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Courts as Legislatures: It doesn’t work

The Judiciary regularly steps into the domain of the Executive and Legislature, but it’s interference only hampers the common man.

The Indian Judicial System is remarkably powerful: Its appointments, contrary to Constitutional structure is carried out by senior Judges. It regularly carries out policy interventions, orders executive action and more: India is effectively a Kritarchy, a State ruled by Judges. From deciding where Bars and Liquor shops can function to what measures the Government should adopt to combat COVID, the all-knowing judges have opined, ordered and delivered. The Judicial System has undoubtedly made decisions that have had a positive impact on the life of every citizen. There are specific interventions of the court that deserve our admiration and respect. But there are also instances where the court’s machinations, especially when it pervades into actual law-making, fails.

The idea that Judges make the law through their judgments is simple enough: Through the decision of a court on the interpretation of an Act, the Judge ‘makes’ or decides what the law states, in clear terms. However, this aspect has reached greater proportions with Courts issuing ‘guidelines’ or directing legislative action in a particular manner, creating a quasi-legislative framework that becomes law for all effective purposes. Many of these actions have apparently been motivated by the absence of law or to ‘correct’ the law to a standard determined by the Judge.

While this method sounds viable on paper, it has led to rather disastrous consequences in many instances. Even worse, it gives the judicial system the satisfaction of having ‘solved’ a problem, but refuses to deal with the consequences that arise from it. The courts are seemingly staffed with more illustrious and knowledgeable persons than our legislature, which is apparently staffed with criminals and unprincipled brutes. Or so we are led to believe. There is significant upside to legislative deliberations and lawmaking and the separation of powers, for if that was not the case, the system of parliamentary democracy would not have evolved to its current status.

Judges make terrible crafters of new legislation. This is partly due to the fact that their structural design is to set to settle disputes and meaning of the law and not law itself, but partly because their law-making in many instances would run opposed to the aims of the legislature or the executive or would be in an issue that does not fall within their wisdom to legislate on.  The third reason is that lacking the power to fully create structural mechanisms, assess the status of the executive to implement a directive, and the lack of a feedback mechanism. The last point-the lack of a feedback mechanism is more astutely stated as the lack of accountability. 

The most powerful institution in India is the Judiciary, yet there is no system of accountability placed on it. The appointees are chosen in secret by the five senior most judges. When the then CJI, Dipak Misra, pushed to make the reasons for rejection of candidates for elevation public, two members of the collegium itself protested against the move on the basis that making the reasons public would be a violation of privacy and dignity of candidates. This is because they are not heard by the collegium before being appointed. Meaning, the judges would rather keep the secretive, oblique procedure than entertain a sliver of asymmetrical transparency. Bringing about a more accountable and fairer system of appointment, as the court apparently wished to do in the aftermath of the National Judicial Appointments Commission decision, is now all but forgotten.

The legislature and the executive are directly elected by the people. The systems in place ensure that unfavourable choices made for the population will be responded to in the ballot box, eventually. Considering how the cycles of election have evolved, it keeps the government on its toes. Take the Sabarimala issue for example. Due to the Kerala Chief Minister’s hubris, the State’s Hindu population was alienated from the State Government and preferred to vote for the Opposition fronts led by Indian National Congress or BJP. The ruling Communist Party of India (Marxist) led front won just one seat, that too on a whisker, out of twenty in the state in the 2019 Lok Sabha Elections. This led to an immediate course correction in the form of the CPM backpedaling its stance on the issue, and as we head into the 2021 assembly election, a complete U-turn has almost been achieved. Why? Elections keep these parties and governments accountable. If they wish to continue in power and not be decimated, they should keep at least a significant chunk of the population happy enough. If not, they will be replaced.

As for the Judiciary, the system aims to counterbalance and keep it accountable through the power of impeachment for the Rajya Sabha and the broad superintendence of the Supreme Court and High Court. The power of the President to appoint judges was also a broad system of accountability. The original system envisaged was that the Higher Judiciary be appointed by the President in consultation with the Chief Justice of India. This is what has morphed into the Collegium system by the capture of powers by the Court in the 1990s. The system is irrevocably broken.

There is no system of accountability for the general populace to seek any form of indirect accountability from the Higher Judiciary. The Court is theoretically accountable to the Constitution and Constitutional Principles. But when you are the guardian of the Constitution and chooses to ignore Constitutional text and principles as per your wish, the system fails.

Constant vigil and civil activism are not counterbalances here: there is no democratic process or public pressure system. The conception of a “civil society” that can keep the court ‘in line’ is flawed, as they almost always are driven by political ideologies.

All this is a sideshow: The court’s forays into guidelines and law making fails because it is enacted in a haphazard fashion. While they enjoy extraordinary power, the benches of courts cannot exercise supervisory power like ministers or bureaucrats ever can. And as Judges retire, coordinate benches cannot continue to be formed in perpetuity as matters are reallocated or continue to be postponed to perpetuity. The replacing judge’s actions and observations may vary from the original one too.

Take a few instances. The Supreme Court in a 2018 decision had propagated guidelines for the registration of a living will – an advance directive on end of life treatment. Yet the registration of the will has been made arduous by a three tiered system and the lack of knowledge of magistrates. The solution being proposed is a legislation with a more rigorous framework. Another example is the Mob Lynching Directives by the Supreme Court, which effectively made an extremely flawed draft bill proposed by a section of the Opposition into law! (See my video about the issue here)

Now, flawed legislations are enacted all the time by the Parliament and State legislatures create them all the time. However, because their exclusive purpose is to anyway create them, they are more well suited to amend them. Moreover, their creation by the body elected in a republican fashion is more democratic and in fact more constitutionally sound than the court expanding fundamental rights to absurd ends.

All in all, there are more than a few reasons why the Courts cannot wield legislative or executive power well. That it lacks accountability is the primary one. The structural deficiencies are just par for the course.

Special Thanks to Aishwarya Ajayan for her inputs and editing.

This post was initially published on my Substack on February 28 and being reposted here. Thank you.

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