Session 3
Ensuring Accountability and the Rule of Law: the Role of the Judiciary
Moderator: George Mathew
J. S. Verma
I want to discuss the so-called "law of delays", noted even by the president of India, who has mentioned the problem of the aftermath of the law of delays, that is, the tendency to resort to extra-judicial remedies by-passing the courts. It is tragic that, even though the Indian Supreme Court has, for more than two decades, construed under Article 21 the right to judicial dignity, which includes the right to speedy justice, this has yet to become a reality. We in the judiciary ought to be accountable.
The only excuse I can offer on my part is that during the period I was in the Supreme Court, in the 1990s, an effort was made, on behalf of the whole court. I remember the first day, in 1989, when I sat to hear various matters, I was terribly upset because there were some 50-odd special petitions, all of them pre-1975/76. I thought there was some mistake, but there was none. So, those first hearings in the court came after almost 15 years. It was then a matter of great satisfaction that at that time we started with arrears of 110,000 cases, and over the years, with the use of information technology and other good management techniques, this came down to just 19,000. Special legal petitions were being listed within a maximum period of two weeks. So, from 14 years to 14 days is something that no one would have believed could have happened. If this could happen in the Supreme Court, and it is being maintained even now, I do not think any other court can claim that its quality of work is higher, or requires more time and attention to dispose of a case than the Supreme Court. Therefore, there is something wrong, for which we are accountable.
We must first understand what kind of democracy we are talking about. It is no longer rule by majority; it is an inclusive democracy, where every section of the people is involved in policy-making, and decision taking, so that every point of view is reflected and there is a fair representation of every section of the people in every such body. In this kind of inclusive democracy, the judiciary has a very important role to play. Why? The rule of law is the bedrock of democracy, and the primary responsibility for implementation of the rule of law lies with the judiciary. This is now a basic feature of every constitution, which cannot be altered even by the exercise of new powers from parliament.
That is also the significance of judicial review, to ensure that democracy is inclusive and that there is accountability of everyone who wields or exercises public power. Edmund Burke said: all persons in positions of power ought to be strongly and lawfully impressed with an idea that "they act in trust," and must account for their conduct to one great master, to those in whom the political sovereignty rests, the people. That is the concept of accountability in any republican democracy, and this basic theme has to be remembered by everybody exercising public power, irrespective of the extra expressed expositions in the constitution.
There should also be an effective mechanism for enforcing accountability, whenever the need arises. The only point is that misuse of that mechanism should not be possible, and if anyone tries to do that, he must be taken care of. The mechanism should be consistent with independence of the judiciary but judicial accountability is not inconsistent with independence of judiciary. A judge, even at a low level, is entitled to as much freedom in his functioning as the chief justice of India. The chief justice cannot tell him how to decide a case.
Accountability is an essential part of the rule of law. It is essential for another reason, as in the earlier editions of Dicey, of course modified in later editions, referring to John Wilkes's case, that "conferment of any discretion tends to arbitrariness and therefore there is something inconsistent with the rule of law." But then, as time passed, it was realized that conferment of some discretion for the purpose of application to the facts of a given case is something you cannot do away with. The area of discretion should be the minimum possible, and it should be regulated by set norms, standards or guidelines, so that it does not tend to become arbitrary. Therefore, the rule of non-arbitrariness is something to be tested by the judiciary whenever the occasion arises.
But the most effective mechanism for enforcement of accountability of everyone is the participatory role of the people. Empowerment of the people is, therefore, necessary. The participatory role of the people can be discharged or facilitated only if they are able to make informed choices and take informed decisions. For that, it is necessary that the right to information be realized. The guarantee of freedom of speech and expression in Article 19-1A in our constitution is a fundamental right, clearly construed as the right to know and the right to information. The reason is obvious: how can you exercise effectively your right to freedom of speech and expression, unless you have all the information which you need for the purpose of forming an opinion, expressing it, and exercising freedom of speech.
It is interesting that even without a bill of rights of this kind, as laid out in Article 19-1A, the high court of Australia, in the early 1990s, implied that the right to information and the right to freedom of speech and expression from the representative government, were guaranteed in the Australian constitution. They reasoned: how can there be a representative form of government, as provided in the constitution, unless the people are able to participate in governance? They cannot do so unless they know what they need to know, and they are able to express their opinion in a free and frank manner. These essentials require transparency and accountability and are necessary for making a democracy work. The role of the judiciary is to ensure that it happens.
I will end with a passing reference to something of which I was, incidentally, part of when I was at the Court. The Supreme Court tried to enter into the area of enforcing probity in public life for the purpose of ensuring the equal application of laws to everyone, irrespective of the level at which they were, and also to try to make a dent, to the extent possible, in tackling corruption. It also developed some measures to shake off the inertia from several instruments of governance and to make them work. But then ultimately - I am a sad man in this respect - I say we could take the horse to the pond but the drinking was to be done by the horse. We could not drink for the horse. Which means the only answer is people's participation. The horse will also drink if people participate fully, as they should. No single instrument or argument or arm of the state can do that. So, without doubt, the judiciary has a very important and significant role to play but the judiciary cannot be effective unless there is people's participation. Social sanction is far more effective than legal sanction. That is what is most lacking today. When I was very young, I found that social sanctions were so effective. No recognition was given to anyone who did not follow proper values. Today, it is just the other way round. What we need to do is reverse that.
Lloyd Rudolph
We are focusing on India, one of the longest serving - perhaps imbalanced - and yet most successful democracies, to find out how and why the Indians have been able to do as well, or as badly, as they have. We will be talking very broadly about re-doing the constitutional design. We understand the constitution to be a living, open-ended process, not a monument frozen in time - a work in progress, not a blueprint for success. I want to focus on changes in the party system, and changes in the way in which the economy is managed.
One of the most important changes in India over its 50 years is the end, starting in 1989, of the "dominant party system", associated with majority government, and the shift to a multi-party system and coalition governments. This was associated in our view with a decline in parliamentary government and in the quality of the political executives (the cabinet and the prime minister). In some ways, there is a compensatory response, in part, in terms of the activities of the Supreme court, presidency and election commission, which have become, if you will, the institutions for the party of good government, for those people in the country unhappy with the rise of the multi-party system and the coalition government.
There have been 13 national elections in India, the first eight, up to 1989, under the dominant party system, with the Congress Party winning, except in 1977, when the Janata Party won, with majority governments formed in parliament. Since then, there have been five parliamentary elections (1989, 1991, 1996, 1998 and 1999) with "hung" parliaments. Overall, the Congress Party, in the first eight elections, won somewhere between 40 and 48 percent of the vote, and between 60 and 79 percent of the seats (leaving aside 1977). But what I am saying is generally true of the first eight elections. So, you might wonder, how it was that 40/48 percent of the vote yielded 60 to 79 percent of the seats. There is something called the multiplier, which in fact boosts that 40/48 percent up.
Since 1989, coalition governments, without returning a majority, have given ample scope to state parties. There has also been a rise of Hindu nationalist politics with the BJP. Less noticed, but perhaps in the long run more important, has been the rise of state parties such as the Telegu Desam in Andra Pradesh and the DMK in Tamil Nadu. So this conventional constitution has seen a big change, with the rise of the state parties and their influence on national politics and policy. Since the 10th election, in 1991, through a period of economic liberalization, national party votes and seats have declined by 10 percent, from 67 to 77 percent of votes and from 68 to 78 percent of seats. The state party vote, classified and calculated on the basis of the Election Commission's designation, have risen from 10 to 16 percent of the seats, and 13 to 27 percent of votes from 17 to 29 percent of seats. This is a profound change from the previous elections.
Now, with respect to the planned economy and the Planning Commission, in the Nehru/Gandhi era most investment was public, state investment. We had permit- license raj on one hand, and state, or planned, investment on the other hand. What we call the interventionist state, the developmental state, in which it was the job of government, as understood by the Nehru generation, to transform the economy, to industrialize, to tackle poverty and so forth. This proved only partially successful. It did establish a basic economy, but, as we all know, in 1991, a foreign exchange crisis occurred and liberalization began. So, we have shifted from the planned to a market economy (at least an effort to establish a market economy) in which most of the investment now is private. In 1999, some three-fourths of the national level growth fixed investment comes from the private sector (38 percent from private corporate investment, and 33 percent from private household investment). This is a profound change.
Our argument is that with the decline of majority government and the dominant party system, the rise of coalition governments and "hung" parliaments, we have the need for a regulatory state. For example, the fact that you need free and fair elections is being ensured by the election Commission to a considerable measure. By regulatory, we do not mean anything like the permit-license raj, which some take to be regulatory; we are talking about procedural regulation, in which you make rules of the game, in which you try and provide for competition, transparency, accountability, in which you try to make a level playing field.
To make the economy run well you also need regulation. The Security Exchange Board of India (SEBI) and re-constitution of the power industry are examples of where the economy is now being regulated in a procedural way to make investment, competition and so forth, work better. Markets are not natural, they have to be created. They have imperfections and have to be regulated. So in the political world, with the Supreme Court, the president and the Election Commission, we have a regulatory state to make politics work more successfully, and in the economy we have rising regulatory institutions, which are making the market work better. These adjustments have also perhaps made it possible for the state, the political system and the economy to work very effectively and to look like that they are making progress.
Susanne Rudolph
I want to continue to suggest some particulars of the way in which India has moved in the last decade from an interventionist to a regulatory state. We talk about three institutions that are part of the formal constitution of India: the judiciary, the presidency and the Election Commission, regulatory mechanisms that have grown enormously in strength and effectiveness over the last 10 years.
First, the judiciary: in our paper we feature how public opinion polls suggest a higher level of trust in the judiciary, than in other parts of the government. Even as trust in the cabinet and parliament, and executive, declined over the ten-year period, the trust in the court held up pretty well. The fact that the court procedures are extremely slow does not precisely mean that justice delayed is justice denied, but certainly justice delayed is justice diminished. The Supreme Court has played a conspicuous role in correcting and supplementing the weaknesses of the cabinet in the last 10 years. Judicial activism originated in the public interest legislation of the 1980s and the 1990s, the fruit of coincidence, even collaboration, between the courts and civil society, NGOs, public interest litigants, and free agents, who brought issues before the court and the court was willing and ready to respond to, in vigorous ways. This movement focused on human rights, police brutality, and inhumane jails on the one hand, and on public goods, clean air, clean water, anti-pollution on the other. It is an emphasis that continues vigorously today.
Perhaps more important was the Supreme Court's effort to regulate corruption at the highest levels (at the level of prime minister and ministers). It was a difficult moment and, a very important one for the formal constitution of India. Specifically, the court exposed, and eventually overrode, the so-called single directives, by which the Central Bureau of Investigation, the government agency investigating corruption, had to take permission from the secretary of any ministry before it could investigate a case. The rule effectively enabled a Minister and the PM to block investigation of corruption. This whole issue arose, of course, around the famous Jain diaries, which were thought to have revealed corruption at the highest level. In fact, they revealed much less than was thought at the time, but the issue remained important. In 1990, a court judgment effectively reversed the "single directive", enabling the CBI to investigate corruption at the highest level, and strengthening the CBI director, by ordering that he be given a minimum two-year term. None of this has solved the problems of corruption but it suggests the way in which the Supreme Court moved in, at a moment when trust in the cabinet was indeed very flawed.
Perhaps still more important was the fact that the court strengthened its own autonomy. In a landmark decision in 1993, it freed itself from the executive control in SC appointments. Previous practice had been that SC justices were appointed by the president, on the advice of the cabinet. In this decision the president of India was mandated to make his appointments to the Supreme Court, on the advice of the chief justice of India. Many in the bar and some in the judiciary question whether the chief justice should, in fact, be allowed to take such great power into his hands individually, and this has since then been modified. But what matters is that the Supreme Court in fact mandated a greater degree of autonomy for itself, at a time that it was moving in as a counterforce to the executive. So, on the one hand the court made the cabinet accountable. On the other hand, who in turn will make the court accountable? This is an issue that has not yet, I think, been fully resolved.
The president of India too has become a more important force in the regulatory state that guarantees improved procedures. The president was originally envisaged to play a role not unlike that of a constitutional monarch, that is acting on the advice of the council of ministers, not autonomously. But, from the beginning, Rajendra Prasad, to some extent, asserted an autonomous role for the presidency, when he refused to sign off on an earlier version of the Hindu Code bills, and this undercurrent has remained. Mrs. Gandhi, who was inclined to eliminate all competing balances and forces in government, succeeded in pressing a constitutional amendment that specified that the president could only act on the advice of the council of ministers. When she was ousted, another amendment slightly re-expanded the president's role. He could return a law to the cabinet for re-consideration, and this was then used very constructively and imaginatively by Presidents Venkatraman, Sharma and Narayanan in recent years.
So long as Congress won massive parliamentary majorities, the president had virtually no discretion in his roles as a selector of governments: He simply called the leader of the dominant party. With the end of one-party dominant rule, his discretion in choosing governments has become crucial, and the skill of President Venkatraman, Sharma and Narayana in framing acceptable and consistent rules has ensured the legitimacy of the choices. Given the challenge to presidential choices that can arise in good democracies like my own, this is remarkable. All this has expanded the role and strengthened the hand of the president.
He has strengthened his hand in another way by curbing the misuse of Article 356 of the constitution, which allows president's rule to be imposed on a state of the federal union, if the governor of the state declares that the government cannot be carried on. In the last decade presidents have no longer been supple instruments of the ruling party in applying Article 356.
I don't have time to develop the ways in which the third institution, the Election Commission has come to be a critical guarantor of electoral fairness under Commissioners Seshan and Gill. The national Election Commission is autonomous, but the commissioners have tenure like judges. But let me conclude by stating that in November, we thought that persuading the Florida Supreme Court of flying in M.S. Gill for a small job of damage repair would have been a great idea.
Discussion
- Judicial activism was said to mean "making institutions work, shaking off inertia and activating processes where delays prevail", making it now very much a basic element of the democratic structure. The courts did not interfere in the doing of jobs under review. They merely insisted that the job needed to be done.
- Some saw judicial activism as filling a void in democratic accountability left by legislators and parliaments, and the rise of judicial activism, for example in India, is seen as a clear sign of a crisis of governance. But it was stated that the judiciary was well aware of its constitutional role and was not interested in taking over the accountability role of other democratic institutions, notably parliaments.
- Constitutions must be seen as living changing structures. Thus, in India, federalism was said to be "coming alive" after the Nehru-era centralization, with the regional parties playing the critical role, and implementing, with varying success, the liberalization and reform programs. But the tensions between a centralized system and the ascendancy of regional parties was said to be contributing to governance difficulties, though others argued that this was being over-emphasized, given higher sustained growth and lower poverty levels in India in the 1990s.
- Law reforms in the Indian Supreme Court were carried out by increased use of computers, bringing in more specialists, working longer hours, and "clubbing cases" to dispose groups at a time, setting deadlines for briefs and evidence and completing sessions in single sittings.
- Across South Asia, however, it was noted that courts were generally reluctant to tackle serious human rights abuses, or illegal actions, such as the overthrowing of the Fijian Government in 2000.
It was disputed if the president could in fact play a more interventionist, political role in India. In the era of "hung" parliaments, he had to be seen to be scrupulously fair between rival parties. It was noted that the office alone conveyed authority, though individual moral authority enhanced the office.
|
