'We Have To Guard Ourselves Against Gradual Erosion Of Democratic Space' : Justice Chandrachud In Discussion With Sr Adv Datar & Prof Ginsburg

The event of the book launch of "How to Save a Constitutional Democracy" by Professor Tom Ginsburg, Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar, and Professor Aziz Z. Huq, was held by the University of Chicago Center in New Delhi on September 24. The event witnessed a  stirring discussion on the principles of Constitutional Law in a democracy between Justice D.Y. Chandrachud, sitting judge of the Supreme Court of India, Professor Tom Ginsburg, Mr. Arvind P. Datar, Senior Advocate at the Supreme Court of India, and Ms. Payal Chawla, Founder of JusContractus.

Excerpts from the debate :

JUDICIAL PERSPECTIVE ON EROSION OF DEMOCRACY

The discussion commenced with Prof. Ginsburg commenting on two premises that need to be remembered:

1. The United States is not exceptional. "We are subject to the same forces that exist around the world";

2. Law is an important tool which needs to be utilized to combat a slowly debilitating democracy.

On asked about the mechanisms that lead to democratic erosion, he elaborated the two agents of democratic erosion:

1. Partisan degradation – When a political party decides to undermine the Constitution in order to cement their own authority. For instance, the Republican Party in the U.S. limiting access of African-Americans to the right to vote;

2. Charismatic populism – When dissatisfaction with the ruling party and other intermediate democratic estates mounts, populist leaders with no electoral backing tend to subvert the system and blaze ahead on foundational connections.

With regard to the judicial perspective in India, Justice Chandrachud initiated the discussion by delineating broad themes which have permeated through Indian law and speak of democratic erosion. According to Justice Chandrachud, the perspective of a judge allows him to notice the changes in Constitutional law, which takes place in incremental changes. Therefore, democratic erosion does not take place through sweeping changes; it accumulates via small changes which, if left unguarded, opens up the danger of an eventual breakdown of the democratic polity. There is no case which is too small as there exists a possibility of a buildup of small changes which can eventually affect the society and the Constitutional system. For instance, a matter of denial of bail to a person who might have said something that could be construed as an affront to the populist notions, determines the real strength or the weakness of the system. Therefore, "we have to be extremely careful and guard ourselves against the gradual erosion of democratic space."

In order to supplement this viewpoint, Justice Chandrachud recounted the UK Supreme Court judgement delivered on 24.09.2019 in R (Miller) v. The Prime Minister and Cherry v. Advocate General for Scotland. This judgement condemned the advice on prorogation rendered by the British Prime Minister, Boris Johnson to Queen Elizabeth II and stated that the matter was justiciable as it had a significant effect on parliamentary democracy.

ROLE AND POLITICIZATION OF JUDICIARY

On being asked whether there was higher burden on the judiciary to protect constitutional rights due to the overlap between the legislature and the executive, Senior Advocate, Arvind P. Datar responded affirmatively. Historically, the judiciary has always enacted itself in the role of the institution which prevents parliamentary excesses; the only institution which maintains a system of checks and balances – "Because of the compulsion of politics, the compulsion of executive, it is there. The only bulwark of freedom of liberty is judiciary."

Prof. Tom Ginsburg then discussed the issues revolving around the politicization of the judiciary, wherein the judiciary takes on questions of politics which creates a dangerous and delicate balance. He commented on the appointments of judges in the Supreme Court of the United States which is done vide the nomination by the President and then confirmed by the United States Senate. As the post is held for life, the ruling party tends to nominate younger judges who can render favorable decisions on their behalf. He believes term limits should be imposed and, an expansion of the federal judiciary in a manner which is bipartisan and restores the status quo ante wherein judges were not seen as major politicians.

JUDICIAL INDEPENDENCE AND ACCOUNTABILITY

On political attacks on the independence of the judiciary, for instance, the implementation of the National Judicial Appointments Committee (NJAC) and the frequent invocation of "misconduct of judges", Justice Chandrachud stated that the "independence of the judiciary is not a concept meant to insulate the judiciary from being accountable". It is only meant to insulate the judiciary from wanton attacks on its own institutional integrity as a judicial system.

The problems are two-fold:

1. The attacks on the judiciary which can undermine not only the independence, but also the confidence of the judiciary, stem from the technology of the age that we live in. There is a need to trust the judges and to trust the courts in order to secure judicial accountability of the court. Lack of trust in the judiciary indicates problems in the democratic setup itself.

2. For judicial accountability, there needs to exist a more nuanced system as the Constitution only prescribes the methods of impeachment to deal with judicial misconduct. Justice Chandrachud commented on how there was a need for a more balanced procedure to deal with the misdemeanor of judges; a degree a judicial accountability with regard to the product which is coming out of the court, the amount of judicial time being invested in a case, the number of adjournments granted etc. The problem with regard to the balance that needs to be struck between the Bangalore Principles of Judicial Conduct and seeking accountability has a lot to do with the issues ailing society that could perhaps be mitigated by the changing of legislations, but more so by finding solutions within the judiciary itself.

Senior Advocate Datar stated that a permanent inquiry committee should be formed consisting of 8-10 eminent retired judges who could look into the issues of judicial misconduct. Such a system can also reduce the filing of "blank petitions" as an independent inquiry would enable the final settlement of a matter and reduce frivolous complaints.

THE RIGHT TO FREE SPEECH

On the question with regard to whether Article 19(2) was an impediment on the Right to Free Speech and whether there was a need to emulate the First Amendment (of the U.S. Constitution) in India, Justice Chandrachud stated that Article 19(2) could not be seen as an impediment on free speech as it was the method of execution and adjudication which eventually decides the success or failure of a Constitution. The historical and social context needs to be taken into account when dealing with the aims and aspirations of the framers of the Constitution.

"So, essentially the Constitution drew a lot from our experience, with some form of legislative democracy, imposed a chapter on the fundamental rights, and then drew a whole lot of balances, between free speech and public order, between property and social control, a whole lot of balances which you find running across the Constitution."

Justice Chandrachud believes that the balances which the Constitutionalists sought to draw are a source of strength.

"The balances leave the Constitution sufficiently open textured for Constitutional statespersons, Constitutional judges as well as civil society to actually benefit from the open textured nature of our Constitution."

Therefore, the balance between Article 19(1)(a) and Article 19(2) allows us to render a degree of interpretative stability in the working of the Constitution and there exists no need to move towards the First Amendment model of the U.S. The idea of a transformative Constitution was invoked by Justice Chandrachud which entails the mere change in the interpretation of the Constitution and not a change in the provisions themselves.

"A change for interpretation is certainly less intrusive and you can alter your approach to the Constitution depending upon the problems of the day, which is perhaps a more desirable way out."

BURDEN ON COURTS FOR BRINGING ABOUT CONSTITUTIONAL CHANGE AND JUDICIAL REFORM

On being asked whether the lack of awareness of the Constitution rendered the remedies available to citizens ineffectual, Justice Chandrachud stated that the burden should not solely rely on the court for bringing about a Constitutional change

 "There's a limit to what you can expect in a Constitutional system from change through courts. To cast a burden on the courts to bring about all changes towards the strengthening of a Constitutional democracy is perhaps not an appropriate way of approaching the problem", he said.

While the courts are a very important fulcrum in the preservation of Constitutional democracy, it is equally important to engage with State as well as non-State actors to bring about changes

On the question of judicial reform coming from either the legislature or the judiciary, Justice Chandrachud stated the there are two perspectives of judicial reform –

1. Reforming the structure of the judiciary, and

2. Making the judiciary more functional in terms of its ability or efficiency in disposing of cases. The issue lies in the federal structure and cannot always be rectified by a legislation, but can be done so with the aid of judicial policy. While the Parliament always has the liberty to bring about changes, but it is also up to the judiciary to bring about changes in their own policies so as to avoid "dysfunctionality".

To this, Mr. Datar posed a question regarding the appointment of ad-hoc judges in courts with immense vacancies. Justice Chandrachud responded by stating that the Supreme Court does enable the system of ad-hoc judges. The age of retirement at 62 for High Court judges is very low as the judges are at the peak of their mental abilities. The retirement of judges of the Supreme Court at 65 years of age makes for a plausible case that the High Court judges should also retire at the same age. People of merit, of integrity are required in order to fulfil vacancies at the High Court level. However, the age of retirement acts as a bar. Therefore, Justice Chandrachud suggested the appointment of members of the Bar or retired judges for a specific period of years to soley deal with a certain specialization of undisposed matters. In order to ensure quality and inclusion, there is a need to think out of the box and merely imposing upon the judges and the government to fulfil the vacancies may not ensure results.

The discussion ended with the panelists agreeing to the sharing of burden of prevention of democratic erosion by the judiciary, the parliament as well as the civil society. There was also an emphasis to look at the good work that was being done, instead of merely focusing on the lacunae in the governance. However, it was unanimously agreed that there was a certain gradual erosion in the democratic structure not only in India, but all over the world.