With repeated disruptions crippling Parliament, and its essential functions being partially fulfilled by courts, the potential to cause lasting constitutional damage merits deeper introspection

Few things define us like our democracy. The image of a slow moving but functional, even vibrant democracy that shares western values of pluralism, freedom and republicanism, is an image fervently cultivated within India and assiduously hard-sold on the world stage. Indeed, it is what distinguishes India from China and Pakistan — it explains Indian sluggishness when compared with Chinese alacrity and Indian stability when compared to Pakistani self-destruction. Yet, behind this well crafted story of India’s incredible democracy, lies the disconcerting truth of a democratic misalignment. Consider these: in its Winter session last year, the 15th Lok Sabha utilised only 70 per cent of the available time, the least in the last 25 years. Only 10 per cent of all starred questions were actually answered orally in both Houses and despite a total of 10 hours having being allotted for Private Members’ Bills over four weeks, no time was actually spent on them on account repeated disruptions. In its Budget Session last year, 40 per cent of all parliamentary time was lost to discussions and even then, only 30 per cent of the remaining time was spent on legislative issues. Twenty-seven per cent of all Bills passed by Parliament in 2009 were discussed for less than five minutes, 63 per cent of total parliamentary time was spent on non-legislative issues and the government resorted to law-making by ordinance nine times, the second highest in the past decade. In 2010, Parliament recorded its worst performance in the Winter Session in the last 25 years. By 2011, the record had already been broken.

Supreme Court’s role

As repeated disruptions prevented Parliament from doing any worthwhile business on the first few days of its ongoing winter session, our elected representatives would do well to consider the ramifications of a dysfunctional Parliament. Since 1980, the Supreme Court, easily one of the most powerful apex courts in the world, has played an increasingly activist role — constitutionalising second generation socio-economic rights, ushering in good governance, political reforms such as asset disclosures by politicians and, even directing how national resources may be disbursed. In the last two decades, the Supreme Court’s contribution to legislative policy is staggering. The right to food, to housing, to education and to information have all foreshadowed much-belated parliamentary legislation. Nothing demonstrates this better than the Supreme Court decision in the Vishaka case. In 1997, appalled as much by the crime as by the total absence of parliamentary legislation on the subject, the Supreme Court took up the case involving the gang-rape of a social worker at her place of work. Faced with evidence of increasing and unchecked workplace harassment, the Supreme Court used the case as an opportunity to seek government accountability on the subject. The absence of a law, the worsening law and order situation and women’s right to work were all brought into sharp focus, as the courtroom transformed into a dialogic forum for a judge-moderated debate between the citizen and the government. While the case eventually ended with Supreme Court guidelines that were to hold the field until enactment of a parliamentary law, in becoming a forum for debate, the Court fulfilled a role constitutionally reserved for the Parliament floor. And in drafting, what it hoped would be interim guidelines, the Court plugged another democratic vacuum — that of responsive law-making. One-and-a-half decades later, the guidelines are yet to be replaced by enacted law.

What is wrong

The Vishaka episode highlights four crucial aspects of what is wrong with Indian democracy: First, in exercising what noted Harvard law-professor, Mark V. Tushnet refers to as dialogic judicial review, the Supreme Court has effected a role reversal which has important repercussions on the institutional checks and balances of our democracy. If the Lok Sabha Speaker is going to be confined to repeatedly adjourning Parliament, while the Chief Justice originates and moderates important constitutional and policy debates, judicial stature is bound to rise at the cost of parliamentary authority. That the common man turns to an unelected judge as opposed to his elected MP, points to a power-realignment in our democracy which has dangerous manifestations. Riding this wave of popular support for instance, the Supreme Court has secured for itself, the power of self-appointment, so that judges to India’s constitutional courts are appointed by sitting judges, with little role for the elected branches of government. That the government would not question the Court’s decision, despite the considerable separation of power challenges that the power of self-appointment raises, emphasises how vulnerable the elected branches feel in taking on judges before a jury of the very constituents they represent.

Second, the quality of judge-made law and judge-moderated debate is inherently suspect. Well intentioned though they may be, courts suffer from institutional incompetence in the sphere of law-making. Judges are not trained to draft law. By their nature, judicial decisions are reactive — they do justice in the limited set of facts presented before the Court and are intended to right previous wrongs. Good legislation on the other hand, is proactive by nature. It seeks to correct future mischief and is rarely limited to a particular set of facts. Therefore, judicial decisions that double up as laws typically lack the foresight, range and depth that a well-enacted parliamentary law would bring to the table. Moreover, while parliamentary debate guarantees participation across political spectra, courtroom trials neither incorporate that breadth and freedom nor provide representation for every political viewpoint.

Third, if Supreme Court decisions catalyse parliamentary law-making and if both the Supreme Court and Parliament are suffering from institutional backlogs, the wheels of Indian democracy are turning very slowly indeed. If the Supreme Court docket has a 10-year backlog, parliamentary inertia seems to add another 15 to that number. Roughly translated, it would imply that our elected institutions are well behind the time curve. Unresponsive democracy is really no democracy at all.

Finally, in as much as it empowers an unelected judge to review laws made by elected representatives, a judicial decision is intrinsically counter-majoritarian and anti-democratic. This counter-majoritarian nature of judicial power however, is also considered one of its greatest strengths, when exercised within limits. But when executive and legislative visions are foisted on the elected branches, without any of the rigorous opposition and public debate that characterise the forging of prudent policy, we allow counter-majoritarian decisions to substitute for majoritarian ones, so that a set of unelected individuals begin to set the agenda for elected debate.

Together, what these challenges cumulatively represent is a problem of free riding. Because essential parliamentary functions are being at least partially fulfilled by courts, there is an impetus to use parliamentary sessions for politicking instead of fulfilling the task of responsive law making and debate. Where the need for responsive law-making is most urgent, Parliament has been content to either enact law with little or no debate or to short-circuit the process altogether by validating governmental ordinances. As another round of politicking threatens to adjourn democracy this winter, its potential to cause lasting constitutional damage merits introspection.

(Jeet H. Shroff is pursuing a Master’s degree at Harvard Law School.)

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