Why the Indian Supreme Court Can Get American Popular Constitutionalists Rethinking
American legal scholars have ushered in a new school of thought that has been overly skeptical of judicial supremacy. While scholars such as Larry Kramer base their arguments for their distrust of judicial supremacy on the weak premise of it being counter to historical traditions, most scholars put forward the more philosophical argument that judicial supremacy contrives a society where people lose the vital will and motivation for civic participation. These scholars are known as Popular Constitutionalists and they unanimously advocate for putting an end to judicial supremacy and handing the Constitution over to the people.
This particular notion of individuals losing interest in civic participation reflects the current American setup - a setup where the Constitution has become too distant and detached from the American populace. In America it is too arduous to get heard by the SCOTUS and even if one does get lucky the outcomes are neither favorable nor desirable in most instances. This quite obviously results in people not only not trying to affect the course of Constitutional decision making, but worse not caring about it at all. As a result, constitutionalism in America becomes the prerogative of a few elites in the capital.
However, lesson’s from India’s Constitutional story strongly indicates a tangential picture of one where judicial supremacy is an adept apparatus for popular engagement with the Constitution as well as a tool in aiding the creation of better policy. In India, individuals are ready to plunge into the legal battleground without a blink of the eye. The Supreme Court of India (SCI) is the most important venue for legal mobilization in India which has helped produce practically every piece of major social welfare legislation including the Right to Information Act, The Right to Food Act and the Right to Education Act.
There are two reasons I believe how judicial supremacy has resulted in popular engagement with the Constitution. These are first, the SCI being accessible and claimant friendly and second, the decisions of the SCI being favorable and offering more promise to the claimant. Thus, individuals are encouraged to approach the SCI with their complaints in Constitutional terms which result in popular engagement. In fact, as stated by sociologists like Steve Barkan, taking claims and complaints to courts over the elected branches results in translating people’s complaints into rights and giving them a sense of legal entitlement.
As far as the first reason is concerned, there are a plethora of factors that contribute to the SCI being more accessible and claimant friendly. To start with, the SCOTUS cherry picks a little over seventy cases a year, whereas the SCI has no cap on the number of cases it takes up, and adjudicates as many as eight hundred cases annually. Further, unlike the American system where the rules of standing require the claimant to show actual injury to himself or in case of an organization to one of its members, in India any member of the public can bring a claim on behalf of an injured party in situations where the latter is unable to bring a case on his own. Over the years this has resulted in a lot of non-profit organizations and public-spirited individuals like MC Mehta bringing claims on behalf of third parties. Additionally, the SCI has eased the traditional rules of filing petitions and has in cases pertaining to prisoner rights, environmental degradation, women and children’s welfare, bonded laborers, etc. accepted letters addressed to the court as petitions. Another factor that has made litigation claimant-friendly are the efforts of the SCI in removing financial obstacles to cases. The costs involved in filing such public interest cases is less than one dollar, and in most instances, the SCI has not only dispensed with court fees but has in fact appointed senior lawyers free of cost to litigate on behalf of the aggrieved parties.
One of the most claimant friendly acts of the SCI has been its appointment of lawyers as amicus curiae to assist the claimants in cases where the courts have felt that the claimants have not presented their arguments in appropriate Constitutional terms. This practice has been instrumental in some of the most landmark cases in India such as DK Basu v. State of West Bengal, Vishaka v. State of Rajasthan, Vineet Narain v. Union of India, etc. It has helped people engage with the Constitution even in those cases where people were unaware of or did not realize the extent to which the Constitution was relevant to their claims.
While the above reasons have definitely made approaching the courts easier, the effective redress of claims in SCI’s decisions and its proactive, result-oriented approach has further incentivized individuals to engage with the Constitution. The SCI has almost always found a solution for the common man’s problems in the Constitution and has compelled the government to address them. The SCI has expanded the Constitutional provision ‘Article 21’, which is narrower than the American Due Process clause, to include right to a basic level of nutrition, right to a clean environment, right to travel outside India, right to education, right to livelihood, right to transparency of governmental workings, etc.
On the other hand, the SCOTUS has interpreted the Constitution as a charter of negative liberties. Time and again, the SCOTUS has denied the same Constitutional rights that the SCI has found the populace to be entitled to. Even in those cases where the SCOTUS has rendered positive decisions, promises remain largely unfulfilled. For instance, Erwin Chemerinsky in his critique of the SCOTUS, has stated how the SCOTUS could have done much more in providing timetables and outlining mechanisms for desegregation post its decision in Brown v. Board of Education. Similarly, he described how decisions such as Gideon v. Wainwright where the court held that those who face possible prison sentences have the right to counsel under the Sixth Amendment, came without any enforcement mechanism. The biggest predicament here as Larry Sager has written in Justice in Plain Clothes is that the SCOTUS considers itself unequipped to wield such administrative tools.
The SCI has always tried to ensure that the ends of justice are met. This has included promulgating provisional legislation in cases of sexual violence at workplaces and euthanasia, providing individual compensation in its cases of environmental damage and custodial deaths and instituting mechanisms such as continuing mandamus orders to ensure compliance with its decisions in cases such as those involving the right to food, right to clean environment and the Central Bureau of Intelligence.
The SCI is a paradigm of how judicial supremacy can foster popular engagement with the Constitution. The SCI’s story exhibits how judicial supremacy can actually enrich democracy by making citizens active players in the democratic battleground. Perhaps, the Indian experience is a perfect example for Popular Constitutionalists to change their rhetoric from calling for an end to judicial supremacy to suggesting reforms to the institution of the courts. After all, the reality is that the SCOTUS is not only here to stay but is also essential to democracy; and incidents like the Boston Tea Party, which some Popular Constitutionalists reverently speak about, will ultimately not lead to the championing of democracy but rather to its downfall.
Hafidzi Razali, LLM ’18Part IV in a Series that discusses, debates, and explores the idea of culture – beginning with its definition to how it intertwines with other social constructs and trends such as class, gender, sexuality, populism, and activism.
November 3By: Austin Gassen, JD ’19Part IV in a Series that discusses, debates, and explores the idea of culture – beginning with its definition to how it intertwines with other social constructs and trends such as class, gender, sexuality, populism, and activism.
November 2By: Hamza El Mouahid, LLM ’18Part III in a Series that discusses, debates, and explores the idea of culture – beginning with its definition to how it intertwines with other social constructs and trends such as class, gender, sexuality, populism, and activism.