To what Extent should Judges be able to Make Decisions on Political Grounds?

Eg: A Feminist Treatise on Political Decisions in The Judiciary

Introduction

It has often been assumed that judges’ identities. backgrounds and belief system have an impact on their judgements. The real impact of judicial back story on the decision of cases from the day-to-day caseload in the judicial system is examined in the present article, which receives the most of the premise that judges are delegated their cases at cluster sampling. It is found that no evidence is drawn that judges diverge in individual decisions when it comes to the majority of case outcomes, contrary to political science findings of ideological influence in published opinions.

In the present article, light to the overall effect of political grounds on judicial decision is shattered upon. Not going to each and every political ground that can bear an influence on judicial decision is discussed but the political aspect of adjudication is studied in the first part, dealing with how identities shape the mind. The crossroads of political and juridical is studied. In the next part Indian context with respect to political ideologies is studies with an example of feminist treaties on political decisions of judiciary is provided for a better outlook towards the topic. Then in the last part an idea is expressed so as to what extent this political-judicial decision making is justified.

Adjudication’s Political Aspect

 Without viewing law as a mere instrument of political power” or “politics by other means,” critical legal thought always incorporates “political thinking.”[1] In Mouffe’s theory[2], where identities have no importance but the exclusion of its “constitutive other,” can give it some significance. Social groupings play an important role.[3] They are not the source of conflict; rather, it is through the construction of a chain of equivalences that those identities are established.  They band together against something, in alignment with the profound metaphysical assertion that “every” “we” or political Collective identities of social groupings play an important role, where” identities have no spirit but can gain meaning only via the exclusion of their “constitutive other”. They are not the source of conflict; rather, it is through the construction of a chain of equivalences that those identities are established. After all, adjudication is all about conflict, which is expressed in the context of rule-based institutional arrangements—the courtroom’s “upvote space”.[4] Case-law is continually produced and evolved as a result of adjudication, which is “permanently contingent” and a fundamentally volatile cognitive framework. The distinction is strictly maintained between the notions of the political as ontological and of politics as ontic,” which translates to the existential dimension of conflict in legal theory. This brings us to the issue of the legal and its connection to the political.

Adjudication at the Intersection of Legal and Political Issues

Though, judicial decision contains an element of sovereignty in its singularity, it never appears fully as a self-standing and self-legitimizing ‘event,’ detached from the context of previous case-law and the lex scripta.[5] The historicity of the ius and lex that precede it is inherent in adjudication.[6] Even a completely new reading of the law is always enshrined in earlier interpretations. The relationship between judicial decision-making and politics is a subset of a larger debate about the relationship between “the juridical” and “the political Juridical here stands for the entire social institution of law, seen as a parallel to politics form of articulation of the political (of social conflicts).[7] The legal system as a social institution is defined by a discrete collection of structures (most notably courts) and procedures. It is a field of social being distinct from politics, the economy, or religion since it is informed by legal traditions and mentalities.  Law is a set of rules and principles (codified by precedent) that is entrenched in the legal system and cannot function without it. Different principles of decision-making (democratic voting vs. legal reasoning), different procedures (parliamentary discussion vs. court hearing), and different outcomes characterise judicial responsibilities (political decisions vs. judgments in individual cases). On the one hand, the judge serves as a jurist, enmeshed in the institutional imperatives of the legal system (following codes or precedents, utilising legal reasoning), and on the other, as a decision-maker in the field of social conflicts. However, a reasoning by judge is isolated from the political grounds, it cannot remain quiet in the aspect of affecting someone’s freedom, property, dignity, and, in some cases, even life. As a result, a judgement is always a ‘juridico-political choice,’ a decision that has political implications but is intellectually and culturally derived from the juridical and entirely veiled in historically and geographically situational legal form. “The perception of the underlying existence of violence in a legal system vanishes, the institution crumbles into ruin,” wrote Walter Benjamin.[8] This is consistent with Marx’s observation that legislation is “the continuance of dominance through various means.”[9]

Indian Context Of Political Values Possessed By Judges

Justice HR Khanna in Keshvananda Bharati v State of Kerala expressed his views on political philosophy as:

“The fact that all constitutional interpretations have political implications should not obscure the fact that the decision must be reached in a calm and dispassionate atmosphere in the courtroom, that judges must remain aloof from the din and controversy of politics in order to give legitimacy to their decisions, and that the fortunes of rival political parties can have only a limited impact on them. Their principal responsibility is to follow the Constitution and laws without fear or favour, and they cannot allow any political philosophy or economic theory that appeals to them to influence their decision.”[10]

When judges in constitutional courts have widely divergent legal opinions, the impact is virtually invariably felt by minorities of various political persuasions. When judges in constitutional courts have widely divergent legal opinions, minorities of various denominations are nearly always affected. A conservative judge in India can have a significant impact on federalism, secularism, and people’s fundamental rights. The United States Supreme Court’s Justice Amy Coney Barrett sways the balance overwhelmingly in favour of conservative legal and political ideals. An alarming nomination on election night that, while not influencing the outcome, has far-reaching consequences in all sectors of American life.

Conservative judges contribute to the social division as well. In the United States, the majority of Supreme Court judges are Christian Caucasian men, and in India, upper-caste Hindu men. Both countries have a wide socioeconomic disparity and millions of people living on the margins. While courts are not democratically constituted, judgements written by the favoured upper class might readily be interpreted as sustaining the status quo and discrimination that has existed since the country’s founding.  There are several political grounds that time and against effects the judicial decision making, irrespective of the place.

Better understanding: A Feminist Treatise on Political Decisions in the Judiciary

Women, who make up half of the global population, have been discriminated against, harassed, and exploited regardless of the country to which they belong, their religion, or the time period in which they reside.[11] Women’s status and position have evolved with time, from the Vedic period to the present day.[12] It was due to the hard and tiresome efforts of Raja Ramohan Rai, Veresa Lingam, Ishwar Chandra Vidyasagar, Vivekananda, Jyothira Phule, Dr. B.R Ambedkar, Vinoba Behave etc. The British government enacted regulations to safeguard women, such as the widow remarriage Act, 1856, Civil Marriage Act, 1872, Married women’s property Act, 1874, The Child Marriage Restraint Act, 1921 etc. Following this protection of the statues of women in Indian society is also enshrined in our constitution.

The Role of the Judiciary in Women’s Empowerment

The process of judicial interpretation gives all provisions of the Constitution and all laws adopted by the legislature their true meaning and significance. The Constitutional requirement as well as various legislation prohibiting discrimination against women in different sectors of their social, economic, and political lives have been brought before the courts. Apex Courts in India have developed a gender jurisprudence that has given substance and life to the constitutional scheme of protective discrimination in favour of women through various devices such as judicial review, judicial activism, social action litigation, and the duty of enforcement of fundamental rights. A complete summary of the judicial method in several cases where the Courts have effectively delivered their judgement to strengthen the position of women may be seen below.

It is observed in the judgement of P. Sagar v. State of Andhra Pradesh[13] by the AP HC, that Article 15(3) is an exception engrafted to clause (1) of Article 15. As a result, in light of Article 15(3), no reservation for women can be made. Similarly, the reservation for sports women does not violate the Constitution’s Articles 15(1) and 29(2).[14]

In Vijay Lakshmi v. Punjab University[15], with the reasoning of classification being reasonable and existence of nexus with the purpose to be attained, the court found that the appointment of a lady Principal in a Women’s college therein does not violate the principle of Articles 14 and 16 of the Constitution.

In the landmark judgement of Budhadev Karmaskar v. State of West Bengal[16] it had been concluded that, while our culture perceives prostitutes as women of poor character, the same was refused to be accepted by the court. The court worth praising for this commendable job. Not only that, but the court took action and directed the Central and State governments to develop plans to provide technical/vocational training to sex workers and sexually abused women in all Indian cities.

In the case of Laxmi v. Union of India[17], there had been increase in the number of acid attacks on women in recent years, the SC directed to curb and restrain these attacks.

The Apex Court concluded in Yusuf Abdul Aziz v. State of Bombay[18] that section 497 of the Indian Penal Code solely punishes men for adultery and exempts women, even if she may be as responsible as an abettor. It was spared by virtue of Article 15 since it is a legitimate classification under Article 14 and Article 15(3). Then Revathi v. Union of India[19], court in ringing note decided that Section 497 of the Indian Penal Code is written in such a way that a husband cannot prosecute his wife for defiling the conjugal sacredness by committing adultery. As a result, both the husband and the wife are prohibited from using the weapon of criminal law against one other.

In Dhannulal and ors. v. Ganeshram[20] it was held that a couple’s persistent cohabitation, i.e., a live-in relationship, would enhance the presumption of marriage unless otherwise shown. It was asserted that despite the fact that the lady could not prove that the lawfully married wife of the deceased entitled to inherit the property.

In Delhi Domestic Working Women’s Forum v. Union of India[21] court had held that women, too, have the right to life and liberty, as well as the right to be respected and treated as equal citizens, according to the court. Rape is a crime against basic human rights, as well as a violation of the victims’ most prized fundamental rights, such as the right to life and privacy, which is protected by the constitution under Art. 21. Rape victims have been compensated by the courts.

At last, although there are numerous laws enacted by legislatures, administrative rules, and judicial pronouncements in India, and more importantly, individual and group women organisations continue to provide for women’s protection and empowerment, due to a lack of awareness and interest among women and society, there is too little justice for them.

To what Extent these Political Grounds/Values be Enshrined in Judicial Decisions and its Implications?

The Apex Court’s excessive delay in considering petitions challenging the repeal of Article 370 and the enforcement of fundamental rights in Kashmir, while speeding the hearing of the Ayodhya issue, underlined this alignment of judicial and political philosophy. Earlier this year, a bench led by Justice Arun Mishra heard a petition for the disqualification of Rajasthan MLAs and went off on a tangent about the expression of dissent instead of following precedent on the Speaker’s authority to disqualify MLAs. Despite the fact that these were unintentional observations, they merely served to enhance the connection of judicial thought with political ideology. During the lockdown, the Supreme Court’s harsh response to a petition on migrant labourers, which coincided with the central government’s stance, once again highlighted inappropriate deference to the central authority.

Judges should remember Justice H R Khanna’s caution in Kesavananda Bharati v. State of Kerala when it comes to preserving the Court’s independence and insulating it from political ideology. We can only speculate on the world’s outlook if Bush v. Gore were heard by other justices in light of the recent US presidential elections. It’s also a guess what the prognosis for Kashmiris might have been if the Supreme Court had preserved essential characteristics of federalism, judicial review, and Kashmiri citizens’ fundamental rights.

Although India lacks the American school of originalism, it is not immune to judges with divergent values. The administration of Indira Gandhi explicitly declared the necessity for a “dedicated judiciary.” In his infamous congratulations letter to Indira Gandhi on her return to office, Justice Bhagawati emphasised this. In this perspective, the dissatisfaction with matters of public importance being considered by only some judges and not others must be examined. The four Supreme Court judges’ press appearance in January 2018 served as a timely reminder that only specific judges should hear cases of public concern. An ominous warning that failed to sway the Court’s deferential course.[22]

Thus, the whole studies give an idea that judges being a human cannot remain isolated from the very core aspect of a civil society i.e., the political grounds of the functioning of the society. But it must be kept in mind that personal views should not override the law, judges must keep in minds the ongoing of the society and its political statues which helps them to give a judgement suitable to present economical and social situations. The neutrality shall never be compromised.

Conclusion

In conclusion, quite as long as political parties are at least relatively value-oriented and court cases involve such relevant facts of value-oriented issues, there will almost certainly be a remnant of political coalition judicial subjectivity, regardless of judicial tenure and forms of selection. In the end, the question isn’t how to get rid of this political remnant of judicial identities and subjectiveness, but about what trajectory it should go in.

If judges should have values that are typical of the general people, it is reasonable to argue that judges will be, at some point of time, get influenced by that. The stage is of balancing the objectiveness of the law and subjective political grounds.

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References:

[1] Matthew Stone et al. Illan rua Wall & Costas Douzinas, Law, Politics and the Political (Birkbeck Law Press 2014).

[2] Chantal Mouffe, Politics, democratic action, and solidarity 38 (1995).

[3] Arata D. Yamamoto, Why Agonistic Planning? Questioning Chantal Mouffe’s thesis of the ontological primacy of the political, 16 (Planning Theory 2017).

[4] Andrzej Bator, Law and jurisprudence in the face of conflict: Between neutrality and the political, 3 Krytyka Prawa/Critique of Law 12, 7–31 (2020.

[5] Stanley Fish, Working on the chain gang: Interpretation in the law and in literary criticism, 1 Critical Inquiry 9, 201–216 (1982).

[6] Costas Douzinas, A short history of the British Critical Legal Conference or, the responsibility of the critic, Law and Critique 25, 187–198 (2014).

[7] Peter L. Berger & Thomas Luckmann, The social construction of reality: A treatise in the sociology of knowledge (London: Penguin 1991)

[8] Walter Benjamin, Critique of violence. In Reflections: Essays, aphorisms, autobiographical writings (New York: Schocket Books 1978).

[9] Cosmin Cercel, Towards a jurisprudence of state communism: Law and the failure of revolution (London: Routledge 2018).

[10] Keshvananda Bharati v State of Kerala, AIR 1973 SC 1461.

[11] Dr. K.C. Jena, Heirship of Women under Indian Personal Laws. A comparative study, Ph.D. Thesis (1998). http://www.socialresearchfoundation.com/upoadreserchpapers/1/44/1506261215321st%20sapna%20yadav.pdfng

[12] Puja Mondal, Status of Women in Vedic and Post-Vedic Period http://www.yourarticlelibrary.com/society/status-of-women-in-vedic-and-post-vedic-period/4397.

[13] P. Sagar v. State of Andhra Pradesh, 1968 AIR 1379.

[14] Sukhdeo v. Governmentof A.P., 1966-1 Andhra WR 294.

[15] Vijay Lakshmi v. Punjab University, AIR 2003 SC 3331.

[16] Budhadev Karmaskar v. State of West Bengal, JT 2011 (8) SC 289, 2011.

[17] Laxmi v. Union of India, (2014) 4 SCC 427.

[18] Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321.

[19] Revathi v. Union of India, AIR 1988 SC 835.

[20] Dhannulal and ors. v. Ganeshram, AIR 2015 SC 2382.

[21] Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14.

[22] The Hindu, https://www.thehindu.com/news/national/live-four-supreme-court-judges-to-release-letter-detailing-complaint-over-judicial-procedure/article22427561.ece (last visited 29 August, 2021).