The compilation is an interesting pot-pourri which deals with the role of the Judiciary in the resolution of ethnic conflicts which arise in plural societies. Three Asian and two African societies feature in the volume, namely, Sri Lanka, India, the Philippines, Tanzania and Mazambique. One of the facet in focus, broadly speaking, has been the determination of the legitimate limits of judicial intervention in the fields of preference and reservation policies in education and employment. Another facet which has been scrutinized has been in respect of the protection of human rights, particularly the civil and political rights of dissentient minority groups. The various contributors to the volume have tried to reconcile the duality, if not the plurality of the local systems in such societies on account of the superimposition of the formal legal system imposed by the colonial order upon the continuing indigenous and customary legal systems.
The co-editor Coomaraswamy sets the tone with her introductory article with an incisive essay examining the new and changing role of an ‘engaged’ judiciary.
Bhagwati in his chapter on ‘Social Action Litigation: The Indian Experience’ provides an erudite insight into the Indian experience, and stresses the need for a ‘committed’ judiciary. This piece makes interesting reading as Bhagwati himself has been one of the highly acclaimed and visible social activist judges. The article after expanding on the various innovations made by the Supreme Court in the field of social action litigation, like the expansion of the concept of ‘locus-standi’, and creating the totally new ‘epistolary jurisdiction’, namely taking cognizance of the violation of human rights merely on the basis of letters addressed to the court, also deals with the far more difficult issue of actually providing quick and immediate relief to the aggrieved parties.
Upendra Baxi in his ‘Taking Suffering Seriously’ also deals with social action litigation and attempts an evaluation in the context of the history of Indian constitutional adjudication. Baxi makes a point by stating that unlike the public interest litigation counterpart in America, the Indian social action litigation essentially grew out of the trauma of governmental lawlessness that prevailed during the period of emergency in India, and which was sustained on account of the continuing primal imbalances of power and inequality in Indian society. Baxi also refers to the nexus which was forged in this connection between activists and investigative journalists in order to arouse public awareness of gross human right violations against the weaker sections of the society. The period from 1973 was a period of many exhilarating constitutional doctrines in India.
Article 21 of the Constitution was transformed in effect into a due process clause arguably incorporating substantive due process connotations as well. New notions were developed in the sphere of administrative law to facilitate judicial scrutiny in various areas of executive action on the revitalized notions of reasonableness. The Supreme Court even arrogated to itself the remarkable constituent power of testing the validity of constitutional amendments.
Baxi describes as the ‘creeping jurisdiction’ the process by which the Courts use the handle of interim orders and directions to compel the Executive to bring its house in order. This of course involves in addition to high visibility judges, the problem of high visibility justice.
The case study by Diokno of the Philippines expands on the various dilemmas faced by the Appellate Judiciary in its endeavour to protect the human rights of dissentient minorities. The problem is examined against a backdrop of various historical, geo-political, ethnic and linguistic factors and prejudices which have interfaced to define the pluralistic character of the Filipino society. The essay brings out the relative failure of the post-Independence polity in creating an amalgam of a multi-ethnic polity. The Judiciary by and large has been quite unwilling to enter into the arena of legislation or policy making, particularly where ‘political ideas’ were the moving forces. The Court has consistently upheld various reservation policies favouring the tribal groups, yet at the same time upheld various economic policy measures discriminating against the small Chinese minority with the same consistency. The Judiciary according to Diokno is under the shadow of a system, which may euphemistically be called ‘developmental authoritarianism’. However, with the political transformations which have taken place in the Philippines in the last few years, the earlier constitutional arrangements have been dismantled, and a more progressive arrangement has been envisaged having a much greater potential for judicial activism.
In the chapter on Mozambique, Gita Welch questions the strategy of preserving legal pluralism as the only effective means of sustaining the ethno-cultural diversity of the African society. Mozambique questioned this strategy of preserving legal pluralism, and in fact embarked on a policy of unification of the legal system by shaping the socio-legal conscience of the polity through its direct involvement in the administration of justice; and by creating the institution of ‘Popular Courts’.
In his article ‘Pluralism and the Judiciary in Srilanka’, H.L. de Silva refers to the ethnic rivalry between the Sinhalese and the Tamils which has remained centre-stage the issue of the Sri Lankan imbroglio, raising issue of political representation, linguistic inequality and discriminatory measures relating to education, employment and allocation of State lands. The failure of the polity and of the Judiciary to redress these two issues has led to hightening of ethnic tensions and political violence, and has led to the growth of dangerous secessionist movements. The role of the Judiciary in Srilanka has also been plagued marked by a reluctance on the part of the Courts to intervene in anything which belongs even remotely to the political arena. This reluctance, the author says, has exacerbated issues which would otherwise have lent themselves to rational resolutions.
In the second article on Sri Lanka, H.L. De Silva points out that on the contrary the Court has adopted an approach of evading issues. De Silva gives a specific example of the challenge by a Tamil public servant to the official language legislation which was disposed off on the ground that a public servant could not challenge the Act as he did not have a legally enforceable contract. This reduces the provisions of the Constitution safeguarding the ethnic rights to what De silva describes with some emotion as a ‘pathetically inefficient sentinel of ethnic rights’.
The Court generally has taken a narrow and literal interpretation of its own role in the fields of human rights and social action litigation. De silva rightly says that future of the Judiciary as the custodian of public conscience does not rest so much upon abstract constitutional principles, as it does on the quality of the judges and their capacity to be morally outraged by injustice and discriminatory practices, and therefore the legitimacy of the institution in the eyes of the people.
The co-editor Coomaraswamy’s chapter on the Srilankan Judiciary is a realistic critique examining the catena of Fundamental Rights Cases which have been decided by the court. It directly addresses itself to some of the subtle and not so subtle influences to which the Apex Judiciary has been exposed to. In an island society, where the legal, bureaucratic and political elite is relatively small, such elite manager to exercise a disproportionate influence. An interesting instance is provided, when the Court in a matter arising out of the illegal seizure of leaflets issued by the ‘Voice of Clergy’ quashed the seizure and directed the Superintendent of Police to pay damages and cost. The Government however chose direct confrontation by ordering directed that the costs be paid out of public funds, and the police officer be promoted. The instances are not difficult to find where the Judges who have given decision against the Government have been subjected to verbal abuses in orchestrated demonstrations. Coomaraswamy bemoans the narrow and literal approaches to interpretations adopted by the Supreme Court, particularly in the sphere of constitutional interpretation. There has been a marked reluctance on the part of the Court to articulate broad constitutional principles relating to freedom of speech or assembly. This is all the more depressing, if the Courts are to finally emerge as an important forum in the ongoing debate on constitutional values and standards. This is linked with the rather startling fact that in Srilanka in respect of fundamental rights, the exclusive jurisdiction vests with the Supreme Court alone. And therefore no such impetus for change or forum is available except before the Supreme Court.
Wambali and Peter in their case study of Tanzania make a reference to the politico-ideological context that defines and determines the role of Judiciary in a socialist society, where primacy is accorded to ‘the political party’. Naturally norms and values of the political ideology are considered more important than constitutional safeguards. This also refers to an ambivalence in the attitudes towards law and the judicial processes.
The delay and unpredictability associated with the judicial decision-making have contributed to this ambivalence, but the much more serious issue is the reconciliation of an independent Judicial role with in the broader political and economic ideologies and dogmas. Often parochial issues intrude into the institutional conflict and the Judiciary, particularly the grass-roots Judiciary has not always been effective in this regard. However, a recent Fourth Amendment to the Constitution has entrenched a ‘Bill of Rights’ which in addition to social and economic rights also specifies the right to due process and equal treatment under the law.
Kisanga takes a cue from the Indian experience and sees in it a new arena for judicial activism within the social and political context of Tanzania. Given the political reality, Kisanga specifies certain areas where there is a conspicuous denial of fundamental rights, namely industrial and agricultural workers, women and policies in respect of child labour. However, Kisanga introduces an element of realism by identifying various factors which will constrain blossoming of social action litigation.
To begin with, there is an absence of organized groups of social activists who are willing to intervene on behalf of the disadvantaged groups in society. Secondly, the legal profession in Tanzania is itself a young profession, which has been demoralized by the widespread disregard of law within the wider society. The third facet has been pervasive political control which effectively stifles any dissent or challenge to authority.
The volume provides at one place different approaches based on a thoughtful and honest analysis of the experience with the judiciary in the five countries spread over Asia and Africa. It also highlights the problem faced on account of the adoption of formal western notions of Rule of Law and the role of the Judiciary in the diverse social, political and legal framework of developing polities. However, these various essays also show how in these different milieu the Judiciary and the legal profession have made attempts to perform the essential task of ensuring that some minimal standards of human rights and dignity are made to prevail even in respect of the smallest and the most deprived person. How far the Judiciary in each of these countries has actually succeeded in achieving this objective is for the reader to judge for himself.
Parag Tripathi is a practising lawyer in the Supreme Court, New Delhi.