India is in a funk.
Financial markets are jittery, foreign direct investment is down, inequity is growing, growth is slowing and the population is agitated.
All this and the government is asleep at the wheel, or more precisely, all this because the government is asleep at the wheel. A somnolent, indecisive government has allowed many actors to step into the vacuum. The frustration with the executive branch has reached such a feverish pitch that the judiciary and civil society have dramatically stepped up their activism—demanding answers, proposing solutions.
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India is in its second major constitutional crisis (the first was the period of the emergency). This crisis is the price of inaction. Our Constitution is based on the separation of powers among three branches of government—judiciary, executive and legislature—and held together by a system of checks and balances. This very structure is being threatened because the perceived failure of the executive has allowed judicial overreach and civil society access into traditional functions of government.
Much has been said in recent weeks about civil society’s role in law-making. Let me focus instead on judicial activism. The Supreme Court of India derives its “activist” DNA from the ancient Indian tradition of bhashya—commentary or exposition on the original text. In an address to an American university, former chief justice P.N. Bhagwati asks the rhetorical question: “Is the function of a judge merely to declare law as it exists, or to make law?” He answers with: “It is for a judge to give meaning to what the legislature has said, and it is this process of interpretation that creates the most creative and thrilling function of a judge.” Justice Bhagwati and justice V.R. Krishna Iyer introduced reform in court procedures some 30 years ago to permit public interest litigation (PIL). PIL is really social action litigation introduced in court by anyone on behalf of the public interest. As a consequence of PILs, the Supreme Court has in effect “made law” such as in cases related to sexual harassment through the now famous Vishaka guidelines.
Detractors contend that in India, judicial activism is better classified as judicial populism. In many recent cases, courts have delivered judgements that seem to be pandering to the gallery—the Ram Janmabhoomi verdict by the Allahabad high court, and the denial of bail to all the 2G scam accused—are examples. Justice Markandeya Katju, an advocate of judicial restraint says: “Of the three organs of the state, it is only the judiciary which has the right to determine the limits of jurisdiction of all these three organs. This great power must, therefore, be exercised by the judiciary with the utmost humility and self-restraint.”
The debate on judicial activism versus restraint will ebb and flow with time and with the degree of impotency of the executive. Where you stand on the issue may well depend on which side of the legal and political aisle you sit. In practice, the Indian Constitution has created three inter-dependent (not independent) branches of government. Despite the timeless nature of the issue, a few things can be done.
The first is to address the inaction by the executive. This is not a new phenomenon. It is the by-product of a philosophy of gradualism. Gradualism has been positive in arriving at consensus decisions that are based on deep and broad support, but has had the disadvantage of creeping into our execution. India suffers from severe implementation deficit disorder and this is beginning to cost us dearly. Many developing countries are corrupt, but they deliver. A focus on implementation is likely to be more productive than moralizing about corruption.
The legislature needs to wake up. Irrespective of which party is in power, the government proposes at lethargic speed and the opposition opposes. Substantive debates are replaced by shouting matches. Standing committees leave matters standing for ages. The opposition today is gloating about the ruling coalition’s discomfort, little realizing that the entire Parliament’s goose is being slowly cooked. Sadly, inaction has not been the sole prerogative of the executive. If anything, the legislature has been in deeper slumber.
The judiciary, too, can use this time of ascendancy to make some changes. Judicial reform efforts have so far been focused on transparency and efficiency (another idea moving at snail’s pace). It must incorporate structural issues as well. Important issues should not be decided by two-judge benches, but by all judges. PILs must be rigorously and effectively scanned for the purpose of social action. Better judges need to be appointed (remains the executive’s privilege) and they need to be trained for the powerful roles that they occupy. If greater judicial activism is going to be a feature of Indian jurisprudence in contrast to the Anglo-Saxon kind, then judges will need not merely know law, but also be socially and politically wise.
PS: Plato in the Republic and Lord Krishna in the Bhagavad Gita speak of justice or dharma as “doing one’s duty”. The modern complexity is understanding the boundaries of that duty.
Narayan Ramachandran is an investor and entrepreneur based in Bangalore. He writes on the interaction between society, government and markets. Comments are welcome at email@example.com