Why The Case Against Constitutional Activism Fails? A Response To Its Critics

This is a welcome debate on our constitutional course which hopefully should trigger conversations on a wider constitutional audit.

The 'the anti-activists' are referring to the raging debates across this vast nation. Questions being posed are, is independence of the judiciary in danger? Why are incarcerated political opposition figures and dissenters not able to secure bail? Is there a constitutional comatose in respect of weaponised economic legislations like the PMLA? Is that destroying the very fundamental right to life? Is it factually correct that certain matters are going to select benches of the SC? Why judges like Justice Qureshi and Justice Muralidhar and others with all the requisite credentials not made it to the Supreme Court despite an independent collegium? Why could the bail application of Umer Khalid be not heard despite his incarceration for the last three years? Why are trial judges are very reluctant to grant bail despite manifest absence of credible evidence? Why an intellectual like the handicapped G.N.Saibaba had to undergo the trial by fire twice?

As this article is being penned, spectacular judgements of the Supreme Court and the High Courts in defence of accountable democracy are emanating which are giving both succour and hope for our democratic republic. The unanimous verdict of the Supreme Court in the electoral bond case, the subsequent refusal to extend the deadline to the State Bank of India to disclose the names, the setting aside of the Chandigarh mayoral elections, the acquittal of Professor G.N.Saibaba, the refusal to stay his acquittal, setting aside of a prosecution emanating from criticism of withdrawal of Article 370, staying the order of conviction awarding the maximum sentence to incur the disqualification of an opposition figure, have brought hope in an otherwise bleak terrain of constitutional liberties. As these judgements come forth one cannot but be hopeful that this could be the Supreme Court's finest hour.

A debate of this nature cannot be divorced from its historical context. There is a foundational raison d'etre to our constitution guaranteeing free speech and an independent judiciary. Our Constitution is the culmination of a freedom struggle which raged for almost a 100 years. One of the objectionable manifestations of colonial rule is the skewed judicial power structure. George Orwell understood this: “The truth is that every British magistrate in India…..in theory is administering an impartial system of justice; in practice is part of a huge machine that exists to protect British interests.” It is this structure which was sought to be dismantled by the Constituent Assembly.

This, the Assembly could do by securing free speech and fundamental freedoms for all our peoples. And in tandem, in order to secure those freedoms, they voted for an independent judiciary to be manned by the very best. Pandit Jawaharlal Nehru's speech in the Assembly on 24 May 1949 is telling on the point:

“ It is important that these judges should be not only first-rate, but should be acknowledged to be first-rate in the country, and of the highest integrity, if necessary, people who can stand up against the executive government, and whoever may come in their way”

The arguments advanced by 'the anti-activists' is that criticism per se of the judiciary is deleterious spirals into its own whirlpool of logic. Contrary to their posturing, they are critical of the liberal decisions of the Supreme Court when they vote in favour of right to life and liberty of dissenters. However, inconsistencies in their stand are the least of the problems in this debate.

Ironically, they miss the elephant in the room of judicial independence. It is the glaring and jarring phenomena of judges accepting positions with political patronage immediately post retirement. It fails to take into account a retired Chief Justice of India and a judge accepting governorship and another former CJI accepting Rajya Sabha membership. And of recent vintage, a High Court judge resigning and immediately joining a political party.

However, 'the anti-activists', rightly so, find nothing objectionable in the criticism by the former Chief Justice Gogoi in the Rajya Sabha of the Supreme Court's 1973 decision in Kesavananda Bharati. The judge's criticism is based on the immutable principle of free speech.

What is objectionable is the selective nature of their attacks. The 'anti-activists' refuse to yield the space of free speech to vocal and visible judges who speak against establishment, are speaking about the burning constitutional issues of the day. They fail to appreciate that the judges' critiques are canvassing for a non-negotiable independence for the judiciary and thereby to prevent India's slip sliding from the basic parameters of democracy. It is very much in the public domain that we have dropped down to 108^th on the Electoral Democracy Index and to 161^st on the World Press Freedom Index. The free speech guaranteed to the former CJI certainly inures these former judges as well.

Informed and reasoned criticism of the Court is the norm in mature democracies, provided it does not transgress the very definitive line of contempt. For that is the dialectics of a mature democracy. The decisions of the Supreme Court in Golaknath in 1967 (came from eminent voices like M.C.Setalvad and H.M.Seervai), ADM Jabalpur in 1976 and its many decisions have always brought in a flurry of criticism. When the Supreme Court of India struck down abrogation of the privy purses and bank nationalisation, Prime Minister Indira Gandhi, dissolved the Parliament. The debate shifted from the Constitutional court to the hustings. Our articulate Prime Minister recently, by way of a parable most beautifully narrated the trajectory of a misguided Public Interest Litigation and its impact on government policy.

There were and are intensive debates criticising the appointments process both under the executive driven SP Gupta regime and against the collegium regime under the SCORA and NJAC judgements. These criticisms come from and continue to do so from retired judges, lawyers, others, ministers members of Parliament of the current political dispensation as well as members of the opposition.

The philosophy, functioning and decisions of the judiciary has social, economic and political dimensions and consequences. Given the complexities of issues and its impact, it should be obvious that it can never command full and total assent. Democracies always call out on the wings of the government, which includes the judiciary. The press, social media, universities, political institutions, are always engaged in relentless discussions, debates, criticisms, counter-criticisms of the judiciaries in the democracies of the not just the developed countries like USA and the UK, but also the developing world. That is something a judiciary in a democracy expects. As Lawrence Tribe put it, “the independent judiciary has a unique capacity and commitment to engage in constitutional discourse.”

Now coming to the pejorative imputations attributed to the terms 'activist' and 'activism'. The Supreme Court, the High Courts and their Bar have always been 'activist' (if it means standing for constitutional liberties). This is quite unlike the many elitist and inaccessible apex courts in many countries. When emergency was declared Fali Nariman resigned and Soli Sorabjee addressed fearlessly at Zaviers College in Mumbai.

It will do well to remember that on 26 June 1975 preventive detention orders were passed against A B Vajpayee, L K Advani, Subramaniam Swamy and Madhu Dandavate and others. The leading lights of the Bar like Shanti Bhushan, Soli Sorabjee, V.M.Tarkunde, Anil Diwan, Ram Jethmalani, C K Daftary, K.K. Venugopal, M.C.Chagla and Santosh Hegde rushed to Bangalore to challenge those detentions. So did scores of lawyers across India who moved the courts to challenge detentions of the citizenry. This is exemplary role which the Bar plays till date. For that is what is expected of the Bar. Lawyers in our country did not rest there. They have always fought for giving a wider meaning to constitutional liberties. The Bar in the Supreme Court fought against encroachment of the executive into judicial appointments in each successive battle. They also fought for freeing bonded labour, affirmative action, free press, women's rights, minimum wages, land reforms, against graft, protection of our forests, the list is endless. These are the finest examples of constitutional activism.

This is in the true tradition of our Bar where its tall leaders fought and won us our freedom. All these cannot by any stretch be labelled as a narrow agenda. In fact those opposed to championing these liberties would do well to remember Dr. B.R.Ambedkar's last and most iconic speech to the Constituent Assembly which resonates with contemporary relevance; 'Liberty cannot be divorced from equality, equality cannot be divorced from liberty... if we continue to deny it for long, we will do so only by putting our political democracy in peril'.

The threat to the judiciary, more particularly to its independence does not come from debates surrounding its decisions. But as former Chief Justice J.S Verma said, from the 'erosion of credibility in the public mind... is the greatest latent threat to the independence of Judiciary.' Constitutionalists act like buoys in the turbulent sea of public affairs and swirling opinions. They are constantly signalling and protecting accountable democracy and the gold standard of judicial independence. That certainly is in the interest of our judiciary and our democracy and not against it.

Santosh Paul is Senior Advocate, Supreme Court of India. He is the author of `Choosing Hammurabi: Debates on Judicial Appointments' (LexisNexis), `Appointing our Judges: Forging Independence and Accountability' (LexisNexis). Views are personal.