Less than activist

Judicial review of executive action is not unique, but the remedy in the CVC case is a departure from the court’s record of approach to corruption.

Madhav Khosla in The Frontline


Supreme Court of India

THE Supreme Court’s decision to declare the appointment of Chief Vigilance Commissioner (CVC) P.J. Thomas as non-existent in law has stimulated much debate. The political fallout of the ruling has been widely studied, with pundits pondering over how seriously it may impact the Prime Minister‘s reputation. But the court’s decision deserves close scrutiny on questions exogenous to the political implications it may carry. In particular, the decision invites us to revisit the debate on judicial activism, which dictates contemporary analyses of the Indian Supreme Court. How can the CVC verdict best be characterised, and in what way can it inform our understanding of how the Supreme Court operates?

Over the past two decades, there has been an outpouring of literature characterising the Supreme Court as an activist institution. Wide-ranging judgments on questions of social justice and political decision-making, facilitated by the invention of public interest litigation, have helped encourage this characterisation. Indeed, it is now commonly assumed that the court fills a governance deficit that politics has created. However, the real story is far more nuanced. Although there has been a genuine expansion in the formal powers of the judiciary, we have noticed very few instances in which the court has actually gone the whole hog. In most cases, its effort has been to nudge government action, and its acts have been more rhetorical than substantive.

So, for instance, we find several decisions that attack corruption, but one can barely find any judgments that seriously punish corrupt politicians. The court’s jurisprudence has played, more than anything else, an expressive role. It helps to create awareness, initiate a change in social meanings, and perhaps even articulate constitutional aspirations. This expressive role is important, and it has its place in modern constitutional democracies; but it is vital that we do not overestimate its character.

Take, for instance, the question of social rights. In such cases, the Supreme Court adopts a far weaker approach than we believe. It enforces no systemic right; no person has the right to a certain minimum degree of a social service such as housing or health; neither does our citizenry have a right to ask that the state undertake reasonable measures to deliver such services. Rather, the Supreme Court adopts a conditional approach; an approach that makes the existence of a right conditional upon action taken by the state. So, for example, the court will often ask whether a hospital that has been built is functioning effectively, but it will never ask the state to build more hospitals. It will only review and enforce a right based on state action already undertaken, thereby meaning that the remedies awarded are modulated according to the conditionalities in operation. This approach exemplifies the expressive role that the Supreme Court plays.

Studied in the light of this generally reticent approach that the court actually adopts, the declaration striking down the CVC’s appointment is a rare one. Appointed by the President of India, following a recommendation by a High Powered Committee constituting the Prime Minister, the Minister of Home Affairs and the Leader of Opposition in the Lok Sabha, the post of the CVC is one of considerable prestige. The judicial review of executive action is not unique. But the remedy in this case, particularly given the high threshold that is ordinarily set for a violation in such instances, is unexpected and is a departure from the court’s previously lacklustre approach to corruption.

Yet, those who champion the decision fail to appreciate its narrow character. As some constitutional experts have observed, a careful study of the case reveals that it does little. The court struck down the recommendation of the committee that was tasked with the CVC’s appointment. But this was not because the committee’s decision was unreasonable. The court did not enter into the substantive merits of the decision-making process. Rather, it found the decision to be non-est in law on a thin procedural ground: the facts material to the candidature of P.J. Thomas had not been considered by the committee.

So, for example, the committee did not consider a first information report that had been registered against Thomas, a certain report by the Comptroller and Auditor General, and so on. Thus, a failure to adopt an appropriate process vitiated the ultimate decision taken by the committee. Judicial review on this narrow ground should make us pause before we celebrate the Supreme Court’s ruling and the role that the institution performs in our democracy. The court’s decision does not establish a broad and novel principle of law, and it would be a gross exaggeration to term the decision as one which is activist.

Moreover, the CVC verdict indicates that it is time we abandoned the “activist” metaphor altogether. The metaphor is used to critique judicial decisions but is not justified through any accepted theory of legal interpretation. That is to say, decisions are sometimes branded as activist because they move beyond a strictly textual reading of a legal source; at other times, the metaphor is used when a decision may depart from precedent; at some moments, it is embraced to condemn a decision on institutional grounds – on the grounds that the judiciary has taken an action that should legitimately be taken by elected representatives, and so on. There is no clear understanding of what kind of critique the term “activist” truly levies, and it consequently becomes a convenient way to denounce a decision that one finds personally unfavourable.

Further, if we move beyond singular notions of activism and the above difficulty to adopt a holistic understanding of judicial activism, we notice that the term clouds the reality that judicial decisions are multifaceted in nature. They often have strands of activism and restraint. The CVC judgment provides an excellent case in point. On the one hand, the decision strikes down a public appointment, an outcome that the court is not known to typically deliver. In this respect, it will not be very unfair to characterise this aspect of the decision as one that is activist. And yet, the decision is carefully founded on a narrow ground, it involves no substantive review, and the court is cautious in ensuring that it can find only very limited application in future cases. In this respect, then, one can imagine the decision being understood as exhibiting restraint.

This aspect of the decision may well prompt some disappointment. While the court did establish principles for future CVC appointments, it did not go further and establish a general legal principle for how charges of corruption must be dealt with in all public appointments of this nature. In this respect, it is certainly true that the decision has not led, as commentary on the decision observed, to the court rescuing Indian democracy.

But it may be worth being measured about such disappointment. The court is at present swimming in rough waters. Chief Justice S.H. Kapadia has inherited a Supreme Court that is increasingly fractured, speaks in many voices, and is in genuine danger of lacking an institutional identity. Narrow rulings can be risky; taken to their extreme they can inhibit the coherent development of law and disturb the consistency that is the law’s chief claim to authority. But in moments of political tension, where the political legitimacy of the court is often questioned, narrow rulings may be more effective than broader ones. Rather than viewing this as an instrumentalist argument in favour of the court’s approach, it is simply a reminder that it is sometimes unwise if not risky for judges to do too much. Indeed, the remarkable political acceptance that the decision has received may have something to do with the fact that the court did not disturb more appointments than were immediately necessary. Moreover, the reaction to the decision may also be useful in analysing the activist content of the decision, if a multifaceted understanding of this phenomenon is embraced.

Other than the CVC, who has observed that he will be challenging the ruling, it has been respected across political parties. The absence of any social or political backlash to a decision lends support to the claim that the decision is not unabashedly activist.

Finally, it is interesting to notice how the court’s reasoning illustrates the peculiar irony of the CVC controversy. The court took the position that the recommendation did not exist in law because material facts were not considered by the committee. This reasoning enabled it to defend the decision on grounds of procedure rather than substance. If the government’s position had been that the facts in question were considered but for mitigating reasons ultimately rejected, the court may well have been unable to review the recommendation on such strict reasons of procedure. Such a situation would have forced the court to engage in a substantive review of the recommendation if it had to strike it down, and it may well have refused to travel such an extraordinary distance.

But if the government had taken the position that it knew of the allegations against Thomas and yet decided, on balance, to appoint him, it would have meant political suicide. In other words, the stance that enabled the government to make a defendable political claim prevented it from making a defendable legal one.

Madhav Khosla, a Yale Law School graduate, is at the Centre for Policy Research, New Delhi. His study of the Supreme Court’s approach to social rights, “Making Social Rights Conditional”, is forthcoming in International Journal of Constitutional Law.



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