Pratap Bhanu Mehta’s Rejoinder on Judicial Activism

I am posting a response from Pratap Bhanu Mehta to V. Venkatesan’s post on Mehta’s op-ed in the Indian Express.

It seems to me that Venkatesan’s otherwise helpful post slightly mixes up two different issues:

The first is: Do Courts put a construction upon the constituion, law, statutes in a way that takes into account the interest of the poor?

The second is: Do Courts feel bound by any legal discipline at all in arriving at the conclusions they do?

My piece actually does not say anything about question 1. The issue I was raising was not: Are Courts doing enough for the poor? They clearly are not. But there is a slightly different question: What domains should the Courts be authoised to take decisions on?

In fact the post seems to make an unwarranted assumption of its own: that anyone concern for the separation of powers, any concern for legal formalism, or a strict interpretation of constituional propriety by definition works against the poor. This is not an assumption I would make.

There is also another tricky question: I think the question of what counts as “pro poor” is a lot more complicated than the post assumes. Any account of what is good for the poor involves a complex series of assumptions (eg. it used to be thought that easy eminent domain exercise by the state would help the poor; the contrary is probably true). There are some Court decisions that are obviously ghastly for the poor (like access to justice, access to work rights in cities), but I would not assume that pro liberalization judgments are automatically anti-poor.

But the issue is that this is a policy debate for society, not for judges.