Justice Krishna Iyer on PIL and Development

Former Justice Krishna Iyer gets a lot of space in the Hindu all the time no matter what he writes whether it is an 'open letter' to some official or as is more commonly the case, a rant against 'capitalist' outrages. His op-ed a couple of days ago in the Hindu is typical of his writing:

"The basic structure of the feudal Indian legal system with its dated, diehard methodology, still smacks of fossil features and a colonial-curial culture. Its substantive and procedural features are conditioned by values of Victorian vintage."

The Indian legal system was an import from the British system where it had evolved through centuries of feudalism and matured by the time it reached India into a distinct Victorian post-feudal set-up (Britain was in the throws of industrialization and empire-building and while the class hierarchy was very much alive, was not exactly a 'feudal' set-up at that time). So how does he see the problem?

"Our Constitution, on the other hand, envisions a radiant socio-economic scenario and forward-looking forensic infrastructure. Such a vision seeks to ensure that its creative mission may functionally fulfil the fundamental rights and egalitarian aspirations of the vast population which is even now governed by an arcane establishment. This establishment’s ‘survival after death’ philosophy is incongruous with the ‘socialist secular democratic’ developmental order which is our swaraj objective. The revolutionary tryst with destiny that ‘We, the People of India’ made on gaining Independence, remains a tragic illusion and an irony of jural magniloquence."

Forward-looking forensic infrastructure? What in the world is that? Better forensic techniques for law enforcement? I have no idea. I am not sure the constitutuent assembly really had much to say about forensics, infrastructural or otherwise - they had more important things to worry about such as writing a document to frame the structure of government in post-independence India. Again, what is this 'survival after death' philosophy? I could do with some enlightenment. 'Socialist secular' developmental order is our swaraj objective? When the constitution was written, neither 'socialist' nor 'secular' was to be found in it - those came much later when Indira Gandhi added them through the 42nd amendment. Our tryst with destiny remains an irony of jural magniloquence - huh? Again, a bunch of high-sounding words with little meaning. What does jural magniloquence have anything to do with swaraj or our supposed failure to achieve it? Well, here is his answer to that.

"Law India, with its obsolescent Indo-Anglian codes and ‘lordship’ robes, misses the socially sensitive fundamentals and the crimson economic grammar. It benumbs the common people’s deprivations and expectations and inhibits the advance of the backward Indian humanity. Regrettably, communalism, regionalism, gender and class biases and the globalisation-cum-private corporatisation kink do not spare the judiciary in its perspective and performance. So much so that the Constitution remains a merely eloquent parchment. Many a judicial Judas has pretended loyalty to the Constitution. Worse is the fate in the Cabinet and the House. Is swaraj a camouflage for satellite raj?

The cults, semantics, outfits and obsolete processes of the pre-Independence days must go into oblivion and the high bench must transform our swaraj jurisprudence with a creative commitment. In order to realise this grand goal, tools, technologies and master-engineers tuned to our constitutional revolution are needed. The activist judges are the legal locomotive, and the technology of transformation is inscribed under Articles 32, 141, 142 and 144. And public interest litigation is the versatile modus operandi in its forensic flavour."

Ahah! So here is his analysis - the judiciary is really tasked with social upliftment and the legal system is held back by the Anglo-Indian 'codes' and those various provisions of the Constitution should be used to do away with this and advance it in the direction he seeks - against capitalism, businesses and in favor of what he talks about next.

"But today the nation’s instrumentalities, including the judicature, forsake socialist egalite and economic democracy. They lag, laze and languish in the shadow of Whitehall, the White House and the commands of global big business. They commercialise our administrative culture, jejunise our judicial jurisprudence and legitimise grab-economics. Our national environment is pathologically polluted. Consumerism has ruined the simplicity and goodness of people’s life. Why does our high bench hesitate to deliver vibrantly socialist swaraj pronouncements in the interests of India’s billion-plus humans under the command of the Constitution? The finest hour of the Supreme Court of India will arrive only when it performs as the Supreme Court for Indians.

This chronic subjection of the Ganga to the Thames should end. So should the subjection of the Indian judicial instrumentality, which is oath-bound to uphold suprema lex (“the welfare of the people shall be the supreme law”) to Westminster. Failure here is functional frustration of the judicature. The democracy of judicial remedies in a land of mass destitution, environmental injury and expensive Bench-Bar-run adversarial process, is a socialist casualty and an ecological frailty."

So the court should deliver 'socialist swaraj pronouncements'. The court should do what (at least he thinks) the people want, not uphold the law in the books. The democracy of judicial remedies in a 'bench-bar-run adversarial process' is a socialist casualty. So is he suggesting doing away with the bench and the bar? I don't know but I fail to see any connection between this and his other socialist ideas. All of this takes us to the heart of the problem here - what is the role of the higher judiciary in the Indian system? Is it, as he seems to suggest, to act as the ombudsman of general welfare, push through pet agendas and roam around looking for injustice to set it right? Every judge will have his own pet ideas about how to advance the public welfare. So if the job of the court is supposed to be to discard legal 'codes' and deliver judgments that favor public welfare, how does one decide what constitutes the public welfare? As he says, if one were to rule against businesses, who is going to provide people employment? If one were to rule in favor of environmental groups all the time and shut down or otherwise punish businesses or heavily regulate them in favor of 'public welfare', who will want to come and invest in such an environment? Besides, will the consumer, i.e., we, the people, not bear the costs of those regulations? If every one is expected to pay twice what we are paying now for any product, how does that advance the 'public welfare'? The stupidity of these suggestions is mind-boggling. The fact is that there needs to be a balance between government regulation and free enterprise, between environmental activism and a favorable environment for businesses, between labor rights and employer prerogatives and so on. A judge in his own right is not in a position, especially in an court setting, to take all these aspects into account and frame laws or regulations. Only the legislature can do that. For the same reason, judges pursuing pet agendas from the bench without an understanding of the big picture will not lead to development, swaraj or otherwise; it is a recipe for anarchy. And besides, why do we call them judges in the first place? Because judges, as Hamilton famously put it ' have neither force nor will but judgment'. Yes, that is exactly what they are there to do. When two sides come to them, they merely decide who is right, not based on what they like but on what the law that has been adopted by the people says. They are like umpires in a cricket game - imagine what would happen if the umpire were to decide to advance the agenda of one side. Where would that take us? And finally, if one were to discard the bar, are ordinary people sufficiently well-versed in law to be able to argue their case in the higher courts pro se?

Then he strangely quotes Warren Burger, a conservative chief justice:

“A court which is final and unreviewable needs more careful scrutiny than any other. Unreviewable power is the most likely to self-indulge itself and the least likely to engage in dispassionate self-analysis… In a country like ours, no public institution, or the people who operate it, can be above public debate.”

I am fine with the debate but he is suggesting 'careful scrutiny' here. If Iyer's suggestion is taken up and promoting an agenda is the goal of courts, what is left to scrutinize? The judge simply decides what he believes conforms to his idea of promoting public welfare and states it so - the debate only comes into play if we are seeking out what is correct and true based on what the law as is written in the books means and how it ought to be intepreted according to those very 'codes' that he disparages. If upholding those codes and written laws is not the job of the courts and deciding the public welfare as they see it is the job of judges, what is there to debate?

He continues in this vein:

"The law of locus standi is therefore expansive. Wherever there is an injury which affects the people at large or an individual, it is not a narrow issue. Anyone who is not a busybody and who has sincere concern is at home in court when he sues to espouse a community grievance or public cause. This is the root rule of public interest litigation (PIL), ideologically socialistic and paradigmatically sound. ‘We, the People of India’ have resolved to secure to all its citizens justice, social and economic, and liberty, equality and fraternity. To deny this collective faith is to defy the republic’s foundation.

PIL is the incarnation of judicial activism in its people-oriented litigative dimension and environmental preservation. Fiat justicia (‘let justice be done’) becomes a living reality only if PIL becomes a pragmatic facility for the common people. There is a profound political philosophy behind PIL, which some learned brethren miss. Judicial allergy to PIL therapy — many on the high bench suffer this pathology — betrays high-brow hostility unbecoming of our constitutional instrumentality and the oath of office of judges. Every cause has a martyr. A judge who challenges PIL debunks the Supreme Court’s democratic dimensions. Some judicial neophytes and charlatan jurists at times make egregious errors during their institutionally accountability-free incumbency."

He is wrong here on several counts. Locus standi was not expansive until the courts themselves with people like him made it so. And once those doors are opened to all and sundry, distinguishing a busybody from a one espousing a real grievance becomes very difficult. No one will come to the court announcing that he is a busybody and the court will have to expend valuable time and effort to figure that out and might well be a good reason for the 'expensive' litigation (expensive not only monetarily but also in terms of lost time - 'time value of money' as economists put it) that has occured. Secondly, providing socio-economic equality, fraternity and other forms of justice was not a responsibility thrust on the judiciary. Thirdly, he is obviously dreaming if he thinks judges are exhibiting 'allergy to PIL therapy' - many of the problems have arisen precisely because of too much PIL therapy - judges like himself have taken it upon themselves to solve the country's problems without sufficient understanding of their intracies and these judgments are either unimplementable or impractical but are not easily overturned rendering the whole issue more complex and the problem more acute than it originally was. The ongoing 10-year old forest case is a classic example. The mess of professional college admissions is another. And I can quote a whole lot more but you get the point.

Krishna Iyer is wrong about much of what he says. True to his roots, he should have stuck to political advocacy rather than dabble with the legal system. His personal honesty would have at least been more valuable there than his contributions to the law based on half-baked notions of swaraj and development through adjudication.