AAS Annual Meeting

South Asia Session 451

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Session 451: Judicial Activism and Social Transformation in South Asia

Organizer and Chair: Anita M. Weiss, University of Oregon, USA

Discussant: Anita M. Weiss, University of Oregon, USA

There is an exciting, relatively new phenomenon occurring in South Asia today: judicial activism bringing about constitutional changes resulting in important social transformations. While the legacy of British colonialism still provides a foundation to constitutions throughout the subcontinent, each country initiated significant changes when they became independent from Britain. Pakistan has had three constitutions and is still negotiating amendments to the prevailing one; India has a long history of judicial activism upholding the integrity of the constitution; Nepal is just instituting a constitution at this time. This panel brings together scholars and practitioners focused on contemporary judicial activism in South Asia that has important implications for societal transformation. Miangul Hassan Aurangzeb addresses the ongoing conflict over the 18th Amendment in Pakistan and the important long term implications this effort to ensure judicial independence and accountability has for Pakistan. (His participation at the AAS is supported by an AIPS PLS lecturer grant.) Anil Kalhan considers contemporary efforts in Pakistan and India to negotiate and reconcile the competing principles of judicial independence and judicial accountability. Anita Weiss analyzes how recent judicial activism in Pakistan is having important social implications for women’s rights, status and overall empowerment. Shylashri Shankar looks at the judicialization of politics in India, arguing that the perception of judicial activism is indeed greater than the reality of judicial power. Marc Galantar, the discussant, will make important connections between these various arenas of judicial activism and implications for social transformation in India and Pakistan.

Challenging Pakistan’s 18th Amendment: the Importance of Judicial Review
Miangul Hassan Aurangzeb, , USA

The Constitution of Pakistan, like the Indian Constitution, is controlled and rigid. Amendments are made by special procedure prescribed in specific Articles that give Parliament absolute and unrestricted power to amend it. The Supreme Court of India has interpreted corresponding Articles in its Constitution whereby Parliament can make changes, but this does not extend to having the power to destroy or abrogate the Constitution or alter what has been referred to as the basic structure of the Constitution. This has not been as clear in Pakistan’s case. Constitutional Amendments have been challenged in the Supreme Court via the doctrine of basic structure and framework of the Constitution; decisions of the Supreme Court have not been consistent. The recent 18th Amendment changes numerous Articles in Pakistan’s Constitution. Some sections of the 18th Amendment are being challenged in the Supreme Court on the basis of the doctrine of basic structure. The ongoing hearings are expected to end in late July 2010 with the Supreme Court decision expected soon thereafter. This paper, written by one of the primary Advocates who challenged clauses in the recent 18th Amendment, explores the development of the doctrine of basic structure in Pakistan’s Constitutional framework, and analyzes the implications of the notion of the basic structure of the Constitution for social transformation and political integrity in Pakistan. Who has the right to amend the Constitution and the extent to which Amendments can be made has major long term implications for political order and social change in Pakistan.

Judicial Independence and Accountability: Case Studies From Pakistan and India
Anil Kalhan, Independent Scholar, USA

This paper considers contemporary efforts in Pakistan and India to negotiate and reconcile the apparently competing principles of judicial independence and judicial accountability. In recent years, independence of the judiciary has been invoked as a major rallying cry for Pakistan’s “lawyers’ movement” and other segments in civil society, who have urged Pakistan’s Supreme Court and High Courts to abandon their traditional role of facilitating authoritarianism by the executive and military and instead to fashion a more independent and assertive role to promote the rule of law. Strikingly, during the same period of time lawyers and social activists in India, have mounted an active campaign for judicial accountability — especially for judges of the Supreme Court of India, which, in contrast to the role traditionally played by its Pakistani counterpart, has emerged over the last 40 years as arguably the most powerful and independent apex court in the world. Judicial appointment and removal, financial disclosure, and transparency have been prominent issues in the recent campaign in India, but those specific issues emerge from a broader perception, more generally, that the superior judiciary in India simply has become too powerful and unaccountable. This paper traces these recent developments in India and Pakistan to illustrate the ways in which arguments concerning judicial independence and modes of accountability must be sensitive to context. Judicial independence is not an end in itself, but rather a means to achieving a series of other ends. As such, it follows that the particular institutional approaches to judicial independence suitable in one national or temporal context might or might not be appropriate in other contexts, as the divergent nature of the public debates in Pakistan and India demonstrates.

Perceived Activism and Judicial Accountability in India
Shylashri Shankar, Independent Scholar, India

This paper examines the dynamic relationship between perceptions of judicial activism and the demand for judicial accountability. Contrary to the Ran Hirschl thesis that the political elites transferred power to courts when their own power declined, this paper argues the following: (i) that there was no such transfer in India ; (ii) that the nature of activism is less an overturning of laws and more of courts calibrating their responses to resonate with the government’s capacity to comply (here I draw on previous work on cases dealing with health and education); (iii) that the perception is greater than the reality of judicial power. I argue that calls for judicial accountability – that judges are held accountable for their actions – emanate from politicians, the public and from within the judiciary when courts are perceived as intruding into the domains of the executive and the legislature and there is an explosion of the use of media and information technology. In the second part, the paper examines the recent cases registered against judges for corruption, challenges to appointments and transfers in the judiciary, the use of information technology by judges (twitter and blogs), and the use of right to information to demand more information on the assets and other aspects of a judge’s private and professional life. It assesses the types of accountability advocated by different groups and the implications for judicial decision making and activism.