We are pleased to continue our series of debates between authors and readers. Last month, we initiated this debate between Sudhir Krishnaswamy, author of the book, Democracy and Constitutionalism in India: A study of the Basic Structure Doctrine, (OUP, 2009)and Raju Ramachandran. Today, Sudhir responds to the criticism of his book by Prasan Dhar, a recent product of NALSAR University of Law. Prasan’s is a theoretical response to Sudhir’s book and Sudhir’s talk at NALSAR recently on the same subject.

PRASAN DHAR:

Sudhir’s quest seems to be whether he can create or defend a morally/philosophically/legally superior justification of a particular court doctrine, to put forth the most viable account of judicial power. In terms of framework analysis, I believe that such analysis is, in the least, inadequate, if not misleading. I think that his account flows from a very particular vision of how to conceptualize adjudication. Adjudication, for him, remains a purely legal and interpretive phenomenon.

I believe that for a fuller account of the Court’s adjudicatory praxis, it is important to view the Court as a political institution and therefore, its adjudication, especially in constitutional cases, as a political performance. If one takes the view that adjudication also has a political character, then the decision must be justified politically as well. It is therefore important for me to explain what I mean by political justification.

By political justification, I mean that the Court’s oeuvre must ensure and sustain political viability of the institution itself, both in democratic terms and in inter-institutional terms. He says, “the court has been changing or shifting the boundaries of the political and the legal.” While his assessment is true in a certain sense, I take issue with something underlying that statement as well as the rest of the arguments that he makes throughout his book.

While he views the shifting of the boundaries as a legal act, I view it to be a substantive political act. Therefore, when the Court says that it can examine the reasonableness of legislation under Article 21, it is a political performance first, a legal performance later. While he has presented a weak form of the democratic argument (albeit in an empirical fashion) as a sociological justification he has not at all touched upon the latter (inter-institutional viability).

My intention is to show that a political characterization of adjudication is superior to a purely legal characterization. That would entail me showing at least two things – one, that theoretically, understanding the court decisions as political decisions is superior, and two that adjudicatory praxis reflects my position better.

Theoretical Arguments

While I agree with Sudhir that legitimacy is a scalar quantity, yet it has some distinguishing characteristics i.e., the Court’s political legitimacy is in the least a necessary condition for its survival and the continuance of its ability to exercise judicial power. Therefore, I offer a more political account of legitimacy. I offer two arguments (I haven’t figured yet which is a more accurate theoretical account).

First, Sudhir’s justifications, are in my view, not necessary conditions for legitimacy. Notice the absence of sufficiency as a criterion, which is a result of the partially scalar nature of legitimacy. This means, that even if a decision is not justified in legal terms (let us assume that it has no basis in the constitutional text) the court must at least offer a political justification that will allow the institution to survive.

Second, that the form of justification that he offers, is important only insofar as judicial power remains intact. That is to say legal/moral/philosophical justifications are important, but only if they have an effect on the political view of legitimacy. Therefore if one says for example, that the court’s decision is not legally justified, that claim has nothing to say about legitimacy per se. It will have something to say about legitimacy only if it creates a dent in the political legitimacy of the decision. Therefore legal and philosophical justifications are important more from a craftsmanship point of view rather than being conclusive justifications.

Adjudicatory Praxis

I think there are numerous decisions that could exemplify my position. One example is the due process imbroglio. I think it is significant to note the type of cases that were before the Court in the due process cases. If I were to only take the triumvirate of Gopalan, Maneka and AK Roy, one will notice that in Gopalan and AK Roy where the Court took a ‘conservative stance’, preventive detention laws were questioned. Whereas Maneka was a case under the Passport Act (which actually did not even need to be decided).

One way I proffer to understand why this is significant is because the Court has always been deferential to the legislature when it comes to preventive detention. Further the Court has allowed preventive detention for all sorts of things, even theft of railway property. So therefore, it seems like the Court could pick out a case like Maneka to expand the scope of Article 21 review whose immediate political implications were minimal. When the NSA was challenged in AK Roy, Chandrachud would say that one cannot read Maneka to mean substantive due process but only procedural due process.

Therefore, my argument is that one of the primary ways to understand this doctrinal change is by viewing adjudication as a political oeuvres. (I have written a much more detailed essay on this recently, although my theoretical position is not as coherent there as it is here (I hope what I have said here is coherent).

SUDHIR KRISHNASWAMY’S RESPONSE:

May I first express my gratitude to Prasan and his fellow students for subjecting the book to a close reading and critical scrutiny. These interactions made the trip to NALSAR and my participation in the Socio-Legal Debate series memorable. Prasan’s comment raises several issues and I will organize my response around what I see as the key questions.

1. How should constitutional law adjudication be understood?

In the book I take the view that constitutional law adjudication may be understood in several ways:

Empirically – to examine and understand how judges make decisions and the consequences of these decisions [G Austin is an important example of this]
Analytically – using legal and political categories of analysis [Commentaries like Seervai and MP Jain]

Normatively – to assess whether judicial decisions are justifiable and legitimate.
While adjudication may be ‘understood’ in several ways, ‘justification’ must proceed in one of two ways: instrumentalist justification that takes account of the contingent historical particulars of a society and non-instrumentalist justifications which assess whether adjudication (decisions / doctrine ) may be justified using general normative considerations germane to that area of adjudication.

So I do not deny the utility of an empirical understanding of constitutional adjudication and I do not suggest that one is superior to the other. I only argue that it has little to contribute to a general non-instrumentalist justification of court adjudication which is I what I offer in my book.

2. Do I offer an inadequate or inconsistent account of political legitimacy?

At various points Prasan suggests that I do not offer an adequate account of political legitimacy as I do not account for the survival of the court and inter-institutional relations. He seems to embrace the G Austin thesis that constitutional adjudication is best understood as an attempt by the court to practice realpolitik and ensure institutional survival.

An account of the courts strategic maneuvering to ensure its survival is an interesting and important part of our constitutional history. It may offer some support to an instrumentalist justification of constitutional adjudication. I argue that while these accounts are useful, the instrumentalist justification of the basic structure doctrine is now conceded even by the doctrine’s critics (for example, Raju Ramachandran). Hence, I focus only on a non-instrumental justification of the doctrine which needs different resources.

A non-instrumental justification of constitutional adjudication will rely in part on political justification. In the book I offer an account of political legitimacy under three heads: sovereignty, democracy and separation of powers. Inter-institutional relations is a part of the enquiry under the separation of powers heading. However, I have no place for a discussion on whether the court will actually survive its decisions as I do not see that to be an ingredient of any enquiry into political legitimacy.

To put the matter bluntly: a court may make legitimate decisions and be neutered by the executive or the legislature. Conversely, a court may make illegitimate decisions and a thriving inter-institutional relationship may exist. So far from being an essential ingredient of political legitimacy and justification of constitutional adjudication, the survival of the court is irrelevant to the political legitimacy of its decision making.

Prasan’s discussion under the head ‘adjudicatory praxis’ suggests that constitutional adjudication in several important cases may be understood to be a byproduct of the particular circumstances of the cases brought before it. Irrespective of whether this understanding is empirically true it does not help us with the task of providing a non-instrumental justification of the decisions in these cases.

Prasan’s account seems to assume that the viability of the court as an institution is in some sense necessary or prior to the legitimacy of its decisions. Hence, his claim that it is a necessary condition to the political legitimacy enquiry. While it is certainly true as a practical matter that a court must exist before this we can discuss the legitimacy of its adjudication, this is an empirical matter and has no bearing on whether the court’s decisions are legitimate.

As I do not have the benefit of Prasan’s longer essay, I have responded to his arguments as set out in this shorter note. I recognize that this discussion is abstract and may be tedious for the general reader, but I hope that this will clarify some part of the queries he has addressed here.