What are courts for?

Gautam Bhatia

Why courts should not become a country’s sole moral arbiter, how the coronavirus impacted judicial processes in India and South Africa, and more.

The Constitutional Court of South Africa. Image credit GCIS via Flickr CC.

Interview by
Elisha Kunene

For the last 10 years Gautam Bhatia has done an impossible amount of work helping people think about Indian constitutional law. This includes being involved (as part of a large team of senior and younger lawyers) in bringing a number of key cases before India’s Constitutional Court, such as the challenges to India’s national biometric ID system, called the Aadhaar, and section 377 of India’s Penal Code, the criminalization of consensual same-sex intercourse. His work and his writings have focused on individuals and their relationship with the state and the law in a constitutional democracy. In an interview on the South African law podcast, Just Us Under a Tree with host Elisha Kunene, Bhatia talks about subjects including his background, media, the law, the importance of his Indian Constitutional Law and Philosophy blog and debates about legal activism and contemporary Indian politics. This is an excerpt focusing on their conversation about the experience of the Indian Constitutional Court for Africans, especially South Africans. Listen here.

This interview has been edited for length and clarity.


EK

One thing I find just fascinating about India is, on its face, I look at it and think it’s so similar to South Africa, but then I find out little things which just blow my mind about how different it is. For instance, how much bigger it is, how much longer it’s been a democracy and how much older the Constitution is. So, in many ways, it’s a good model for peeking into the future, if you think South Africa and India are on a similar path.

So, one thing I wonder about a lot is how much longer South Africans will be fans of our Constitution. It’s become increasingly in vogue to either reject the document outright, or to see it as not having the same gloss as when it was new. How does the average Indian citizen think about the constitution and its role in their lives? And what could be better or worse?

GB

It’s a really hard question for me to answer. I obviously come from a fairly privileged set of circumstances in terms of my gender, caste and all of that. So, it’s hard to really know what the average citizen would feel. I think that first of all, that answer needs to come from someone who knows that better. What I can say is that, I think there are three or four ways in which people receive the Constitution. There’s one set of people who reject it outright, not for the reasons that some South Africans now do, which is that the Constitution failed to address lingering apartheid-era issues.

Instead, there’s one set of people that say Indian civilizational values are not reflected in the Constitution. So according to them, this is a modern Western document that seeks to impose
ideas of rights that are somehow alien to the Indian authorities of family, duty and so on. That’s one set of views that people hold. And I’ve tried to explain in my book Transformative Constitutionalism, that this really misreads India’s own history of striving for rights and equality, and how these values really have been foundational in India and are not imported from the West.

Then you have very wide swathes of people for whom the Constitution exists but doesn’t really play a significant role in their lives. But, to summarize broadly, I think over the years, there’s been an increasing gap between what the Constitution says and enforcement on the ground. And that gap has become so wide now, that effectively, a lawyer recently said something to the effect of, “The real constitution is the code of Criminal Procedure, not the actual constitution, because it’s the Code of Criminal Procedure that actually governs the relationship between the citizen and authority on a daily basis.”

And of course, the Code of Criminal Procedure is, as many colonial holdovers are, a much more brutal instrument than the Constitution. So, I think there is that big gap. And then of course you have people who strongly believe in the Constitution. I think something that’s fortified with the fact that the principal draughtsman of the Constitution was a man called B.R. Ambedkar. And B.R. Ambedkar belonged to the Dalit community, what was back then called the untouchables—the caste that has been subjected to the most brutal oppression and violence in Indian history for many centuries.

And so, because he effectively was the principal draughtsman of the Constitution, there is a sense of ownership that Dalits feel over the document. If you go to all these villages in India, you will find statues of Ambedkar holding a Constitution under his elbow. So I think it comes down to a very complex set of ambivalent attitudes that Indians have towards the Constitution, and it definitely doesn’t occupy the kind of sacralized form that it does in the US, for example.

EK

What do you think is a healthy civic culture around constitutions?

GB

It’s really important to see the constitution as an instrument that brings about, or is at least a blueprint for what a just society should look like. And specifically, with respect to the specific kinds of injustices that are characteristic of that society and the manner in which the constitution intends to address them. So, in the Indian case, as I just said a little earlier, the greatest locus of injustice was caste. And the Constitution has a very specific set of provisions that deal with that caste based affirmative action. It doesn’t use the word caste in terms of affirmative action, but that’s not how it’s been understood over the years. It specifically abolishes untouchability which was the manifestation of caste.

It requires non-discriminatory access to shops, public places and so on. So, I think in that sense it needs to reflect a certain model-vision of justice and a certain threshold of what is just that is non-negotiable, and if you want to change that, then it has to be through extra constitutional means. And I think within that there’s a danger in sacralizing it, because constitutions ultimately are documents of compromise—the whole point of a constitution is to avoid the bloodshed that would accompany a complete revolution, right? And so, there’s always compromise, the Constitution never goes as far as you would want it to go.

In that sense, there needs to be the room open to have the debate where, as in South Africa you’re having about land redistribution, [you can] ask if this is something that’s just and fair for our society.

EK

What do you see as the role of the Indian Constitution more recently? What happened in Jammu & Kashmir seemed to signify the resurgence of Hindu ethno-nationalism, away from what was a secular style of governance before.

GB

That’s a really complex question to answer. Nobody disagrees that the Modi government and the BJP is in its best form definitively a Hindu Nationalist party, that’s what they define themselves as, and that’s what their opponents define them to be. Now, what that means in concrete terms is always a push and pull over. I think that a really good example for looking at this is the debates over the Citizenship Amendment Act 10.

That sparked massive upsurges before coronavirus came and put an end to all kinds of political organizing. What happened was that this bill was on the annals for a long time, and what it said was that, if you belong to one of India’s three neighboring countries, Pakistan, Afghanistan or Bangladesh, and if you belong to one of the six religious groups: Hindu, Christian, Parsi, Sikh, Buddhist and Jain; and if you came to India before December 31, 2014, then you were exempted from prosecution as an illegal immigrant and you get a fast track to citizenship.

After this, constitutional challenges to the Supreme Court were drafted, and I’m involved in the drafting (the challenges are still pending), and then also massive, massive protests that erupted. India has many neighbors such as Sri Lanka, Myanmar, Nepal and many others. It has picked three Islamic countries in the neighborhood, and it has picked the six major religious groups in those countries that are not Islam. The argument then, is that in these three Muslim-majority countries, these six non-Islamic religious groups are persecuted and India’s role is to give shelter to them.

Now, of course, the flaws with this argument on an ethical and moral level are manifold, since you have for example Buddhist majority countries such as Sri Lanka or Myanmar where Muslims are persecuted and even genocided. So clearly the goal isn’t to protect persecuted minorities in your neighborhood, it’s to pick three specific countries that are Islamic and then take all the non-Muslim groups and bring them in. And even in Pakistan, for example, you have the Ahmadiyyas who are not even considered Muslim, but they call themselves that when Pakistan doesn’t. So you even have persecuted Muslim groups in those Muslim countries.

So, given all that, the intent of this law is clearly, ultimately, an exclusionary one. First of all, it’s making religion the basis of citizenship for a certain class of people, which was never the intention of the Constitution and I’ve just written a paper on that. And secondly, it’s very clearly saying that we have drawn our classifications in such a way that refugees who are Muslims will find it harder to come through than non-Muslims. At the same time, what they haven’t done is gone the full Israel way of just saying that India is the historical homeland of Hindus, Sikhs and Jains, and therefore we will prioritize Hindus, Sikhs and Jains. If you go back in history, to the constitutional assembly, there were people who said that India is the historical homeland of Hindus and Sikhs and therefore our citizenship law must reflect that.

In arguments that you have with people about the Citizenship Amendment Act, including with some of my colleagues on the right-wing and who support the BJP, after a lot of back and forth it comes down to this essential point that India is the only country which is for Hindus and Sikhs—“Muslims have 57 other countries, maybe 59, so what’s their problem?” So, this is where India is poised right now. Because the BJP was elected in 2014 with a majority, and then came back in 2019 with a bigger majority, they are able to push boundaries. They’re now able to push a vision of citizenship with an explicitly religious basis. At the same time though, the formal constraints of the Constitution and our constitutional history of being broadly secular, pluralist, diverse and so on does still operate as a constraining force.

So, they haven’t yet declared India as a homeland for Hindus. That is not yet being said, at least in the law or in formal, ministerial statements. So, I think that sums up where we are at right now: the constitutional structure is still intact in formal terms, but it’s cracking.

EK

To ask a question that might be representative of the other side so we can benefit from your comment: If India says we’re surrounded by these six Muslim-majority countries and they tend to be repressive, then does it imply that Islam is an intolerant religion? And further, that for everybody who’s fled as a religious refugee, we’ll grant them a sort of immigration forgiveness, that is a positive measure, right?

By positive I mean it’s an extension of citizenship to people who wouldn’t have enjoyed it before, and the issue becomes then, why are you excluding Muslim people. But then the question also becomes, is anything actually being taken from Muslims compared to what they would have had if this Act wasn’t passed at all? Or is it just a matter of this being something which is notionally a good thing, but not shared fairly enough?

GB

It’s the latter. So, if you look at the Citizenship Amendment Act, it extends citizenship and grants immunity from prosecution, but selectively and it’s about who it leaves out. The people who oppose it are not saying that nobody should get it, they’re saying everyone should get it, and you shouldn’t just extend it to some and not to others.

Now, you do have a whole other issue which we can get into if you want, but it’s going to be really complex, which is, at the same time you have a parallel enterprise called the National Register of citizens, the NRC. That’s supposed to be this nationwide exercise to create a list of citizens or non-citizens. And it’s been trialed in one state, the border state of Assam, which is a whole different story altogether—the Supreme Court was responsible for that, and it was a humanitarian tragedy in many, many ways. And so I think, the fear is that when you combine these two things, you will have this register that will exclude a whole bunch of people who can’t prove they’re citizens to the satisfaction of the government, but then some of them will be able to come back in via this Act, and the Muslims will be left out.

There’s a whole debate over if that’s true or not, and that is one controversy, but there is an accompanying question as well which is when you put together the NRC and the CAA, what’s going to happen? So that’s all still very uncertain. A lot of it depends upon the statutory rules that will come in to determine how do you prove this, and how do you prove that and so on.

EK

South Africa has had a bizarre increase in xenophobia across the spectrum in the last two or so years. For instance, when lockdowns were first announced, you had a government official saying that if shops would be allowed to remain open, that would exclude shops owned by immigrants. And, we have quite a large African immigrant population and communities living effectively as second-class citizens. What are the effects of registry systems, which tried to determine citizenship or non-citizenship based on how the Indian economy works or policing, etc? If you find yourself on the wrong side of that line and can’t prove citizenship, how does that affect you? And how does that affect communities?

GB

So, the NRC at a national level is still something that’s in the works, it hasn’t been enforced yet. But if you see what happened in Assam, where the register took place from 2014 to 2019, what happened was that there was this very complicated system of foreigners’ tribunals that are the final determinant of citizenship. And so, if a foreigner’s tribunal holds that you are not a citizen, then what happened in Assam is that you got put in a detention center. And these detention centers are these really overcrowded places with all kinds of issues with respect to health, sanitation, all of that.

The idea is that you need to deport people who are not citizens to their home countries. But given the way this whole thing works, what is actually happening is that many of these people are actually your own citizens who aren’t able to prove that they are yours. And so obviously, Bangladesh and the other neighboring countries now don’t want to take them in, so they effectively become stateless and have nowhere to go. And so then, they get detained.

So that’s been one major impact that we’ve seen. Now, as far as the NRC itself goes, there’s been no follow up yet after the list came out last year. But what we again have seen is all kinds of ostracism that happened. Many people committed suicide because they feared being off the list and then being detained. And so, I think what you have is a certain kind of stigmatization and ostracism on the one hand, and on the other hand, you have the actual physical consequences of being detained and actually losing your liberty. So then these are all the pretty serious consequences that we have seen so far coming out of the one Indian state in which this was trialed, [but] at the national level we will of course have a lot more suffering.

EK

Wow, that is horrifying. With the institutions responsible for adjudicating, and making these decisions, do they investigate? Are they impartial? Are they well-capacitated? Is immigration generally something which the Indian government does well? Humanely? And how have people, such as activists, been engaging with those sorts of authorities who are now enforcing these laws?

GB

The foreigners’ tribunals are the exact opposite of impartial. So, by now you have a number of reports which basically show that the promotion and retention of officers who are adjudicating in the foreigners’ tribunals depends on how many people they declare as foreigners. Basically, people who declared a fewer number of people as foreigners were effectively sacked after their contract came to an end. And people who declared a greater percentage of people as foreigners were retained. Through the Right to Information Act, people actually got out these documents where there was a list of these people, these officers and tribunals, along with the percentage of the number they’d declared as foreigners. Then, you had these comments by the government, where if it was a smaller number, it was that they “must do better”, and as a bigger number, it was “recommended for rehiring.”

This sounds dystopic, but this actually happened. Then there was an interview that happened and it was revealed that these officers used to joke among themselves, “who has taken more wickets today?” and more wickets actually meant declaring people as foreigners. So, this is a horrifying situation. There are a number of analytical pieces, you know, interviews, that show that what’s happening in the foreigners’ tribunals in Assam is basically a complete travesty of justice. But unfortunately, the Supreme Court has declared their opinion to be binding and a judicial opinion as part of its own crusade against what it thinks is illegal immigration. So, you have these tribunals being sanctified by the Supreme Court, then there is really nothing else you can do after that.

EK

And so, there’s no procedural safeguard even where the tribunal member admits to having a political motive? It sounds almost as if they’re less accountable than the judiciary.

GB

The problem is that these comments, forget about wicket-taking, are all off the record. So, you don’t know whom to summon, and how to get the evidence that would be accepted in a court of law. That said, I think that there is enough evidence on the record to justify a proper legal challenge to the functioning of these tribunals. I think the problem simply is that the higher judiciary, which in this case is the High Court in Assam (the Gauhati High Court), and the Supreme Court have shown themselves to be so unsympathetic to immigrants, and so hostile, that there is legitimate fear that if you go to court, you’ll get a bad judgement and then we’ll be in trouble for the next generation or so because now even that’s been sanctified by the court. I think simply that people are, with good reason, not keen to approach the courts because they have shown very, very little solicitude for the problems here.

EK

You touch briefly on how much of the resistance has actually been by way of broad based, social movements, or at least it was before the pandemic. How does that happen? I think as South Africans, we’re still some way away from imagining a problem you can’t constitutional litigation away.

GB

I think that that’s an interesting question. With the scale of the protests, it’s still unclear to what extent they penetrated deeply into society. But they were on a scale that hadn’t been seen for a very long time. I think there are two things here. One is that, I think someone pointed this out, that India’s commitment to pluralism has been hollow for many parts of its history—but, there’s always been that formal commitment there that formally, we are plural, diverse, we don’t discriminate, and that religion will not be the basis for civic claims. So, there’s always been that formal commitment. And this was one of the first occasions when there was an attempt, and of course it is still going on, to change that at a formal level.

And that triggered this kind of reaction, that people were not yet willing to let that go without protest. That was one thing. I think secondly, of course, that in general, the trust in the Supreme Court to actively stand up to a very, very powerful executive, is at this point very low for good reason. And that’s why, when the protests began, many people thought that if it’s unconstitutional, they will strike it down. Now, we all know that, that’s not how it works. I think the interesting part was that that argument carried no purchase in the sphere of the protests. In all these protests, including the ones I went to, and I saw, you had constitutional articles written out. The preamble of the Constitution was laid out in various cases. Article 14 that guarantees equality was printed out in a large font. You could see constitutional vocabulary being invoked all over the place.

What you didn’t see was the Supreme Court being invoked. So basically, people really wanted to use and rely upon and lean on the Constitution, while also being aware that the Supreme Court could well take a different view. I think this is something that Sandy Levinson in the US calls constitutional Protestantism. It’s about your relationship with the constitution, which you are no longer willing to have mediated by this very powerful institution because you think it could well let you down, as it has in the recent past on many occasions. So, I think that’s a very interesting thing that happened in the protests. And I think that it’s a good thing. People should forge their own relationship with the Constitution and not have to rely upon authority to give them that.

EK

That’s really interesting because as you were saying earlier, with the US parallel, where their constitution may as well be like their holy text in all areas of life, even before you even think about lawyering. And when you have decisions like Trump versus Hawaii, their Muslim ban case, I think it’s a delayed reaction to realize just how staggeringly racist the law that they upheld there was, and just how far gone that institution is.

South Africans still seem so attached to viewing our Constitutional Court as the custodian of the Constitution, and, as being the only voice which can morally interpret or speak into life the justice which is envisioned there. I suppose that makes it all the more important the work that things like the blog and your book do, which is taking the Constitution to the people. Do you see that as something which has the potential to become broader or something which inherently has limits?

GB

I think at least in India the first limit is language, right, so English is just spoken by a very small percentage of Indians. It’s become the default language for many reasons that will be too complex to explain here, but it is the default language, the official language, but nonetheless not the most spoken language. And that’s true for any single language, because in India you have many, many languages across the country. So, I think that any project of taking constitutionalism to the people has to first address the issue of India being a multilingual country, and it needs to be a project that is collaborative, between people from different states who are able to translate the arguments into their respective languages.

And then, of course, popularize that and it seems that the best vehicle for that ultimately are progressive political parties, trade unions, those kinds of institutions that have that deep reach into society. It can’t be the work of a blogger or lawyers individually because the scale is too big. I think the role of lawyers here, at least the role that I see us playing, is to demystify it. So, law has its own vocabulary that makes it alienating, that makes it inaccessible, and with an air of mystique that teaches people to fear rather than actually understand it. And so, the role I see us playing , by virtue of our access to that vocabulary, is to then break it down and make it accessible to people who don’t have that access.

The next step, which is to actually make constitutionalism a cultural phenomenon, I think we don’t have the ability or the skill or even the understanding of life to do that. That requires a different skill set, I think.

EK

When the state responds in ways which would try to quell effective activism, then is the judiciary ever reliable? Does the judiciary just have it in for immigrants and Muslims? Or is it more conservative than that, and is more a client to the state generally?

GB

I think we have definitely seen that over the last four or five years, and something I’ve been writing about quite a bit is that the judiciary has become exceedingly deferential to the state. And not just that, it’s in many ways begun to replicate the language of the state. So, I call it an executive court. Its main concerns, its main preoccupations, its language, is more the language of an administrator or an executive than a judicial body that’s meant to stand between the administration and citizens.

I cannot recall over the last five or six years even a single instance in which the court actually struck down a flagship program of the state. When Modi’s government came to power, the first time in 2014, they passed an amendment to the Constitution that would have replaced the judicial selection process with a new judicial commission—that the court struck down. So that was the one time in which they struck down some big thing, but since then it’s been quite deferential and has gone out of its way to avoid antagonizing the government in these kinds of very big high stakes cases.

Honestly, as some who’ve been involved in some of this stuff, the amount of factual nonsense that the state’s lawyers get away with in court is just disheartening and really surprising, because it’s like they can come and say anything they want and the court will indulge them.

EK

South Africa would benefit greatly from learning about the role and history of public interest law in India given the outsized role it plays here, and what could go wrong. But the phenomenon of a legal culture where the court is considered a moral voice, as opposed to just a check and balance, is very easy to entrench when you have like a series of clownish governments who are cartoonishly evil and manifestly incompetent. And then you develop jurisprudence and a culture around that.

So, there are a few issues which I think should be in courts—if there’s anything courts are meant to do, it’s to clear up ambiguity of laws, and laws have never been more ambiguous. One thing I read in the last day or so on your blog is about how with coronavirus in India, legal services are not being considered essential, so what is happening on your side? Do you still have rule of law? And also, why did the lockdown get announced in four hours? What’s happening with COVID?

GB

I think the reason given by people who defend the quick imposition of the lockdown is that if you gave people more time, they would then start moving all around to get back to their places, and that would defeat the lockdown’s purpose. Now I leave that to the good sense of your readers to see if that makes any sense whatsoever.

But that apart, it’s actually been a bit of a mixed bag, what the courts have done so far. There are some High Courts who have passed some good orders. Odisha, which is a state on the east coast of India, basically said that a ban on all vehicles in Odisha was basically confiscating people’s vehicles. They said that old and disabled people need to use vehicles to get groceries, so obviously you have to allow for that. So, you had a couple of courts pushing back against such regulations.

And, the Supreme Court yesterday passed an order saying that COVID testing has to be free. You can’t charge for it. At the same time, the court has kind of gone out of its way to praise the government for what it’s doing, which again, seems very weird for a court to do. Then, just to circle back to the whole public interest litigation point; what I have seen is that the rhetoric going around so far has been that we’re in this pandemic, right? And so, everyone must support the government’s efforts to tackle this. Fair enough. No one disagrees with that. And that therefore, it follows that the courts must also [support] the government, [because] this is a national project, so all you “busybody people” stop filing your public interest litigation applications and you the court “stop interfering” with the government.

What is basically being said by this is that once there is this public health crisis, your fundamental rights are suspended and the only goal is to deal with the crisis in whatever way you know possible. And if in the process rights are violated, so be it—proportionality and all of that is not applicable right now, so the court shouldn’t get into that … I remember during the Egyptian revolution, when there was this whole thing of overthrowing the Muslim Brotherhood, there was a slogan that the police, the army and the people are one hand. In hindsight, that just sounds so bizarre, right?

The whole problem is that there is now this rhetoric that the courts, the people, the government are all one hand, and so we must all pull together and the courts have no business interfering. I think that’s dangerous and needs to be pushed back. And I see in South Africa now that Kate O’Regan has been appointed the judge to kind of oversee surveillance requests, things like that, so I think at least to have that kind of oversight.

EK

Why is it being said that India has the strictest lockdown in the world? What does that mean?

GB

That just means that it’s effectively what they call a curfew. So, it’s imposed across the whole country. And the restrictions are extremely strict. Now there is a big problem with respect to determining what the restrictions exactly are because you have effectively three overlapping legal regimes. The regulations passed by the central government under the National Disaster Management Act, (I think you have the same Act), the exact same terms in South Africa. Then you have various state governments that have invoked what old colonial law called the Epidemic Diseases Act. And then you have individual police officers who invoke the Criminal Procedure Code to limit people going out.

So, you have these three levels of governance, and the effect of it is that it’s highly arbitrary, and it’s also very, very restrictive. You have situations where in certain neighborhoods, you can’t take a morning walk, although if you take a morning walk on your own you’re not really undermining the lockdown because you’re not in anyone’s company. So, you can’t take morning walks, and in a couple of states, even the grocery stores were shut. People were in dire straits for a while until better sense prevailed. I think when they mean strictest, they broadly mean the extent of the restrictions and their scale is very large.

EK

And does coronavirus just put a block on everything?

GB

No, essential cases are still being heard. The big constitutional cases are suspended obviously for the near future. The court is still hearing what they call urgent matters. But unlike South Africa, where Chief Justice Mogoeng had a directive which defined what constitutes essential services like bail applications, domestic violence and so on, it’s still undefined in India, so individual High Courts are making those calls.

This produces a bizarre situation where the High Court has said that bail cases are not essential. I mean, come on, that’s the whole point, right? If a person being in jail is not essential, then what is essential, and what are you as a court even there for?

EK

That’s so scary. [In South Africa], you’re seeing cases being dismissed without reasons, you’re seeing challenges being withdrawn, I suppose out of fear. But these are things which need clarifying, you need courts to be busy. It’s exactly as you said; what are courts for if they can’t say this person should not be in jail?

GB

One thing I would always give as unsolicited advice has to do with when I was in South Africa in 2016 for the Constitutional Court Review Conference that year … and I remember telling Advocate Michael Bishop that South Africa in its history of public interest lawyering is somewhat now where India was in the mid 1980s, where there is a lot of optimism about it. There are some concerns, but there is still a lot of optimism. It’s still seen as a vehicle for achieving substantive justice.

And I said to him that look, I respect that. But please see the trajectory India took with public interest litigation after that, and don’t end up where we are now. So I think it’s really important to not get to that point where the legal culture looks upon the courts as you rightly said, as a moral arbiter because then if the court espouses the morality you don’t like, then you’re screwed.

Because then not only would you have judgements against you, but also the moral force of the country against you. So, don’t make the court your moral arbiter, and don’t get to a point where the legal culture prioritizes the public interest litigation language of delivering substantive justice over the really crucial importance of protecting individual liberty against the power centers that exist. It’s very easy to go down that road, and it’s very important to avoid that, because once you reach that point, it’s very, very hard to claw back.

Further Reading

Beyond the International Criminal Court

In the past week, three African states (South Africa, Burundi, and Gambia) have announced their withdrawals from the International Criminal Court. Amnesty International describes these withdrawals as a “march away from justice,” and “drastic blow …