What if the judiciary and executive collude?  

There is no shortage of theories for why democracies endure. Some stress social characteristics – a country’s degree of ethnic diversity, for instance, or the size and composition of its middle class. Other theories emphasise the role of civil society, in which advocacy groups, social movements, and a vigilant media demand accountability from public officials.

Either way, accounts of how democratic systems sustain themselves in the face of authoritarian tendencies usually place considerable explanatory weight on formal institutions designed to restrain state power. Legislatures are one such countervailing force, allowing opposition parties to give voice to the constituencies they represent and to criticise the arbitrary exercise of executive authority.

But it is the judiciary that is typically seen as the ultimate means of protecting the rights on which future electoral contestation, and thus democracy itself, rely. Courts both embody and deliver that most essential, and historically contingent, of institutional commodities — the rule of law.

So, as India confronts a crisis of regime – with human rights, secular values, and liberal institutions all under attack – the state of India’s judicial system urgently requires assessment. To do so in a genuinely holistic fashion would require consideration of allied institutions, notably the police, prosecution, and penal systems. Their functioning has incalculable consequences for both the quality of justice and the power of the judiciary.

But even if we confine ourselves to the judiciary itself, and draw on just a small sample of academic research on the subject, it quickly becomes apparent that assessing the robustness of this key institution is no easy task. At least three dimensions of India’s judiciary must be considered – the substantive, organisational, and procedural. On each count, the picture is decidedly mixed – not only because positive and negative trends stubbornly co-exist, but also due to ambiguities inherent in the judiciary as an institution.

Judges as politically aware actors

First, the substantive dimension, consisting primarily of the content of court rulings. Part of the ambiguity here is that the standards to which judges should be held are themselves in dispute. Political scientist Shylashri Shankar has observed that, in cases involving rights claims, India’s judges serve as “embedded negotiators,” politically aware actors who attempt to assess the boundaries of the possible. In recent decades, “the need to regain legitimacy and avoidance of conflict with the political wings were responsible for the Court’s attitude towards civil liberties”, Shankar argued.

While rulings on matters such as the right to food have been dismissed in some quarters as “judicial activism”, Shankar’s analysis found that “judgments on social rights were consistent with, and not opposed to, the promises and laws produced by successive governments”. Judges, in other words, routinely undertake more or less political assessments of how widely the “directive principles of state policy” can be applied without fomenting a backlash of the sort that, arguably, has now begun to prevail in the wider public discourse around social and economic rights.

This “embedded negotiator” conception of the court’s role is at odds with conventional understandings of an “independent” judiciary. But it does not necessarily imply that the judiciary has been “politicised”, in the sense of reflecting partisan divisions. Or that India has been subjected to a judicialisation of politics. Rather, it may be that to protect the very system from which they derive their authority, judges must be, simultaneously, above politics and acutely aware of the political aspects of the cases they adjudicate. In this sense, India’s judiciary may resemble the IAS officers that were the subjects of David Potter’s classic study, India’s Political Administrators. Potter found that a keen political sense – which he distinguished from partisan alignment – was not necessarily a bad thing for senior civil servants to possess.

Political reality vs Political cowardice

Where a judicious sense of political realities ends and a simple political cowardice begins is hard to say. But gaps in jurisprudence often provide strong clues. For instance, a Supreme Court serious about enforcing basic constitutional rights would take stronger cognisance of the shocking offences committed in Kashmir and elsewhere by India’s security services. Notwithstanding the broad exemptions offered by the Armed Forces Special Powers Act, a large body of legal analysis has found this particularly odious piece of legislation open to challenge on a number of grounds. The court’s failure to take action on specific cases, to say nothing of overturning the legislation itself, undermines the rights of Kashmiris, while undercutting the rule of law nationally.

India’s judiciary also defies easy categorisation when it comes to the second, or organisational, dimension along which it must be assessed. Partly this reflects the protean character of even seemingly solid chunks of the judiciary. Comparative legal scholar Nic Robinson has argued that “speaking of the Indian Supreme Court is in many ways misleading” because “any given bench of the Supreme Court has a slightly different interpretation of the law, and sometimes a starkly different interpretation, than other benches.”

A more concrete example is the continued devolution of judicial functions to specialised tribunals. These have in the past helped to protect rights and deliver justice. But their importance in some areas of administration, such as the granting of environmental clearances, is worrying in a political context where business interests are seeking to buy influence across all institutions of governance.

Polarised Politics

Recent legislative trends provide cause for concern as well. Reforms to the tribunal system initiated in the finance bill passed during parliament’s budget session could erode judicial autonomy in ways that augment, rather than limit, state power. In fact, a strong indication that the Supreme Court was willing to impose strong constraints on the executive would be if it struck down the government’s use of a “money bill” to push through these tribunal reforms – an abuse of established parliamentary procedure designed solely to avoid scrutiny by (and negotiation with) the Rajya Sabha, where the ruling party lacks a majority.

It is a sign of India’s polarised politics that even sensible, depoliticising proposals to bridge deep policy differences – notably, over how judges are appointed, promoted, and monitored – receive scant consideration. A proposal to create a judicial service, along the lines of what exists for the administrative, police, forest, diplomatic and other cadres, has virtually no chance of being implemented, despite being devised by a former head of the Law Commission with impeccable professional credentials.

Thirdly, in terms of procedural trends, the scenario is similarly ambiguous. On the one hand, parts of the judiciary have developed innovative arrangements to monitor state compliance with court rulings. The Supreme Court’s actions in the Swaraj Abhiyan case – where the government’s lacklustre response to drought conditions was at issue – is only one of many examples of courts engaging people’s organisations in the process of tracking government performance. The Supreme Court’s recent insistence that state chief secretaries drop whatever else they were doing to attend a hearing on failures in implementing the National Food Security Act was a heartening instance of judicial assertiveness.

On the other hand, none of this would be necessary if executive compliance with judicial rulings took place as it should. What happens in practice is that government agencies establish procedures for implementing court rulings, thus exempting themselves from charges of outright defiance. The non-achievement of actual results can always be blamed on a lack of financial resources or institutional capacity.

Yet, research by Sandra Liebenberg and Katharine Young cites India (alongside South Africa and other young democracies) as helping to advance a “new paradigm” in the relationship between democracy and law. Under “democratic experimentalism”, “courts depart from their traditional model of adjudicative finality, and seek to stimulate deliberative processes that involve parties and other interested groups in the design and implementation of legal rights”.

India’s approach to social and economic rights is indeed a powerful example. Yet, even Liebenberg and Young warn of “misplaced optimism in the equalising power of deliberation and the likelihood of achieving common ground in…situations of intense distributional conflict”.

Perhaps most worrying of all has been the judiciary’s demonstrated willingness to exempt itself from procedural norms that an institution dedicated to the rule of law would, ideally, embrace with gusto. The Supreme Court’s insistence that provisions of the Right to Information Act applied neither to the court collectively nor to its members individually was a low point. (The court subsequently asserted that any information judges did reveal was provided on a voluntary basis.)

The continued relevance of this issue was made apparent when similar issues came before the court in a case last year. And for good reason. Without vastly greater transparency, it will be impossible to track the degree to which conflicts of interest and informal political understandings may be undermining the judiciary’s institutional integrity. As of now, there is little reason to be optimistic, but at least some grounds for rejecting despair.

The author is professor of political science at Hunter College & The Graduate Center, City University of New York, and coauthor of Politics and the Right to Work: India’s National Rural Employment Guarantee Act