Judging in the age of populism
In recent years, nation-states around the world have been besieged by a new wave of populism. Old and glorious democracies have had their roots shaken, with their populus harbouring considerable disenchantment with age-old institutions. The new wave defies easy political pigeon-holing, as billionaires become proclaimed champions of the down-trodden and the moral values of the neoliberal coalition peter out.
This interregnum not only reverses the advancements made by economic liberalists towards a globally unified polity, but has also led to a kulturkampf between self-proclaimed democrats and populists, both of whom feel the bite of the pool rapidly drying up and elected officials failing to offer any clear solution. The heedless push from elite liberal institutions to acculturate the ordinary masses to universalist values have backfired. In many ways, this interregnum manifests the underlying conflict between the ideal of democracy as a system of values and of democracy as a governing institution.
The institution of the court and the democratic and constitutional principles it seeks to protect are seen by this alliance as roadblocks rather than as guarantors of impartial justice. Another common narrative thread that carries through is the avowed belief that executive powers cannot be constrained by unelected judges. There is a strong belief that the law consists only of legislation and that any judicial development of law or review of such legislation is illegitimate.
Justice Robert Reed, president of the UK Supreme Court and its senior-most judge, while reflecting on how the judiciary can maintain public confidence at this year’s Peter Taylor Memorial Address, observed that “populism can undermine the rule of law by diminishing trust in the institutions which uphold the law and undermining support for judicial independence”. He further admitted no democracy is immune to these tendencies but goes on to raise the question, “we cannot afford to be complacent, if we want to protect the rule of law. So how should the judiciary act so as to maintain public trust in the courts?”
However, we must remember that the situation the UK judiciary finds itself in is not exactly analogous to our own. While India is undergoing what can be termed as a cycle of majority, with the government asserting its predominant position within the constitutional framework, its institutions also face the issue of endemic corruption. Even with that baggage, compared to others in public life, the judiciary finds itself treated with considerable respect. However, unlike the UK, there has been a marked upsurge in direct criticism that our judiciary has faced from the executive.
While criticism of judicial decisions is to be expected in a democracy, the criticism we are concerned with rarely engages with the actual reasonings in judgements. Pertinently, there has also been a sustained campaign in certain sections of the internet building particular narratives against decadesold constitutional verities.
It is at this juncture that Lord Reed’s inquiry and recommendations assume particular significance. Firstly, he recommends that while a court “has to be fearless in defending our constitutional values, it also has to exercise judgement and display a sensitivity towards the other institutions of the state, and towards public opinion, if it is to avoid being perceived as a political actor”. Secondly, he recommends judgements be measured and neutral, thereby demonstrating they are based on law and exercise of legal expertise and experience and not on personal convictions. Thirdly, he stresses on the importance of public outreach in the form of livestreaming of proceedings, maintaining a hands-on and active communication team and establishing educational schemes to reach out to pupils at schools. Lord Reed’s prescriptions are valuable and create avenues for the public to interact with the judiciary.
To its credit, the Indian judiciary has been making efforts to make justice accessible. The e-Courts Project represents one of the largest judicial digitisation initiatives by sheer scale, connecting 18,735 district and subordinate courts. The Supreme Court Vidhik Anuvaad Software (SUVAS), launched in 2019, has translated thousands of Supreme Court judgments into multiple vernacular languages using artificial intelligence. Yet more needs to be done. India’s technological achievements through e-courts and SUVAS must be complemented with sustained and planned public outreach.
The judiciary also needs dedicated teams who can help judges craft accessible language, provide background briefings to journalists, and manage public messaging during controversial decisions. Perhaps most critically, the Indian judiciary must move beyond its often-adversarial relationship with parliament and towards structured dialogue.
While we must strive to better adopt Lord Reed’s recommendations to our unique needs, we must be mindful that they are technocratic in nature and may not address the underlying causes of the trust deficit. Courts in developed nations face the inevitable backlash of decades of judicial enforcement of market discipline and acculturation.
On the other hand, our problems run much deeper as our judiciary faces urgent systemic issues in the form of corruption and an appointment system that has become a lightning rod. However, the needed reform must ensure independence from executive interference.
Saai Sudharsan Sathiyamoorthy | Advocate, Madras High Court
(Views are personal)
(saaisudharsans@gmail.com)