Scandal in the Palace — A Rejoinder to Venkatesan on Arundati Roy’s Article

I am responding to Venkatesan’s criticism of Dilip’s and my posts on Arundhati Roy’s recent article on judicial activism and the Sabharwal controversy. As a threshold matter, I should clarify that I actually appreciated Roy’s article as a whole, and I am glad she wrote it. I also think that her article constitutes an important contribution to the public debate about our Supreme Court and its seminal role in our democracy. I feel the same way about Roy’s previous writings on the judiciary even if some judges were disturbed by them. I, of course, disagree with Roy’s tone and writing style. But I cannot impose my linguistic preferences on her, and I applaud her for her courage and earnestness in interrogating a daunting set of issues.

I should also say that I am a strong believer in the right to scrutinize, evaluate, and criticise the role and record of our courts provided this right is exercised in a responsible and fair manner. It is true that our judges sometimes overreact and recklessly invoke their powers to punish for contempt. I have previously written on this subject in the Cochin University Law Review, where I strongly disagreed with the Court’s approach in recklessly using its “constitutional” contempt jurisdiction in V.C. Mishra’s Case (the decision was eventually overruled in a subsequent case). I also took great exception to the Court’s reasoning on Roy’s own contempt case, a decision that was so artfully dissected by Venkatesan in a previous post, and I’m distressed by the Delhi High Court’s verdict in the Midday Case.

However, I do believe that any appraisal of the Court and the judges who sit on it must be fair and responsible. We must appreciate the fact that, unlike bloggers, columnists, law professors, and, dare I say, best-selling authors, our judges (with some notable exceptions including Justice Sabharwal it appears) lack the forum or the means to effectively respond to their critics. It is certainly appropriate to call individual judges and benches for their specific mistakes, failures, and follies in cases or controversies. But, as tempting as it may seem, I believe it is unwise and unfair to collectively malign an entire institution without adequate cause or justification for the shortcomings of a few. This belief is, perhaps, the underlying reason for my unease with Roy’s piece as a whole, which I feel does not properly balance specific instances of the Court’s failures, shortcomings, and overreaching from its solid achievements and noteworthy record in defense of our democractic values and system of governance. Now, on to Venkatesan’s specific problems with my critique of the article.

First, Venkatesan says that, having read Roy’s article carefully, he is “unable to cite even one sentence which could be described as ‘sweeping denunciation’ of judicial activism and PIL.” I wonder if Venkatesan and I were actually reading the same piece. Although it is a rambling one, Roy’s piece can be broadly divided into two parts. The first part of the article deals with judicial powers (and activism) and public interest litigation. The second part is about the Sabharwal controversy and its consequences. My assessment of Roy’s views on judicial activism and PIL are based on the first part. In it, Roy states that “the higher judiciary, the Supreme Court in particular, doesn’t just uphold the law, it micromanages our lives.” She then goes on to cite a lengthy list of instances and examples of judicial micromanagement: dams, rivers, mountains, forests, streets, textbooks, and fines for traffic offenses. (This last item on Roy’s list is a bit puzzling. Should’nt courts be involved in deciding fines for traffic offenses anyway? But I digress.) For this reason, Roy accuses the Court of turning itself into the “premier arbiter of public policy in this country that likes to market itself as the World Largest Democracy.” (I’m still mulling over the precise implications of this beguiling sentence).

Roy then complains how PIL has given courts access to people and to issues outside its sphere of influence (here, Roy sounds oddly like Justice Hidayatullah, who disapproved of PIL when it first began in the early 80s). PIL, Roy argues, gave people access to courts. But it also did the opposite, i.e., gave the courts access to people. Thus, she asserts, PIL “made the courts as powerful as they are.” She then points out that, through a series of judgments over 15 years, the judiciary “has dramatically enhanced the scope of its own authority.” Read as a whole, this narrative seems to me to be quite a pretty sweeping indictment of contemporary judicial activism and PIL jurisprudence. I’m not sure how Venkatesan can conclude that the article does not reveal whether Roy is against “judicial activism and PIL.” It is quite obvious from the text that Roy is no fan of either!

Second, Ventakesan suggests that I “assumed” that Roy was unaware of the history of PIL and the citizen movements it engendered. I “assumed” no such thing. If Venkatesan had carefully read my post, he would have noticed that I used the expression “unclear” to denote my anxiety about whether Roy fully appreciates the contributions of PIL to Indian jurisprudence. I made no assumption about the state of Roy’s awareness. While I do think she has a reasonable amount of knowledge about PIL, I wonder why she has been selective in her assessment of it. Her discussion of the evolution of PIL and the accompanying increase in judicial power leaves the reader with the impression that the PIL movement contributed nothing worthwhile except for what Roy calls a “brief window of hope and real expectation” in the early days of the movement. Any dispassionate observer of Indian law would concede that this is an imprecise appraisal of PIL (even if that was not what Roy intended as Venkatesan seems to suggest).

Like other phenomena in Indian constitutional life, the PIL movement is a mix bag of judicial outcomes. While the movement certainly has some embarrasing episodes, like red lights for judicial cars (on which I wrote my first published article), even the most hardnosed cynic would be hard pressed to deny that PIL judgments have made landmark contributions in various fields, such as environmental protection, public health, and anti-corruption efforts. Surely, those contributions are worth something even if Roy believes that they ultimately contributed to an increase in judicial power.

Third, Venkatesan wants to know what elements of her piece are flatly inaccurate. Well, aside from what Dilip found in relation to Pasayat’s judgment (and I leave it to Dilip to respond on that point), I found at least two significant inaccuracies in the article.

1. In her muddled paragraph on the unHindu rate of growth, the rule or law, and peoples’ rights, Roy says that from the early 1990s, we have seen a systematic dismantling of laws that protect workers rights and the fundamental rights of ordinary people, such as the right to shelter, health, education, and water. I am unclear as to what laws Roy is referring to, and it is a pity that she does not offer any concrete examples. But if Roy demonstrated greater knowledge of PIL developments, she would have realized that that the “fundamental rights” to shelter, health, education, and water were only recognized as express constitutional freedoms in the early 1990s. So, it is hard for me to understand how laws protecting those fundamental rights could be dismantled in the early 1990s just as those rights were just being recognized in the first place. Furthermore, Roy conveniently omits to mention (or perhaps is genuinely unaware) that the rights she calls fundamental were recognized as such through a series of (you guessed it) PIL cases and by a judiciary that Roy accusses of having already embarked on the road to judicial absolutism.

2. Roy asserts that international financial institutions, such as the World Bank, require the repeal of laws relating to workers rights and fundamental rights as a “black and white” condition to sanction loans. I hesitate to write about the World Bank here because my participation on this blog is strictly in my personal capacity. However, since Roy expressly mentions the international financial institutions in her essay, I thought should make two brief points:

(1) In my experience at the World Bank so far, which includes working on several operations in India, I have not come across any instance of the World Bank imposing conditions in its loans that require the repeal of constitutionally guaranteed protections or rights, as Roy appears to allege.

(2) Roy is probably unaware that the term “structural adjustment” was replaced in August 2004 by the expression “development policy lending” to denote the World Bank’s non-project-specific lending instrument.

Finally, I’m afraid I don’t agree with Ventakesan’s suggestion that Roy posits a distinction between the rule-of-law as a juridical concept and its application in practice. I can certainly envisage such a distinction, and I am aware that it has been observed previously, notably in apartheid-era South Africa. But I cannot find any evidence in Roy’s article that the author intended to make such a distinction. Moreover, I am unconvinced that the concept of the rule-of-law has been systematically misapplied in Indian practice. Therefore, I am regretably unconvinced by Venkatesan’s gratitious attempt to retroactively insert this distinction into Roy’s piece.

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  • First of all thanks for taking time to blog about law and judiciary. It is a really useful blog and keep it up.

    Roy’s piece and your discussions have been quite illuminating. It appears to me that Ms Roy did not intend to write a balanced view on judicial activism. Her objective was to point out the flaws in Judicial activism and in PILs. And in some respect she achieved the objectives. In particular, she pointing out a number of areas in which Supreme Court has tended to make policy judgments. One recent case that I got reminded was the banning of unregistered food carts in the capital. Considering the problems in police system and any certificate granting authority, this decision will throw a number of hawkers either at mercy or bribing of policemen/certificate agency. Off course supreme court has no intention to ensure that all hawkers easily get a license or the policemen do not exploit the hawkers.

    Then Ms Roy goes on to argue that if there are flaws with the Judicial system then there should to be accountability. However, judicial system seems to be without any measure of scrutiny. Journalists are in a catch 22 situation to even report on judicial flaws as it happened with the Mid Day journalists.

    As Vikram and Dilip pointed out the problems with Roy’s piece, Venkatesan thought that the criticism was far to the extreme. Off course Roy’s article has problems as Vikram points in the rejoinder. But she should be given credit for bringing out the problems with the judiciary.

    A couple of questions I had in mind. Does Supreme court think that Contempt of Court Act violates Free Speech under article 19(1)(a)? Or do they consider it as a reasonable restriction on free speech? Do you think parliament will pass laws to dilute Contempt of Court Act (specially after mid-day incident)? And if yes, then how can law be rewritten so that it protects free speech, brings judicial system into some form of (media) accountability and yet protect the court from being scandalized.

    By the way I read the book “Globalization and its discontent” by Joseph Stiglitz and thought that IMF actually put huge conditions for providing the loans in difficult times. Off course world bank and IMF are not the same but both of them maintain some form of global economic order.

  • As you say, it’s pretty clear from Roy’s piece that she’s fulminating about the idea of the rule of law itself, not about its application. Note, in particular, the express contrast she sets up between the rule of law and “justice”, and the evident approval with which she quotes Zinn’s criticism of the rule of law (which, again, is a criticism of the concept, rather than its implementation).

    It’s not uncommon amongst a certain tribe of left-leaning intellectual to oppose the idea of the rule of law, and advocate replacing it with a purer idea of “justice”. The trouble is, this has been tried – in revolutionary France, for example, which glorified “la justice pure, simple et pacifique des arbitres” – with little success. There’s a large literature on why these attempts fail (Auerbach’s work on the US also comes to mind), and I’d like to see people who – like Roy – seem to think the rule of law is inherently a tool of oppression engage with the question of what the alternatives are. But I guess that’d be asking too much – Roy specialises in polemics which are quite innocent of the facts.

    There’s also the issue that she quite misses the point on why the courts “micromanage” the governance of India. She seems to suggest that it owes more than a little to the fact that politicians are gleefully outsourcing the task of making electorally unpalatable decisions to the courts. But many of the court’s decisions have historically dealt with issues that would have been with voters, had the government bothered to take them up – the entire string of rights which the court read into Part III under the “common code” doctrine, for example. The reality is that Indian governments since the 1970s have been reluctant to actually start dealing with the many many problems of running a country like India. This left a significant policy vacuum into which the judiciary moved, there being no other organ of government which seemed to want to do anything about it. With due respect to Dilip, there’s actually not that much the Indian Supreme Court does that goes beyond the notion of judicial powers we’d see in other countries with strong constitutional judiciaries – such as the US, or Germany, or even Israel. What is unique is the sheer volume of cases where the court exercises this power, which sometimes makes it seem like they – and not the central government – are actually running the country.

    Her points on the Contempt of Courts Act are, of course, spot on. I am nonetheless a little intrigued by something she says at the beginning of her piece: “When there’s a scandal about a former chief justice and his tenure in office, it’s a little difficult to surgically excise the man and spare the institution.” If there’s a scandal involving the Speaker, is it really difficult to comment on it without excoriating Parliament and the idea of parliamentary democracy? Why should it be any different for the judiciary?