LSPR Monthly Newsletter (Volume 7) – Law School Policy Review & Kautilya Society

Introduction

Mr. Kiren Rijiju’s statements, yet again, on (and against) the collegium system and the State’s role in judicial appointments have spurred the debate freshly, this time hitting public confidence in the judiciary directly. The current situation invites us to visit the nature and mode of judicial appointments freshly. In this piece, I briefly evaluate the executive-judiciary tussle and evaluate the prospects of an external reform of the current process. I conclude by holding that a reform within the existing system is ideal.

The Executive-Judiciary Tussle: Who to the Rescue and Who to Blame

The separation of powers system envisages a phenomenon of checks and balances rather than mere compartmentalization of activities. It is in the same light that we must think of executive’s role in judicial appointments. If we come to accept the fact that India has a checks and balances system, we may question ourselves first as to why there is an unsettling discomfort with the conduct of the executive, i.e., its interference in activities that do not strictly/solely fall within its ambit. The ongoing proceedings challenging executive’s role in appointments of the Election Commission exhibit a similar anxiety. At least in the case of judicial appointments, the recent controversial transfers of judges, cases of favouritism shown to the judges post their retirement, and the attitude of the executive in withholding recommendations made by the Collegium and even to return recommendations twice may be legitimate reasons that have generated this anxiety. An anxiety that the powerful executive may breach the independence of the judiciary. It may very well be the sheer majority a single political party withholds.  Thus, to me, much of the anxiety against executive’s interference seems to be a deep distrust in the executive/ruling party, rather than a novel argument premised on separation of powers, efficiency, or sanctity of constitutional machinery. An argument of the latter kind would be one that would sustain the current claims against Executive’s mere interference had the Executive been an ideal one- one that did not attempt at breaching the independence of judiciary. Though one may argue that Executive is solely driven by politics and is not the right body for certain acts, I cannot help but disagree for two reasons:

1. Even the Executive is accountable to the Parliament and the People as the Constitution envisages 2. What compelling evidence/normative stance do we have to say that the Parliament is bereft of a political drive? Thus, executive’s role in judicial appointments is secured by the checks on its power. But the current situation would show otherwise.

The Judiciary is the ultimate guardian of the Constitution, and undeniably, of its own independence. Therefore, in the wake of executive wielding and sharpening weapons against the judiciary and trying to curb its independence by making public statements that rob public confidence in the judiciary, there is a loud cry in the corner for reform in the process and a judiciary that is not only willing to stand up for itself but also confront if necessary. The reform may be an internal reform or an external reform. Herein, I will briefly evaluate the prospects of an external reform, i.e., alternatives to the collegium system.

What are the alternatives?

Broadly, in the order of preference usually given according to representativeness of the body, the Parliament, an independent commission (perhaps like the NJAC), and leaving the duty to the judiciary are the alternatives. The first alternative was indeed one of the proposed amendments during the Constituent Assembly Debates while discussing what has come to be Article 124 of our Constitution. The KT Shah–RK Sidhva dialogue is particularly interesting. The former proposed that judicial appointments be made by Rajya Sabha with two-thirds majority for guaranteeing some say to the states, as opposed to the President alone. The latter, negating the former proposal, argued that such a process would lead to political canvassing by the judges themselves, leading to a far worse situation than had the Prime Minister alone showed some favouritism. This, in my opinion, must seal the debate on submitting judicial appointments to the Parliament. RK Sidhva’s argument must prevail. However, an interesting thought that I cannot attempt to answer comprehensively is: how correct it is to say that the Parliament is the competent body to remove a judge from his office (Article 124(4) of Constitution of India) but is not the body to appoint. I bury this thought here for the readers.

Let us now consider the third alternative: the judiciary itself, before the second. Judiciary alone regulating its appointments is wholly against the checks and balances system. In the design then envisaged in Article 124 of the Constitution, and now in motion, the Judiciary is not the sole authority. It only recommends names to the President and gains binding force only where a recommendation is passed again after refusal of the President.

Now, we may discuss the second alternative: an independent commission in detail. The attempt to replace the existing collegium system with the NJAC, an independent commission that constituted 3 judges, the law minister, and two other nominated eminent persons was met with a blow by the judiciary in a 4:1 judgment. The Court held that the NJAC Act breached the primacy and independence of judiciary which form the basic structure of our constitution. It is not possible to summarize the reasoning of that judgment here but suffice it to say that the response to NJAC exhibited judiciary’s own anxiety to reserve its primacy. Whether NJAC Judgment must be accepted as an academic argument as opposed to a judicial precedent is a critique that cannot be done here. However, going by the precedent, any direct participation of the Executive and other bodies is highly likely to be struck down. With the considered alternatives now dealt, we must ask the question “what can be done within the existing system?” Firstly, there is no special reason that cannot be solved by an internal reform for why the long working collegium system must be replaced by another body. We must hope that the State does not make another attempt at replacing the Collegium that has long accorded judicial independence, however, we must welcome a constitutionally sound and democratic alternative if indeed there is one. Till then, we must follow our CJI, Justice Chandrachud remarks on the eve of Constitution Day that “No institution in a constitutional democracy is perfect. But we work within the existing framework of the Constitution as it is interpreted and given to us. When we talk of imperfections, our solution is to work our way within the existing system.”  And hence, our solution is internal reform– transparency on part of the judiciary, and judges who are independent themselves from bias and executive pressure, to only begin with, that will ultimately help the judiciary sustain its independence.

Recently, in the case of Vivek Narayan Sharma v. Union of India (2023), the Supreme Court passed a 4:1 judgement upholding the constitutionality of demonetisation implemented by the Central Government through a Gazette Notification on 8 November 2016. The court assessed the policy solely on procedural grounds and refused to delve into its outcome-based aspects. The court drew a relationship between procedure and outcome by assuming that the outcome will be just and fair if the procedure followed is just. Even Justice Nagarathana’s dissenting opinion focused on the unjustness of the procedure rather than the outcome. The primacy of the procedure over outcome emerges from a trend that courts have followed in policy matters. The reluctance of courts to refrain from assessing a policy on outcome-based grounds emerges from the fear of judicial overreach.

In the present case, the main contention arose with respect to the interpretation of the procedure given under section 26(2) of the RBI Act 1934. The majority opinion gives sweeping powers to the RBI. RBI can recommend demonetizing “all” series of notes of “any” denomination.  The dissenting opinion held that RBI can only recommend demonetizing “one” series of “any” denomination but not “all” and the power to demonetize “all” series of “all” denominations lies with the Parliament only. The judgement bolsters the stance of Indian courts of not delving into the outcomes of policies if the procedure to frame the policies is just. Justice Nagarathana said that such an ‘extensive power’ to demonetize “all” notes should be exercised by Parliament where it can go through a ‘meaningful debate’. Demonetisation is a lawful policy as per the judicial approach but is it just as per political theory in a democratic setup where laws should be framed by elected representatives? This article questions the political assumptions of elevating procedure over the outcome in policy matters by using the theories of two eminent political thinkers – John Rawls and Jeremy Bentham.

From a Rawlsian Perspective: Theory of Injustice

Rawls lays down three types of procedural justice – perfect, imperfect and pure. While perfect and imperfect procedural justice assess the outcome on an independent criterion, pure procedural justice is similar to the court’s approach where the justness of the outcome depends upon the procedure. In pure procedural justice, the outcome is assumed to be just if the procedure followed is just. Despite the wide application of pure procedural justice in assessing government policies, it can be shown that the approach

cannot be applied in political theory.

The Supreme Court in Union of India vs Association of Unified Telecom Service Providers of India etc. (2020) changed a provision in the government policy finding it “excessive”. This case demonstrates that even if the procedure followed by the Central Government was just, the outcome can be unjust. The justness of the procedure cannot be blindly trusted to render a just outcome in the sphere of policy matters. The outcome needs to be weighed on an independent ground. Hence, the other two models of procedural justice – perfect and imperfect which use independent criteria for assessing outcomes – may be applied to determine the validity of policies under Rawlsian theory.

In a perfect procedural model of justice, a procedure exists that guarantees a just outcome. While such a model is theoretically possible, as suggested by Rawls in his cake-slicing example, it is not feasible to formulate a perfect procedure that always produces just outcomes in the real world. Therefore, we cannot employ the perfect procedural model of justice to assess the validity of government policies. The last model of Rawlsian theory, imperfect procedural justice has an outcome that is independent of procedure and a just procedure does not guarantee the justness of the outcome. The procedure is fallible and not watertight for reaching an end that can be just or unjust. Testing the government policies on the model of imperfect procedural justice would require the procedure and outcome to be tested independently of each other.

A policy would qualify as a just policy under an imperfect procedural model of justice when both – the procedure and the outcome – are just. The justness of the procedure can be established from the existing procedural legal framework but the law does not prescribe an independent criterion for establishing the justness of the outcome in policy matters. While the Rawlsian model demands an independent criterion for the outcome to be tested upon, it fails to propound one. [1]

From Jeremy Bentham’s Perspective: Theory of Utilitarianism

Jeremy Bentham’s Theory of Utilitarianism [2] holds that any law or policy is just and legal if it results in the overall welfare of the people. Being derived from consequentialism, utilitarianism concerns itself only with the consequences (outcome) of the action and not the procedure. In utilitarianism, pain (cost of the action) is valued against pleasure (benefits derived from the action) to determine the overall pain or pleasure resulting from the action.

Most of the government policies are framed and implemented with the aim of achieving public welfare. These policies bear certain costs for the implementation and derive certain benefits on being implemented. These costs and benefits can be valued against each other through data and surveys collated by government and non-government authorities to derive an overall effect. From a utilitarian perspective, if the policy results in an overall benefit, then it will qualify as being just otherwise not. However, utilitarianism suffers drawbacks in protecting individuals’ interests. A democratic and just procedure of formulating policies ensures that individuals’ interests are protected. The petitioners tried to bring the court’s attention towards the negative outcomes of the policy. They argued that the unfavourable outcomes resulted from the lack of deliberation by central government and RBI before implementing the policy. They argued that such a policy should be deliberated by a representative body and introduced via plenary legislation. They referred to previous monetization’s in 1946 and 1978 that were introduced via plenary legislations. The arguments were rejected as they dealt with outcome.

Reconciling Rawls and Bentham

The above analysis shows that neither Rawlsian Theory of Justice nor Bentham’s theory of Utilitarianism is capable of assessing the validity of government policies in political theory. While Rawls fails to give a criterion for assessing the justness of the outcome, utilitarianism does not ensure the existence of a just procedure. While Rawls and Bentham’s foundation of justness differ in how they value procedure vis-à-vis outcome, a reconciliation of their theories may help. If the utilitarian notion of assessing the outcome is employed as the independent criterion required in Rawls’ imperfect procedural model of justice, then we derive a utilitarian model of imperfect procedural justice. This model assesses the government policies on both fronts – outcome and procedure. Therefore, a government policy will be just in a political sense when a just procedure has been followed for its formulation and a just outcome results from its implementation. Applying this combined standard to demonetisation when has to be assessed for its justness in Rawlsian and Utilitarian framework, then mere justness of the procedure would not suffice. There will be a need to look into the outcome by the means of surveys and data to determine the outcome justness of the policy. If there are more unfavourable outcomes of demonetization than favorable ones, the government can be held accountable.

On 13 December 2022, President Joe Biden signed the Respect for Marriage Bill into law. This is a landmark Act which puts a federal stamp on the recognition of same-sex marriage in the United States. It is being celebrated as an indicator of a fundamental shift towards the rights of the LGBTQ, especially in light of its passage in the Republican-dominated Senate. But it does not offer any substantial gains to same-sex couples. Through this essay, I intend to offer a critical analysis of the law and show how it is in fact, a win for all those who are against same-sex marriage. I do so by firstly, indicating the influence of the Roe v. Wade judgement in ensuring that this law serves as a political guarantee for Democrats. Secondly, I show how the law grants immunity to religious institutions, against which same-sex marriage proponents have been campaigning for years and which is a political guarantee for Republicans. Lastly, it does not address the fundamental question of intersectionality of race and sexuality.

Striking down the federal guarantee In June 2022, The Supreme Court of the United States (hereinafter SCOTUS) overturned the landmark judgement of Roe v. Wade.[1] This judgement granted women the constitutional right to undergo an abortion. But the SCOTUS struck this down and held that it is not up to the judges to be policy makers and therefore, returned the question to the people.[2] This led to widespread fear that the Court might overrule Obergefell v. Hodges[3], which upholds the right to marry for same-sex couples. Justice Alito in his majority opinion in Dobbs did try to assuage such fears. He assured that Roe and Casey were fundamentally different from the previous cases decided by the SCOTUS as they concerned “potential life”.[4]However, according to Justice Thomas, cases like Obergefell, Griswald and Lawrence were not immune from overruling. He opined that any “due process” decision which is “demonstrably erroneous” is subject to being re-evaluated and corrected.[5] Many feared that Obergefell would also be struck down and as a result, members of the Congress jumped into action in drafting a law that would recognize same-sex marriage all over the country. This law was intended to act as a safety net, in case the SCOTUS overruled Obergefell. But the outcome

is eerily similar to the opinion of SCOTUS in Dobbs.

The Act recognises same-sex marriage in cases where the said individual’s marriage is legal in the state where it was entered into, or in the case of marriage entered outside that state (if the marriage is valid in the said State).[6] In other words, it creates two classes of marriages: one that is valid in every state and the other that is valid in only certain states. So, if Obergefell were to be overruled then this Act would not stand either because it does not recognize same-sex marriages in states where they aren’t legal anyway. In effect, it strikes down the federal protection to same-sex couples. It merely reiterates the principle in Roe wherein it is up to each state to govern personal matters like marriage and abortion. In reality, it is back to square one for those advocating a comprehensive, sustainable right to marry for same-sex couples.

Religion and the right to marry

Apart from vesting the right to recognize same-sex marriages in the hands of state legislators, the Act does the same for religious institutes and ceremonies by providing them the freedom to choose recognition. It clearly specifies that non-profit religious organizations including Churches, mosques, synagogues, temples, etc. shall not be required to provide services to conduct marriages.[7] Any refusal by the above entities would not result in any civil claim against them.[8] In effect a religious body can refuse to conduct marriage of same-sex couples citing this Act. This is one of the reasons behind the support garnered by the Act in the Senate. Its protection to religious notions of heterosexual marriage is one of the reasons why the Republicans were willing to pass it. Through this Act the government has officially made its choice in favouring the Church over the rights of same-sex couples. The government in passing this Act, has codified the fears of LGBTQ activists as claiming discrimination by religious institutions and other non-profit groups becomes nearly impossible.

The question of inter-racial gay marriages

Furthermore, in drafting this Act the legislators did not take into account the rights of couples who are marginalised both by their race and sexuality. In other words, it ignores the intersectionality of identities. This is significant in light of the legalities surrounding inter-racial and same-sex marriages. Inter-racial marriages were first recognized in the United States in Loving v. Virginia[9]. In this case, the SCOTUS held that laws that banned inter-racial marriages were violative of Equal Protection and Due process clauses under the Fourteenth Amendment of the U.S. Constitution.[10] In Roe, Justice Thomas conveniently excluded Loving from the ambit of precedents that would have to be re-evaluated on account of due process. But this was included in the RFMA. The RFMA seeks to recognize all marriages irrespective of sex, race, ethnicity, or national origin.[11] However, in the scenario that Obergefell were to be overruled then the question regarding the legality of inter-racial gay marriages would arise. For instance, suppose there is a state that does not recognize same-sex marriage but if the couple is inter-racial and queer then it remains to be seen as to how the courts would adjudicate: would they apply Loving to recognize marriage or the RFMA to decline recognition? So, the RFMA ignores the intersectionality of race and sexuality and in effect, compartmentalizes same-sex couples through this ignorance of other identities. Practically, this would be a big question if one goes back to pre-Obergefell times.

A red-blue win

In totality, the RFMA is a win-win politically. It robs same-sex marriage couples from their federal recognition in order to award political dividends. For Democrats, it is a win as nominally speaking, they have a protection cover if the SCOTUS overrules Obergefell and for Republicans, it is a win since religious authority over marriages remains intact. The ultimate question boils down to the advantages that this law offers to same-sex marriage couples.  The answer to this remains in the negative as in practicality, it is not offering any substantial gains to same-sex couples. Unless reformed to ensure complete federal recognition to same-sex marriages, this law would continue to serve as a mere political assurance.