So, what is the role of India’s judiciary in making India a $5 trillion economy? There’s always been interesting perspectives, when it comes to the relationship between the rule of law and economic growth and justice. That’s something that could strengthen the fabric of society. What’s the cause and effect in the legal realm and does it differ from country to country?
According to General Counsel to Tata Sons Sidharth Sharma, “The importance of the rule of law can’t be overstated. I look at it from different levels. One level is whether the rule of law as an abiding principle has been articulated or asserted. India is a constitutional democracy with one of the most elaborate constitutions. As a principle, a rule of law is hardwired into our system and is a basic structure of our Constitution. The power of judicial review which constitutional courts have cannot be taken away even by the Parliament. Our apex judiciary has asserted itself steadfastly.”
Sharma remarks, “It’s the same with innovating new legal principles, which establish the rule of law principle. For instance, the Supreme Court has held manifest arbitrariness as a ground to strike down the law. Now, that’s nothing but a principle of the rule of law being asserted at this level”.
“We have a judicial process, which is slow and therefore, no one could predict the end outcomes of judicial matters, the way it could be predicted in the US and the UK, when it comes to enforcement of contract and more. The problem is capacity by any standards”, adds Sharma.
Sharma outlines, “It’s the same with innovating new legal principles, which establish the rule of law principle. For instance, the Supreme Court has held manifest arbitrariness as a ground to strike down the law. Now, that’s nothing but a principle of the rule of law being asserted at this level”.
“We have a judicial process, which is slow and therefore, no one could predict the end outcomes of judicial matters, the way it could be predicted in the US and the UK, when it comes to enforcement of contract and more. The problem is capacity by any standards”, comments Sharma.
Sharma declares, “PIL jurisdiction is another interesting aspect. Indian constitutional courts devised a unique and innovative method where they did away with the conventional concept of locus standi and went for impact justice delivery. This is where the court went beyond an adversarial and adjudicatory role and became more inquisitorial, calling for reports, appointed committees and more”.
“The question becomes whether courts should touch upon governance which is intuitive or whether they should confine themselves to only reasoned legal questions”, quips Sharma.
According to Associate Judge of the New York Court of Appeals Jenny Rivera, “In the US, we’re seeing dramatic changes in the way the US Supreme Court analyzes the role of the regulatory state, the power of agencies, whether they’re independent and able to provide guidance on statutes… There is going to be a sea change in administrative law in the US. Very soon, we may hear from the US Supreme Court as to whether the judiciary is going to be much more evolved with oversight over the regulatory state or we’ll continue in some version of a deference model to regulators”.
“There’s an ongoing debate about whether or not regulation suppresses businesses and innovation or whether it’s necessary to address anti-monopolistic tendencies. There tends to be a binary argument: either regulation is good or it’s bad. That’s a very simplistic and not sufficiently nuanced approach to the regulatory state. But, we’re not going to get rid of all the regulators; you cannot run a government without some form of regulation”, adds Rivera.
Rivera states, “I don’t think judges should be super-regulators; it will mean they are completely overworked and won’t be able to do the rest of their job, like interpreting statutes in the Constitution and ensuring the law is properly enforced…What happens when you have a change of the guard? What happens when the executive changes or when elected officials change? In that sense, the judiciary has to bob and weave and figure out whether there should be a change that retains some consistency”.
“For the most part, we don’t allow fully arbitrary and capricious agency decision-making that vacillates from one day to the other because then, consistency and predictability are lost”, quips Rivera.
And how do judges deal with the kind of innovation that refuses to stop evolving?
According to US District Judge André Birotte Jr, “It’s a challenge because many judges are dealing with issues that they’re not as familiar with. These include subject matter that they’re being presented with for the first time. There are newer issues, like AI and data scraping. Judges are going to have to make tough decisions and be innovative”.
“Our foundations would mean looking at the jurisprudence, the applicable statutes and more. Judges have to rise to the occasion and try to beat the issues that present themselves. I feel like we’re building the plane as we’re flying because these issues are so new; it’s an educational experience”, remarks Birotte.
And what about when the state judiciary steps in to deal with climate change issues?
According to Former Associate Justice of the Hawaii Supreme Court Michael Wilson, “India has about 444 million children in India. And they’re the front and center for decisions that the State courts and Federal courts are making. One has witnessed the Supreme Court’s diversion into an era where there is an enormous abdication of responsibility to recognize the right of future generations to a stable climate. What is a more fundamental right with respect to the right to life: the right to privacy or the right to a more stable climate capable of supporting human life?”
“There’s extraordinary potential of so many young people participating in engines of education, engines of integrity and engines of hope, because that’s what is needed most by young people that would be rightfully cynical and give up”, remarks Wilson.
And what kind of protections could be given to citizens against companies? What takes the cake between horizontal rights and vertical rights of citizens?
According to Associate Justice of the Hawaii Supreme Court Todd Eddins, “Every now and then, we hold our breath, when it comes to what the Supreme Court might do. As far as horizontal integration, it’s really just good old-fashioned torts, where the individual could come into court, be heard, where there’s access to justice issues, legal recourse and more”.
“There’s a huge movement in the US to use the basic court system to hold fossil fuel and other industries accountable for the dangers they knew about, as well as for disinformation campaigns”, opines Eddins.
And do the benefits of doing a judicial impact assessment outweigh the disadvantages?
According to the US District Judge Sara Ellis, “As judges, it’s very important to reflect on how decisions will impact the business community. Regarding active judicial management, one wonders whether to be hands-off and let the lawyers do what they want to do or not. Expectations have to be set early on, status conferences can be held on a regular basis and more. Instead of judicial activism, there could be active management to move cases forward and ensure that discovery is proportional to the needs of the case and prevent anything that slows the case down or drives the costs up. When it comes to access to courts and access to justice, if it is so expensive to litigate the case, then people don’t bother; they’ll find the most expedient way to get rid of it. That’s not justice!”
“We don’t want to highlight efficiency over justice or fairness, but I think efficiency goes hand in hand with them. That way, people do get their day in court, cases can move forward & businesses can’t come in and rely on a very predictable and consistent way of getting disputes resolved”, quips Ellis.
Watch the entire interaction here:
