For the court, how much is too much?

Source: Hindustan Times dated 29.07.2019
RISHAD A CHOWDHURY Rishad A Chowdhury is an Advocate-on-Record at the Supreme Court and Partner, Verus

If the bona fides of constitutional authorities are suspect, should the Supreme Court step in?

The events of the past few weeks in Karnataka have thrown the actions of various constitutional functionaries into the realm of critical scrutiny. The speaker’s decision to take time to consider the resignations submitted; the governor’s insistence on a trust vote; the chief minister’s attempt to prolong the trust motion over several days; and the motives of the large number of legislators changing sides – all of these are under suspicion.

How, if at all, should the apex court have responded? Is a completely laissez-faire approach to the actions, even if suspect, of high constitutional offices such as that of the speaker or the governor, desirable or even feasible? What level of deference is to be accorded to these decisions, and when shall the

Lakshman Rekha be judged to be crossed? Much of constitutional and administrative law doctrine is predicated on a basic assumption of the essential bona fides of decisionmakers. The law responds to, and acknowledges, this by affording a fairly high level of deference to the decision-maker of first instance. When the person concerned is a high constitutional authority, the deference is close to absolute. One question the Karnataka legislative assembly crisis, and several others in recent years, have posed is how to respond when this underlying assumption appears to no longer be justified?

One answer might be that a greater degree of judicial scrutiny, and higher frequency in intervention, is warranted. And in a variety of constitutional matters in recent years, this has, in fact, happened. But the Supreme Court’s experience in the present case shows some of the limitations, and pitfalls, of such intervention. One is that, quite often, there are no easy answers. Human nature being what it is, the motivations of all actors are complex and multi-layered. Legal principle may tell you that decisions on extraneous or mala fide considerations are subject to judicial correction, but identifying these in a fast-moving and politically fraught situation is easier said than done. This is particularly challenging for a constitutional and appellate court like the Supreme Court.

Facts are primarily gathered from affidavits and pleadings submitted, and in a bitterly contested terrain, factual certainty is hard to achieve. Some of this is possible through court-appointed Commissioners, amicus curiae and the like, but all of that takes time too. When the proverbial knock on the door comes at 2 AM, hurried interim orders, even with the best of intentions, are as likely as not to miss crucial nuances and perhaps make matters worse.

So the courts must, undoubtedly, act cautiously, but should they not act at all? The US Supreme Court has recently grappled with a similar dilemma in the context of some of the most egregious political abuses in their system of government – partisan gerrymandering (strategic reshaping of the boundaries of voting districts) to disproportionately increase the number of seats likely to be won by a given political party.

In Rucho v. Common Cause, a closely divided court held, by a 5:4 majority, that such gerrymandering presented political questions beyond the reach of the courts. The majority judgment, authored by Chief Justice Roberts, held that the Constitution had expressly entrusted districting to the political branch of government and that some partisanship was, therefore, inevitable. The court further reasoned that the constitutional challenge effectively amounted to asking, “How much is too much?”, and that this could not be resolved on the basis of manageable judicial standards. In a sharply-worded dissent, Justice Elena Kagan accused the majority of abdicating its judicial role by condoning constitutional violations going to the core of the democra ic process. The courts have to deal with matters of degree in all sorts of contexts, she pointed out, and given the overwhelming evidence of deliberate undermining of the opportunity of equal participation in the political process in the facts of the case, “This much is too much”.

Closer home, our Supreme Court will have to continue to grapple with the question - “How much is too much?”. Given structural and cultural differences, the Indian Supreme Court is confronted with such politically thorny questions in different forms, and arguably more frequently, than some other constitutional courts across the world. A large number of Benches, and the fairly short tenure of judges, also complicates matters by injecting uncertainty and unpredictability into the legal process. But the core judicial challenge remains.

Keeping in mind the relatively high regard the Supreme Court is held in by varied sections of the Indian polity, but also given inherent institutional limitations, how and when can it best enforce the rules of the game? How can it encourage our noisy and chaotic democracy to be the very best version of itself? None of these questions admit to easy answers. And so the court’s task, in the Karnataka case but also more generally, is a critically important but none-too-enviable one.