WEBINAR 2: GLOBAL CHALLENGES - Constitutional Decay and the Crisis of the Liberal Imagination

Nigam NUGGEHALI

11 November 2020

Liberal constitutions have an abiding faith in elected representatives (henceforth called ‘the polticians’). The great democratic constitutions of the world, for example, the United States, Great Britain and India, trust politicians to deliver their countrymen and women into an era of freedom and prosperity. The media might term the politicians as venal, self-centred, and subjects of scorn and mirth, but the respective constitutions take these very same politicians quite seriously. They are given formal grand sounding names and their election and terms of office are mentioned in great detail. Politicians make up the legislative and the executive branch, with only the judicial branch occupied by unelected persons.

The bulk of the political power, i.e., the power to govern the people is apportioned between the legislative and the executive branch. I will focus on India in this essay, but the situation is the same in the United States and in the United Kingdom. In India, the executive and the legislature together account for the bulk of the political power. The judiciary has been typically given more limited powers of interpreting the law and preventing the abuse of the constitution. The judiciary has also been cloaked with a limited independence, mainly to do with their tenure.

I argue for a re-evaluation of the liberal idea that the bulk of the governance must be left to the politicians. One can deny that politics (the practice in which the politicians are involved) is a force for the good and at the same time accept that politics can bring about good outcomes. Politics is necessary for security and for creating the conditions for cultures to flourish, as Hobbes had pointed out in the Leviathan. But the practice of politics, with few exceptions, does not encourage politicians to work for the common good intentionally. Politicians intend to perpetuate themselves and focus on control and coercion over others.

If politics is not a force of the good, in whose hands (and hearts) does justice lie? There is a far more congenial place, despite its supposedly anti-democratic credentials: the judiciary. A completely independent judiciary that influences every major economic and social activity is the place where we must seek to encourage a culture of advancing justice. While liberal constitutions allow for limited judicial functions with limited independence, I argue for a judicial function that is present pervasively in top to bottom governance issues and is completely, not partially, independent of politicians.

Allowing the independent judicial function to permeate our culture in the way described above requires a review of the liberal imagination. Liberals must acknowledge the need for an independent review mechanism outside of business and political interests. We have seen the beginnings of this realisation in the private space already, with the emphasis on independent directors. We need to see a similar recognition in political governance, and in particular the hallowed doctrine of the separation of powers (hereafter ‘SOP’).

The SOP doctrine is a familiar story in the writings of Montesquieu, The Spirit of the Laws and in the Federalist papers (especially No. 47, 48, 49, 50, 51). The SOP doctrine can be analysed from the perspective of two models.  In one version of the doctrine, the three bodies perform distinct functions that are justified as functions of public order carried out in a cascading fashion. The legislature issues directives or guidelines regulating the behaviour of the residents of a political community. The executive implements the directives of the legislature. The generality of the directives results in occasions that call for interpretation (how to interpret ‘benefits’ in the legislation on maternity benefits) or problems of application (how to apply the standard of reasonability or freedom of expression) when the directives are enforced by the officials against the residents or by the residents against each other. The courts step in at this stage of interpretation or application by issuing rulings that determine authoritatively the application of the law to particular facts.

In this version of the SOP doctrine, the dominant political function is performed by the legislature, assisted by the executive. The judicial function is the subordinate political function because courts apply the will of the legislature. The version of the SOP that I want to advocate unsettles the cascading story by suggesting an alternate model that rejects the possibility of the directives of governance cascading down to their intended subjects. This model envisages judges as the identifiers and implementers of the moral principles applicable in political communities. Such a function cannot be performed adequately unless the judicial function is performed at all the sites of legislative and executive action.  I will have more to say on this below, but it is important to note here that by identifying the judicial function as co-terminus with the legislative and executive functions, this model paves the way towards a new interpretation of the SOP doctrine, one in which the judicial function is performed pervasively, not sporadically or occasionally, and the body of people performing the judicial function are truly independent of the body of people performing the legislative and the executive functions. 

Let’s consider the implications of this reappraisal of the SOP doctrine on constitutional design and governance systems. Consider what might happen in an Indian village if a policeman arrests a person accused of theft and keeps her in jail overnight. The thief might claim to her friends and family that the policeman arrested her because he was bribed to do so by another person or because he did not like her questioning his methods or some other reason unrelated to any legal grounds for arresting and detaining her. It might be the case that in a few months or even a few years, the woman is able to garner the attention of a court of law that proclaims that her arrest and detention are without any legal basis under the statutes that govern criminal behaviour and criminal procedure. In India, such cases sometimes travel all the way to the Supreme Court, and in many instances take a decade or more to be resolved. In the meantime, the woman might be physically and mentally traumatised, and perhaps the policeman is suspended from his work.

The policeman might argue that because of the daily case load in his area, he has little time to determine guilt exhaustively. He has to make arrests after a hasty preliminary inquiry with the owner of the stolen goods because the alternative-rampant crime-might be worse. He might argue that while he received gifts from the local politician who encourages police to be tough on crime, those gifts were given to everyone employed at the police station. He might also contend that the accused was also guilty of disrupting the peace of the community by getting excessively inebriated and her arrest was partly to do with her anti-social behaviour.

Consider how this situation might be addressed if an independent and pervasive judicial decision  making function  was built into the governance system. Every government function will have a judicial wing built into it. For example there will be a judicial officer, by whatever name called, associated with the police station, who would be empowered to settle the dispute between the policeman and the woman. His mandate is not to usurp the police powers but to make sure that the rule of law is being followed. The exercise of judicial power will be subject to appeals but since under the new system the judicial function is being performed in a tight-knit independent structure with no political influence, there is a much greater likelihood of a responsible and efficient system of appeals. Like in other mature jurisdictions, an independent judiciary with a good reputation will make sure that the appeals from lower rungs of the judicial chain will be restricted. One of the reasons for the Indian Supreme Court hearing a large number of appeals is the public’s and the lawyer’s lack of faith in the integrity and competence of the lower judiciary.

The discussion so far is theoretical unless there is a real chance of the judiciary willing to be independent and having the capacity to be independent. These are socially contingent factors that might be present in one country and not another. Due to a combination of events, I believe that these contingent social and political factors are present in India. Through a number of judgments creatively interpreting the constitution, the Supreme Court judges in India have insulated the appointment of the higher judiciary (Supreme Court and High Court judges) from direct executive involvement. Judges are selected by a collegium of Supreme Court judges although the final order of appointment is issued by the executive. The virtual usurpation of the power of judicial appointment by the Indian Supreme Court is an indication that the Supreme Court is willing to assert its independence from the executive.

Similarly, there is a longstanding tradition in India of allegiance to people of integrity. The widespread allegiance to Mahatma Gandhi is one example of this tradition. There is a possibility that a social movement consisting of a set of independent judges with incorruptible reputations would garner public support. If there is adequate public support, the judiciary would be able to exert a more pervasive and comprehensive influence on the politicians. The Supreme Court will have to institute a unified national judicial service under its direct command. The national judicial service will be embedded in all forms of government service right up to the retail services that the citizens usually comes into contact with. To return to the example given above, judicial services ought to be available at the local police station where executive action most affects the citizen. There is little point in the delivery of justice if justice is delayed and judicial action is taken many years after wrongful executive acts have taken place.

The liberal idea of government is based on trusting the elected representatives to act in the public interest. There is nothing in the history of politics to suggest this is the case. There is no reason why a separation of powers should result in the executive and legislature holding the upper hand and the judiciary being relegated to third place. I have argued that for democracy to work properly, and to prevent democracy from being abused, we must have a more independent, comprehensive and pervasive exercise of judicial power. A natural question to ask is how will we present the abuse of the judicial power.

I believe that in order for the judicial power to fulfill the functions I have pointed out, self regulation is the ideal we ought to aim at. The leaders of the institution must set the highest standards of integrity and probity, and it will be left to the leadership group to engage with alleged abuses within the judiciary. The Indian Supreme Court, which has tried doing something like this, has not really followed it through properly, and this is something that must improve in the future. One might say why can’t we expect a similar level of optimism regarding the politicians. I think the answer would be that the practice of politics is not designed for self-correction in the way the judiciary is. Expecting the political class to reform itself would be to underestimate and ultimately ignore the self-serving nature that is fundamental to the nature of politics.

Prof. Nigam Nuggehalli is the Dean of the School of Law at BML Munjal University. He was previously a Visiting Professor at the National Law School of India University, Bangalore.  He has also taught as an Associate Professor in the School of Policy and Governance at Azim Premji University, during which time he also headed the university’s newly founded LL.M programme.

Professor Nuggehalli holds a DPhil from the University of Oxford Faculty of Law. Before moving to India, Professor Nuggehalli was a Principal Lecturer teaching tax law and commercial law at BPP Law School, London.

As a lawyer and as a law academic, Professor Nuggehalli has extensive research and publication experience in legal issues relating to international taxation, commercial law, and statutory interpretation.