Preventive Detention and the Obama Administration: the al-Marri case

The latest issue of the New Yorker contains an excellent article setting out the challenges that a case that will be heard by the U.S. Supreme Court in April 2009 poses for the Obama administration. As the author of the piece, Jane Mayer, describes it, the al-Marri case will require the Obama administration to "offer quick answers to a host of complicated questions about its approach to fighting terrorism." Her detailed piece explores several such issues and focuses in particular on the Obama administration's stance on preventive detention laws.

In India, the post-independence legal system has - somewhat paradoxically given the great abuse of such laws during the colonial era - endorsed and frequently justified the use of preventive detention, to the point where even civil libertarians seem to take their existence for granted. This was evident most recently in the post-Mumbai amendments to our anti-terror legal regime. This is, in Mayer's telling, in contrast with the historical experience of the U.S. where

many human-rights advocates and civil libertarians [...] regard indefinite detention as antithetical to the American legal system’s most basic tenets. Alberto Mora, a Republican lawyer who, as general counsel of the Navy, broke with the Bush Administration after concluding that some of its brutal counterterrorism policies were potential war crimes, warns, “We simply can’t have indefinite detention. Due process and fundamental fairness make that clear.”

Mayer notes that the Obama administration will have to decide this issue against the backdrop of President Obama's previous policy declarations during the campaign:

As a candidate, Obama promised a sharp break with the Bush Administration’s counter terrorism policies. In a written statement for the Boston Globe, Obama, who taught constitutional law in the nineteen-nineties, said, “I reject the Bush Administration’s claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.” (In fact, the Bush Administration went beyond this claim, arguing that Congress had explicitly granted the President this authority, in a bill passed after the attacks.) In the Globe, Obama went on, “The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional.” In his Inaugural Address, Obama further underscored his differences with Bush in this area, saying, “As for our common defense, we reject as false the choice between our safety and our ideals.” A top legal adviser to Obama told me that the President also believes that legal residents in America, like Marri, are entitled to due process.

What makes the issue more intriguing is the fact that members of the Obama legal team have strong civil libertarian credentials built, in considerable part, on opposing the Bush administration's policies on the war on terror. (The article includes quotes by Neal Katyal and Marty Lederman on issues closely related to the case). Mayer's article contains detailed descriptions of the way detainees have been treated in the U.S. in the post-9/11 era, and her piece is a grim reminder of the kinds of measures that are now considered legally justifiable.

It is clear, therefore, that the al-Marri case will be a significant test case for the Obama administration's approach to anti-terrorism law and policy. The case will hopefully cause other governments - and courts - around the world to reassess both the legality and soundness of current anti-terrorism laws and policies.

The Robinson-Reddy exchange on the Supreme Court: A 'blast from the past'

In his stimulating post below, Vivek Reddy takes issue with Nick Robinson’s persuasively argued case for reducing the acceptance rate of cases before the Supreme Court. The points each of them brings up reminded me of a 1994 SCC (Journal) article by TR Andhyarujina, written soon after a study-visit to the U.S. Supreme Court. Like Reddy and Robinson, Andhyarujina’s remarks also appear to have been stimulated by his exposure to a different way of doing things. Re-reading that article, I find that Andhyarujina’s analysis provides support for different positions now taken by Reddy and Robinson.

On the issue of reducing the case-intake of the Supreme Court, Andhyarujina considers the U.S. Supreme Court's practice carefully, before coming to conclusions on the Indian situation that are similar to those reached by Reddy:

Though giving of special leave by the Supreme Court of India is discretionary, the Court has not explicitly laid down the basis of its jurisdiction. Unlike the U.S. Supreme Court, the Indian Supreme Court does not restrict admissions to cases which are of national or fundamental importance requiring the decision of the highest Court. The prevailing political, social and legal conditions in India impose far greater demands on the Indian Supreme Court which the Supreme Court of United States is not subject to. The Supreme Court of India is necessarily more expansive and activist because of these conditions in which it functions. Much of the time of the Supreme Court is taken in entertaining humanitarian and social causes, human rights cases and exercising what is called "poverty jurisdiction". The fact that a litigant has an individual grievance only has not been a reason for rejecting it. Giving finality to a litigation has also not been the consideration of the Supreme Court for declining to exercise its jurisdiction.

… With this expansive and almost invitational jurisdiction now developed by the Supreme Court of India it appears now impossible for the Court at this stage to restrict itself in the manner the U.S. Supreme Court has done without losing its relevancy to the litigants or being considered elitist. However, an expansive and open-door jurisdiction exacts its toll on the efficiency, quality and expeditious disposal of cases of a Court, as it has done in the case of the Supreme Court of India. If the Supreme Court of India has to restrict its decision-making in the same manner as the U.S. Supreme Court has done, there would have to be a fundamental reappraisal of the role of the Supreme Court in our society. Simultaneously, there would have to be far reaching structural changes at the High Court level to ensure a higher level of qualitative administration of justice in the High Courts, with at least one right of review or appeal by the High Courts themselves. At the national level a National Court of Appeals may have to be set up, co-equal to the Supreme Court, leaving the latter to restrictively function as a Constitutional Court.

Andhyarujina does, however, agree with Robinson that the oral tradition at the Supreme Court should be supplemented by a far greater emphasis on written submissions:

The system of submitting detail[ed] and comprehensive written briefs should be introduced in all regular hearing of cases in the Supreme Court. Written briefs have several advantages. They enable lawyers to antecedently prepare the case thoroughly instead of the last minute preparation of cases by lawyers, only when they are listed for hearing. Secondly, they enable the judges to be completely prepared at the oral hearing, as the written briefs will contain all statutory provisions and the relevant case law as well the facts of the case and legal submissions. Thirdly, they will dispense with the necessity of the judges making detailed notes of counsel's arguments in Court for their judgments. Finally, the oral arguments will be considerably abridged as judges will have known the parties cases and they could confine counsel to answering their doubts and clarifications in Court. With written briefs being made obligatory the Court can limit the oral hearing of each case to a limited time specified in the cause list of the day itself.

The Supreme Court Rules originally required parties to prepare a Statement of Case by each party. It was a mistake to do away with this. A Statement of the Case whilst not as exhaustive as the U.S. Supreme Court brief, was extremely useful in a methodical and expeditious presentation of the case when a Statement of Case was well prepared and was read before hand by the judges. This writer remembers that in the President's Reference in the Parliamentary Privileges case he and his Senior, the then Advocate-General of Maharashtra Mr H.M. Seervai appearing for the U.P. Vidhan Sabha prepared the Statement of Case on Parliamentary Privileges for over two months in chambers. Every relevant authority-Indian, English, Australian and U.S. was found out, old and new, and was digested in the Statement of Case. It enabled our side to open the case with great ease and complete familiarity of the subject when the Reference was heard a few months later. Portions of the Statement of the Case were frequently referred to by Court and Counsel in the Reference.

The English Court of Appeals also now by a Practice Note requires each side to submit "Skeleton Arguments" several days in advance to the hearings in Court and to the opposite side before the case is heard. ... ... [The perception is] that they considerably help to reduce the oral arguments in Court whilst not sacrificing the traditional value attached to oral arguments by the English Courts. A written brief should therefore be made mandatory by the Supreme Court Rules when a case is to be regularly heard by the Supreme Court. Its utility and quality should be insisted upon by the judges and its absence should be visited by the penalty of not hearing the party who fails to present the written brief to the satisfaction of the Court.

It seems a bit of a pity that nothing much seems to have changed in the 14 years since Andhyarujina wrote his piece. Contemporary discussions about possible reforms will, hopefully, meet a dissimilar fate.

[The good people at Eastern Book Company have compiled a very useful list of articles (some of which are available freely online) that have been published in the SCC Journal from its inception till around 2001. Since more recent articles seem to now be behind a subscription wall, I am unsure how long this list will be available for free. Since the SCC Journal continues to be a place where judges and senior lawyers publish often significant views, and it contains articles which have become classics, this list should be very valuable to students of the Court.]

Changing Role of the Supreme Court - A response to Nick Robinson

Nick Robinson’s interesting piece in Frontline argues that the Indian Supreme Court can reduce the backlog by reducing the number of cases it admits. Nick’s diagnosis goes to the root of the problem. But I partly disagree with his prescription. I agree with Nick that increasing the number of judges or their pay or cutting down the vacation time will have an effect but these are only makeshift changes. The Supreme Court hears and admits far too many cases than it can handle and this precludes it from effectively adjudicating the cases it admits.

Having worked in the US courts for four years, I used to believe that Indian Supreme Court should have a strict entry policy – if the input of the cases coming into the system is low, the quality of the output in terms of judgments would be better. If the Supreme Court of India confines itself to admitting those cases which will resolve contested questions of law, there is a possibility that the quality of deliberation and the quality of judgements could improve.
I believed in this thesis till I actually started working in Indian courts for the last seven months. And I realized that confining the admission of cases to the Supreme Court is not enough and not fair. Let me make my point by comparing with the US model – not because the US is a model for judicial structures – but only to contrast to explain my point. (Also Nick cites the US example)

First, in the United States and in UK, an appeal is what it stands for - a request to the higher court to correct the legal error in the judgment of the lower court. In India, an appeal signifies something much more. It is perceived as an insurance against corruption (monetary and otherwise). So pervasive is the perception about judicial corruption that an appeal is perceived to be a safeguard against it. And therefore the need for the intervention of the Supreme Court. And that’s the reason why litigants approach the Supreme Court even against the interim orders of the High Court and Supreme Court does entertain those petitions and rectifies the orders. It also acts as a check on the High Court.

Second, in the US, before a case comes up to the Supreme Court, it goes through layers of appeal. We must distinguish between the federal cases and the state cases. In federal cases, the case goes to the District Court and then to the Circuit Court, whereas the State cases go through several ladders depending on the state (ranging from 2-3 layers including the State Supreme Court and it comes to the Supreme Court only if a federal or constitutional issue is involved). Because of this multi-layered appeal structure, the US Supreme Court can afford to take the position that even if it finds a judgment to be incorrect, it will not entertain the appeal and confine itself to important cases.
But in India everything gets mixed up. There are many cases where the Supreme Court is the second layer of appeal – from the Division Bench in the High Court to the Supreme Court – to cases where the Supreme Court is the fourth layer of appeal (District Court to Single Judge to Division Bench of High Court to the Supreme Court).

Third, the Indian Supreme Court over the last decade has become a source for institutional change and a bulwark against corruption, degradation of environment and abuse of political power (although there are regretful exceptions) Despite attacks from the political and social groups, the Supreme Court has been able to preserve this role. Sustaining this role implies several cases which are filed directly in the Supreme Court. It is debatable whether the High Courts can perform the same role, particularly when the jurisdiction of the Supreme Court is limited. Fourth

Fourth, another source of litigation in the Supreme Court are several Central legislations which confer an appellate power on the Supreme Court directly from the tribunal overriding the High Courts. This is a rich source of litigation in the Supreme Court. The Supreme Court in Chandra Kumar tried to stop this tide of approaching the Supreme Court straightaway, but that has not stopped the Supreme Court from entertaining the cases directly from the Tribunals. The recent Law Commission Report has recommended that Chandra Kumar should be overturned. If that recommendation is accepted, we can see more litigation coming to the Supreme Court. Like the Indian Constitution, the US Constitution also enables the Congress to confer additional power on the Supreme Court, but the US Congress rarely invoked it.

In conclusion, I don’t disagree with Nick that Supreme Court should admit fewer cases, but it should be preceded by institutional and structural reforms. I did not want to elucidate upon these reforms in this post

Strict Scrutiny after Thakur

Has Ashoka Thakur buried the concept of stict scrutiny in Indian jurisprudence? In this recent article published by the Journal of the Indian Law Intitute, I argue that it is a good idea that may yet be revived without overruling Thakur. The issue has been discussed previously on this blog.

Abstract:

'This article makes the case for applying a rigorous standard of review for constitutional adjudication under article 15 of the Indian constitution, which guarantees freedom from discrimination. Drawing upon the strict scrutiny jurisprudence in the United States and the proportionality jurisprudence in Europe, the article argues that a rigorous standard of judicial review in India can provide a more meaningful protection from discrimination. However, it warns against the wholesale importation of the United States jurisprudence and makes the case for excepting affirmative action measures from a rigorous standard of review. It also argues that the grounds on which discrimination is prohibited should be expandable rather than frozen. The discussion analyses two recent Supreme Court decisions on equality jurisprudence to further the argument - Anuj Garg v Hotel Association of India AIR 2008 SC 663, and Ashoka Kumar Thakur v Union of India 2008 (5) SCALE 1.'

Full text is downloadable at the link above. Comments are welcome.

Reflections on the litigation strategy in Naz Foundation, and comparative notes

I believe the Naz Foundation case has the potential to become one of the most significant cases in Indian constitutional jurisprudence, and I am glad that we are following its route through our legal system closely on the blog. (Thanks, Tarunabh, for monitoring the case, and for the link to the excellent Lawyers Collective site). On a separate note, I am glad that others are emulating Mr. Venkatesan’s example of providing a public record of the arguments delivered by counsel in significant cases (which is distinct from the other useful strategy of making the written arguments of counsel available to the public).

I am struck by the order of constitutional arguments adopted in the petition and in oral arguments by counsel for the Naz Foundation, Anand Grover. Lawyers seeking to repeal/read down 377 have clearly decided to bank heavily on the equality arguments (based on Articles 14 and 15), and have chosen to use the liberty claim (based on Article 21) more as a back-up argument.

While this makes sense from a normative and analytical standpoint, it is a risky strategy. India’s constitutional jurisprudence on equality is still quite conservative, especially in non-quota cases (some scholars have argued that even in quota cases, the Court’s equality jurisprudence is muddled and unclear, and not necessarily very progressive). The Supreme Court’s leading precedents on equality still adopt a very formal approach, which grants a great deal of deference to governmental choices because the “classification test” with its emphasis on “reasonableness” allows a great deal of latitude to governments. The Supreme Court of India has so far not sought to emulate the example of the apex courts in Canada and South Africa, which have rejected the similarly formal tests adopted in the US, and have embraced conceptual ideas and evolved judicial tests that seek to attain substantive equality. (There is, by now, a good deal of literature on the difference between judicial tests of substantive and formal equality, and I would encourage readers with an interest in such issues to follow up on this). By contrast, India’s Article 21 jurisprudence on liberty is substantially (and substantively) more developed. So, at least at first blush, it would make sense to pitch the constitutional case against section 377 on grounds aimed at Article 21 rather than Article 14.

In the end, I think there are good reasons for going with the strategy adopted by the lawyers for the petitioners in the Naz Foundation case. Our fabled Article 21 jurisprudence is actually quite muddled, and as a matter of constitutional doctrine, it is not clear where the definitional boundaries of ‘life’ and ‘personal liberty’ lie in India. Moreover, for those seeking to spread greater awareness of alternative sexuality lifestyles, while also removing some of the stigma attached to them, an argument based on equality is more appealing than one based on personal autonomy or liberty. This case presents a good opportunity for our judicial system to re-examine old precedents on equality, and to consider whether the time has come for our legal system to embrace notions of substantive equality in areas beyond caste (and possibly gender). In an earlier post, Tarunabh has alluded to some signs of this shift, as evidenced in the recent decision of the Supreme Court in the Anuj Garg case. The Naz Foundation case would seem to be ideally placed to test whether the Supreme Court is prepared to go further down the path suggested in Anuj Garg.

The lawyers for Naz Foundation have not, in fact, chosen one over the other, and have indeed grounded their challenge on both equality and liberty, highlighting the intertwined nature of the rights conferred by both provisions. It remains to be seen how the judiciary will respond to this nuanced strategy.

I am struck by the fact that the tensions noted above within the Indian constitutional landscape are remarkably similar to those perceived within the US. The starkness of the similarity was made clear to me when I followed a recent debate between two Yale constitutional law scholars on the appropriate constitutional strategy to adopt in gay rights cases in the US. Both agree that ultimately, the two arguments are inter-linked and should be used in tandem. However, Kenji Yoshino argues that courts should (and will) lead with the liberty argument. Heather Gerken, by contrast, argues that courts should (and will) lead with the equality argument. The second round of the debate is available here.

What is fascinating about this debate is that it is informed not just by normative considerations, but also by a deep understanding of what the U.S. Supreme Court has actually done in cases involving liberty and equality claims in recent years. Academic debates in Indian constitutional scholarship are rarely able to achieve such a heady mix of these two important factors that guide how cases are eventually decided by courts.

I hasten to add that as the debate clearly shows, there are several aspects to the American scenario that are unique to that jurisdiction, and I am not for a moment suggesting that lawyers in India should simply apply arguments from the US in India. It is not clear, for instance, that the peculiar conditions within the Roberts Court that make either liberty or equality a more promising route are at all replicated on the current Indian Supreme Court. Still, I think a consideration of the American debate may be useful for lawyers and scholars in India, if only to review their own positions.

An aside: the debate among Yoshino and Gerken was triggered by a symposium which sought to mark the many contributions of the Harvard constitutional scholar, Lawrence Tribe. In this essay, Yoshino pays a touching tribute to Tribe’s long involvement with gay rights cases, and the profound impact his constitutional scholarship has had on the current generation of US gay rights cases. Gerken’s essay paying similar tribute to Tribe is here. (These longer essays also provide greater elaboration on the themes mentioned in the respective blog posts by Yoshino and Gerken). To people who wonder whether it matters at all what constitutional arguments courts use to reach their final decisions, Yoshino’s piece will provide illumination on how a constitutional scholar’s prescient thinking can lead to a mini-revolution in rights jurisprudence.

Nepal SC leads the way on gay rights, marital rape

The Supreme Court of Nepal, in a remarkable ruling, has upheld the right of gay, lesbian, bisexual and transgender people to access full citizenship rights and not be criminalized. This is in stark contrast to the Delhi High Court which had dismissed a challenge by the Naz Foundation on standing issues. The judgment was reversed by the Supreme Court and the case is now pending with the Delhi High Court again. All the relevant legal material on this case can be found here.

This is not the first time the Nepali Court has been progressive. About five years ago, the Supreme Court declared that marital rape is included in the definition of rape. A previous post on this blog dealt with the issue of marital rape in India.

Frank Rich does a Harish Khare

I have been struck by how closely the global media is tracking the developing story in Pakistan, and how so many commentators in different parts of the world believe that events in that nation have ramifications far beyond its borders. These events also appear to be causing thoughtful journalists in many constitutional democracies around the globe to take a long hard look at the state of their domestic politics.

In a recent post, we saw how Harish Khare used recent events in Pakistan as a hook to issue some harsh judgments about Indian democracy. More recently, Frank Rich of the New York Times has done the same for U.S. democracy. In an op-ed that appeared in the Nov 11 issue of the New York Times, Rich has much scorn to pour over some recent decisions - and political trends - within the U.S. Here are some extracts from his piece:

“[T]he coup in Pakistan has been almost universally condemned as the climactic death knell for Bush foreign policy, the epitome of White House hypocrisy and incompetence. But that’s not exactly news. It’s been apparent for years that America was suicidal to go to war in Iraq, a country with no tie to 9/11 and no weapons of mass destruction, while showering billions of dollars on Pakistan, where terrorists and nuclear weapons proliferate under the protection of a con man who serves as a host to Osama bin Laden.

… … The Pakistan mess, as The New York Times editorial page aptly named it, is not just another blot on our image abroad and another instance of our mismanagement of the war on Al Qaeda and the Taliban. It also casts a harsh light on the mess we have at home in America, a stain that will not be so easily eradicated.

In the six years of compromising our principles since 9/11, our democracy has so steadily been defined down that it now can resemble the supposedly aspiring democracies we’ve propped up in places like Islamabad. Time has taken its toll. We’ve become inured to democracy-lite. That’s why a Mukasey can be elevated to power with bipartisan support and we barely shrug.

This is a signal difference from the Vietnam era, and not necessarily for the better. During that unpopular war, disaffected Americans took to the streets and sometimes broke laws in an angry assault on American governmental institutions. The Bush years have brought an even more effective assault on those institutions from within. While the public has not erupted in riots, the executive branch has subverted the rule of law in often secretive increments. The results amount to a quiet coup, ultimately more insidious than a blatant putsch like General Musharraf’s.

… … … Even if Mr. Bush had the guts to condemn General Musharraf, there is no longer any moral high ground left for him to stand on. Quite the contrary. Rather than set a democratic example, our president has instead served as a model of unconstitutional behavior, eagerly emulated by his Pakistani acolyte.

… … … Tipping his hat in appreciation of Mr. Bush’s example, General Musharraf justified his dismantling of Pakistan’s Supreme Court with language mimicking the president’s diatribes against activist judges. The Pakistani leader further echoed Mr. Bush by expressing a kinship with Abraham Lincoln, citing Lincoln’s Civil War suspension of a prisoner’s fundamental legal right to a hearing in court, habeas corpus, as a precedent for his own excesses. (That’s like praising F.D.R. for setting up internment camps.) Actually, the Bush administration has outdone both Lincoln and Musharraf on this score: Last January, Mr. Gonzales testified before Congress that “there is no express grant of habeas in the Constitution.”

To believe that this corruption will simply evaporate when the Bush presidency is done is to underestimate the permanent erosion inflicted over the past six years. What was once shocking and unacceptable in America has now been internalized as the new normal.”

In the remainder of the piece, Rich offers some deeply pessimistic views about the current - and future - state of democratic politics in the U.S. I am not sure whether these will draw as much support as some of the views extracted above. However, his piece, like that of Khare, reminds us that the achievements of liberal constitutional democracy are not something to be taken for granted, or indeed always something to crow about. Both Rich and Khare also note the classic weaknesses of liberal constitutionalism - that it is prone to being misguided by populism, and that it relies too much on the hope that the sense of outrage of the masses will result in corrective action (which, in some cases, results in overly delayed and tame responses).

In a blog post reacting to Rich's piece, American constitutional scholar Sanford Levinson argues that Rich, like other commentators, fails to ask the more fundamental question : whether there is anything wrong with the design and structure of the U.S. Constitution which enables such actions to be undertaken by the representative wings of government. (To get a sense of what those changes should be, browse through the archive of posts authored by Levinson and other U.S. constitutional scholars at Balkinization over the past few months).

Reading Levinson's post made me reflect upon the fact that despite Khare's deeply critical comments about the state of Indian politics, he too does not question whether any fundamental changes in the Constitution of India are called for to remedy the problems he identifies. My own interest is in the constitutional provisions relating to emergency powers, and I hope to post about that in the near future.

Harish Khare on what constitutional actors within India can learn from recent events in Pakistan

This post continues the theme addressed in the previous one. Harish Khare , the political editor of the Hindu, has a stimulating and provocative piece in today’s issue where he begins by commenting on the typical trend of reactions within India to the democratic troubles of our neighbours in South Asia:

Sooner rather than later, films and cricket should provide distractions that would help us move out of our current patronising preoccupation with the developments in Pakistan. A collective sense of smugness informs most of the Indian reactions to President Pervez Musharraf’s Emergency proclamation in a country that has not been allowed by a combination of external and internal forces to construct a durable structure of governance. Arguably, it is at a time like this that we can feel good and even superior about our democratic arrangements; but, it is also at times like these that we need to summon the humility to learn a lesson or two from the turmoil next door.

The foremost lesson that is obvious for us in India from the recent events not just in Pakistan but also in Bangladesh is that there would be consequences if the idiom of confrontation is pushed too far and too hard. Despite a seemingly robust institutional arrangement of checks and balances, we too are in imminent danger of giving in to a culture of confrontation, a culture that puts a premium on the right to oppose without the obligation to produce minimum orderly conduct of governing processes. This creeping culture of confrontation has already set precedents, which are stoked by all-too-over-enthusiastic, under-supervised, discourse-manufacturers.

Khare proceeds to enumerate the lessons that he believes different political and constitutional actors within India should draw from recent events in Pakistan. He addresses, in turn, such lessons for the political parties, the army, the judiciary, the press and the foreign policy establishment in India. While the entire piece is worthy of a close read, I extract here his views on what our judiciary should consider:

A similar lesson ought to be imbibed by the judicial fraternity in India: do not overstep the institutional boundaries. Pakistan’s Chief Justice Iftikhar Mohammed Chaudhry is also in part author of the mess that is Pakistan today. He and some of his brother judges allowed themselves to be provoked by the gentlemen in the black coats into a confrontation with the Islamabad establishment. The Bar and the Bench goaded each other to assume the role of the principal opposition to President Musharraf. This was presumptuous and was bound to invite reaction.

Similarly, some of our judges in the Supreme Court and the High Courts would do the institution they preside over and the country a whole lot of good if they understand a simple maxim: there will be consequences, not always healthy, if you decide to play politics or decide to get involved in politicians’ quarrels. The judges’ job is to interpret the law and to promote constitutional wholesomeness; judges are not and cannot be arbiters of political morality. Moreover, there can be the most unpredictable consequences if the judges continue to refuse to set their own house in order by addressing allegations of corruption while arrogating to themselves the right to preach and prosecute an errant political class.

There is the issue of the nature and content of the democratic discourse, which claims its credentials from a membership in civil society but, in fact, is a neat commercial arrangement, unaccountable and unanswerable in any democratic forum. The problem, as it manifested itself so acutely in Pakistan and which manifests itself day in and day out in India, is that this so-called democratic discourse ends up de-legitimising every democratic symbol and institution.

Because of our six decades of democratic give and take and the gradual deepening of the democratic spirit, the democratic structure is able to absorb the daily assault on the legitimacy of politics and politicians. In Pakistan, this produced insecurity and irrationality at the very core of the ruling arrangement; and, there was no mechanism for self-correction. Our own media leaders need to reflect on their own institutional arrogance and their own frailties; more than that, the democratic discourse has a responsibility to ensure that it does not create conditions which may tempt the non-democratic forces and voices to step in.

I think Khare makes telling points in this piece. In particular, I think he does well to focus on a tendency that is common amongst many within and outside India: of constantly extolling India’s democratic tradition by comparing it to those of its immediate neighbours. As Khare alludes to in this piece, and as astute academic observers of India’s democracy (especially in recent times) have noted, Indians can indeed take pride in their record of largely democratic rule over the second half of the Twentieth Century; however, this pride must not breed complacency or an attitude of blindness towards the several major problems that our democratic tradition continues to confront on a daily basis. Despite India's relative success in maintaining constitutional democracy, our democratic and political culture still has far more in common with our neighbours than most of us would like to admit.

Andhyarujina on recent events in Pakistan

In a previous post, Vikram drew our attention to recent events in Pakistan, and invited comparisons to debates about judicial activism in India. Even the most bitter critic of judicial activism (in India or anywhere else for that matter) would not wish for the turn that events in Pakistan have taken over the past week. Today's Indian Express carries a piece by the noted constitutional lawyer, T.R. Andhyarujina, who has in the past been highly critical of judicial activism in India, especially in PIL cases. (See, for instance, his 1992 book which remains a classic work that even supporters of PIL and judicial activism regard as making valid criticisms). In this piece, Andhyarujina analyses recent events in Pakistan, places them against the backdrop of the history of the judiciary in Pakistan, and also draws lessons for nations beyond Pakistan. While the whole piece is an interesting read, here are some extracts:

The emergency declared by Pervez Musharraf in Pakistan must be the strangest emergency ever declared in the catalogue of such emergencies by authoritarian rulers. For the first time an emergency has been declared because an activist judiciary is accused of having created conditions by which government cannot be carried out in accordance with the constitution.

In the predominant part of the official text of the proclamation, Musharraf complains that some members of the judiciary were working at cross purposes with the executive and legislature; of increasing and constant interference by them in government policy and functions, including that of combating terrorism by ordering the release of militants; of taking over the administration of the government. He complains of the order of the country’s supreme court nullifying his order of suspension of Chief Justice Ifthikar Chaudhary and the humiliating treatment being meted out to government officials by the judiciary during court proceedings, which had demoralised the bureaucracy.

It does not require much political acumen to conclude that the real intention of the emergency is to muzzle the supreme court which, it was apprehended, would pronounce an adverse verdict on Musharraf’s election as president in the next week. The actions which followed the proclamation amply prove this.

Immediately after the proclamation, a bench of seven judges of the supreme court declared it illegal. We do not know how and at what time this bench took cognisance of the proclamation. Musharraf retaliated by dispensing with the services of Chief Justice Ifthikar Chaudhary and placed him and six other judges under house arrest. Later Justice Hameed Dogar, fourth in line of seniority, was administered the oath as chief justice by Musharraf under the new provisional constitutional order. The government also appointed new chief justices of the Sindh, Lahore and Balochistan high courts simultaneously. Later Chief Justice Dogar revoked the order of the seven-judge court declaring the emergency illegal and cancelled the hearing of the cases pending in the supreme court against Musharraf.

This is the most surprising and bizarre development in the history of the judiciary of Pakistan. In the past, the Pakistan judiciary, with rare exceptions, had displayed a general timidity and compliance to the regime of military rulers of the country that had governed Pakistan for all but 12 years. The judgments of the supreme court were protective of the military rule and unresponsive to the basic rights of the citizens by inventing recondite doctrines of revolutionary legality and state necessity to legitimise military rule.

After providing a brief overview of earlier and more recent trends in decision-making of the judiciary in Pakistan, Andyarujina concludes:

After all this, one may have to revise Hamilton’s famous statement that of the three branches of government the judiciary is the weakest, having neither the power of the sword nor of the purse. The Pakistan experience shows that it required an emergency to control the judiciary.