How to Save a Constitutional Democracy: Justice D.Y. Chandrachud & Tom Ginsburg

How to Save a Constitutional Democracy: Justice D.Y. Chandrachud & Tom Ginsburg


ADITI MODY: So I’d
just like to tell you a little bit about the
University of Chicago and our center in Delhi. The University of Chicago in
establishing a center in Delhi in 2014 draws upon a very long
and rich history of excellence and scholarship,
research and teaching that is related to South Asia. Many people don’t
realize that we teach over 12 Indian languages
at the University of Chicago at the PhD level. The center in Delhi
in the last five years that we have been
set up already serves as a base for
undergraduate, graduate, and professional students who
are studying in the region. In the last academic
year, we have hosted over 130 events,
workshops, and seminars. And over 140 faculty across
disciplines from the University have visited the center in
Delhi since our opening. The center also catalyzes
interdisciplinary and cross-cultural discourse
and rigorous debate and intense inquiry, for
which the university is very well-known. It is also the site
of regular programming that engages our
alumni in the region. The center also houses a
couple of very interesting institutions that I’d
like to tell you about. We have the India Office of
the Energy Policy Institute of the University of
Chicago, EPIC as we call it, which is based right
here in the center. And EPIC colleagues leverage
the unique government and industry
partnerships to conduct applied economic
research across India, not just at the
national, but also at the state and local levels. Research projects are currently
underway in over 10 states. And their model
includes carrying out foundational research
to solve vital problems. A major project that
EPIC has launched here has been the star rating
program, where our researchers are working with the state
pollution control boards and other partner organizations
in Odisha, Maharashtra, and Jarkhand towards
strengthening environmental regulations
through transparencies. Additionally, EPIC also
works with [INAUDIBLE] on modeling energy needs and
resource requirements in India and as a knowledge partner
for distribution reforms. We also house that data
center for development at the University of Chicago. In fact, my colleague Leni
Chaudhuri is right here. She is our country
director for the TCD. And this was set up
with generous support from the Tata Trust and
uses a very unique approach that harnesses rigorous,
evidence-based UChicago economics research and combines
it with strategic outreach and partnership not
just with government, but industry and innovators. Of special interest for
the TCD are policy problems in energy, environment,
health, water, sanitation, and development economics. And their research
portfolio spans over 40 projects in
more than a dozen states currently on a wide
range of pediatric areas that include health
medicine, labor economics, urban development,
energy, and environment. We have a large project that
we have over here, something called the IIC, the
International Innovation Corps. And this is a social
impact fellowship that is housed as part of the
University of Chicago Trust and the Harris School
of Public Policy. And this brings
young professionals, a lot of students, I hear, that
might be of interest to them, in contact with government
and nonprofit organizations for periods of one
to three years. The IIC Fellows,
as we call them, conduct comprehensive research,
design sustainable solutions, implement and iterate
interventions, and evaluate outcomes. And they have worked on
more than 25 projects. While our global centers– we
have centers not just in India, but also in Beijing,
Hong Kong, and Paris– illustrate the
importance and commitment of the university
in various regions, they are nothing
but a springboard for our collaboration
throughout the world. We seek to build our engagement
around the bottom-up approach of our faculty
and invest in more comprehensive relationships
with key partners. I know everybody is here to
hear from our keynote and distinguished panelists. And although they
need no introduction, please bear with me as we
try and give very brief remarks for each of them. Of course, we are very
privileged to have with us Honorable Justice
Dr. Chandrachud. He is a sitting judge of
the honorable Supreme Court of India and he
has, in the past, served as additional
Solicitor General before being elevated
to the judiciary. Above all, he is
a legal scholar, having graduated from
Harvard Law School and has served as a
visiting professor of comparative
constitutional law at the University of
Mumbai, as well as Oklahoma University of Law in the US. During his tenure as
Supreme Court judge, Justice Chandrachud has
delivered landmark judgments. Among his most notable judgments
is the Ninth Bench decision affirming the right to
privacy as a fundamental right and decisions
decriminalizing adultery and same sex relationships. He is a strong voice
for women and has authored powerful dissent
in the Aadhaar judgment, holding that the
Aadhaar program supports some constitutional
infirmities and is violative of fundamental rights. Thank you so much, sir, for
taking time to be with us. [APPLAUSE] We are also delighted to
have our own professor, Tom Ginsburg. He’s a Leo Spitz Professor of
International Law, the Ludwig and Hilde Wolf research
scholar, and professor of political science at
the University of Chicago. Before entering academia,
Professor Ginsburg served as a legal advisor to
the Iran-US claims tribunal in the Hague in Netherlands. He is a co-founder of the
Comparative Constitutions Project that analyzes
the constitutions of all independent
nation states since 1789. He has authored several
award-winning books, including Judicial Review
in New Democracies, The Endurance of National
Constitutions, Judicial Reputation, and of course,
his latest book today that we are discussing, How
to Save a Constitutional Democracy, which
he has co-authored with another UChicago
faculty, Aziz Huq. Mr. Arvind P. Datar is a
senior advocate practicing at the Supreme Court of India. Mr. Datar, thank you
especially for all your efforts to make this evening possible. He is an authority on
constitutional and tax law and has authored every
legal commentaries on a range of
subjects, including constitutional law, income
tax, excise, and companies law. He is visiting faculty
at the National Judicial Academy at Bhopal and the
Tamil Nadu State Judicial Academy at Chennai. He has delivered guest lectures
at several international universities,
including Cambridge and is a founding trustee
of the Palkhivala Foundation and a director of the Nani
Palkhivala Arbitration Center. Last, but not the least, we
have our very own Payal Chawla. She’s an alumni from the
University of Chicago Law School. And she is a founder of the
country’s first and only all woman law firm that specializes
in commercial transactions and disputes. Her firm, JusContractus,
was founded in 2013 and has since then
won several awards. She was also named
one of the minds that should matter by Forbes India. Payal has fought epic battle
with the corporate giant and her fight was the subject of
an award-winning biopic, which we actually screened right here
at the University of Chicago center in Delhi. She is an expert on arbitration
and a prolific writer. Not only is she an alumnus of
the University of Chicago Law School, but she is a Rotary
Scholar and a Russell Baker fellow, and serves as the
Director of the Nani Palkhivala Arbitration Center. With that, I’d like to
hand it over to Payal to start our discussion. [APPLAUSE] PAYAL CHAWLA: Tom, many
congratulations on this book. I never thought I
was going to say this about a book on
constitutional law, but this is a page turner. You know, what I found
absolutely fascinating is that it’s set in the
backdrop of the United States, but you’ve covered
countries like Hungary to Singapore to India to Turkey. And yet, it all
feels so relevant. So right to begin
with, what motivated you to write this book? TOM GINSBURG: Thanks very much. Well, that’s easy. It was the election of Donald
J Trump in November of 2016 which, of course, was a big
shock to me and to many others. And me and Aziz, my
co-author, plunged our energy from that moment
into scholarship. We decided that we had to
understand what was going on. And there’s sort of two
premises of the book. One is that the United
States is not exceptional. You know, Americans
have this notion of American exceptionalism,
that whatever happens in the rest of the
world, well, we’re different. And it turns out
we’re not different. We are subject to
the same forces that we observe
around the world. And actually, I would argue
the responses should also draw from comparative experience. So we’re trying to integrate
American constitutional studies with comparative
constitutional studies. The other sort of a presumption,
or assumption, of the book is that when you [AUDIO OUT]
cases of democratic backsliding and erosion, and that’s
phenomenon [AUDIO OUT] with, slow death of democracy,
not a sudden military coup or communist revolution. Those things are all
very 20th century. Nowadays the way democracy
dies is very slowly, but through sort of
a series of death by 1,000 cuts, if I can
use the Chinese metaphor. And what we noticed is that, in
all of these instances that we observed of democratic
backsliding, the law was a
critical instrument for the erosion of democracy. And so our response was that
the law must be also part of the toolkit for responding. And so that’s what we’re trying
to do, diagnose the channels by which erosion
occurs, and come up with some practical responses. PAYAL CHAWLA: In
the book, you’ve identified five mechanisms that
lead to democratic erosion. What are those mechanisms? Can you just briefly
talk about them? TOM GINSBURG: First,
I want to say, before talking about the
mechanisms, the sort of agents of democratic erosion– we identify two. So the first is what we call
partisan degradation, which is when a political party is
playing the game of democracy and then just
decides, you know, we don’t have that much chance
for winning in the future. We’re just going to end
this democratic game. Or we’re going to seize
control of the apparatus and change the Constitution
so we never lose power. And we have some
examples of that. I actually think one
of the biggest examples is some elements of the
Republican Party in the United States who are seeking to
change the rules to eliminate people’s ability to vote. The other is what we call
charismatic populism. What do I mean by that? There’s a lot of discussion
of populism around the world. And populism, of course,
sometimes is a good thing. You get populism when the
elites are out of touch and the people feel that
they have to respond. But this particular
form of what we call charismatic
populism we think is very dangerous for democracy. And what is it? It’s the idea that you
sometimes see this– Erdogan in Turkey, Trump
in the United States, Orban in Hungary,
Chavez in Venezuela– all of these people
had in common that they would
identify themselves as speaking for the
people, the unified people. Not a plural society, not a
society with internal division, but a single people which
only they could speak for. The leader had a unique
sort of connection with the people and an
ability to speak for them. And sometimes, then,
the phrase is whatever I say is what the people want. Now the reason that’s
extremely dangerous is because such
characters have no need for intermediate institutions. And in fact, are
quite suspect of them. Anything that comes between
the people and the leader– legislatures, civil
society, the media, courts– those are all potential enemies. And so that’s an
agent that we observe. And I think that’s what’s
going on in the United States. The mechanisms– I’ll just very
briefly say some of the things that we see going on. So one technique is
to sort of undermine the system of separation
of powers which underlies many constitutions. And here we observe sort of
slightly different strategies when it comes to courts
than with legislatures. When it comes to
courts, the strategy is to pack the courts
with your supporters and to manipulate the
personnel in the court so that you have friends there. And then you don’t
have to worry. Then the law is on your side. When it comes to
legislatures, we see a slightly different
strategy, which is generally to bypass them. One very sharp example
is Hugo Chavez– actually, his successor,
Nicolas Maduro, when he lost the election
to the National Assembly in Venezuela a few years
ago, he said that’s fine. We’re suspending the
National Assembly. We’re going to create
a constituent assembly. And the people will
govern directly. And of course, the
people are those who are curated into that position. So that’s a strategy. We observe the
erosion and attacks on the electoral machinery. In my country, it’s through
drawing district lines. So we sometimes say
in the United States, the voters don’t
pick the politicians. The politicians
pick their voters, because they draw the
constituencies they want. And a third and
very important thing is attacks on [AUDIO OUT]
public sphere. And [AUDIO OUT] democracy
depends on a big sphere of public debate. But when you attack
journalists– last year was the worst year
for journalists in history, more journalists murdered around
the world than any prior year; when you attack civil society– new registration
requirements, tax harassment, things like this, NGO
laws in various countries; and when you attack, ultimately,
the very idea of truth, then things are going off the rails. And then I fear
for the viability of constitutional democracy. I’ll say one last
thing, which is I really feel like universities have
a really important role to play here. Because universities
are places we’re devoted to finding the truth and
to rigorous inquiry, regardless of where it takes us. And sometimes we see
attacks on universities. In Hungary, for example,
they effectively did close– Viktor Orban did close– the
central European university, using that demonic
figure of George Soros to blame for all the problems
and sending them away. But a free society cannot
function without free inquiry, free universities, free
press, and free civil society. PAYAL CHAWLA: Does any of what
Tom has said resonate with you from a judicial perspective
with regard to India? ARVIND DATAR: Well, of course– [TAPS MICROPHONE] –everything that he said
has such a great resonance in terms of our
experiences in India and in terms of the
work which we do. To just give you four
broad themes which have permeated our
law and which really speak of democratic erosion,
whether you have the debates on constitutional amendments
in the 1960s and 1970s; or whether you have the debate
on the exercise of emergency powers, particularly
in the 1970s and 1980s; whether you have the
debate on the restraints on the ordinance-making
power, which is essentially to bypass the legislature
and pass ordinances by executive fiat;
whether you speak of the conflict
between the center and the state in relation
to the national capital territory of Delhi, on the
issue as to what powers can a union territory exercise in
the legislative and executive sphere. So all the debate on
federalism in India, which has
progressively sharpened as the nature of the
federal polity has changed. So each of these
reflects, in a great way, the tussle to retain
the essentials of democratic functioning and
the dangers which you foresee if you give up that space. But apart from these
conceptual challenges to preserving democracy and
to foresee democratic erosion, I think I’d like to share
something personal, which is the perspective of a judge. Because when you decide
individual cases, you realize that
constitutional law changes in incremental stages. And democratic
erosion, in that sense, doesn’t take place
through sweeping changes. But it takes place through
very small changes, which left unguarded, open
up the danger of eventually, cumulatively, affecting
the democratic polity. So it’s in these
incremental stages that judges have to be
extremely careful when they apply the law. There is no case, in that
sense, which is too small to not really affect the society
and the constitutional system in the wider context. So whether it be in the context
of the freedom of speech and expression cases of a
single individual who is tried or who is jailed
or who is denied bail because that
person said something which is perhaps
contrary to what populism would feel as an [INAUDIBLE]. I think it’s in these
small cases where the real strength or the
weakness of the system eventually reflect. And therefore, as
a judge, I perceive that the whole theme in the
book about the gradual erosion of democracy across the world,
if we don’t allow ourselves to meet challenges to democracy,
they’re very, very significant. Which is not to
say that there is a particular challenge coming
from a particular source. It’s just that we have
to be extremely careful and guard ourselves
against the gradual erosion of democratic space. And then finally,
I must, of course, tell you that when
I was coming here, Arvind asked me a
short while ago, he said did you read the
judgment of the UK Supreme Court today? And that’s exactly what they
have been speaking about. I mean, this was a case
where the whole issue was as to whether the
poor the advice rendered by a duly elected
government to the queen to prorogue Parliament was
justiciable and if it was, whether it would be overturned. And they said that,
well, it affects the parliamentary democracy
in a very significant way. Because it prevented
Parliament, by being prorogued for five out of the eight
weeks before the exit took effect, from
applying its mind to how it would want to
control the executive. So by denying the
executive, thereby denying parliament
the space to control the executive in
that sense, they didn’t call it a
constitutional fraud. But they called it
certainly something which was null and void,
as an excess of the past. Very significant wording,
because ordinarily, advice tendered by an elected
government to the title or head to prorogue is not justiciable. So this is really, in that
sense, carved out a new part and set defense for the future. PAYAL CHAWLA: Did you read
the judgment on the way here? [LAUGHTER] ARVIND DATAR: As
much time as it took to travel from the Supreme Court
to the University of Chicago. Yes. PAYAL CHAWLA: So do you
think that in India, because of the overlap
between the legislature and the executive,
there’s just much more burden on the
judiciary to protect, there’s much more pressure
on the judiciary to protect constitutional rights? DY CHANDRACHUD: Before
I answer that question, I just wanted to– before I came, I was just glued
to the TV for about 20 minutes. I saw the BBC and the CNN news. And in the light of
what Tom also said, this person who started
was a lady called Miller. And you see her
photograph on the BBC. She looks of Asian origin. And she started the battle. When she first wanted
to challenge it, they said you have
no chance of success. Because what advice the prime
minister tenders to the queen is not justiciable. And there is no chance. But nevertheless,
she filed the case. She succeeded first round. She came in the second round. And I was surprised that they
received so many threats, intimidation, they had
to get police protection. I mean, in a country
like UK, there was so much of a
threat to her liberty, and so on, and so forth. But she fought all the way. And it was a stunning
11-0 victory. And the board [INAUDIBLE]
by the Supreme Court was that the prime minister’s
advice was unlawful. And they said it has never
happened in British history. That what the prime
minister had done was characterized and
labeled as unlawful. And they kept saying the word
that the prime minister had been called out. He had been called out. That’s the phrase
we constantly use. Now coming back to
your answer, yes. I think it’s ultimately, in
my experience, a little bit, the judiciary is going to save. Because what
happens is, I think, historically, as well, both
the elected government always finds that the judiciary
is coming in the way, whether it’s the US, the UK. They always find that
kind of a problem. And in my experience in
our federal structure with so many rules
and pressures, what happens is very often
the governments are– perhaps because of
electoral politics, because of the World
Bank [INAUDIBLE],, they are pulled to
take decisions which may not be constitutional. But it has to be taken to
meet the needs of the people. For example, it
could be reservation. It could be other
kinds of steps. It could be various
kinds of taxes. Where do you go but
you challenge it? For example, the 50%
limit was laid down only by the Supreme Court. Otherwise, it would have
crossed [INAUDIBLE] there’s no limit to it. So the only check and balance
I see, in India, at least, is the judiciary. Because of the compulsion
of politics, the compulsion of the executive, it is there. And again, what is happening
all over the country, when I keep seeing, particularly
in Tamil Nadu and so on and other
[? places, ?] you have, in theory,
parliamentary democracy. But if you see the number of
days the legislatures function, it’s very, very less. The number of days,
actually, the bills are discussed in the
legislature is very, very less. And again, you have got a system
of a kind of a one party rule, where there is no kind
of inner party democracy. There’s generally a
kind of dynastical kind of thing prevailing. In all this background, I think
the only bulwark of freedom of liberty is the judiciary. PAYAL CHAWLA: Tom, you
speak about the role of courts in the
American context and as a protector of rights. But in the American
context, you have judges that are political appointees. And in the current context,
where you have a Republican Senate, you have a
Republican White House, and you have a Republican
court, in a sense, do you believe that
it’s adequate to protect rights of people? TOM GINSBURG: One of
the general problems is when judges
take on more roles, as the British Supreme Court
has just done, as the Indian Supreme Court has done
over many decades, is the risk of what we call the
judicialization of politics, that political questions
get thrown to the judiciary. That has sort of
[INAUDIBLE],, which is the politicization
of the judiciary. So it’s sort of a dangerous
and delicate balance. And we’re in a situation
in the United States where we have really moved
to a politicized judiciary. The judiciary is
playing a major role. Our last presidential
election, in my view, was decided because
of the judiciary, because of the decision of the
leader of the Senate, Mitch McConnell, not to even give
a hearing to Obama’s nominee and thus to make the election
about the Supreme Court. Because many people
might not be disposed to sort of the moral
record of Donald Trump, but they felt very strongly
about those appointments. So when we’re fighting
elections over who gets to appoint judges, that’s
a perversion of democracy. I think we’ve really
gone down a bad path. So what can we do about it? Well, there’s a lot of things. Now there’s a lot of
interesting talk of reform. Our constitution says
that judges will serve, during good behavior, for life. Many other countries’
constitutions do so, but also have a
retirement age, by statute. Those retirement ages are
considered unconstitutional in the United States. So we have this
problem with judges serving till, well,
John Paul Stevens served till he was 89 years old. Which gives an incentive
to the politicians to appoint the
youngest person they can find who’s close to them. Which by definition, is someone
we don’t know anything about, we don’t know enough about. We’re taking a
relatively young person and giving them six
decades of massive power over this society. It’s a crazy way to go. Many people, like me, think
we should impose term limits on the Supreme Court. And we have various
creative ways to do that. There’s also the problem
of how you get out of our current
dilemma, you know, should we pack the courts? Should we expand the courts,
expand the federal judiciary? And I have a
particular view, which is that we should expand
the federal judiciary. Because we don’t
have enough judges. But we should do
so in a way that’s bipartisan and restores
the status quo ante and sort of goes back to a
system where judges were not seen as being major politicians. PAYAL CHAWLA: My next question
can be answered either by [? Yeshwant ?] or Mr. Datar. So it’s a follow up
question to what Tom said. The judiciary in
India has fiercely protected its independence. And we have had political
attacks on the judiciary. The latest judgment,
and [INAUDIBLE] had also been a part of
that, the [? NJAC, ?] which makes a distinction
now between the independence of the judiciary and
the Bangalore principles on misconduct. Do you believe that misconduct
can be used as a tool to be an attack
on the judiciary? And if so, does
the Supreme Court need to do something as an
in-house procedure for itself which balances the rights of
the people, on the one hand, as well as protect the
judiciary from those attacks? And if so, what can
that procedure be? So it’s a longish question. [LAUGHTER] ARVIND DATAR: Let
me begin by saying that the independence
of the judiciary is not a concept which was
meant to insulate the judiciary from being accountable. And by accountable, I don’t mean
in terms of your accountability to an electorate,
as the executive is answerable to the electorate. I mean an elected government
and a parliamentary form of democracy is ultimately
answerable to Parliament and through it, to people. The judiciary, by
its very nature, does not have a majority
at an [INAUDIBLE].. So when I speak
of accountability, it’s not accountability
in that sense. So when you talk of
judicial independence, the idea is not to insulate the
judiciary from, in that sense, not abiding by rules
of ethical behavior. But to insulate the
judiciary from wanton attacks on its own institutional
integrity, should I say, as a judicial system. The problem today
that I see is this. They’re twofold. The attacks on the
judiciary, which can really undermine not just the
independence but the confidence of the judiciary, is just
out of the technology of the age in which we live. Almost any order, any judgment
that the court delivers today is a subject matter of
comment on social media. And you have 10,000
different citizen journalists who are entitled to say
what they want to say, who do not have the restraints
of mainstream media, be it electronic or print. And there is no response,
there is no platform on which the judge can
respond when you hear or see what is this shout
in the social media. So in the name of securing the
accountability of the court, it’s important to
understand that you need to trust your judges and
you need to trust your courts. Because if that element of
trust towards the judges and the courts
disappears, then I think there is a
serious problem you have in the democratic setup itself. Now in so far as judicial
accountability is concerned, I think we need to have a system
which is more nuanced than what we have today. Because our constitution
today basically speaks of two possibilities. One is to impeach a judge
for wrongful behavior, and the second, which is
what is usually exercised, when you have a
difficulty with a judge, the only other option is
to transfer that judge. Now impeachment
is not necessarily an answer in every
situation that you can think of in terms
of judicial misdemeanor. Similarly, transferring
a judge is no solution to a judge who has a
problem in the place where she or he is posted. So we need to devise– we have the in-house
procedure, for instance, where allegations
against a judge are scrutinized at the first
level by an inherent in house committee consisting
of judges themselves. But I think we need to
have a more nuanced, a more balanced procedure, where
perhaps we also demand some degree of accountability
in terms of the extent of what the judges do. Not the outcomes of
their decision making, which has to be ultimately
left to the court, to the judge herself. But some measure
of accountability in terms of assessing the
product which is coming out of every court, the
amount of judicial time that is being devoted to cases,
the number of adjournments which are granted. And this is not just because
judges grant adjournment. It’s also because the
bar almost sometimes expects that it’s a
legitimate demand that you must adjourn cases. And as you go down to the
district courts and the lowest courts in the system,
that’s even more so. You have a threat of a strike
if a case is not adjourned. So I think the problem of the
balance between the Bangalore principles on the one hand
and of seeking accountability is not so much a
simplistic sort of issue of bringing the judges to book
as I think it is of a wider dialogue within society. Of what is it that
ails the system? And then, how do you really
find answers within the system, perhaps with a change
in legislation, but even more so by
developing principles within the judiciary
to find solutions to the issues which we face. DY CHANDRACHUD: I think
that was very good. I personally feel
that the questions have to be taken to the Supreme
Court level, the high court level, and the
lower court levels. And maybe one solution
could be some kind of a permanent committee of
very eminent retired judges, say a panel of eight or
10 there on the committee. And for any inquiry, you can
take three out of those people. And then the complaint
can be referred to them, and they can make
a recommendation to the Chief Justice or
the concerned person. But right now there is no
such established mechanism. And I think it’s a matter of
time before it has to come. Because as you rightly put
it, because of the media, because of any kind
of reporting going on, and so on and so
forth, what’s worse is the rumors which
are not answered. And that makes it
worse, you see. Because [INAUDIBLE]
to the person. One does an independent inquiry,
people know what’s happened, and that settles the matter. You also must have
a huge protection for frivolous, useless
complaint, which [INAUDIBLE] is famous for what
they call the blank petitions. So this has to be
really taken up. Because [INAUDIBLE] under
high court judges [INAUDIBLE] the [INAUDIBLE]. There has to be some kind of
a mechanism which will deal with this particular thing. And because what’s worse is
the justice is most vulnerable. There is no way he can
respond to it, you see? Some allegations are made. There’s no way he
can go to the media. He can’t go to the press. But somebody has to
protect the system also. PAYAL CHAWLA: Tom, you’ve
spoken about election being a very important element
of a liberal constitution democracy. And I know that the issues on
elections in the United States are different from
those in India. You’ve spoken
about redistricting and gerrymandering. So if you could just
briefly talk about that and also tell us, do you
think that the Indian system’s better? [LAUGHTER] TOM GINSBURG: It’s hard to
do worse than our system. DY CHANDRACHUD: [INAUDIBLE] TOM GINSBURG: Yeah. So gerrymandering,
it’s a funny word. It means when you
have a district that looks like a salamander,
like a worm that kind of goes around and doesn’t make any
geographic or coherent sense, a district that
just looks crazy. And so the core of our problem
is rooted in our constitution. Our constitution,
our founding fathers were writing this
document before there were political parties. And they were actually trying
to prevent the rise of what they called factions. And they turned out
to be quite wrong and very soon we had
political parties. But in their wisdom, they
said that the elections for our national
representatives will be decided in the manner
of which the state legislatures choose. So state legislatures,
they thought, would run the elections. But they didn’t imagine
that the state legislatures would be partisan bodies. Which, of course, they are. And that means that you have
this problem of the state legislators, who are currently
sitting, trying to draw up districts, as I said,
picking their own voters so that they will
stay in power forever. And you have districts that
look crazy and are not coherent. So that’s the major problem. We also have voter
suppression, active efforts to suppress voters. And all of this plays
out really intensely every 10 years
because of our census. The Constitution requires a
census, a complete enumeration of actual people living in the
United States every 10 years. It’s about to happen
after the 2020 election. And so there’s a lot of
positioning about that. We had a constitutional
case earlier this year about whether Donald Trump
and his administration could include in the
census a question about are you a citizen or not. And the Democrats didn’t
want that question. Because the census is supposed
to count every person, whether they’re
a citizen or not. And the Democrats thought
if you have that question, many people would not
fill out the census. If they’re not a citizen,
they would be afraid. But the constitution
says every person. So there was a fight about that. The Trump administration
lost that one. The reason it has
such high stakes is because whoever gets
to control the census or whatever numbers that
come from the census will lead to a readjustment
and that means redistricting. And so we’re about to
have much litigation. The courts end up being the
decision maker in this regard. It’s a real mess. And clearly, there would be
a much better way to do it, which some states have adopted. We now have 17
American states which, as a matter of their
own constitutions, have independent
electoral commissions that draw the boundaries. And we know, political
science has shown us, that elections in
those states are more competitive, responsive
to changes in the electorate and such, and just better than
where the partisan bodies are really running the elections. And of course,
India’s has the ECI. And it’s just a much
better way to go. I think there is a separate
territorial boundaries delimitation. Leave that stuff to technocrats. That should be a
technical decision, not a political decision. So this is one
area among several in which the Indian
constitution is superior to that of the United States. PAYAL CHAWLA: OK. I’m going to come
to my last segment before I open up to
questions to the audience. And that’s on free speech. So to you, sir,
on Article 19(1), do you think 19(2)
is now an impediment? Should we be moving to a more
First Amendment type of regime in India? ARVIND DATAR: You
know, honestly, I don’t think that the
Constitution is ever an impediment, at least not
a constitution like ours. I think that it’s
the way we work the Constitution and
the way we adjudicate upon the Constitution
which really makes a critical difference. Otherwise, the best
constitutions can fail, and the most imperfect
constitutions can be made to work much better,
depending on how you work them, essentially. You must understand that when
the Constitution was framed and it was drafted,
it was drafted in the context of a particular
social and historical perspective. And that was a perspective of
the aftermath of partition. It was the perspective of a
blueprint for governance, which we had in terms of the
government of India Acts of 1919 and 1935. So essentially, the Constitution
drew a lot on our experience with some form of
legislative democracy, imposed a chapter on
the fundamental rights, and then drew a
whole lot of balances between free speech
and public order, between property
and social control, a whole lot of balances
which you find running across the Constitution. Now I think the balances which
the constitutionalists sought to draw are, in fact,
a source of strength for our constitution. Because the balances essentially
leave the Constitution sufficiently open textured
for constitutional statesmen– states persons, rather–
constitutional judges, those who work the Constitution,
including civil society, to actually benefit from
the open textured nature of our constitution. So I think far from being
this balance between 19(1)(a) and the restraint which is
imposed by 19(2) being a sort of an impediment, I think it
is this sort of balance which allows us to render a degree
of interpretative stability in the working of
the Constitution. So I don’t think
really that we need to move more towards the First
Amendment model in the United States. That’s a matter of
judicial interpretation. Because just to the social
and the historical perspective in which the Constitution
was drafted has changed, that’s not a need to change the
constitutional provisions just to change the way we
interpret the Constitution and how we apply it
from day to day, which is I think far less an
intrusive or invasive a procedure than attempting
to change a provision. Because any provision for
change in the Constitution, I think, meets
different parameters. A change for interpretation
is certainly less intrusive, and you can alter your
approach to the Constitution depending upon the problems
of the day, which perhaps is a more desirable way out. PAYAL CHAWLA: Tom, to you
on the First Amendment, has it been effective
against President Trump? TOM GINSBURG: So we look
at all these channels for democratic erosion. Then we evaluate the
American Constitution against those channels. And basically, we get– in the United States,
we’d say a C minus. It’s not a great Constitution. But one thing we do have
is the First Amendment. And that turns out to
be, I think, very useful. It’s in contrast with
the approach taken in many European countries. They use this idea
that they call militant democracy that was
developed after World War II. The idea in Germany and Italy
and many other countries is that you had to limit
certain forms of speech in order to protect democracy,
limit certain political parties from running. And there’s a long history
of [AUDIO OUT] banning particular parties, most
importantly, South Korea banned a pro-North
Korean political party. That’s called
militant democracy. We think it’s a bad idea,
particularly, in the context of democratic erosion. Because if you think about it,
who’s making those decisions? Some government agent or someone
the government has appointed. And that means, of course,
that it’s a powerful tool for suppressing opposition. We haven’t seen in
Europe these countries which suppress hate
speech and suppress these political parties. It hasn’t prevented the rise
of far right wing movements in those countries. So we really prefer the
American approach here. Not that every country has
to have exactly the First Amendment, but freedom
of speech is so critical. And it’s been very important
in [AUDIO OUT],, particularly in an era of news,
facts being questioned, they can always be answered. And that’s what we have to do. PAYAL CHAWLA: Just as
a follow up question, would the First
Amendment have been as effective had you a more
conventional president, or does President
Trump’s persona allow his caricature and that’s
why the maximum attacks are coming from the
comedians, as opposed to your conventional press? TOM GINSBURG: I mean, the
press is also very split now. It’s very polarized. I think actually
one of dangers which we identify in this book,
which I haven’t seen too much other writing on, is
actually the abuse of speech, not by people in this society,
but by the people in power. So If you think about it, the
President of the United States could tweet about me tomorrow. You know, Ginsburg’s a
communist or something like that, or a terrorist. And I would have no
remedy against that. The power of government
reach now is maybe as great a threat to civil
society as speech that emanates within
civil society. So we are actually
in favor of a remedy, a libel remedy or libel action
against government officials who abuse and willfully
abuse their speech in order to protect that civil sphere. But broadly speaking, we
think it has been effective. You know, a more
conventional president, it would just the ordinary
run of the mill thing. There wouldn’t be a threat
of democratic erosion. So it would be about the same. PAYAL CHAWLA: So any
questions in the audience? AUDIENCE: PAYAL CHAWLA: Please state
your name and profession. Introduce yourself. AUDIENCE: My name is Tenna. And I’m a journalist. First of all, Mr. Tom,
what you said– politicians pick their voters. Actually, recently, in
the lower house election, the general election
recently, 43% of the politicians, the
MPs, they are criminals. And 33%, they have heinous
crime charges against them. So that is true. Ordinance, how a bill is
passed, or something like that– Supreme Court is the guardian
of fundamental rights. OK. And so my question is– PAYAL CHAWLA: Tell
him your question. AUDIENCE: –my question
is how will the people save a constitutional
democracy when they don’t know about the Constitution? If I question here that who is
the attorney general of India, I would like to be wrong,
but half of the people sitting here, they
won’t know that. [INTERPOSING VOICES] PAYAL CHAWLA: Could
we not have comments? Just a question– AUDIENCE: How will you we save
when the mass has not known about the Constitution, sir– even they don’t
know about how many fundamental rights we have. TOM GINSBURG: Perhaps
I’ll just say one thing and then pass it on. But in the United
States, 90% of Americans support the First Amendment,
but a third of the people can’t name any of
the freedoms in it. A third of Americans cannot
name all three branches of our government. So we also have this problem. But the point is that,
in our country, at least, enough people do at
least mobilize and lead. It’s not to say that
constitutional education is not absolutely important. It’s absolutely
critical that people understand what’s in there. And actually, I think a
danger in the Indian context from my point of view, is
that the Constitution is longer than my book. It’s a thick document which, I’m
sure the professional lawyers here, know [AUDIO OUT] around. But the ordinary citizen would
be incapable of doing so. So that’s why there’s
a need for what I would call civic education,
that the important things people are made aware of. ARVIND DATAR: I’ll
just add this. In fact, I wanted to say this
in the course of my answer to one of Payal’s questions,
but I’ll say it now. Which is there’s a
limit to what you can expect in a constitutional
system from change through courts. And I think to cast
the burden on courts to bring about all changes
towards the strengthening of a constitutional democracy is
perhaps not an appropriate way of approaching the problem. I think it’s equally
important for us to engage with civil
society, with institutions. Because the courts are obviously
a very, very important fulcrum in the preservation of
constitutional democracy. But the courts are not
just the only institution. And if we tend to focus
only on the courts, then you really lose the impact
of what other wings in society, including those of the state,
as well as non-state actors, have to do in order
to preserve democracy. On your question as to how
would you expect people to, in that sense, perpetuate
and reaffirm democracy if they’re not aware of each
of their constitutional rights, I’m not sure that’s
really correct. Because my perception is that
almost every Indian citizen is an armchair commentator
on the political system. [LAUGHTER] Every Indian– yes! Every Indian who goes
to pray, she or he knows that your right to pray,
your right to conscience exists because it’s protected
by the Constitution. It is recognized by
the Constitution. It may exist, and
as I have said, it does exist, even independent
of the Constitution. But it’s recognized and
protected by the Constitution. So in terms of spreading
the message around, I think it’s important that we
do spread the message around by talking to
children in schools, by getting people involved
in civic governance. But I think people are aware
of the huge impact which their decisions as voters tend
to make on changing the polity. And the course of our
electoral history in India is itself an indicator of the
fact that people do count. DY CHANDRACHUD: Just
on a lighter note, and then, something serious. You mentioned about the
members of parliament not knowing– or 90% not
knowing the Constitution. In fact, in 1931, when
Mr. Palkhivala– and we are jointly having a lecture
in the Palkhivala Foundation. He was speaking at Madras
with the late [? Raja-ji. ?] And when he started by
making the comment that all members of Parliament have
to take an oath that they will uphold the Constitution,
but there is no obligation that they ever read
the Constitution. So that’s the comment he made. But I’ll tell you one thing. I was in for a very
pleasant surprise. Because we always see this kind
of rambunctious proceedings on TV. People are shouting,
and so on and so forth. But I’ve given evidence
before four or five parliamentary committees
on behalf of the Madras Bar Association. And I was very pleasantly
surprised to see the members of Parliament
very learned, very well-read, and asking very, very
pointed questions. And the report’s also
of very high quality. So then I realized that– don’t just go by
what you see on TV. There’s a lot of work going
on in parliamentary committees where, if the bills
are referred to them, the select committee’s
goal is to make very important recommendations. So we must respect and
understand that, as well. No, no. I mean, before we
criticize people, I think we should also know that
good work also is being done. PAYAL CHAWLA: So we are
completely out of time. But one last question. [INAUDIBLE] AUDIENCE: So my
name’s [INAUDIBLE].. I’m just a citizen of India. The question is this. Do we see judicial reform
happening anytime soon? And if so, would it be
part of the legislature to bring that out or
the judiciary itself? And the reason I
ask the question is because, as we
heard, the onus for much of saving
the democracy, the constitutional democracy,
will come up to the judiciary. And we see, at least in India,
that the judicial system has a lot of cholesterol,
backlog cases we’ve heard of, you
know, divorce cases going all the way up
to the Supreme Court. So where do we
see that reform so that we can end up saving
constitutional questions? ARVIND DATAR: Well,
in judicial reform you can speak often
from two perspectives– one, reforming the structure
of the judiciary, and two, making the judiciary
more functional in terms of its ability or
efficiency in disposing of cases, which you have
stressed upon when you talked about the fact that
divorce proceedings come up to the Supreme Court. Every one of us, as judges,
here these transfer petitions, which is essentially
a petition by one of the spouses for a transfer of
the case from one jurisdiction in one state where
the other spouse has filed a petition for divorce
to another state in the system where the spouse moves
the court is residing. Why should the Supreme Court
be hearing these cases, which we get by the multitude? Well, that’s a problem
of the federal structure. No high court can
transfer a case from one state to the other. You’re right, that we need
to evolve solutions to make our courts more functional. Otherwise, the great threat that
our courts are going to face is the threat of
dysfunctionality, just by virtue of
the large volume of cases that our judges
have to deal with. It’s a difficult choice there. Because one way to
do it, which a lot of systems across
the world have found, is to exclude judicial
review as you go higher. Our model is based on
broadening of access to justice. That’s how the Supreme Court
would deal with cases where there is an imprisonment
for a term of three years, or five years, or seven years. Many, many, many legal
systems in the world wouldn’t just have their
final courts of appeal or the Supreme Court dealing
with the kind of cases, which we should be getting. Should the Supreme
Court hear these cases? Should we not hear the cases? It’s very difficult.
It’s a Hobson’s choice. If you say that you’re
not going to hear a certain category
of cases, you’re going to make your work
easier in the sense that you will reduce
the burden of cases. But then, you’re going to face
the possibility of undealt with errors in the
judicial process. So where do you draw the line? I think the answers
to all of these is not necessarily in
terms of legislation. But just in terms
of judicial policy making itself, where judges
talk to judges and you devise means to deal with the problem. And I think that
really is critical. Because there is no
point in saying that, well, let’s hope for Parliament
to bring about a change in the legal system. Parliament will do it. And Parliament
keeps on doing it. In terms of individual
legislations, you’ve had changes in the
Arbitration and Conciliation Act, for instance. But there are a lot of things
that judges themselves can do. And I think it’s important
for the judiciary to address those problems
itself and try and see how we can implement better
technology, for instance. Our courts have made
enormous progress and strides in terms of incorporating
the benefits of information technology in terms of financial
and judicial data [INAUDIBLE] or in terms of the
information which we are now providing to litigants. So I think that’s really
work in progress, where we have definitely
made some achievements, and we have some achievements. But there is a lot of work
to be done for the future. DY CHANDRACHUD: I want to
ask one question to you on this question
of see, we have got this problem of huge areas
of 40% judicial vacancies are there. Why aren’t we
trying to implement a system of adult judges? I mean, so many
courts, people are retiring at 62, which is
a very, very young age. A lot of people have at least
10, 12 years of good life into them. So why can’t we are
more adult judges? Is it not a good thing
to seriously think of appointing adult
judges, particularly in courts with these
vacancies are huge? ARVIND DATAR: I
think that you’ve made a valid point, because
the Constitution does provide for the appointment
of adult judges. The Supreme Court has had
adult judges in the past. When the famous
[INAUDIBLE] was heard, 13 judges had to sit
for hearing the case. And they had to appoint
three retired judges as adult judges, a few
retired judges as adult judges to man the day-to-day
work of the court. In the high courts,
for instance, judges retire at the age of 62. Now 62 is very, very young. You retire your
judges at a time when they’re at the peak of
their mental abilities. Many of our district judges
come into the high courts at the age of 57 or 58. And they are left with four or
five years to be on the bench before they retire. Now judges of the Supreme
Court can retire at 65. There’s a very plausible,
if not even more plausible, a very strong argument,
judges of the high court should be retiring at the
same age as the judges of the Supreme Court. If you’re good enough to serve
as a judge of the high court, or as a judge of
the Supreme Court until a particular
age, why you not good enough to serve as a
judge of the high court, or the district court? And the problem is simply this. I’ll give you the example
of the Allahabad High Court. I was a Chief Justice
of that high court. The sanction strength of
that high court is 160. If the high court today
has about 110 judges– I’m not sure what the
exact figure today is– but if the high
court has 110 judges, the simple question
is, where are you going to find 50 more
judges from the bar, or even from the
district judges, to make as judges
of the high court? And you’re going to
have the attritions by virtue of the constitutional
provision the next two years. People who are then at the
age of 62 are going to retire. And it’s very
difficult to fill up vacancies for the simple reason
that you need people of merit. You need people of integrity. There’s a whole
constitutional process which is followed in
assessing the credentials of a candidate involving the
judiciary, the government. So the whole process
takes time and it’s bound to take time
if you really want to have a qualitative process. So I think the answer
to that is really to have more adult judges. Also, think out of
the box, to my mind. For instance, why don’t
we tap members of the bar who may not have
become full-time judges for the entirety
of their careers, but whose integrity is beyond
doubt, whose credentials are beyond doubt? And you could appoint them
to different high courts, high courts which are different
from the high courts where they are practicing, for
short terms, maybe for two years or three years. Say a person with experience
in commercial law, why should that lawyer, for
instance, whose credentials are not in doubt, be appointed as a
judge of a different high court to serve for a period
of three years, to deal with a specific
backlog of cases, the cases relating
to arbitration, or those cases relating
to intellectual property? Or why can’t we have
[INAUDIBLE] judges of the high court or
retired district judges who will come into
a high court which has a large burden of undisposed
of criminal cases, who will come and deal with the
oldest criminal appeals? So a group of say
10 judges will then be devoted to only disposing
of the old criminal appeals? So we’ll have to
think out of the box. Merely saying, well,
what are the judges doing about filling
up these vacancies? What is the government doing
to fill up the vacancies? The coalition is working hard
to fill up the vacancies. I know that. The government is working
hard to fill up the vacancies. The point of the matter
is if you need quality, if you need inclusion, that
process is going to take time. And we need to really supplement
our conventional processes of selection with short
term appointments, as well. PAYAL CHAWLA: [INAUDIBLE],,
can I please call upon you to deliver the water? Thanks. OK. My last question. [INAUDIBLE] AUDIENCE: Good evening, all. I’m Sura from law
faculty, Delhi University. So sir, my question
to the panelists is that, in Brexit
bill recently, the Parliament and the
members of the cabinet voted against the
government’s motion. Whereas in Indian
Parliament, even going against the
directions of the party [INAUDIBLE] disaffection,
disqualification as [INAUDIBLE] So I would like to know your
opinion on which constitution is at crisis at the moment? Which constitutional
democracy is at crisis? TOM GINSBURG: Just
very briefly– look, I want to speak more generally. So there’s the kind of
narrative that we often tell, which is that the
concentration of power in the executive,
the disappearance of parliaments–
parliaments around the world are very unpopular. In the United States,
only 10% of the people think Congress is
doing a good job. So that’s the least
popular branch. And so it all falls on the
judiciary and the executive. But I’m seeing, now, some
signs around the world that parliaments
are coming back. Britain today, with the help of
the courts, or the Parliament coming back. Brazil, which is a
country where many of you will know the firebrand
populist elected. He’s been able to do almost
nothing of his program because the Congress
is not going along. And you go down
the list, there’s many other countries
where we see– Italy, actually, where the
government just reformed and the populists
were pushed out. The one I give very low
ranks to is my own country. Our Congress is not
acting very well. And there’s a reason
they’re not very popular. I don’t want to say much
about India, because I’m just too uninformed. DY CHANDRACHUD: Your question,
actually, like he says, is a Hobson’s choice. The [INAUDIBLE]
deal came because of the massive defection
that took place at that point of time. You had this
[INAUDIBLE] syndrome, which took place in those days. And so the remedy was to
have an anti-defection bill and say that, if you’re
elected on party X, unless a certain percentage
moves, you’ll be disqualified. And of course, it’s
a big provision that you lose the freedom of
speech, the freedom of things. But the point is that you must
speak in terms of a party. I personally feel
that there could be certain issues where that
[INAUDIBLE] should not apply. But it’s a very important,
national, momentous occasion. It’s better to have freedom. But then till the [INAUDIBLE]
change, nothing can be done. AUDIENCE: My name is
[NON-ENGLISH SPEECH].. I am just an ordinary
citizen of this country. And for a democracy
to work properly, you’ve got to have
multiple parties. But with the current regime,
our current situation we have, we are moving towards
the uniparty system. So what is the
constitutional role? I mean, as a
constitution, what is the role it is going to play to
have a more effective democracy in our country? DY CHANDRACHUD: Today we
have a one party majority. But that’s been earlier also. From 1950 to almost ’65, it
was almost a one party rule. And then there it was in
most of the states, also. So there’s ebbs and flows. And you had a coalition regime. Again, you have got one
party in the majority. Who knows what will happen
10, 15 years down the line? So that really doesn’t matter,
as far as our constitution is concerned. I think there are enough
checks and balances to take care of a single
party majority or a coalition. Both have got
pluses and minuses. And we just take it
as it comes here. [INAUDIBLE] four year rule. In a span of 24 years, this
is just a blip or a semicolon. It doesn’t matter. TOM GINSBURG: And again,
from my point of view, from the definition
of democracy we have, it’s not just elections. You also have to have
freedom of speech, and you also have to
have the rule of law. Because those are the things
which ensure that elections will continue to go forward. But as long as elections
are continuing to go forward and they’re free and fair,
then the actual party system is not a consequential matter. SHIVANGI SHARMA: On behalf
of Oxford University Press, I would like to thank
the University of Chicago center in Delhi and the
Palkhivala Foundation. Honorable Dr.
Justice Chandrachud, thank you so much for gracing
us with your presence today. Mr. Datar and Ms.
Chawla, thank you so much for your insights
and the questions. Oxford University
Press is a Department of the University of
Oxford and the largest University Press in the world. We publish in 102
global languages and have been present in
India for over a century now. Our association with Professor
Ginsberg is a special one. And I extend my
congratulations for this book. The copies of the book
are available outside. And kindly join us for tea. Thank you so much.

One Reply to “How to Save a Constitutional Democracy: Justice D.Y. Chandrachud & Tom Ginsburg”

  1. #1 academics who teach at a university telling everyone they are not educated enough to understand cannot call America what it is … you stupid arrogant shits, this is a Republic!

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