it uses the power. It is therefore important to distinguish between di# erent levels of the judiciary. ! e lower courts like the high court have been cautioned about their ‘adventurism’ by a two-judge bench of the Supreme Court (quoted at the begining of the introduction). ! e appropriation of decisional autonomy by the chief justice and a collegium to appoint judges, and the shi' to coalition rule in the last decade created a lower likelihood of concerted political action or penalties against the court.31 Ferejohn argues that uni" ed control of the elected branches will reduce judicial independence while divided control will expand such independence. Of course, having decisional autonomy does not automatically produce a judge with the capacity for independent thought and judgment; neither does it produce more rights’ conscious behaviour on the part of judges. Paradoxically, decisional freedom seems to have induced more conservatism in Indian judges on health and education. Judges appointed a' er 1993 were more likely to give state agencies % exibility on health and education and use collaborative remedies, and signi" cantly less likely to uphold PILs and penalize government providers (Model 3, Table 6.1). ! e conservatism is evident in the strong inclination on the part of judges to use collaborative remedies like commi& ees to resolve complexities

30 Indian Express, 7 April 2007: ‘Line dividing activism and over-reach is a thin one: PM’s caution to bench’. 31 Around 30 amendments were passed since 1989.

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in delivering services. ! ese weak remedies are a good tool for an institution that lacks the expertise to cra' and implement policies, but the downside is that the commi& ee’s recommendations tend to disappear as the government faces new challenges. A case on poor sanitation in Jaipur was ‘resolved’ through a commi& ee approach; and reappeared six years later in front of the same high court judge. 32

Judges were aware of the disconnect between their directives and the low propensity of compliance by the government but could do li& le about it.33 Rights remain un-enforced$in several cases the government shelved commi& ee reports citing budgetary shortfalls. Even when the court instituted time limits, enforcement depended more on monitoring by the litigant. ! e right to food and the right to education campaigns demonstrate the importance of NGOs in monitoring progress.34 Even when NGOs supervised progress, the results did not match the promise contained in the judgment. Despite judicial support, even the Right to Food campaign is looking beyond legal tools to carry out and sustain its work, since ‘the gap between legal entitlements and on-the-ground realities is vast’.35 Some of the problems of litigation included the access, the time taken, funding

32 See Koolwal v. State of Rajasthan (1986). 33 Ibid. 34 In April 2001, a human rights NGO, the People’s Union for Civil Liberties, " led a PIL with the Supreme Court saying that the Central government and six state governments should be held responsible for mass malnutrition in their states. ! is was in the wake of several hundred starvation deaths in Orissa despite the fact that the granaries were full. In one of its interim orders passed on 28 November 2001, the Supreme Court said that where people were unable to feed themselves adequately, the State had the obligation to provide for them. ! e order directed all state and central governments to ensure public awareness and transparency of these programmes and introduce cooked midday meals in primary schools within six months. ! e order thus had the e# ect of converting the bene" ts of nutrition-related programmes into legal entitlements. School authorities say that while enrolments have not improved, school a& endance has gone up by 10–12 per cent due to the scheme (Source: h& p: //www.indiatogether.org/2006/dec/edu-midday.html). 35 See report of a 2002 Workshop on Education, Equity, and Security, organized by the Commission on Human Security, UNICEF/India, the Pratichi Trust, and Harvard University to explore the relationship between human security and education in the twenty-" rst century. h& p: //www.fas.harvard.edu/~acgei/Publications/Chen/LCC_Equity_education_Security1.4.02.pdf.

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constraints, and the poor e( cacy of court judgments.36 As Jean Dreze points out, the basic food policy remained unchanged even while commi& ed civil servants did commendable work in speci" c areas, such as Baran district in Rajasthan. Judges are more conservative on social rights because of institutional rules that emphasize restraint rather than activism. ! e allocation of cases by the chief justice, lack of enforcement capacity, the emphasis on collaboration rather than dissent, and the two- or three-judge benches encourage status quo behaviour. Judges realize that their decisions may not be enforced and they will not be there long enough to ensure enforcement. Hence they only pick ba& les that they can win$generally against private providers rather than the government. ! e pa& ern con" rms our hypothesis about the tendency for ‘status quo’ behaviour$one con" rmed by a former justice (Iyer, 1987: 144) who said that the higher courts ‘have unwi& ingly become conscience keepers of the status-quo except in exceptional cases’.37 So, while Indian judges are aware of their power at the Supreme Court, they are careful of wielding it in opposition to the other wings of the state because of their institutional inability to accomplish change on the ground. As presently constituted, the courts are an amalgam of persons, some of undoubted merit and competence, who adjudicate on the basis of ad hoc consensus and not on a shared vision, argues and rightly so.38

Even the institutional support for PILs, as civil liberties activist Ravi Nair (2005) points out, has proven to be neither consistent nor sustainable. According to one expert, as the legal framework for PIL is non-existent, ‘the pace of progress of the PIL movement depends to a large extent on the a& itude of the judges’. Additionally, the practice of permi& ing le& ers and news reports as writ petitions is still rare. Instead, the courts insist on a( davits. ! e fundamental purpose of PIL to improve access to justice for the disadvantaged has been undermined by the practice of hearing cases associated with prominent names while the same problems raised by unknown individuals have been rejected.39

36 ! e campaign has seen 32 hearings over four years, with the Supreme Court allo& ing an hour every two to three months to hear each petition. 37 Iyer (1987), p. 144. 38 Kannabiran (2004), p. 217. 39 Ravi Nair (2005), Federation of NGOs’ South Asia Human Rights Documen-tation Center h& p://www.hrdc.net/sahrdc/inthenews/2005/25-May-05.htm

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Such conservatism towards social rights in the 1990s does not mean that judges have reverted to their traditional positivist approach. Sathe (2002) is right in saying that the Indian Supreme Court has moved beyond the traditional approach that Legislature should make law, the executive should execute it, and the judiciary should se& le disputes in accordance with the existing law. However, the apex court has not usurped legislative functions in the " eld of health and education, nor has it become a habitual policy maker. Judges had a selectively signi" cant impact on a few policies that expanded free access to Anti-Retro Virals (ARV) for AIDS patients, created a right to food, enabled anti-pollution policies in Delhi, provided part of the justi" cation for an education guarantee scheme, and helped create new regulatory mechanisms for blood banks, and processing medical negligence claims. But such contributions were not tantamount to judges becoming policy makers since for most part, the institution or government acted only when it was ready to do so, not because the court demanded it. In education, the bulk of litigants used the notion of a right to argue for access to higher education, while primary education remained mired in problems of teacher absence, poor infrastructure, high dropouts and poor learning outcomes. At the policy level, the government used the Unnikrishnan judgment as one of the reasons for a universal education policy and an education guarantee scheme. Jean Dreze points out that the court’s order mandating all primary schools to provide free midday meals to children

… seems to be quite e# ective in promoting regular school a& endance … especially among girls and children from disadvantaged families … ! e Supreme Court orders on mid-day meal can be seen as an instructive example of constructive judicial intervention to protect children’s right to food. Nevertheless, court orders are li& le more than a temporary solution. Ultimately, provision of nutritious mid-day meal needs to be recognized as an integral part of a healthy school environment, just like a blackboard or textbook. And, this recognition needs to be re% ected in permanent legal entitlements as well as in political priorities and " nancial allocations.40

Even Sathe (2002: 251) admits that the Court has merely supple-mented the Legislature though directions ‘only because no law existed to deal with situations such as inter-country adoption or sexual

40 Dreze (h& p://www.azimpremjifoundation.org/html/articles_jean_midday_ meal.htm), accessed on 7 September, 2007.

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harassment of working women’, noting that the court also pointedly said that its directions could be replaced by legislation.41

! e behaviour of the judges on anti-terror cases shows the sound-ness of an embedded negotiator approach$a' er 1994 judges were more anti-State, but they changed their tune a' er 2001 even though decisional independence continued (Model 3, Table 4.1). ! is shows that judges make decisions within a complex interaction between several elements. ! e litigation pa& erns also demonstrate a major limitation faced by courts: judges can only rule on cases that are brought to them. Most cases brought by NGOs dealt with urban pollution and sanitation; relatively few cases dealt with the most urgent problems of India’s health sector including enhancing the quality and provision of medical services in rural areas, rehauling government hospitals, health centres and providing more doctors in rural and poorer areas.42

! us, our " ndings reinforce the theoretical and empirical conclusions from other countries that there is no intrinsic link between judicial independence and the expansion of rights (Belge 2006; Moustafa 2002; Hirschl 2004).

Has there been No Rights Revolution in India?Is Epp right that lack of support structures impeded the expansion of rights in India? Epp (1998: 71, 88) argues that a rights’ revolution did not occur in India because rights advocacy groups in India were weak and fragmented, handicapped by weak institutionalization and dependence on charismatic leadership. Judges cannot foment a rights’ revolution on their own; the occasional sweeping decision has li& le e# ect because lawyers and political activists cannot follow through.43 ! e low proportion of cases registered by NGOs in health and education supports that contention. But Epp fails to give adequate weight to the e# orts by some judges in bolstering the advocacy groups. In the absence of popular/electoral pressure, judges manage at least to draw a& ention

41 Sathe (2002), p. 251. 42 CVL Narasimha Rao v. Respondent: Principal Secretary, Medical and Health Dept and Ors (AP HC, PIL, W.P. No. 11542 of 2001); S.K. Garg, advocate v. State of UP and Ors (AL HC, PIL , 1998); Siddha Raj Dhadda v. State of Rajasthan (MANU PIL 1989). 43 Epp (1998), pp. 71, 88.

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to the government’s obligations and duties. ! e increase in suo moto cases in recent years is testimony to this. But as one Delhi administrator noted, the ‘clean air’ judgments were primarily the handiwork of a couple of judges, and were Delhi-centric. So what happens to pollution control in other cities like Bangalore and Mumbai? ! is is one of the fallouts of a judge-led litigation in the absence of strong support structures. ! e relationship between the Supreme Court and civil society organizations has proceeded through several stages. ! e discussion of social rights litigation shows that judges were keen to create conditions for more cases registered on behalf of vulnerable groups and on issues like environment that were of concern to most citizens. Bhagwati (1985) argues that the initiation as well as the responsiveness of the apex court to human rights concerns made for an e# ective synergy between the two groups, particularly in environmental litigation.44 Epp’s survey of cases shows that the Court’s support for rights claims increased from 35 per cent during Emergency to about 70 per cent in 1990. ! e judge-led social action litigation produced a vibrant support structure of NGOs and other groups in environmental issues. Such vibrancy, however, has not resulted in NGOs choosing litigation as a viable strategy for ensuring the delivery of health and education rights. As some studies have found, litigation was the least preferred alternative for NGOs primarily because of the poor enforcement of court directives.45 Only 12 per cent of the total litigation was through PILs, a majority (40 cases) were in health, and only seven in education.46 Galanter (1989) is right to argue that PILs are responses to episodic cases of outrage rather than a tool that is systematically used by NGOs and other groups to improve public services. ! e pa& erns emerging from our models suggest that NGOs may be right in not pursuing a litigation-oriented strategy. ! e judges have become more wary of PILs and NGOs in recent years and were 40 per cent less likely to favour PILs (Model 2, Table 6.1). ! ird, judges negotiate within the limits but with the opportunities o# ered by political milieu. Do court interventions in majoritarian decision-making promote a wider distribution of power in the political system? Does the Court primarily legitimate the majority coalition’s

44 See P.N. Bhagwati (1985), ‘Judicial Activism and Public Interest Litigation,’ Columbia Journal of Transnational Law 23: 561; and Epp (1988). 45 Galanter and Krishnan (2004); Mendelsohn (1991); Dembowski (2001). 46 ! ere were 40 health (mainly public health) PILs, and only seven education PILs.

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understanding of the Constitution, as Dahl contended in the 1950s? Or do the institutional features that tie the courts to the political system operate in a more subtle fashion? To understand the relationship between the court and the political regime, we must assess the relationship of the court to the elected regime, and to the policies. As Clayton and Pickerill (2004) point out, political regimes are not ideological monoliths but comprise multiple orders and pa& erns of interaction between groups, ideas, and institutions which, while holding relatively stable commitments to political issues that divide the major parties, are o' en at odds with each other over strategies and other imperatives less central to the major partisan divides. We assessed the relationship between the political con" guration (single-party majority or coalition) and judicial behaviour. Scholars contend that among parliamentary democracies, a high degree of party competition within the legislature tends to invite challenges from the judiciary because these systems produce weak governing coalitions (Tate and Vallinder 1995). Our evidence suggests that the relationship between courts and political con" gurations in a parliamentary system is less coherent than what these scholars assume. When the political actor was strong (single-party majority), prepared to take on the courts, and had a policy agenda, the Supreme Court was more constrained by the political milieu. ! is occurred during the Congress regimes led by Indira Gandhi. If the political actor was strong and had a policy, but was not prepared to strike at the court’s autonomy (the Nehruvian regime), or if there was a weak governing coalition/minority government (post-1988 governments), the Supreme Court had more room to manouvre. A variation on this is that single-party dominated political systems will accord courts less independence because of the governing party’s expectation that it will continue to win elections, whereas competitive parties favour greater judicial independence in order to preserve a party’s legislative gains while in o( ce once it is out of power (Ramsayer 1994; Ramsayer and Rasmusen 1997). ! is could explain why the 1977–80 Janata (coalition) party government removed some of the court curbing amendments of the previous government. ! e new government amended the Constitution to restore the balance between the people, the judiciary, and the executive (Austin 2000). And the court seized the power to reintroduce due process in 1978, and appropriated vast

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powers over administrative action.47 Even the timing of the judgments that expanded judicial autonomy over the appointments process came during minority and coalition governments in 1993 and 1998. But the expanded autonomy for judges did not imply that they would support social rights. Instead, there was a shi' towards conservatism by post-1993 judges (Model 2, Table 6.1), which can be understood more as a response to the larger policy constraints imposed by globalization that demanded state institutional support for economic liberalization. In civil liberties, the relationship between a weak executive and anti-state rulings was stronger. A judge was 26 per cent less likely to favour the state during coalition rule (Model 1, Table 4.1). ! e experience of the emergency in% uenced the anti-state nature of rulings by post-emergency judges$even dominant single parties did not o# set the e# ect of the emergency on the behaviour of Indian judges. A judge was 55 per cent more likely to rule against the state in TADA cases in the 1980s even though the Congress party had successive thumping majorities in parliament (1980–8). To measure the relationship between regime values and the Court’s behaviour, we adopted a party-centred conception of political regimes. Judges responded di# erently to di# erent political regimes. Judges appointed to the Supreme Court when the Congress party was in power at the centre were more likely to rule against the state in anti-terror cases as compared to judges appointed during the term of the BJP and other parties. We also found more pro-state judgments when the BJP was in power at the centre regardless of when the judges were appointed, that is, Congress appointees or BJP appointees. But this does not imply that the judges toed the line of the ruling BJP coalition because a statistical table (Table 4.4) shows that judges continued to give anti-state rulings during the initial part of BJP rule. ! eir position changed only a' er 2001 because of their concerns about the e# ect of terrorism on national security. ! e pro-state rulings during the BJP- led coalition were because of the e# ect of terrorism, implying that ideological parties within a coalition government have less in% uence on judicial behaviour. Just because there were more pro-social rights rulings during a single-party majority rule (Model 2, Table 6.1) does not mean that judges are

47 Maneka Gandhi v. Union of India (1978) 2 SCR 621; Ramana Dayaram She" y v. ! e International Airport Authority of India (1979) 3 SCR 1014.

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simply agents of the majority party. ! e crucial element that determines a judge’s role is whether there is a credible threat by the executive to curtail judicial powers. ! e Supreme Court fought with Nehru’s government (also a single-party majority) in the 1950s and 1960s on several issues, including property rights. ! e di# erence between Nehru and Indira Gandhi was that Nehru did not embark on packing the court with ‘commi& ed judges’. ‘In the cabinet, Nehru successfully fought against the worst anti-judiciary sentiment, by saying that a socialist programme could be pursued without “striking at the judiciary’s roots.”’48 During the Nehruvian era, the court gradually and cautiously expanded its own authority while maintaining a balance of power between the three wings. From the mid-1960s (a' er Nehru’s death in 1964), the Court clashed with the government (led by Lal Bahadur Shastri and then by Indira Gandhi) over populist measures like nationalizing banks and abolishing privy purses. ! e Congress returned to power led by Indira Gandhi, who began the process of curbing the court. It was this memory that made the post-emergency judges reluctant to challenge the government led by their old nemesis.

‘Whenever the Court opposed her policies, it had to pay the penalty in the form of supercession of judges and constitutional amendments. When it supported her policies, it was denigrated by critical public opinion. ! e Court would neither accommodate her nor reject her. Now the Court decided to keep out of the way of major confrontation with her new government.’49

Fourth, the Supreme Court justices protected the rights of some minorities regardless of judicial independence and the ideology of the ruling regime. ! e Supreme Court judge’s a& itude to the Muslim minority did not change in all three security laws; but they were signi" cantly more likely to rule against the State when a Muslim litigant (without separatist goals) was charged under TADA. ! is corroborates the mechanism for our embedded negotiator approach, namely that authoritarian rule (the emergency) triggered more judicial scrutiny of cases with vulnerable groups, thus supporting arguments that judges in democracies would protect minorities (Casper 1976). Our caveat is that such protection would occur only a' er the institution experienced a crisis of legitimacy. ! e anti-majoritarian a& itude is also evident in

48 Gadbois (2000), p. 4. 49 Das (2000), p. 24.

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social rights cases involving issues of religious quotas (such as quotas for members of religious minorities in education), which were 28 per cent more likely to get a favourable ruling (Model 5, Table 6.1). Fi' h, the absence of large-scale legal mobilization on health and education, and civil liberties may explain the low level of impact of courts on these two sets of rights. NGOs registered cases on public health issues (20 per cent of the caseload) but the level of mobilization was low, sporadic, and spread thinly across a range of issues. Contrast this with environmental litigation where one sees a direct link between the high levels of mobilization and the pro-active rulings of the higher judiciary. ! eories of legal mobilization rightly argue that the emergence and strength of support structures within civil society enable a rights revolution (Epp 1998), provide critical support to the courts against a belligerent executive (Moustafa 2002, Belge 2006), but also constrain the court’s potential contribution in the area of civil rights and liberties (Belge 2006). Sixth, judges respond to a national crisis. ! eir pro-state behaviour a' er 2001 shows that judges are as susceptible to heightened fears of security breaches as the rest of society (Model 5, Table 4.1). We had expected the judge to behave the same way during wars and terrorism (Figure 4.1) but they clearly made a distinction between the two types of threats. ! e Supreme Court judge was more likely to support the State a' er a terrorist a& ack than during wars. His behaviour illustrates the embeddedness of the judge within societal and national life. A terrorist a& ack is more likely to a# ect the long-term safety of citizens (including judges) while a war takes a toll on soldiers for a " nite period. A judge was less likely to support the State in a case involving a Muslim litigant during a war year, demonstrating the negotiation of a judge between his role as part of a coercive state, and his a& empt to support the rights of vulnerable citizens. An analysis of POTA cases could help us assess whether this trend has waned or increased. As Aharon Barak (2002) said:

We, the judges in modern democracies, are responsible for protecting democracy both from terrorism and from the means the state wants to use to " ght terrorism … ! e protection of every individual’s human rights is a much more formidable duty in times of war and terrorism than in time of peace and security … Admi& edly, the struggle against terrorism turns our democracy into a ‘defensive democracy’ or a ‘" ghting democracy.’ Nonetheless this defense and this " ght must not deprive our regime of its democratic character … A

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balance is required$a sensitive and di( cult balance$between the freedom and dignity of the individual, and national security and public security.

! e broad trends in the judgments on cases registered under the terrorist and disruptive activities act (TADA) re% ect the di( culty of achieving this balance. Seventh, judges display some personal preferences: ! ey function as members of caste and religious groups, suggesting that the a& itudinal/psychological models have some basis. Scheduled caste judges were more likely to favour health and education rights. All judges, and especially Hindu judges were more likely to rule against the State in anti-terror cases when Muslims were litigants. But to make a causal argument, one has to systematically test for, and examine these preferences. Our analysis shows an overarching pa& ern where judges grapple with the task of becoming a Supreme Court judge. ! ey engage in a process of learning, of constantly negotiating with their identities as judges, citizens, and as members of a state institution. ! ey are neither puppets of political masters, nor strategists, nor idiosyncratic. If anything, the one certain thing about Indian judges is that they are more likely to engage in a constant process of negotiation and adopt % exible positions. For instance, our model shows that the more cases a judge hears, the more likely he is to change his mind implying a lower level of dogmatism. ! is shows a picture of a justice who constantly draws on information from the political, institutional, and civil environments in order to make a decision. ! e process of judging is very complex. Judges engage with political and societal debates about competing social visions and make value choices. Indian judges function as judges, as members of a religious group, as citizens of a pluralist country in search of a modus vivendi with minorities, and as idiosyncratic human beings. Judicial decision-making cannot be explained by a model that privileges the constitutional text or political actors, or civil society or even the intra-judicial norms as the key explanatory factor for the behaviour of a judge. Judges think about their roles and grow into them. What we show here is that such a process exists. ! is, however, does not mean that we cannot identify probabilities of a judge taking a decision. Our model helps us understand what Critical Legal School calls the ‘value choices’ underlying a decision.50

50 Joseph Singer, ‘Review Essay: Legal Realism Now’, California Law Review 76 (1998).

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Our analysis also demonstrates that di# erent approaches have their strengths. Legal model adherents are right when they say law ma& ers as a conceptual system. As Whi& ington points out, recognizing law as a conceptual system makes room for recognizing the authority of law, as well as its coercive force. ! e justices may adhere to the law because, in an important sense, that is what justices do. Neo-institutionalists have a point when they argue that the degree of discretion exercised by judges is determined at least in part by their institutional environment (Songer, Segal, and Cameron 1994). ! e separation of powers approach is right that the political environment (for example, re-election of Indira Gandhi’s party, or BJP rule) places limits on the Supreme Court, that is, justices will a& empt to make their decisions not at their ideal points, but as close as possible to their ideal points without ge& ing overturned (Eskridge 1991; Epstein and Knight 1997). But it is much harder to establish how judges perceive the law in their constant negotiation with their di# erent identities and contexts. ! e constant factor in a judge’s life is the continued process of negotiation. If power is a relationship, then one way to model the relationship between the Court and other institutions in the political system is by using the notion of an embedded negotiator.

I*,&#$%'#-.) /-0 '12 D23%'2 -. '12B22" /-0 A.'#-'200-0 L%4)

Are judges jurispathic agents of state coercion? Cover (1983: 54–5) succinctly summarizes the dilemma of a judge when faced with state coercion. In the face of challenge, the judge$armed with no inherently superior interpretive insight, no necessarily be& er law$must separate the exercise of violence from his own person. ! e only way in which the employment of force is not revealed as a naked jurispathic act is through the judge’s elaboration of the institutional privilege of force,$that is, jurisdiction … ! e signi" cance of the jurisdictional principles through which courts exercise violence is that they separate the exericise of the judge’s authority or violence from the primary hermeneutic act that that exercise realizes…! e court ultimately responsible for the interpretation need never commit itself separately to the proposition that the particular interpretation warrants violence.’51

51 Cover (1983), pp. 54–5.

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Cover (1983: 40)argues that the principles of deference aligned the interpretive acts of judges with the acts and interests of those who controlled the means of violence. ‘Interpretation always takes place in the shadow of coercion. And from this fact we may come to recognize a special role for courts. Courts, at least the courts of the state, are characteristically “jurispathic”.’52

Our evidence suggests that while overall, the court supported the state’s coercive position, the judges also found ways to oppose the violence of other State organs through more scrutiny of cases against religious minorities. But this occurred not because of judicial independence but due to a redemptive mood among judges a' er a crisis of legitimacy experienced by the court during a short spell of authoritarian rule. Once such scrutiny was established, later judges continued the practice because of institutional (collaboration with colleagues) and legal norms (precedents). In an age of terrorism, we hear strident calls for harsher anti-terror legislation. A' er repealing POTA (which was enacted by the BJP-led National Democratic Alliance coalition), the Congress-led United Pro-gressive Alliance (UPA) government enacted the Unlawful Activities Prevention Act (UAPA) in 2004. ! e UAPA was a reformulation of a previous UAPA 1967 Act with additions from POTA. ! e debate rages on between those who argue that magnitude of possible destruction by terrorists necessitates " rm and preventive response from the State through intrusive anti-terror legislation. Conversely others argue that such legislation would only increase the propensity of state agencies to use these laws to arrest those unconnected with crimes against the state. Several studies and reports by civil rights activists and scholars show the vast slippages between arrests and convictions, the disproportion-ate arrests of Muslims, and the insidious normalization of these laws by their incorporation into ordinary criminal law (Singh 2007, Kalhan 2007, Verma 2004). ‘It has been our experience that in 90 per cent of cases, the courts quash the detention order due to insu( cient grounds for conviction and the detenu is released’, said civil rights lawyer Parvez Imroz.53

‘! e people who are booked under POTA are also booked under the Public Safety Act. If a person gets bail under POTA, he still continues

52 Cover (1983), p. 40. 53 Verma (2004), pp. 211, 213.

194 Scaling Justice

to be incarcerated’. Authorities immediately book him under another draconian law like the AF(J&K)SPA, 1990, which empowers the army to imprison and even kill suspects with impunity since the army has immunity from prosecution. ! is captures the argument made by several scholars about the interlocking set of laws that e# ectively cage a detainee. Our evidence supports the position of those opposed to the legisla-tion of more draconian laws. Only 42 per cent of the cases were technically supposed to be tried under TADA or one of the other laws, and the " gure plummeted to 35 per cent for TADA cases (as compared to 53 per cent of the PD cases). ! is implies that that over half the cases should not have been tried under anti-terror laws. ! e results demonstrate a chilling inclination of law enforcement agencies to use the preventive detention clause in these anti-terror laws to try criminals, and village-level murders unrelated to State security. ! e poor quality and lack of budgetary support for investigative sta# in the lower echelons of the police, and a general decline in all institutions of the state are recurring problems pointed out by several police reform commissions.54

F!'!02 T02."): A02 W2 E.'20#.5%. A52 -/ J!"#$#%&#6%'#-.?

In February 2007, the Congress party and two of its key allies Dravida Munetra Kazhavam (DMK) and Rashtriya Janta Dal (RJD) in the ruling United Progessive Alliance (UPA) government called for the imposition of President’s Rule in U& ar Pradesh. ! ey cited a Supreme Court judgment that disquali" ed 37 MLAs who had supported the Mulayam Singh government in UP in September 2003. ‘If the apex court declares the MLAs who constitute a government to be disquali" ed legislators from inception, would it not be unconstitutional to continue with such an illegal entity$illegally conceived, illegally born, and illegally delivered?’ asked Congress spokesperson Abhishek Singhvi in an op-ed in ! e Times of India.55 Critics said that instead of invoking

54 Report of the (Malimath) Commi& ee on Reforms of the Criminal Justice System, Vol. 1, Government of India, Ministry of Home A# airs, 2003 ; Fi' h Report of the Administrative Reforms Commission on Public Order and Police Reform, 2007. 55 Singhvi (2007) argues that the Bommai judgment involved a valid government, valid at the inception whereas the Mulayam Singh government in UP was illegal

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Article 356 (which allows the Centre to dismiss a state government) the correct procedure given by a 1993 Supreme Court judgment (Bommai) was to allow the state government to prove its majority on the % oor of the House.56 ‘Barring the Le' , there is a disquieting consensus among political parties in favour of President’s rule in UP. ! is consensus is purely tactical and shorn of political morality’, said a ! e Times of India editorial.57 ! e use of the apex court’s judgment by politicians is not a new phenomenon. In the past decade, political parties and the government have used higher court rulings to justify controversial measures and stances. For instance, the Delhi government blamed the court for forcing the government to demolish illegal commercial structures. It would not be surprising if their election manifesto continues on this theme and uses the Judiciary as a shield from an angry set of voters. In 1996, the BJP used a Supreme Court judgment to justify its ideology of Hindutva.

I feel extremely grati" ed about yesterday’s verdict … principally because the Constitution Bench has lent its seal of Judicial imprimatur to BJP’s ideology of Hindutva … Somehow during the past few years, our adversaries have succeeded in creating an impression that if any party or candidate talked about religion, temples, Hindutva, Hinduism etc., it was guilty of a corrupt practice … I am happy that the 3 Judge Bench … has cleared these cobwebs of confusion and obfuscation.58

In recent years, India’s political elites seem to be following the global trend of promoting judicial intervention and even policymaking to avoid responsibility for controversial decisions (Graber 1993, Hirschl 2004, Gillman 2002). As Pickerill and Clayton (2006: 5) point out,

and unconstitutional from inception because the government was formed with the initial support of 13 BSP MLAs who were subsequently disquali" ed for having defected without taking a third of BSP members with them. 56 See ! e Times of India editorial, February 21, 2007, p. 20. 57 Ibid. 58 L.K. Advani, the President of the BJP in a special press statement on the Supreme Court’s judgment in Prabhoo v. Kunte. See BJP pamphlet on the

‘Hindutva Judgments’ (1996). ! ese judgments dealt with the use of the term ‘Hindutva’ in election rallies by the Shiv Sena. ! e court said that the answer to whether the use of the word ‘Hindutva’ in an election speech was religious or not depended on the context of its use; the mere word itself should not be narrowly construed as a religious term.

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the relationship between the Court and democratic politics is more complex than the simple counter-majoritarian model portrays.

! e power of judicial review is just as o' en employed as a mechanism for repealing outdated legislation from previous constitutional periods, for extending the value of the current political regime to recalcitrant local jurisdic-tions, for protecting the policy commitments of a current majority that are becoming democratically vulnerable, for managing cross pressures within the dominant governing coalition, or in many other ways that further or advance policy agendas of the dominant political coalition.59

For instance the recent spate of judgments by the Delhi High Court outlining administrative policies was a& ributed to chronic government negligence, and even implicitly supported by the ruling regime. ! e Chief Minister of Delhi said on national TV that the government was merely following the court’s directives on sealing illegal buildings. Instances of political elites transferring the contours of a policy to the court go back to the 1950s and 1960s in a( rmative action where, as Sathe (2002: 60) says, the political elites wanted an umpire who could adjudicate their contentious issues according to certain principles.60

! e increasing use of the judiciary by political elites, and the lower court’s growing tide of judgments on almost all aspects of governance bodes ill for the Judiciary’s future. Our study analysed the trends of judicial behaviour in the 1980s and 1990s. A review of recent judgments indicates the movement of the higher courts towards more intervention in policy and law enforcement domains. In a public lecture, J.S. Verma (2007) admi& ed that there were ‘some instances’ a& racting legitimate criticism.

! e judiciary has intervened to question a ‘mysterious car’ racing down the Tughlaq Road in Delhi, allotment of a particular bungalow to a Judge, speci" c bungalows for the Judge’s pool, monkeys capering colonies to stray ca& le on the streets, cleaning public conveniences, and levying congestion charges at peak hours at airports with heavy tra( c etc., under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance. Another category relates to illegal constructions or encroachments on public lands and in the Lutyen’s Bungalow Zone in Delhi. ! e judiciary has stepped in, not only to direct the designated authorities to perform their

59 Pickerill and Clayton (2006), p. 5. 60 Sathe (2002), p. 60.

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duty, but it has also taken over the implementation of the programme through non-statutory commi& ees formed by it. ! e judiciary is controlling the large scale sealing operations of commercial premises in unauthorized areas of Delhi.61

Verma pointed out that the implications of the ‘judiciary’s involvement in this process, which is essentially an executive function, are wide’ but went on to highlight some positive fallouts of other judgments. Do these rulings imply that the Judiciary has usurped the powers of the other wings of the state? Baxi (2007: 20) argues that the outcry of ‘judicial usurpation’ has ‘a hollow ring indeed because in reality SAL assumes many labours and functions that increasingly coalitional regime political actors simply can no longer manage; put another way, the Supreme Court assumes the tasks of national governance, otherwise appropriately assigned to democratic governance’.62 Whether one critiques or supports judicial activism seems to depend on the perspective$those who critique do so because the courts fail to deliver rights to people due to non-implementation and other institutional constraints; those who support do so because judicial activism o# ers a route to reverse the jurispathic nature of law that reproduces rightlessness. Judges have o' en justi" ed judicial intervention in administration as unavoidable to combat the lawlessness and ine# ective administration. In the introduction, we began with a recent Supreme Court judgement that castigated the high courts for over activism. ! e two judges dismissed the justi" cation given for judicial encroachment in the legislative and executive domains that the la& er two failed to perform their jobs. ‘Even assuming this is so, the same allegation can then be made against the judiciary too because there are cases pending in courts for half-a-century,’ said the two judges. ! ese moves will produce more a& acks from the political wings on an already overburdened institution, leading to more erosion of legitimacy. Compared to our neighbours, and other developing countries, we have, however imperfect, a rule of law and an experienced and highly sophisticated judiciary. ! e judicial intrusion may be well-motivated, but the resulting workload, the incapacity of the judiciary as an institution to make policies, the stop-gap nature of the solutions

61 J.S. Verma, 2007. 62 Baxi (2007), p. 20.

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devised by courts, and the destabilizing campaigns initiated by the political wings may overwhelm the judges. ! e higher judiciary would do well to listen to the warning of an eminent justice.

An activist Court, spearheading the movement for the development and extension of the citizen’s constitutional rights, for the protection of individual liberty and for the strengthening of the socioeconomic fabric in compliance with declared constitutional objectives, will need to move with a degree of judicial circumspection. In the centre of a social order changing with dynamic pace, the Court needs to balance the authority of the past with the urges of the future. As far back as 1939, Judge Learned Hand (52 Harvard Law Review 361 [1939]) observed that a Judge ‘must preserve his authority by cloaking himself in the majesty of an over-shadowing past; but he must discover some composition with the dominant needs of his times’. In that task the Court must ever be conscious of the constitutional truism that it possesses the sanction of neither the sword nor the purse and that its strength lies basically in public con" dence and support, and that consequently the legitimacy of its acts and decisions must remain beyond all doubt.63

Prominent jurists like Fali S. Nariman and Krishna Iyer and retired judges like Barucha, Sabharwal, Anand among others have asked for urgent measures to arrest the decline creeping into the vitals of the higher courts. A Judicial (Inquiry) Bill 2006 was introduced in Parliament to reform courts and create judicial accountability. But the Bill has some major shortcomings$the transgressor is judged by his/her own colleagues, that is, other judges, and cannot be punished if he/she has already retired.64 One hopes that the legislation will stem the decline. Otherwise, 20 years later, another study of judicial behaviour may call the twenty-" rst century the age of the decline and fall of the Indian Judiciary.

63 Pathak, Bandhua Mukti Morcha, para 76. 64 But the Bill has some major shortcomings$the transgressor is judged by his/her own colleagues, that is, other judges, and cannot be punished a' er he retires.