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Contributions from
the Column
Focus
Yearning for the rule of law
Concern for human rights
Liberation judiciary
Bhopal’s disaster of governance
Constitutional Court – model for success
8-9/2004
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Liberation judiciary
Prof. Baxi, are the judges illegitimatelyassuming too much power or is their so-called activism legally correct?
This question raises its human rights unfriendly, ugly head everywhere – especially in a post 9/11 world! For example, the recent US Supreme Court decision on Guantánamo Bay surely raises – for the dissenting justices, as well as for the White House – the question of legal correctness. Similar questions have also arisen in relation to many rulings of the European Court of Human Rights and further in the ‘transitional post-communist societies.’
What about India?
The question of legitimacy of judicial activism has been all too frequently debated, ever since the Indian Supreme Court, as early as 1973, declared that the Indian Parliament may not make amendments to the Indian Constitution that abrogate or abridge the essential features of the basic structure of the Constitution. These features included notions such as democracy, the rule of law, secularism, and the powers of the Supreme Court. There is now a political consensus that accepts judicial review as fully democratic. Incidentally, the idea of ‘basic structure’ owes a good deal to the German notion of the ‘basic law.’ I also ought to acknowledge the considerable debt Indian constitutional jurisprudence owes to the lamented Professor Dieter Conrad of Heidelberg whose writings on India influenced legal arguments concerning the scope of amendment power. All summed up, however, the debate over judicial power concerns not so much its legal correctness. The issue rather concerns political correctness; that is, the relative proportion, in the national governance, of judicial power over forms of executive and legislative powers.
Why is PIL relevant?
Sorry, I do not use the expression public interest litigation or PIL which is an American coinage. In the Indian situation, I prefer to speak of social action litigation or SAL. In SAL, unrepresented, disadvantaged, deprived, and dispossessed peoples of India move courts for the restoration of their basic, fundamental rights. The Supreme Court of India now allows petitions by way of informal letters or even postcards addressed to the Court written on behalf of the rightless peoples of India, seeking restoration of their human rights. No court, in contemporary history, has innovated jurisdiction thus far!
Do the poor and disempowered really move the courts on their own in the sense of SAL or do they not rather need the assistance of well-trained middle class lawyers acting out ofa sense of civic duty of public interest?
They depend on an ensemble of law professors and jurists, mediapersons, human rights and social activists to bring their rightlessness to the attention of the courts. This is how social action litigation started and thrived. Legal professionals subsequently joined in and that helps but even so the process remains imbued with the spirit of insurgent citizens seeking to deploy adjudicative power against the lawless ways of Indian governance.
Which rulings do you consider the most important?
On the whole these rulings concern the achievement of human rights of:
– incarcerated people;
– women’s rights as human rights;
– rights of the child;
– promotion of human rights of socially and educationally backward classes;
– due process human rights in the administration of criminal justice;
– the rights of indigenous peoples;
– environmental rights. This listing is of course not, and fortunately not, exhaustive.
The reality on the ground does not necessarily reflect legal regulations anywhere. In poor countries with high levels of illiteracy, such gaps tend to be particularly wide. To what extent does this fact thwart the courts’ impact? After all, enforcement of orders may not be guaranteed.
Indeed, the courts do not possess the power of the purse or the sword! As the experience even of the radical South African Constitutional Court suggests, the courts may not enforce social and economic rights by directing the allocation of revenues in the national budgetary or even planning process. Even an activist judiciary usually leaves macroeconomic manage-ment of the nation to the elected public officials.
Yet, I believe the Indian Supreme Court tends all too readily to issue symbolic pronouncements without fully using the power it already has to make these work on the ground.
How has the possibility of PIL cases changed the attitudes of bureaucrats and politicians?
Truth to say, not a very great deal! Political classes, and not just in India, remain afflicted by, as well as deploy, a fly-now-pay-later rationality. But there is scope for hope for politics for human rights. Put another way, when determined, the Supreme Court does enforce its will.
Do courts reach out into rural areas or is their liberating force limited to urban society?
This depends on the nature of activist litigation. For example, many petitions have been filed and have resulted in improving the rights of unorganised or
disorganised rural labour, including debt-bondage labour as well as casual labour employment practices. Further, social action litigation questioning mega projects of development that displace vast majorities of the populace also relate to the rural society. Environmental litigation also empowers the rural populaces.
What have been the most important empirical
results in terms of governance?
Here opinions vary. But most analysts will agree that social action litigation has led to some important renovation of law, policy, and administration. It has overall resulted in creation of new human rights responsive governance cultures. Specifically, the following mark some crucial empirical results of judicial intervention regarding the monitoring of corruption in high public places;
– ensuring integrity of free and fair elections;
– imposing a minimal human rights discipline on total custodial institutional regimes such as jails,
– centres of preventive detention or institutions of psychiatric care;
– devising judicial strategies to combat sexual harassment at work and violence against
– women in the family;
– imposing strict scrutiny over affirmative action programmes ostensibly benefiting the Dalits, socially and educationally backward castes and classes and the indigenous peoples;
– installing environmental rights of access to
– clean air and water;
– creation of an impressive jurisprudence of conversion of basic human needs into fundamental
– rights and human freedoms;
– achieving precious beginnings towards the realisation of women’s rights as human rights;
– developing a regime of common property resources; and finally articulating distinctive conceptions of socially-oriented tasks of judicial power and process.
These are remarkable normative achievements of
judicial power, which at the same time fall short of
expectations of detailed implementation at the ground level. But they do – to use the words of Professor Reinhart Koselleck – expand the ‘horizon of expectations.’
The Indian judiciary does have a reputation for being overburdened and ineffective.
This reputation arises partly out of the very success of social action litigation which adds to the docket explosion especially of the appellate courts. At the same time, the trial court processes in civil suits and criminal prosecutions move at a glacial pace. This problem has been addressed in several ways, none of which fully responds to the court system crises.
What has been done?
For example, ‘fast-track’ courts have been instituted with a view to handle long pending matters before the courts. Court overload has also been addressed through the device of administrative tribunals. Further, attempts have been made to increase the number and frequency of judicial appointments at all levels but it remains fraught with delays entailing a whole range of consultative procedures between the executive and the judiciary. The situation has incrementally improved. But the legal profession is very strong and often it checkmates significant moves for judicial reform. Quite too often, it resorts to prolonged strikes against the court and the Bar reform measures, which further aggravate judicial delays.
So the liberating powers of the judiciary remain limited in terms of the ground reality.
Overall, one may say this. Cases continue to move through the hierarchy of jurisdictions at an appalling slow pace. This also extends to the situations of social action litigation, which is all the more frustrating because these raise issues for urgent amelioration by judicial action. The Supreme Court has evolved the system of interim orders which respond to some urgent existential needs but the final orders take a good deal of time to happen. People who bring petitions to secure the right to food cannot wait for a whole generation. People displaced by major projects such as dams have to wait for restitution and rehabilitation for more than a generation and half. The Bhopal victims (on the eve of the 20th anniversary of the catastrophe) still pursue their so far elusive quest for justice. All this moves me at times in exasperation to say: ‘Litigants of India unite because you have nothing to lose save the arrears in court!’
It seems as if most efforts remain futile?
There is a bright side. The judicial creation of new human rights not explicitly provided in the Constitution, and efforts to restore integrity in administration, are the blessings of the new forms of judicial activism. There has dawned a new era where disadvantaged and dispossessed peoples freely recourse to courts and have their day in the court. Governments – at the state and national levels - have indeed to explain, and at times to redress fully, acts of commission and omission. All this does not amount to emancipation of disadvantaged, dispossessed, and deprived masses of India. But judicial activism has made those in power a little more accountable.
Questions by Hans Dembowski.
Books by Upendra Baxi
2002: The Future of Human Rights, Oxford: University Press
1994: Inhuman Wrongs and Human Rights: Unconventional Essays,
Delhi: Har-Anand
1994b: Mabrino’s Helmet? Human Rights for a Changing World, Delhi Har-Anand
1982: The Crisis of Indian Legal System, Delhi: Vikas
1980: The Indian Supreme Court and Politics, Lucknow: Eastern
Prof. Dr. Upendra Baxi
teaches Law at the University of Warwick. He was the Vice Chancellor of the University of South Gujarat and of Delhi University.
U.Baxi@warwick.ac.uk
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