Source: Ideas and Institutions Issue #30
Analysis
Judicial Activism, Populism, and Democracy
“We have gone way beyond Dobbs and fortunately so. We can at least credit ourselves that we are far ahead of our times than many of the western countries on this.”
Chief Justice Dr. D.Y. Chandrachud. This statement was reportedly made in response to a government lawyer’s argument during the hearings on the petitions proposing the legalization of same-sex marriage. The government lawyer was citing the U.S. Supreme Court’s recent decision on abortion rights.
“Through a flurry of judicial pleas, many are seeking to sanctify same-sex marriage under the garb of equality and freedom. This needs to be addressed head-on and urgently, not by the judiciary but by the legislature…. The state has a legitimate interest in maintaining a societal equilibrium… The judiciary… however, learned and respected, cannot usurp this role.”
Sushil Kumar Modi, BJP MP. Modi argues for legislative primacy to counter the petitions to legalize same-sex marriage in India.
The ongoing hearings in India’s Supreme Court highlight the tensions between an activist judiciary and a conservative government. The government is arguing that same-sex marriage cannot be legalized and that this subject should be left to the Parliament of India. On the other hand, the judges hearing the case reportedly seem to believe both—that Indian society is more progressive than the government believes it to be, and that the judiciary should opine on the issue even before any legislature has. Since this case has not yet been decided, it would be premature to comment on it. However, the hearings in this case and the government’s response to them are yet another episode in the ongoing tussle between the judicial and other branches of India’s government. In this essay, I provide my analysis of the nature of this conflict, and explain how this tussle is no longer unique to India and how the judicial branch has been coming under increasing pressure, sometimes rightly so, from other branches of government in many other countries.
There have been episodic but regular conflicts over primacy in judicial appointments between the executive and the judiciary in India. After two decades of relative quiet, in 2014, the Supreme Court struck down a law aimed at changing the system for appointing judges. Since then, there have been frequent tussles over judicial appointments, with the government refusing to provide clearance for certain appointments recommended by the Supreme Court’s collegium. At the core of this discussion is the issue of whether the judiciary alone has primacy in appointing judges or whether the executive, and indirectly the legislature, should also have a role in this decision. In January this year, the law minister, Mr. Kiren Rijiju, wrote to the CJI proposing the constitution of a search-cum-evaluation committee that will short-list candidates for the consideration of the Supreme Court collegium. The CJI has not yet responded to this proposal.
The issue of primacy over appointments is contentious mainly because a plain reading of the constitutional text confers this authority upon the executive. During the 1980s and 1990s, the judiciary arrogated this function to itself. This was precipitated by the increasingly punitive transfer of judges by the governments in power at that time, going so far as to supersede the senior-most judge of the Supreme Court for the position of Chief Justice on one occasion.
Today, the issue of judicial appointments has become contentious, in part due to judicial activism. Courts have repeatedly interpreted new rights under the Constitution and issued directions that impinge on the executive’s autonomy. For example, earlier this month the Allahabad High Court issued bailable warrants against the Uttar Pradesh Finance Secretary, S.M.A. Rizvi, and the Special Secretary (Finance), Sarayu Prasad Mishra. The reason cited for this arrest was “failing to comply with its order to provide certain post-retirement benefits for judges.” While high courts do have contempt powers, the prioritization of the use of these powers should be questioned in such a case.
In other instances, courts have repeatedly passed strictures on matters that fall firmly within the executive’s purview, including a ban on the sale of liquor along highways, bans on the use of CNG as a fuel in Delhi, creating environmental law, interpreting a right to passive euthanasia, etc. In another recent case, the Supreme Court recently altered the process of appointing the Chief Election Commissioner, creating a process that is not envisaged under the Constitution.
Judgements like these often transgress into the domain of the parliament and the executive. Irrespective of whether one likes the outcomes of the judicial process in these cases, there is a genuine concern over judicial overreach here that deserves consideration. Constitutional courts are partly designed to be counter-majoritarian. One of their most important roles is to act as a check against majoritarian tyranny that tramples on minority rights. This role has, however, always been limited by the idea of a constitutional system with enumerated rights. The judiciary’s rightful role is to check legislative and executive infringements of these enumerated rights, and in a manner that remains faithful to the constitutional text. Conflicts are therefore bound to arise when courts enlarge the scope of these rights beyond any meaningful sense of coherence, and if they envisage their role as providing relief on all issues that the political process does not.
As the UK’s Supreme Court Judge Lord Hodge puts it, understanding the role of the judiciary within the constitutional system is essential for maintaining judicial independence:
“There is, eighthly, what I call “role recognition”. It is incumbent on judges to see with clarity the limits of the judicial role. In short, there are decisions of policy, which involve social, economic or political preferences that are properly the domain of the elected branches of government. Not only do the courts lack the resources to formulate policy and assess the practical consequences of decisions in such matters, but also the courts cannot be politically accountable for them in a democracy.”
However, this is not uniformly understood or agreed upon. The Indian government’s demands for a greater say in judicial appointments are not unique to India. Several other countries are now witnessing a tussle between the judiciary and other arms of the state. In each of these cases, the executive is demanding greater control and/or oversight over the judicial appointment process. Additionally, in each of these cases, this demand has been shaped by a perception of overreach by the judiciary body of that country. Unsurprisingly, in some cases, the responses to such demands have been disproportionate and controversial. While this has allowed critics to claim mala fide intent in the executive’s response, they have not used this opportunity to examine the judicial activism that has led to these responses.
Take Israel, for example. Prime Minister Benjamin Netanyahu’s government introduced legislation meant to overhaul the structure and functioning of the judiciary last year. The legislation had four main elements: (a) changes to the composition of the selection committee for appointing judges in favor of the government, (b) the curtailment of judicial review powers, (c) a reduction of the powers of the Supreme Court to intervene in executive orders, and (d) changing the character of professional ministerial legal advisors to political appointees. These proposals have been controversial; polls have shown them to be unpopular, and Israel has been rocked by protests. At the same time, the motivations for some of these reforms become clear once the context is explained.
Israel does not have a written constitution but a set of “basic laws.” Until 1995, there was no law or document that declared basic laws superior to general laws. Moreover, the law-making requirements and the voting procedure for basic and general laws were the same. However, in 1995, the Israeli Supreme Court declared basic laws superior to other laws and has since used basic laws to review regular laws. In this sense, the Supreme Court interpreted one of the powers of judicial review for itself by declaring basic laws to be of constitutional import. Since then, all courts in Israel have had this power of judicial review. This has been used to invalidate statutes related to religious exemptions from military service, detention without judicial review, income support laws, the operation of private prisons, etc.
Criticism against this behaviour of the Supreme Court has been long-standing, and on the grounds that the basic laws did not allow the Supreme Court to strike down legislation. A second criticism has been against the Supreme Court’s practice of discovering unenumerated rights, “especially with regard to identifying the values of the state of Israel and the proportionality of right-infringing legislation.” Politically, since Israel has usually been governed by right-wing parties, the liberal bias of the judiciary has constrained the government’s ability to implement its agenda completely. However, critics of these proposals argue that the changes would effectively prevent free and fair elections: “Since 2003, the politicians on the Central Elections Committee have repeatedly disqualified Balad or Ra’am-Ta’al. Only the intervention by the High Court of Justice kept these parties on the ballot.”
A similar controversy about judicial overreach is brewing in Pakistan. Pakistan’s constitutional courts have enjoyed suo moto powers, allowing them to take cognizance of legal disputes or issues by themselves. This power has allegedly been misused to adjudicate on political disputes. Recently, the Chief Justice of Pakistan allegedly used his suo moto powers to pass strictures against the country’s Election Commission, ordering it to conduct elections within a specified timeline. These actions by the CJP led his fellow judges to defy convention and criticize his move openly.
This also led Pakistan’s Parliament to pass the Supreme Court (Practice and Procedure) Bill, 2023, which restricts the power of the CJP to pass suo moto orders by himself or herself. A committee of three judges will instead decide the cases of public importance where such powers should be used. In addition, a committee of judges will decide how the benches of the Supreme Court should be constituted. Ironically, the operation of this law itself has been stayed by the CJP through another suo moto order.
In each of these instances, proposals to constrain the judiciary have arisen in the larger context of overreaches by the judiciary. The common purpose behind this overreach is apparently to protect a “thick” version of democracy—one that is based not just on majority rule but on the supremacy of constitutional rights, and where the judiciary is the ultimate arbiter of what those rights are. The quote attributed to CJI Chandrachud at the beginning of this essay reflects the judiciary’s assumption that the progressive ideas on same-sex marriage shared by the judges on the bench are not just good but also commonly held in Indian society and that the judiciary is well-placed to understand this.
Reactions from the executive and legislative wings to such behavior have not exactly been proportionate or balanced in each case. In Israel, the proposed reforms do more than is required, whereas the reforms in Pakistan seem more carefully calibrated. There is a viable risk that the executive and legislature will in turn overreach their authority in their attempts to set the balance right and destroy the essential foundations of judicial independence while doing so. It is all the more in the interest of the judicial branch across the globe to heed the essential tenets of judicial reasoning and not act as the supreme enforcers of this conception of a “thick” democracy.
Critics of the proposals to change the structure of the judiciary often conflate different measures in different contexts as a populist backlash against judicial independence. However, it is necessary to identify the common themes and different contexts in each case. Proposals and laws aiming to change the powers of the judiciary have been made or implemented in Poland, Hungary, Turkey, Israel, and Pakistan, among others. It is erroneous to club all these proposals together as a global trend of majoritarian backlash that aims to subjugate oppositions and minorities against a weak and righteous institution.
As legal scholars Bojan Bugaric and Mark Tushnet state:
“Scholars should focus on the specific political contexts within which advocacy for court reform occurs…. Claims about courts having lost their way… have to be evaluated on their merits…. And that means that we can’t rule out in principle the possibility that constitutional courts have indeed unjustifiably limited the ability of elected governments to advance the policy platforms on which they ran.”
In a similar vein, scholars and policymakers in India should also pay attention to the sources of angst against the judiciary before explaining away every demand for accountability as a sign of a majoritarian attack on judicial independence.
—By Anirudh Burman
Review
A City and the Spirit of Progress: A Review of London 1870-1914, a City at its Zenith by Andrew Saint
The great portrayer of Victorian London, Charles Dickens, died in 1870. At the time, London, the center of a sprawling empire and the commercial capital of a rapidly globalizing world, was growing fast, both economically and demographically. While the city was plucking the many fruits of empire and modern global capitalism, there was significant poverty and deprivation. The city was not yet institutionally equipped to deal with these challenges, even though there were many volunteer efforts to alleviate the suffering. The challenges persisted, but many of the problems, such as abysmal living and working conditions, weak social security systems, a lack of widely accessible educational institutions, and an overwhelmed city infrastructure, were substantially addressed in the following decades.
Andrew Saint’s book, London 1870-1914, a City at its Zenith (2021), recounts what progress was achieved and how. Saint is a longtime chronicler of London, having previously served as the general editor of the Survey of London. He has authored many books on the city, and on architecture and urban planning. An excellent work of urban history, Saint’s book is an absorbing study that balances architectural history, biographical accounts, institutional history, literary references, the analysis of political economy, and descriptions of quotidian life across classes. Including more than two hundred well-chosen illustrations, the book is also beautiful to look at. Moreover, Saint presents a description that is neither too high-level nor too detailed. He is aware of the structural changes but does not take away the agency of the individuals and groups doing the work. Saint also does not get lost in the minutiae—a temptation not easily overcome while writing about an interesting place at an interesting time.
Everything happens in a city—fortunes rise and fall, buildings are raised and razed, people fall in and out of love, artists create great and mediocre art, people make and trade, people migrate to and from the city, people make a home, and people work and have fun. Hustlers and flaneurs abound. A profound restlessness is present in the nature of any great city. Even by such standards, the London of that era was unusually restless. However, many improvements were happening even though things appeared chaotic. A new civic life supported by a modern civic infrastructure was emerging.
Saint captures this restlessness in his writing style. The book does not linger on any topic for too long, a quality that makes it immensely readable. It gives just an essential sense of a phenomenon and moves on. At the same time, he establishes key milestones of progress by neatly dividing the book into four chapters. Each chapter describes certain key changes that took place during a decade, except the last chapter, which covers the period between 1900 and 1914.
The chapter on the 1870s starts with a description of a large, ostentatious mansion that was never lived in and was pulled down soon after it was built. Commissioned by Albert Grant, a confidence trickster on whom Trollope based the character of Melmotte in The Way We Live Now, the house could not survive the financial ruin of its owner. While figures like Grant represent the dark side of a vibrant economy, there was much more to London than hustlers and their follies. Saint also describes changing social norms—marriage between men and women from different classes, women founding businesses, and women partaking in recreational activities in public, such as skating. Additionally, a new establishment, the Grosvenor Gallery, emerges in the world of art and kicks off the Aesthetic Movement.
The Metropolitan Board of Works was the main local government, which implemented improvements in embankments, road improvements, and drainage and sewage systems, but could do little to address the problem of housing for the poor. Its hands were tied. The only buildings it was allowed to construct were fire stations. Another important body was the Metropolitan Asylums Board, which was founded in 1867 to focus on health issues. This was fortuitous, as the Board was in place to deal with the smallpox epidemics of the 1870s. Perhaps the most important public body of the time was the School Board of London, which was founded in 1870, and quickly went about building several impressive schools that soon eclipsed the private schools. The large investments in schools suggest that they were seen as important institutions. Housing was mostly undertaken by private developers, and many housing estates came up for the middle classes. This was also a decade of much experimentation with architectural styles, with architects like Norman Shaw mixing the old with the new, giving rise to possibilities that would be further explored in the following decades. Professional architects and urban planners came to play a central role in shaping the built environment. From schools to fire stations to large estates, they were leaving their mark everywhere.
The chapter on the 1880s starts with the death of Karl Marx in London in 1883. Although his ideas had not yet spread in London (Das Kapital was not available in English until the late 1880s), through a small number of strong-willed organizers like Henry Hyndman, who founded the Social Democratic Federation, an ideological language was beginning to be found to mobilize around the struggles of workers. The Fabian Society was founded in 1884. George Bernard Shaw emerged as a literary voice for socialism. Saint is at pains to explain the limited role of these middle-class ideologues, as he also does justice to the role of working-class leaders and trade unionists as well as collective action by workers. There were protests and some violence as well. While the government did regulate the protests, for the most part it seems to have allowed mobilization and the expression of discontent.
Saint also shows that there was a genuine interest in addressing the concerns of the working classes among sections of the city elite, partly because Dickens and many others had shed light on these problems. The large-scale casualization of labor was creating conditions in which some kinds of safety nets were required. Many voluntary initiatives—religious and secular—were undertaken to address the problems of workers and the city’s poor. Charitable institutions like Toynbee Hall brought together people from different classes “not to eliminate class differences, but so that workers and gentlefolk could develop a wiser form of interdependence.” Overall, the decade saw an emerging consensus regarding the need to systematically address the problems of poverty and working-class uncertainties. While voluntary efforts were often scoffed at by the more ideological socialists, they served as the beginnings of more well-organized and large-scale efforts later on.
Saint also describes how the supply to meet the demand for technical education was scaled up during the decade. Two major technologies—the telephone and electricity—spread in the city and changed life and work in a variety of ways. However, the spread of electricity was slow due to regulatory restrictions and because the gas companies fought to keep their hold over street lighting. Since telephony faced neither of these challenges, it spread quite rapidly.
In the chapter on the 1890s, Saint devotes much attention to the changes in arts and literature as well as recreational activities. This was the decade of the rise and decline of the Decadent Movement, characterized by “its risk-taking, its excess, its fragility, its aestheticism, its will to fail and therefore its failure.” Oscar Wilde emerged as the central figure of this movement. However, there was room for others, such as Rudyard Kipling, who wrote perceptively about the city and its life. Boisterous and beautiful pubs and theaters and quaint restaurants, cafeterias, and tea rooms came up all over the city, and pushed the boundaries of what was socially acceptable to do in public. There were backlashes and corrections, but on the whole, there were many more opportunities to have fun (and to indulge one’s vices). The decade saw great improvements in opportunities for outdoor sports, with many recreation grounds coming up to supplement the parks that already existed. People were also behaving better in public. Saint attributes this to better education, better policing, better government, and the campaigns of the temperance movement.
London’s first representative city government, the London County Council, was established in 1889. In the 1890s, it tried to find a footing but was financially constrained. Much civic infrastructure—especially baths, libraries, and schools—was built during the 1890s, but the Council had little to do with this. Much of this work was done by the vestries (the local government of a parish) and the School Board. The Council got entry into education in 1892, when it received some powers over vocational education. A number of vocational schools, including the London School of Economics, were established, and by the end of the decade, a coherent system of higher education for London had emerged. The 1890s also saw continued experimentation with architecture and urban design. For instance, the Arts and Crafts movement emerged during this decade.
The last chapter begins with three excerpts from contemporary writing. They convey a sense of disturbance and uneasiness as the writers—Charles Masterman, Ford Madox Ford, and John Galsworthy—look at London and seem unable to find peace. We should not be surprised, as the city was literally on the move. Vast changes were afoot in the city’s transport system, both above and below the ground. The transport technologies and the ideology of dispersal and suburbanization necessitated the emergence of urban planning as a key concept in thinking about city development. Between 1881 and 1921, the inner London population increased by a quarter, while the outer London population more than tripled. London had resisted high-rises and seemed keener on sending people to the suburbs and providing transportation for them. The outer suburbs became the focus of the city’s energy and resources.
London at the time was still the largest industrial center of the country, as there were many supply chain-related advantages to being in London. A large services sector, along with a vast class of white-collar workers, also rose. The City of London also remained the leading financial hub of the world. Additionally, during this time, classicism emerged as the common idiom for London’s public architecture. Some of the impressive public buildings constructed at this time still mark the cityscape to this day. The city was keen to show off after decades of holding back while Paris, New York, Chicago, and others had for long been going for grandeur. But the women still did not have a vote. The suffragette movement started gathering strength after a slow start in 1903. Only in 1918 were women (property owners older than 30) allowed to vote.
To some, all these developments may seem to be “a bit of this and a bit of that.” However, all this added up to a veritable transformation of the city, much of it for the better. This progress was mostly driven by bottom-up processes, which are usually messy and seem illegible even when they are working well. Saint shows how the lives of the poor improved during this time, with indicators such as mortality rates and incomes improving considerably. There was much debate about whether this had happened by “self-help or by root-and-branch intervention”—the conservatives suggested these improvements were a result of the former and the socialists attributed them to the latter causes. This debate notwithstanding, certain systematic interventions of that time—the Pensions Act started in 1908 and the Insurance Act in 1911—were paving the way for a welfare state.
The book brings out how institutional adaptation and individual initiative interact to produce progress. Many institutions—both public and private—emerged in response to specific problems and demands. Private institutions—for-profit or non-profit, religious or secular—were established to address problems, often creating models that could be replicated by others. The public institutions took over responsibilities in areas where it became clear that a more systematic, citywide effort would be more efficient. Many institutions were closed, and new institutions were established.
The Prime Ministers, the Queen, and the Kings find only passing mentions in this book. The civil servants, local politicians, businesspeople, professionals (mainly architects and urban planners), artists, and activists for myriad causes comprise the main cast of characters. A city is made up of people, but the people need certain freedoms and a good civic sense and commitment to make a good city. In the London of that time, there was much civic initiative, and in spite of the resistance from the national government, which did not want to yield much power to the local governments, much progress was achieved.
The writing of this book itself demonstrates this interplay between institutions and individuals. Saint has been associated with the Survey of London for three decades. In the preface to the book, he mentions that his association with the Survey has been his main source of learning about the city. The Survey is a unique institution that has been around for nearly 130 years. In this time, it has produced fifty-three volumes on different areas of London and eighteen monographs on individual buildings. Perhaps a book like this could not have been written had the institution of the Survey of London not existed. No other city has a similar institution. Great urban histories require an infrastructure to be in place for scholars like Saint to work with. However, the infrastructure itself cannot produce such a masterpiece. That requires individual initiative.
—By Suyash Rai