Just 7 years ago, many left-liberals were still pinning their hopes on the Indian Supreme Court pushing through a 'rights based' agenda of social reform. This was bizarre. The Indian Constitution allows for no such possibility. Socio-economic policy decisions must be made by the Legislature which alone has the power to raise taxes, and that policy can only be implemented by the Executive which controls the administration.
Justice (Nyaya) must be wholly separate from Policy (Niti). Amartya Sen's 'Idea of Justice'- such that Nyaya should usurp Niti- represented the folie de grandeur of the Ivy League intellectuals who thought the Indian parliament was so stupid and corrupt and the Executive so decrepit (which, admittedly, it became under UPA 2) that only the Judiciary could actually make any decisions. Politicians of the period, however rustic, knew one Latin phrase 'sub judice' and used it to kick the can down the road into the Courts and thus escape responsibility for doing anything at all.
It is against that historical background that we must understand the following piece of absurdist wit still to be found on the Columbia University website-
New York, October 1, 2015—Scholars from around the world
A pedant is not a scholar nor is a guy doing a PhD in worthless shite. New York has taxi drivers from around the world- some with higher degrees from Universities in their own countries. It can get shitheads to show up for any type of seminar provided modest grants are provided
gathered at Columbia Law School recently to examine the impact of India’s Supreme Court on progressive social change at a two-day conference held by the Center for Constitutional Governance with generous support from the Dr. Ambedkar Chair in Indian Constitutional Law.
This was foolish. It was already obvious that entitlement collapse occurs because of fiscal constraints. PIL activism had led to nothing. In the short run a particular Judge might set the cat amongst the pigeons and cause a flurry of bureaucratic activity but once he retires even such cosmetic changes as may have occurred are reversed. True, short term, some bunch of Leftist Academics could help the terrorists but then there would be a popular backlash and extrajudicial killing would make the strictures of the Bench irrelevant or an exercise in Dadaist wit.
There is a widespread belief among Indian academics, political activists, and journalists that the Indian Supreme Court is not only an effective agent of politically progressive social change, but, in addition, perhaps the only governmental institution capable of furthering the interests of the relatively disadvantaged.
This is mad! Why not put your faith in the Boy Scouts or Girl Guides instead? If both the Executive and the Legislature are utterly decrepit and dysfunctional, there is simply nothing the Judiciary can do because it has no fiscal or monetary or military or other similar powers. Its one weapon is contempt of court. But Prashant Bhushan made it ineffective. If the Bench can't even discipline a surly advocate, fuck can it do to politicians or policemen? Only the Executive can give teeth to the Bench's bite. If the Administration truly is shit, then Judges can merely bark till they go barking mad.
Justice is a service industry. The relatively disadvantaged can't hire lawyers to get them incentive compatible remedies- i.e. remedies which don't suddenly disappear because it is in nobody's interest to provide them. But they can vote for people who form, as Modi has done, an effective executive which does have an incentive to help the disadvantaged precisely because they themselves spring from that class. The RSS is not an elitist organization. It is one where the Harvard graduate may be junior to a guy who works in his Daddy's factory. That doesn't matter because the RSS is about volunteers getting together to serve the community. But there is also a martial aspect to the RSS. Prince Harry had no problems taking orders from the sons of bin-men when he was in the Army. The Left made out that the RSS was an upper caste affair which would be used mercilessly against OBCs, Dalits and S.Ts. This simply has not happened. The RSS is 'Hindutvadi' and rejects casteism and regionalism- at least, in its overt actions. It may be that a secret clique of Chitpavans is trying to restore the rule of the Peshwas but nobody gives a fuck. At this stage anything seems preferable to the death throes of a Dynasty dying nasty.
The conference was designed to explore this belief by rigorously examining the empirical effects of decisions of the Indian Supreme Court on the everyday lives of marginalized citizens on issues such as electoral corruption, communal riots, sex-selective abortion, caste discrimination, and the right to education.
The judicial decisions had no effect whatsoever. Only executive actions did. But those actions were only forthcoming when Parliament would have pushed for the thing were it not too busy being a bear-garden.
Gillian Lester, Columbia Law School’s Dean and the Lucy G. Moses Professor of Law, welcomed attendees and the opportunity to engage scholars and students in collaborations that span countries.
Gillian E. Metzger, director of the Center for Constitutional Governance and the Stanley H. Fuld Professor of Law, said the conference—the center’s first to explore comparative constitutional governance—would not have been possible without the support of University Professor Jagdish Bhagwati and Dr. B.R. Ambedkar Visiting Professor of Indian Constitutional Law Sudhir Krishnaswamy.
Krishnaswamy and Khosla, to their credit, had raised red flags about a blind belief in judicial activism. They pointed out that the Bench's ratio in AK Thakur (an affirmative action case) was narrow and based on previous rulings. Ultimately, everything came down to legislatures. Indeed, it has become obvious that the States ignore the Bench's decisions on contentious matters- e.g. reservations or water sharing. It was always obvious that the Indian Bench enjoys no great popular support. America may be a land of lawyers. India despises lawyers. Indeed, the Mahatma wanted to scrap the existing system but Indians don't want any sort of legal system unlike Sinn Fein which actually set up its own courts and then incorporated them with the British system after Ireland became independent. In India, however, nuisance cases proliferate. The Law is a tool of harassment. Court is a place where everybody lies their heads off under oath.
The Indian government established the Ambedkar chair in 2010. The title of the chair honors Bhimrao Ramji Ambedkar, the architect of the Indian Constitution, who graduated from Columbia University in 1915 and later earned his doctoral degree there.
Everybody pretends to worship Ambedkar who, sadly, was a perfectly sensible- if irascible- man. The proper way to show him reverence is to develop a Utilitarian, Coase/Posner type 'Law and Econ' tradition. Instead, we have a Sen-tentious 'capabilities' approach or 'rights based approach to development' which runs out of money almost immediately and thus merely contributes to bureaucratic clutter.
Since the chair was created, the Law School has expanded its engagement with Indian constitutional law, including hosting three lectures by acclaimed Indian historian and writer Ramachandra Guha
But Guha is an utter cretin!
and a conference celebrating the 100 years since Ambedkar first came to Columbia University.
Krishnaswamy said empirical analysis of the Indian Supreme Court is a relatively new field with little scholarship.
It is a highly dispiriting field. The fact is, India is a very very poor country which faces massive fiscal constraints. It can pass all manners of laws but they merely become a tool of harassment or an excuse for bureaucratic delay and a cause of economic paralysis. The same thing could be said of an empirical analysis of the working of the Indian Planning Commission. However, whereas that last has been transformed into a relatively harmless Policy Advise Bureau, the administration of the Courts has not been reformed. The Supreme Court has tried to get judicial vacancies filled once or twice but recruitment is about 20 percent less than it should be in the lower courts. The entire system needs to be streamlined and standardized. The problem is that the Courts exist merely to help criminals. Otherwise they are useless. Nobody wants to pay for them. Who cares if there is a pendency of 50 million cases? Most of them would be nuisance cases or otherwise mischievous in some way. Justice is a service industry. If it is shit, it will be disintermediated or left to wither on the vine. It is hilarious that the 'intellectuals' and 'activists' put their faith in the rottenest limb of the Indian state. It shows how cut off from reality the Academy has become. It had given up on politics at precisely the time when Kejriwal showed that ordinary people could form an anti-corruption party and take power. During this last decade, we have also had Prashant Kishore, the king-maker of Indian politics, who has got politicians to focus on 'deliverables' and thus improved democratic functioning. Meanwhile, the Ivy League trained intellectual and activist has been becoming more and more paranoid. They have retreated to a fantasy world featuring Nazis and Fascists. Rahul, the best educated member of his dynasty, mouths the beliefs of this coterie. He says India is not a Nation. Its democracy is dead. His party must be anti-national just as it is anti-democratic. But this is exactly the position of the intellectuals and the activists. India, they feel, has turned its back on them, and so India is evil. It should be broken up. That means Hinduism has to go. Rahul has now converted to the Lingayat sect which his party is trying to have declared non-Hindu. There is a certain logic to this. But that logic is anti-Indian and anti-democratic.
He emphasized that the conference was the start of a new focus on this area: one that is “terribly important” especially as the “Indian court is a progressive beacon of hope—a pioneer in the developing world.”
Seven years later, these same people consider the Indian court- which is now slightly less shite- a horrible tool of Fascism. But then they see nothing but Fascism anywhere they look. Their own SCOTUS has shown that 'due process' activism is a double edged sword. What SCOTUS gives SCOTUS can take away. Today it is Roe v Wade. Tomorrow it will be Lawrence v Texas. Then it will be the turn of Sullivan v NYT.
Constitutional scholarship of a useful sort did exist. But it was Federalist. Now, at last, Clarence Thomas- who was taught by Sowell- has found his voice. What he has to say is perfectly sensible. Substantive due process can lead to a hypertrophy of rights. But, if their remedies are incentive incompatible, they will disappear in any case. Only Parliament can provide the funds for remedies by raising taxes. But even Parliament will have to prune back such provision if tax revenue is insufficient. This is a fiscal question. The alternative- viz. shifting the obligation to the employer or the consumer- faces the same problem. There is exit from the market as the cost of compliance rises. More and more transactions are 'off-shored'. The thing collapses by itself.
The Center for Constitutional Governance at Columbia Law School is a non-partisan legal and policy organization devoted to
talking nonsense and living in a fool's paradise. Just think about it for a second. Everybody knows the US is very rich. India is very poor. How the fuck can cunts sitting in Columbia prescribe for India? Why not demand that every Indian should be provided with a pick-up truck and given a baseball scholarship?
the study of constitutional structure and authority. The center provides a forum for the discussion of constitutional issues and governance challenges across all sectors—academia, government, nonprofit, and private practice.
Seven years later, can anybody say that the 'discussion' at this Seminar engaged with any genuine 'issues' or 'challenges'? No. It was useless. The Indian Bench realizes that it has to reform itself and concentrate on Nyaya, not Niti, otherwise it will be increasingly defunded or just ignored. Contempt for the Court has reached an acme. Prashant Bhushan was fined just one Rupee for saying Judges were all corrupt, incompetent, tools of the ruling party. There is no point appeasing the PIL nutters. Increasingly, the Bench will fine or refuse to hear the 'activists'.
There may still be some Indian 'Constitutional Scholars'. But they will be teaching basic courses to cretins at provincial Universities. At one time there was a fad for 'Subaltern Studies'. The same oblivion will, or has already, overtaken these fools.
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