In the United
States, the Senate hearings on nomination of Judge Amy- Coney Barrett is of
course evoking a strong and passionate debate. The timing is what it matters. The
intelligentsia on the Democrat side prefer waiting for the November 3 elections
before the nomination happens. If Judge Coney Barrett, gets confirmed, the
Supreme Court will be heavily weighing in favour of the Conservatives. The Democrats,
if they win the elections, can propose to increase the strength of the Court,
yet it is about the adjudication of any disputes that might arise in November 3
elections that gives a strong edge to the Republicans in the judiciary.
There was an
interesting article by Cass Sunstein in Bloomberg Judge Coney Barrett. The article
is available here and Sunstein’s
tweet on this is available here.
There is an interesting response by noted economist Oliver Blanchard to the
tweet of Sunstein. The response tweet is available here.
The article and the tweets around that article centre around a few interesting
propositions. It is about the constitutional fundamentalism. Judge ACB as she
is popularly being known has more than one occasion called upon implementing
the law as stated in the original form and not to predilections of the judge.
Her revealed
preferences notwithstanding, her stated preferences are very simple. As stated
above, she believes the judge must apply the law as it written there and not what the judge
wishes it to be. This reveals a distinction between the positive and the
normative. To her, the temptations to be normative is something to be resisted with. Further,
she seems to be clear that judges must not be policy makers. Sunstein goes on
to point out that her actions have often betrayed what she has been stating. Yet,
as one reads the piece, it is not clear whether Democrats oppose her for the dichotomy
between her stated preference and revealed preference or is it about her
position itself which goes against the normative applications. While the debate
might ignite passions, it is with some irony that one can note, the exact
opposite prevails in the Indian context. It is the Indian liberals who have a
predisposition for so called constitutional fundamentalism and advocates
normative applications.
Regardless of
her actual actions and judgments, Judge ACB is fortright and correct in her
views. The judges must interpret the law and implement the law and not make the
law. The law might be an ass, yet it is the law that is enacted by the executive
with the approval of the legislature. The legislature passes the law. The judiciary
cannot make the laws. The judges can be never be policy makers. Yet, the
liberals across the world would want to engage in judicial capture and start
framing laws when the legislature and executive branches go out of their
control.
In India, there
is wide section of intelligentsia which is not averse to judicial capture. The public
interest litigation is a classic instance of ensuring a say in policy through
judicial interventions when they do not have a presence in legislature or
executive. The original concept of PIL has long gone into the dustbins. It is
being manifested as the tyranny of the unelected. Any legislative action is
sought to be stayed by the court of law. The courts of law have all the right
to adjudicate on the same, yet the premise is law is constitutional and valid
till held otherwise. The tyranny of the unelected is to make it the opposite. Any
law is invalid and unconstitutional till it satisfies the so-called constitutional
patriots. The law might be upheld by the court of law yet it would not be
accepted because it does not suit the whims and fancies of that intelligentsia
that cannot get elected but wants to run the country. India has paid a heavy
price in recent times on a number of issues relating to their behaviour. One of
the frustrations that is emerging from this intelligentsia is because they are
not able to use the judiciary to wield power as per their whims and fancies. They
feel that judiciary is no longer dancing to their tunes. While in this context,
there is considerable similarity among the limousine liberals throughout the
world, the irony is Indian and American liberals differ in their emphasis on
originality.
The constitution
is merely a framework for effective functioning of the country and nothing
more. It cannot be sacrosanct. The constitution was written in a context and
period of time, yet with passage of time, the conditions vary. Britain never
has had a constitution and it has not been hampered by the lack of constitution.
France has had five constitutions in the republican era, the reason why France
is now called the Fifth Republic. Indian constitution too did not evolve in a vacuum.
It is a product of more than five thousand years of civilization. India did not
emerge on August 15, 1947. It was just that one rule gave way to another. To the
Indian liberals, India was non-existent before August 15,1947. To them, if
there is one document that is whole and sole, it is the constitution. This
fallacy has to be called out. In fact, the constitution itself has been amended
more than 100 times. For instance, the word socialist was inserted into the
preamble indicating a path towards socialism. Yet for all its glamour,
socialism is a form of allocation of economic resources. As Dr. Ambedkar
pointed out, to insert socialism would be arguing no other form will emerge
that is better form of economic and social equity than socialism. To the
liberals, it is their version of End of History as opposed to the original
right wing proposition of Francis Fukuyama.
While the
American liberals might be right in criticising Judge Coney Barrett for her
views on constitutional originality, their own counterparts in India have the
exact opposite view. In fact, the American liberals themselves would go all out
against the Indian rejection of constitution as and when it happens proclaiming
how the constitution is the bulwark and foundation of Idea of India. This must
be called out. To them it is a mere smokescreen to wield power behind the
scenes through convenient forum shopping. To some others, it is a tool to wield
to further their agenda in the garb of constitutional protection. The Indian
culture and civilization is not a product of the constitution that came into
force on January 26, 1950, it is the other way round. The sooner India realises
and follows the path of the former, the better it would be.
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