Decline of Legislatures and the Rise of Judicial Activism: A Commentary

Socal raised several questions in response to the previous post (see comments). To address them, I discuss the state of our legislatures and how judicial activism is not the appropriate solution to the problem.

1. The sad state of our legislators and their conduct of public affairs.

There is no disputing the fact that legislators today are less well-behaved than their counterparts several decades ago. That is reflected in the diminishing interest that they have shown in debating matters of public importance and the increasing time spent in creating mayhem, halting proceedings and walkouts. Major legislations are nowadays passed with virtually no debate, few legislators are even aware of the details of many of them and even when they have concerns, they are unable or unwilling to articulate it in legislative fora. Politics has also become increasingly personality-centric with more attacks on Sonia Gandhi or L.K.Advani than on their stand on various issues.

It is also true that political discourse itself has not declined, only what shows up in legislatures has. The first question is why this is so. There are many reasons one can come up with. The commonly cited one is that press coverage is directly proportional to the decibel count. Another is that governments these days are less willing to heed the views of opposition parties which therefore have to raise the pitch to make their voices count. There has also been a shift in the political culture which has gone from deliberative to adversarial, accomodative to confrontational. Some suggest that this is a legacy of the Indira Gandhi days when the struggle against her authoritian methods and her efforts to stifle other voices ended up empowering streetfighters as the leaders of alternative political movements who continue to dominate political discourse to this day thus replacing erudition, intellectual discourses and witty repartees with violence and lung power. Another is the rise of the BJP which is said to have contributed to much of the disorder in parliament - the party's conduct following its defeat in the 2004 elections certainly lends itself to this charge (I am less clear whether it could be blamed for the phenomenon itself). Note however that many of these reasons ought to have been equally true in the '80s and early '90s when, though decline had set in inexorably by that time, things were still better than they are today despite the fact that for the most part, the same faces we see now were around even then. An empirical overview suggests that there is more to this than politicians' general disinterest in debating.

So what else could account for this paucity of debate? A major reason is the narrowing of political differences amongst the various parties. Ramachandra Guha says that ideology died in the late '70s and politics ever since has been centered around personalities and power which is another way of putting it. There are several reasons for this. The first is historical. Most politicians and political parties today are the progeny or offshoots of past outfits which themselves were part of the Congress-led struggle for independence. Today's SP and RJD swear by Ram Manohar Lohia and JP who were both socialists at their core. The free market alternative died with the Swatantra Party and the Jan Sangh which also supported the same idea never really put it into practice when the Janata Party rode to power. These early failures translated into a remarkable fact, namely that, for the most of our post-independence history, the dominant discourse has been one dictated by socialist/communist ideology. While the state ceased patronage of these views after 1991, it continues to command deference if not acceptance in political circles. The fact that governments in power used to win reelection earlier but since the 1990s, anti-incumbency has been the persistent rule in politics (barring a few exceptions) has enhanced the perception that socialist ideology wins elections, alternatives do not. The broader point I am making here is simply this: for the reasons discussed above, the policies and decisions of yesterday (i.e. '50s - '70s) continue to be popular and remain the politically correct choices today as well and political leaders across the spectrum consider it risky to challenge them. Reservations in education, employment, state control of the commanding heights of the economy, price control, PDS - all of these are the leftovers of socialist legacy and no party is even willing to so much as question any of these. One consequence of this fact is that many judges have themselves grown up in such an environment and share these beliefs - not surprisingly, many of them have even manifested themselves in numerous PIL orders. The other is that a challenge to these views will have to be a political one; coming from the judiciary, it will only end up causing an uproar and be neither effective nor successful.

The second reason is the risk-aversive tendency of our political system. Established political parties in India are simply unwilling to take chances. In that instance, individual MPs and MLAs do not take these up publicly even if they strongly believe in it mainly because they do not feel comfortable defying the party line. Does this mean that they do not take it up privately either? No. In fact, every minister receives numerous calls and letters from MPs all the time asking for changes in such matters. MP/MLA contigents regularly go to meet ministers seeking changes in laws or policies. Witness the drama over the women's quota bill. Notwithstanding that no single party actually opposed the bill publicly (SP, RJD and other OBC-dominated parties are asking for additional caste quotas within that bill, not officially opposing it), it has yet to even be introduced in parliament. This tells you all there is to know - MPs can have a powerful influence even without ever raising their voice in the house. The fact that parliament does not function satisfactorily does not necessarily imply that democracy itself does not function. Indeed, everything barring the debates continues to go on as it used to. The standing committees continue to do most of the work - indeed given the complexities of various issues, they are better placed than the house as a whole to understand its details well enough to comment on it (you can read their reports on the PRS website). Representations continue to be made to ministries which take into account various concerns while drafting bills.

A third cause for the decline of political debates is possibly judicial activism itself. When the Bofors issue exploded on the scene, the opposition led the attack on Rajiv Gandhi's government. Today, a PIL is filed and the Supreme Court orders an investigation thereby taking credit for bringing in accountability. Besides, people who would have contacted legislators earlier would rather go to the Court today simply because, unlike the legislature comprising of several hundred individuals, all that is required is to convince two or three judges on the bench. Besides, if successful, the outcome is almost immediately guaranteed. Failure does not hold any major costs either - at best, a dismissal of the case and a rebuke from the presiding judge. Given all these truths, one might ask why anybody in their right senses would go to the legislature at all. The answer (something I address in the paragraphs below) is that judicial activism, though easier and cheaper, is not a better alternative to legislative action for reasons detailed below.

A fourth reason is the media's love for controversy. Political parties have realized this and tailor their strategies accordingly.

2. The legislature does not respond to public problems.

This, as I have pointed out, is incorrect. They do respond but to what they perceive as public problems. That perception is colored by their own ideas, ideologies, experiences and very importantly, calculations of self-interest. Past policies were designed to deal only with the poor, not the middle class. And the continuing emphasis on anti-poverty measures has led some to think that the middle class has no godfathers in the political establishment. While incorrect, they have a point namely, that there are indeed very few activists/NGOs fighting for middle class issues.

When people blame the government for not doing enough, they forget that the way to change that reality is to play the political game by its rules (ethically of course). For politicians to pay attention, one must oil the wheels of change. It is not enough to read the morning newspapers and criticize the government. One would have to stand up, organize civic focus groups, raise public awareness through campaigns and most importantly, raise money. NGOs and women's organizations have a strong lobby because they can mobilize their members in favor of or against political parties and the societal segments they target are willing to at least listen to their judgment. Middle class folks however do not attend political rallies, sneer at political promises and are generally skeptical of political activity. Door to door campaigns by activists and distribution of pamphlets are less effective for a middle class audience which goes by what it hears on TV. To win a middle class audience, he/she needs exposure and good coverage - something that money can buy in the form of enhanced visibility. As a former U.S. Senator put it, 'There are two things that are important in politics. The first is money and I can't remember what the second one is". In a democracy, there simply is no alternative to civic initiative. If the middle class wants its grievances to get a more favorable hearing, it needs a better strategy than cribbing and chair-warming.

3. Is judicial activism the answer?

The way the PIL system currently works, an individual lawyer, either on his own initiative or on behalf of some organization files a plea in court for an order, say for protecting the environment or improving the education system. If the court thinks it is reasonable, it will issue notice to all those it identifies as stakeholders including the government, autonomous bodies and private agencies involved to file replies within a limited period. Once their replies are examined, it decides whether or not to pass the order. If orders are passed, it may choose to dispense with the matter or monitor the case taking recourse to continuing mandamus.

There are several issues with the way this works. First of all is the question of whether the court is empowered to do any of this. There is virtually nothing in the Constitution that gives the court this kind of authority (a reading of Seervai's 1970 book on the position of the judiciary under the constitution of India is a good start). Secondly, when a proposal comes up, the question is whether regulation of any kind is necessary or a good idea at all. Maybe it is not, maybe an alternative proposal would be more suitable, maybe the proposal is inadequate and deserves to be strengthened.

In the first instance, even though it is not a good idea, it may not always be politically sound to publicly admit it to be so. For example, if price rise is a major public issue and a petitioner has suggested certain measures on behalf of the CPM, the government may not wish to say that it is against them though it does not see much merit in the idea. Apart from the fact that issues rarely have a unique right answer, judges, not being economists, do not sufficiently appreciate cost-benefit arguments. It is also easy for the petitioner to allege that such a position indicates simply their resistance to change, a charge that judges often tend to buy. Also, in some instances, the government's position may be decidedly ideological and that is not always a bad thing. It may be hard to justify in terms of the costs involved but a principle may well be at stake that the government wishes to defend at any cost (we do not see governments taking such positions much nowadays). The result in any case is that it creates a tendency towards greater regulation, an outcome that will only lead us back towards a license-permit raj.

In the second instance (when the government has not given sufficient thought to it), the government may simply come up with some half-baked reply to meet the deadline without sufficiently deliberating it with all the stakeholders. Besides, policies can often impact numerous other sectors beyond those that are directly involved. It is impossible for a court to even be aware of who all are likely to be affected (the freakonomics authors are famous for narrating numerous such instances of seemingly unrelated events having a connection). On many an occasion, neither the government nor the court really has sufficient information to judge the merit of a proposal. They are both shooting darts hoping that something will work out. A court order on such occasions based on only one proposal without consideration of alternatives is poor strategy and can not only engender resistance but may turn out to be quite impractical. It is also hardly a substitute for a legislation drawn up by the respective ministry after extensive consultation. Courts recognize this too and often indicate that their order is only an interim arrangement until the government brings suitable legislation.

That brings us to the third problem. Half-baked measured drafted by court have the potential to kill the prospects of a more comprehensive solution to problems. Like in the Delhi CNG case where the authors insist that CNG is not a complete solution, there are other instances where there are various loose ends that need to be tied up. But when one of the issues has already been dealt with by the courts, the required sense of urgency emerging through the collective support of various professional bodies/ NGOs/ lobbyists may well dissipate rendering it a non-priority.

Lastly, court orders unlike executive orders constitute precedent that the court is bound by in future cases. Orders are therefore not easily undone and can have far reaching consequences in later cases (Art. 21 jurisprudence is a classic example).

4. The Delhi High Court intervention in the CNG case was justified given the balance of costs and benefits.

Despite the costs, the conversion may well have been a good idea but the question is not whether it is or is not justified but who decides. My point is only that it was improper for the court to have forced the issue.