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Indian constitution as a compromise between 'crude consequentialism' and 'pure normativity'

edited January 26 in Polity & Governance
1. In the context above judges have become the primary agents of constitutionalism in India. Did the framers intend so, or should there be formal restraints on judicial behaviour? How far has 'public legitimacy' been involved in the judicial decision making process?

2. Has the Supreme Court gradually engulfed other courts in ensuring the credibility of the Indian system as a compensatory mechanism against state failure? How has this impacted the same?
The only thing necessary for the triumph of evil is for good men to do nothing.
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Comments

  • 3. Also is judiciary trying to become the 'sole' guradian of the constitution?
    The only thing necessary for the triumph of evil is for good men to do nothing.
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  • 1. In the context above judges have become the primary agents of constitutionalism in India. Did the framers intend so, or should there be formal restraints on judicial behaviour? How far has 'public legitimacy' been involved in the judicial decision making process?

    Any argument that seeks to put restraints on judiciary stems from the fact that - 'unelected' judges cannot be given unlimited power. Even our constitution makers did not envisage a powerful judiciary. It is the legislature that has the power to put judiciary in place. But the actions of judiciary so far have been popular. The legislature cannot go against anything that is popular, they have to face elections.

    But when over powerful judiciary clearly appears to be unpopular, the legislature can always put restrains on it... without fearing rejection in elections. So as long as the legislature holds the power to check judicial excess and people in turn have the power to hold the legislators accountable through periodic elections... one need not worry about any harm being done by the 'unelected' judiciary.
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  • Bhai nye aaye ho kya :p poora gyan yhi pr pale dia :p
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  • 3. Also is judiciary trying to become the 'sole' guradian of the constitution?

    The other institution that guards the constitution if of 'President'-

    The oath of President has the line - 'will to the best of my ability preserve, protect and defend the Constitution'

    But in doing so even he has to abide by the constitution and his powers given by the constitution are limited.

    So its only judiciary that is left with the task of guarding the constitution. I think the judiciary is already the sole guardian... I don't see the question of 'trying'.
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  • @smoke Bhai if I interpreted you correctly then phir to jo aap bol rahe ho that is nothing but tilting towards 'consequentialism'. I think that there must be a reason why other judiciaries don't tend to practice it, rather they stick to the normative principles or the legal techniques like textual interpretation, stare decisis, etc. You seem to also justify the same. Hmmmmm.....Interesting! B)
    The only thing necessary for the triumph of evil is for good men to do nothing.
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  • Bhai nye aaye ho kya :p poora gyan yhi pr pale dia :p

    :mrgreen: Maje lo aap :mrgreen:
    The only thing necessary for the triumph of evil is for good men to do nothing.
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  • "other judiciaries don't tend to practice it, rather they stick to the normative principles or the legal techniques like textual interpretation, stare decisis, etc."

    I think even Indian judiciary followed the said techniques in pre-emergency period.

    Can you give examples of other judiciaries that stick to normative principles?
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  • edited January 26
    @smoke The main critique that the author was emphasizing here was the 'extent' of divergency from the established normative jurisprudence principles that one sees in the prevailing 'demosprudence' which the Indian judiciary has post 1980s adhered to in its discourse of justice. There have been reinterpretations upon reinterpretations of the same precedents over and over again that had otherwise been laid down by the same Supreme court suiting the context of the era - hence the tilt towards 'consequentialism'. Now, does this not undermine the rule of law - too much of a balancing act can tend to disrupt the entire propagation of justice. Does this not underline the issue of the classic conflict between democracy being a 'majority rule' rather that fostering perfect equality under all circumstances.
    So if we take this 'extent' into the context of this discussion, I think it will surpass even the prevailing judicial practices in the US - one of the major examples cited for a living constitution.
    The only thing necessary for the triumph of evil is for good men to do nothing.
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  • @Jaime_Lannister Your thoughts on the above as well. Of course, whenever you are in the mood. o:)
    The only thing necessary for the triumph of evil is for good men to do nothing.
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  • Indian constitution as a compromise between 'crude consequentialism' and 'pure normativity'

    Not the constitution, but rather its working has become a compromise.

    1. In the context above judges have become the primary agents of constitutionalism in India. Did the framers intend so, or should there be formal restraints on judicial behaviour? How far has 'public legitimacy' been involved in the judicial decision making process?

    Yes in the above context Indian governance is tilting towards consequentialism and most actions are executed at the decree of courts even when they are beyond its purview and may be within the domain of the executive or legislature.

    No the framers did not intend so. Hence the division of power. Running the country by the principles and norms laid out in the Constitution is as much the job of the legislature and the executive as it is of the judiciary. There are already formal restraints on judicial behaviour. These have been loosened by the wide interpretations of the court itself and the meek submission to the same by the other two branches of the govt (for eg judges appointment in 2nd judges case)

    Public legitimacy is both involved and not involved. It is not involved in that, people have nothing to do with appointing judges as they are not elected. But public legitimacy is involved because people accept, respect and follow the court judgements (exceptions - Jallikattu). The institution of PIL has further bolstered the public legitimacy of the higher courts.

    3. Has the Supreme Court gradually engulfed other courts in ensuring the credibility of the Indian system as a compensatory mechanism against state failure? How has this impacted the same?

    Mostly yes. Through PIL, wide reading of Art 32, Art 136 and Writs like Prohibition and Certiorari.

    It has dented further the credibility of the Indian system and expanded the sphere of SC at the expense of lower judiciary, legislature and executive.

    3. Also is judiciary trying to become the 'sole' guradian of the constitution?

    As already stated by smoke, President, judiciary (SC and HC) and CAG are the only ones given the 'guardian' role in the Constitution.
    Art 74 restricts the 'upholder' role of President. The functional restrictions of CAG do the same. Hence judiciary is left as the sole guardian.
    Sorry about the sapphires.
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  • akkib89 said:

    @smoke The main critique that the author was emphasizing here was the 'extent' of divergency from the established normative jurisprudence principles that one sees in the prevailing 'demosprudence' which the Indian judiciary has post 1980s adhered to in its discourse of justice. There have been reinterpretations upon reinterpretations of the same precedents over and over again that had otherwise been laid down by the same Supreme court suiting the context of the era - hence the tilt towards 'consequentialism'. Now, does this not undermine the rule of law - too much of a balancing act can tend to disrupt the entire propagation of justice. Does this not underline the issue of the classic conflict between democracy being a 'majority rule' rather that fostering perfect equality under all circumstances.
    So if we take this 'extent' into the context of this discussion, I think it will surpass even the prevailing judicial practices in the US - one of the major examples cited for a living constitution.

    I had to go and read the article again... I have understood the critique of the author and yes totally agree with the danger you have pointed out.

    Hence the question comes - should a formal restraint be placed on judiciary? As Jaime pointed, judiciary has found a way to loosen the existing chains. So the solution lies in the judiciary itself. It has to become conscious of its own actions... rather than expecting an outsider to contain it.
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  • edited January 26
    @smoke Sahi keh rahen hai bhai. Even I could not think of anything else. Like Buddha said - the change comes from within. :mrgreen:
    The only thing necessary for the triumph of evil is for good men to do nothing.
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  • edited January 26
    @Jaime_Lannister Your thoughts on this issue concur with mine. Found a lot of your substantiations right on the mark. Simply awesome dude. Thanks a lot.
    The only thing necessary for the triumph of evil is for good men to do nothing.
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  • akkib89 said:

    @smoke Sahi keh rahen hai bhai. Even I could not think of anything else. Like Buddha said - the change comes from within. :mrgreen:

    Yes. Given the innovative capabilities of this organ, better change has to come from within.
    Anyways, it makes me happy when someone shows interest in this subject. :

    @Jaime_Lannister Thanks for adding CAG to my knowledge
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