17, Nov 2017 | Amal Sethi

Many Constitutional Theorists in the Anglo-American World would find Chief Justice Khehar and Justice Nazeer’s dissent in the Shayara Bano Case (which they grounded in ‘Principles of Separation of Powers’ and the ‘Political Question Doctrine’) as the way to proceed in cases underlying policy questions. In fact, their preferred remedy of injuncting the practice of Talaq-E-Biddat (commonly known as Triple Talaq) for six months would in many systems be considered a paradigm of the idyllic Judicial Role of Constitutional Courts.

However, almost everyone I knew in the Indian Legal and Civil Society Circle’s dismissed the dissent in Shayara Bano without giving it any consideration whatsoever. While earlier ubiquitous in Indian jurisprudence, the Supreme Court of India has in the recent years seldom ever taken the effort to exercise restraint like the dissenting judges decided to do in Shayara Bano. Justice Khehar and Justice Nazeer were almost certainly wrong in Shayara Bano, but their judicial opinions were not entirely bereft of reason. The case raises numerous inquiries and any acceptance of the majority reasoning or dismissal of the dissent in Shayara Bano should preferably be done on extremely principled grounds rather than the rhetoric of“This was the right thing to do” or “This is wrong”. I have previously written about the various ins and outs of why the majority was right in this ‘particular’ case and had grounded my reasons on the failure of the political process to ameliorate the plight of Muslim Women in India.

As I mentioned, the ‘particular’ circumstances of Shayara Bano justified a strong intervention of the Supreme Court. There are a few more instances which I have discussed and classified under the head of ‘Democratic Protectionism’, but these aren’t too many. Even in the latter cases as general rule I believe that as a Countermajoritarian Institution in our Democratic Society we should put the Supreme Court under a microscope. In cases which involve strong policy questions and concern enforcement of second and third generation human rights, aggressive interventions cast serious doubts – not only with respect to academic questions of ‘Separation of Powers’ but also with respect to the real-life impact of the Courts decisions. To illustrate my point let’s take the recent so-called ‘Ban on Sale of Firecrackers in Delhi’ by the Supreme Court. This decision concerns a plethora of second-generation rights and involves a significant policy question. Such policy questions require substantial cost-benefit analysis, comments from stakeholders, detailed planning and budgetary considerations which Courts are not equipped to carry out. Even if we chose to ignore that for the moment, most policy issues require elaborate implementation measures by the elected branches. This was precisely what was lacking in Delhi. The ban went ahead but with very little enforcement. Pollution levels were still quite dangerous in Delhi. The Supreme Court decision only 1-made people optimistic that things would be better in Delhi this time around 2-made activists who strive very hard believe that they achieved a significant victory. Pollution in Delhi (or as a matter of fact in any part of India) require serious coordinated effort and cannot be solved by the judiciary alone.

So, what does the judiciary do in such cases? Two landmark cases of the South African Constitutional Court from the last decade give hints as to the way to approach questions involving second or third generation rights. The first case is the 2005 decision of Minister of Home Affairs v Fourie which introduced ‘Deferred Implementation’ to the comparative constitutional space. This case concerned the non-recognition of Same-Sex Marriages in South Africa. In deciding the case the South African Constitutional Court did hold the government to be in violation of the Constitution in failing to recognize the right of same-sex couples to marry, yet it stopped short of legislating from the bench and laying down a definitive remedy. It gave the government a year’s time to come up with appropriate legislation to enforce its decision. In turn, the government had within the next few months passed the Civil Union Act to actualize the Constitutional Courts decision. The Second case known as Government of the Republic of South Africa v Grootboom was decided in 2000 and is an example of what scholars refer to as the ‘Weak Enforcement of Socio-Economic Rights.’ This case dealt with the question of whether the South African government violated the right to housing enshrined in the South African Constitution by not providing temporary accommodation to individuals awaiting their housing under a house allocation program. In this case, the South African Constitutional Court while holding that the government did indeed violate the right to housing did not declare a strong remedy. It instead held that the government was required to ‘devise, fund, implement and supervise coordinated and comprehensive measures’ to provide relief to those in desperate need.

I believe these two ‘Weak Remedies’ of ‘Deferred Implementation’ and ‘Weak Enforcement of Socio-Economic Rights’ is what the Supreme Court of India should contemplate more seriously in cases involving second and third generation rights. A few days ago, a couple of my friends and I had entered a debate on Facebook regarding the Supreme Courts Ban on Sale of Firecrackers Order. Some of my friends who opposed my suggestions for ‘Weak Remedies’ supported the Firecracker Sale Ban decision on the grounds of “it might create awareness,” “at least someone is acting” and “something is better than nothing.” While I agree with the first reason, the same can however be achieved via ‘Weak Remedies’. On the other hand, the last two reasons are of concern. This is because of the two pointsthat I had described as the outcomes of the Ban on Sale of Firecrackers decision. Such decisions make the populace overtly optimistic, give the activists a false sense of victory causing them to become complacent and by and large, without any coordination from the government’s side end up being noise around ground zero. Let alone the academic arguments of violation of ‘Separation of Powers’; there exists empirical evidence that proves that the actual effects from such policy decisions by Courts is not very promising. The worries of the false optimism and sense of victory that such decisions create, has actually led famous constitutional scholars such as Harvard ProfessorMark Tushnet and former Dean of Stanford Law School Larry Kramerto write entire books (which have been followed with numerous responses, colloquiums, symposiums and entire law review editions) about how there is a pressing need to take ‘Constitutionalism Away from the Courts’ because all that Courts do is make people complacent about issues that concern them the most.

While I disagree with the radical suggestions of these scholars, I do see significant merit in taking seriously these so-called ‘Weak Remedies.’  The silver lining of awareness creation that some of my Facebook friends saw in theBan on Sale of Firecrackers decision can be achieved by ‘Weak Remedies’ as well. Further, asnotedby the Sociologist Steve Barkan, these decisions by declaring legal rights, help translate claims into rights and thus give the populace a sense of legal entitlement. It’s these legal rights that then help the populace mobilize and demand proper action by the elected branches. Some of India’s most prized legislations such as the Right to Information Act and Right to Education Act have been passed when civil society mobilized around rights declared by the Supreme Court. Most people I know find it hard to digest it, but in democratic societies, the populace must find ways to make the Government act. BJP, Congress or some third party; it does not matter. This is not a partisan issue. We must be behind the government no matter what. Neither can the Supreme Court solve all our problems nor should it even try to.

I only use the example of the Ban on Sale of Firecrackers order as a template to illustrate my argument regarding ‘Weak Remedies’. I feel that ‘Weak Remedies’might be the technology to be normatively used by the Supreme Court in questions that involve second and third generation rights. Ultimately the onus is on the populace and the civil society to mount pressure on the government to help us realize these rights. The Supreme Court at best can provide a helping hand in fighting these battles (which it should always do), but it cannot alone win these battles. Realizing this harsh reality quickly is something that will eventually profit both the populace as well as the black robed messiah’s sitting on the Court.

The Author is a Doctoral Candidate at the University of Pennsylvania where he studies the role of Constitutional Courts in a Democratic Society. He is also a Salzburg Cutler Fellow and a Global Women’s Leadership Project Fellow. He has been involved with the United Nations and its agencies on various Constitution Making endeavors.