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Justice Chandrachud recently spoke at King’s College in London against the tendency in India to bring every issue to the constitutional courts. He spoke of the need for discursive action and building of political consensus:
“[…] democratic society, which at its core, must resolve issues through public deliberation, discourse and the engagement of citizens with their representatives and the Constitution […] thinking of the Supreme Court as a one-stop solution to resolve complicated issues of policy and society is a reflection of the waning power of discourse and consensus building.”
While his point is well taken, it assumes this kind of discourse and consensus building – especially on politically contentious ‘policy’ issues – is possible without the authorities using coercive means against citizens.
This is precisely the point that Jeremy Waldron, a reputed legal philosopher of liberal persuasions, makes: When there is a dispute about the existence or extent of rights, it should be left to legislatures rather than to an unelected judiciary to articulate them, at the end of a vigorous democratic process. He argues that moral readings of the constitution by the judiciary have less democratic legitimacy. However, he does state that such a scheme is only practical if robust and alternative political deliberations are allowed in a society.
Waldron also argues that hate speech should not be granted ‘free speech’ protections for the reason that it disrupts democratic processes by making targeted groups politically delegitimate. This inhibits such targeted groups from engaging in counter-majoritarian political discourses. Systemic hate speech thus causes a democratic process deficit. It makes suspect – and seditious – those discourses initiated by the targeted groups, and criminalises all consequent political action.
In India, we face a dual problem that makes democratic discourse difficult: unrestrained hate speech and restraints on peaceful speech and assembly.
India’s constitutional courts in this moment are impatient with any degree of confrontation with the state, and with government, even in the most ordered form that entails petitions before superior courts. How would they then react to citizens demanding higher accountability, and transparency, from institutions, through political demonstrations on the streets? In the few examples that we have seen, the answer is clear.
Political discursive action is a splendid idea, but the constitutional courts must first provide citizens with equal and unhindered access to political spaces. The prevailing view that repeatedly challenging the government in power amounts to a criminal conspiracy does not aid such equal access.
Only a few days after Justice Chandrachud’s speech, and consequent to an entirely different set of impulses, the US Supreme Court ruled that the issue of whether women had the right to abort was not an inherent right in the US constitution. Rather, it was a matter that must be ‘returned to the people and their representatives’ for them to build a political consensus through debate and political discourse. In so ruling, the Supreme Court downgraded a recognised right of 50 years and said that it must be deliberated upon from scratch and a new political consensus arrived at.
The constitutional court’s endorsement of an issue itself goes a long way in building a politically legitimate discourse around it. It does give a boost to political movements, and in time they sometimes return to the courts after having built themselves a majority opinion, as we saw in the Babri masjid case, or may now see in the Gyanvapi case. Similarly, the constitutional court’s dismissal, or wavering, on issues also has a directly proportionate effect on the discursive space accorded to them.
The US Supreme Court has encouraged the people to go have it out in the marketplace of ideas. And so they will, from all indications on the ground. Perhaps, there would be disturbance and damage to public goods, perhaps some would be arrested; some poor mothers from marginalised communities might be forced to have babies that they are not in a position to raise, some others might have unsafe procedures, and all of them would be collateral damage in the process of ‘discourse building’. This is how it has been historically.
But in India at this moment, this seems an even less hopeful proposition. What would an involved politically alternative discourse on Article 370 look like, for example, in the event that the constitutional courts decide to send it ‘back to the people’? Would it invite a referendum? I fear that any alternative discursive speech on the subject would only incur allegations of provocation to violence, or of a terrorist conspiracy. One of the charges against certain leaders of the anti-Citizenship Amendment Act (CAA) movement is that they ‘conspired’ to provide to Muslims an articulation of their grievances, and a methodology for its articulation. I should think these are tools essential for any serious public deliberation. Rather, these charges were deemed sufficient to prosecute people like Umar Khalid under anti-terrorist laws and deny them bail in the interim.
The democratic space is somewhat circumscribed in terms of acceptable points of mobilisation. One would canvass a view that questions the truthfulness of the current administration, or its attitude towards rule of law, only on pain of being called an ‘anti-national’, or a ‘conflict entrepreneur’. By trolls, as by senior administrators alike. By prosecutors, and sometimes by the courts.
On that note, ‘urban naxal’ is another banal label that has come to suggest, without basis, a proclivity towards violence. Through repeated iterations, it has come to occupy a place in peoples’ imaginations, but also more conspicuously in popular media, police FIRs and chargesheets, where it is not easy to discursively challenge the phrase, without being targeted as someone who supports violence. This little label, devoid of any real meaning even, has pushed dissenters out of politically discursive spaces.
The place for public deliberations is not neutral. It is embedded with relations of power that make deliberations on certain topics much more agreeable than others. There are issues on which the government is almost waiting to be nudged into action, and then there are those, which are met with strict action. If someone were to do a quantitative analysis of notices issued on PILs filed, I believe we would come to a similar conclusion.
Of course, it’s equally true that in another time, there were other issues and other causes that moved the court, and again to the exclusion of certain other subjects.
If the constitutional courts won’t provide top-down solutions, then they must recognise and respond to the democratic process deficit, where deliberative spaces are skewed in favour of social and political power. It must support the dissenter and the political mobiliser on the margins.
The courts do what they can, when they can. Bail a protestor here, stay a demolition there, but thus far the constitutional courts have not recognised the systemic arrests, interrogations, and now the demolitions as structural harassment meted out in order to cut out access to the politically discursive space. Neither have they been able to stop the relentless hate speech calling for social, economic and political boycott of a community, thus making their engagement in political discursive spaces more difficult.
At the same time, coordinate benches of the Supreme Court have taken a bleak view of protests, calling them ‘an inconvenience to commuters’ and also holding that protest or dissent against present governments should not take the forms employed earlier against colonial rule. The courts have on occasion asked protestors to go home and sympathetically appointed ‘expert committees’ who might give definitive reports on behalf of the people. Also, the courts have justified the imposition of strict liability principles on organisers of protests, even where an organiser is not directly responsible for damage to property caused during a protest.
One might say that defending the ‘disorderliness of protests’ is a weak argument. It is popular common sense that public protests tend to cause ‘law and order problems’ and also damage to property. Here it must be said that there are credible legal opinions on how it might be wrong to assume violence each time protestors come out on the streets. In fact, that is an indication of the maturity of public discursive spaces. Moreover, as would be very evident from the selective application of the discomfort with disorderliness, it perhaps attaches not so much to material damage but to the issues raised by protestors and how much they rupture established discourses. The more disruptive an idea, the more disorderly it seems.
In a country where courts endorse ‘custodial interrogation’, an idea otherwise alien to common law, and where extended periods of pre-charge detention are granted for the asking, alternative political action is rife with danger.
There are moments in history when democratic process deficits are such that political discourse becomes terribly bounded, and then there are times when it is able to accommodate a multiplicity of competing politics. This is the week where we reminisce somberly about the proclamation of the ‘emergency’ – an authoritarian constraint on democratic discourse. This is also the week when cities across the world host the pride parade, a social, cultural and political reclamation of space that has come after years of discursive action.
This is such an open-ended week, with two distinct possibilities to choose from. It would appear, however, that we are sadly going one particular way.
Shahrukh Alam is an advocate in the Supreme Court.