Hans Dembowski v Harish Salve

Twenty years ago a German Sociologist, Hans Dembowski, who had researched India's Public Interest Litigation culture wrote- 'modernization theory seems to be the only viable approach to development studies.'

This is foolish. Economics explains development or its lack. Modernization is about mimetic models and exit and entry. What the German was seeing in Bengal was a specific sort of Social Entrepreneurialism which had large enough reputational effects to permit some semblance of activity in a politically sclerotic part of the world where nobody knew whose thugs and whose black money was backed by the geronotcratic politburo. In other words, there was political stasis in which some 'grassroots' Social Entrepreneurs could lobby for 'public goods' of a type some Judges were personally prepared to sanction. Entrepreneurialism can be a good thing. It can increase the common knowledge information set. Perhaps, the type of activism Dembowski recorded made Calcutta and Howrah more livable. But Dembowski himself was charged with contempt of court. He had to change publisher. Clearly, his scepticism about Judges was justified. However, the real problem was that the Left Front was senile and out to lunch. Development- i.e. organized Crime- stalls where the pecking order amongst Developers is unclear. Why? More than money could be lost. You could be killed or go to jail. 

Dembowski says- 'Modernization implies functional differentiation – and the fact that the judiciary in India is increasingly taking advantage of its relatively large degree of autonomy does suggest that this is underway.'

Sadly, the Judiciary- by its very nature- is unable to specialize, though it might have a shite 'Green Bench' which tries to do what Urban Planners should be doing,  and thus it can't attain 'functional differentiation'. It could be the locomotive for  'modernization' if it simply defended property rights and enforced contracts and locked up bad guys. But it can't be the Messiah of the 'Third Way' being all things to all men and plants and little fishies. It can merely be a 'tamasha'- a spectacle.

Back in June, Harish Salve- thinking perhaps of the contemptible Prashant Bhushan who is a veritable PIL factory- pronounced the epitaph on PIL litigation in an article for the Times of India-


In their traditional mould, a court adjudicates disputes between parties – and in that context examines the causes brought before them.

That's why it can be the locomotive of modernization. It can provide a useful service for a fee. Its ratios re. Res Integra- i.e decisions on novel questions- are very helpful for the burgeoning of commerce within an increasingly predictable, frictionless and high trust world. 

Sadly, the Indian Bench decided to go in the other direction. It wouldn't provide a value adding service. It would either enrich itself or play the Mahatma. 

 The constitutional courts opened their doors to causes brought before them – where there were instances of violation of constitutional rights of the underprivileged. This was extended to apathy in enforcing environmental law. The court took on the task of examining causes. The PIL was born!

But began to die almost immediately. Why? There was no follow through. The thing was ad hoc when it wasn't corrupt or counter productive. Still, it was a badly needed distraction from the fact that 'India grows by night'. In other words, the Messianism of the Bench prevented it rigorously fucking over such green shoots of Economic growth as were guiltily coming up. 

With time, the growth of this kind of intervention by the court gave birth to organisations whose objective was to file PILs to champion public causes. As intervention of the courts increased, PILs increasingly became at times a vehicle for “eminent” members of civil society to clothe their point of view in a constitutional garb and seek its enforcement as enforcement of pseudo-constitutional rights. Undeterred by the consequences of monumental failures of court monitored investigations such as the Jain Hawala case and the 2G case, petitions continue to be filed seeking court monitored investigations into all and sundry.

Edward Lim of the World Bank has explained that India could have done what he helped China to do. But the PIL celebrities made more money preventing Development than the bureaucrats who wanted to let it happen. 

Left leaning economic philosophies which have been abandoned in their country of origin, and whose protagonists have lost at the hustings, are attempted to be fed into the system through judicial edict. Whether it be privatisation or nuclear power generation, creation of new highways, new ports or new airports – the court is asked to step in and prevent the elected executive from implementing its policies.

But Governments are glad enough of the excuse to do nothing. The truth is most infrastructure projects have negative r.o.i. 

2009-14 saw a dramatic rise in such PILs – as governance shrank, the remit of the courts’ power seemed to grow, for nature abhors a vacuum. This intrusive jurisdiction had, at some point, to be tempered. The need for a course correction was apparent to those who dispassionately examined the working of the institution. And that is what has happened.

But it had happened before and would happen again. 
Justice is not a cloistered virtue, and the judgments of the court must be open to public debate. Criticising the judges and condemning the institution by ascribing motives to the judges and accusing them of lack of intellectual integrity is quite another matter. The Jain Hawala case judgments and the 2G judgments have exposed the dangers of court monitored investigations, where reputations are destroyed and businesses laid waste, only to end in mass acquittals. The coal allocation judgment and the Goa mining judgment have generously contributed to bringing down the GDP. Yet any suggestion that the judges, who dealt with those cases, acted out of anything other than the highest of motives is preposterous.

This course correction by the court has unsurprisingly upset those who had gotten used to using the judicial system to dictate their philosophy to the elected executive. 

Unless the thing turns out to be a way of locking in votes in which case the Government claims the credit. 

In their arrogance, they perceive any court which does not toe their line as being subservient to the executive. Judges are maligned, as a warning to those who follow.

True. But Judges also pull each others' hair and try to scratch each others' eyes out once retired. 
A constitutional court is always making choices of what causes it takes on. That is the power of judicial review which is rooted in the court’s discretion. Former judges who have been a part of the system should be more sensitive to the difficulties of sitting judges in finding the right balance between competing interests and equities. Even if they choose to criticise judgments, condemning the institution for its choice of causes it seeks to entertain, and giving it negative grades suggesting a fall in values, is deeply disturbing.

The criticism of the court in not entertaining the petitions relating to migrants, to the extent it seeks to render moot the correctness of the judgment, is within the right of fair comment. To suggest that the court lacked the courage or human values to take on the matter when it was first presented, or worse, that they capitulated before the executive, is not only contemptuous but destructive of the edifice on which rests our fragile democracy.

Solicitor general Tushar Mehta, in a trenchant criticism of some who have been filing PILs, raised the issue of how the institution must address this situation caused by ceaseless irresponsible criticism. His words, like those of Hogg, may have been strong. But the issues raised by him require careful and serious consideration.

Our judges do a rather thankless job. And for them silence is the only option – they speak only through their judgments. Relentless attacks on the judiciary are designed to warn judges that those who do not conform will be condemned. If this tendency is not curbed, it would erode public faith in an institution that burns the midnight oil to serve the citizenry.

The Indian Justice system does not serve the citizenry. It is wholly dysfunctional at the lower end and almost unbelievably stupid at the upper level. It should enforce contracts and 'add value' by taking up Res Integra issues so as to reduce uncertainty. Bleating about rights is silly when remedies are ineffective or unavailable. 

At one time, some Indians may have agreed with German sociologists who said- 'It will become clear that Indian judges are in a strategic position to enhance the so far only rudimentary public sphere.'

This is not the case. The public can enhance the public sphere- provided political stasis does not prevail for Lebanon type reasons- i.e. the crooks can't agree on anything save enriching themselves while the country goes down the toilet. The Judiciary can do nothing- except its job which is to enforce contracts and lock up bad guys. It needs to play 'the bourgeois strategy'- i.e. reinforce existing property allocations- because this gives property owners an incentive to pay into the system. If it doesn't do this, uncertainty increases so people hedge on other markets for the same service. That's bad for both 'modernization' and the Law as a service industry. It gets disintermediated. People make fun about the size of its genitals. It starts to sulk. It begins to think that maybe it should talk about Mahatma Gandhi and the great ideals this Nation was founded upon. Then it gets drunk and its wife beats the shit out of it.  

Dembowski, with that deadpan wit Germans are famous for, says-

The executive  and legislative branches of government cannot be expected to (enhance the public sphere) as it would undermine conditions that–while being unfortunate for governance as a whole–are quite comfortable for those holding public office.

Dembowski does not say 'Indian Judges don't want to do the job they are paid to do because if people could actually get justice then Judges would be treated like plumbers or electricians. In this matter Judges are like bureaucrats or academics. Why do what you are paid to do if you can fiddle around with extraneous stuff?'

Dembowski then says something which an Indian would laugh at.

 The judiciary, in spite of its own problems, is not deeply entangled in the muddled affairs of the other government branches.

Actually, every branch of Government has a bunch of pending cases filed against every other branch of Government. 

 Therefore, it is in a position to give society more leverage over state authorities.

But if it had 'leverage' that leverage would be contested by all and sundry. Thus only stasis can prevail unless you have an ideological Bench on the same page as the Executive. But, in that case, both branches would only be doing their own jobs. Modernization would start to occur. Development would take off. Large parts of India would stop being shitholes. Mahatma Gandhi would turn in his grave. The betrayal of the ideals of the Founding Fathers would be complete.