The only period of legal authoritarian rule in India was June 1975–March 1977 following the declaration of an Emergency by Prime Minister (PM) Indira Gandhi. I happened to be back in India, based in New Delhi, doing archival and interview research for my PhD. The experience of the overnight transition from a rambunctious democracy to which argumentative Indians had taken with gusto, to a stifling and oppressive rule by state fiat, was deeply and permanently sobering. It led to my first academic article on returning to Canada, ‘The Fate of India’s Parliamentary Democracy’ (1976).
Looking back at that now, I expect I would temper my harsh criticisms of PM Gandhi. For in fact the constitutional crisis arose from an Allahabad High Court verdict, confirmed by one Supreme Court justice that was appealed but not heard before the Emergency came into force. She had won a decisive victory in the 1971 general election with 68 percent of seats in parliament. I would now be strongly opposed to the judges vacating a clear verdict on a technicality of violating electoral laws which, if applied across the board, would have led to almost all parliamentarians losing their seats.
But my main point in recalling that incident and leading with it is that the issues of constitutionalism and the boundaries between law and politics and the institutions of the judiciary, legislature, and the executive, have preoccupied me for half a century in both their philosophical abstractions and practical applications.
Importantly, my opinions have changed in the sense that at the end of the day, I’ve come to believe that politicians and the political process pose less of an institutionalised threat to people’s freedoms, liberties, and speech than unelected, unaccountable, and unsackable judges who often, in the guise of interpreting laws, don’t hesitate to make – and make up – laws. Indeed in India in the end it was the voters who dealt Mrs Gandhi a crushing electoral defeat in 1977 for all the thuggish excesses under the Emergency, but then brought her back decisively in 1980 when they discovered just how incompetent the other lot of rabble-rousers were.
Human rights courts have become the place where democracies go to die. Law, both within and among nations, is an effort to align power to justice. All justice systems rest on a dynamic interaction between law, politics, and norms. Politics is about power: its location, bases, exercise, effects. Law seeks to tame power and convert it into authority through legitimising principles (e.g. democracy, separation of powers, due process), structures (e.g. legislature, executive, judiciary), and procedures (e.g. elections, trials).
The author of this article was in India during the Gandhi Emergency where the courts started to malfunction. So, this article is about how the courts are malfunctioning in the world, first in individual countries and then on the international level. The courts malfunction because the judges are appointed to interpret the laws, but they are making new law from the bench with no repercussions and no way to impose consequences for illegitimate actions and interpretations. He even speculates that the jurisdictional shopping for lawfare in the US will shortly come to an end by restricting the reach of a decision to the jurisdiction area of that specific court. His main beef is that in many courts there are no appeals from state and party entwined decisions, such as in China.