– Anashri Pillay
Both regional powerhouses with socially progressive Constitutions, India and South Africa have attracted widespread attention over the years. Whilst their transitions to democratic constitutionalism took place in different eras, the countries share significant commonalities. India and South Africa are more economically developed than other states in South Asia and Africa yet the gap between rich and poor remains disturbingly wide. This is the case, despite the explicit constitutional commitment to social reform in both states. The reasons for the slow progress in achieving a more equal society are complex and contested but it is safe to say that high levels of corruption in both states present a serious obstacle to the aspirations of transformative constitutionalism. In Transparency International’s most recent (2017) Corruption Perception Index, India is ranked 81 out of 180 countries for ‘cleanness’ with South Africa coming in at 71.
The apex courts in both these countries have sometimes played an expansive role in protecting constitutional rights and principles from executive interference. Recent jurisprudence has seen these courts acting as mechanisms for good governance or playing an overt role in democratic consolidation. In what is perhaps the most prominent of these rulings in India, in 2012 the Supreme Court (SCI) weighed in on the scandal over government’s sale of telecommunications licences to eight companies at below-market prices. A government audit had shown that the process through which the awards had been granted came at a cost to the exchequer of somewhere in the region of $40 billion. Delivering its judgment in the case, which was brought through a public interest litigation petition, the court repeatedly referred to concerns about transparency and equality in the allocation of national resources. Ultimately, it ordered that the 122 licences had to be revoked as the process was both arbitrary and contrary to the public interest. In 2011, the South African Constitutional Court (SACC) held that legislation disbanding the corruption-fighting body known colloquially as the Scorpions and replacing it with a different unit (the ‘Hawks’) was unconstitutional because the new body was not sufficiently independent from the executive. In 2016, the court found that then President Zuma’s failure to comply with the Public Protector’s order to reimburse the Treasury for those improvements made to his home which were not related to security needs was unconstitutional.
These are just some examples from a burgeoning jurisprudence in which the courts have taken on the mantle of corruption fighters. Whilst few would argue that judges can themselves prevent a slide into authoritarianism or end corrupt practices, many have praised the courts for their strong anti-corruption stance. At the same time, critics have challenged the legitimacy of judicial intervention into policy-making. Even those broadly supportive of the SCI’s order in the Telecoms case, have questioned the court’s decision to specify the process by which the 2G spectrum freed up by its revocation of licences was to be allocated, that is through fresh auctions. The legal basis of decisions has also been challenged for being weak – the SACC’s reliance on international law in the Glenister case, involving the disbanding of the Scorpions, is an example here. For some, the courts should and could go further in their good governance roles. Thus, in both the South African and Indian contexts, scholars and activists have approved the outcome of corruption cases whilst also wanting the SACC and the SCI to take a more normatively robust position. Rather than affirming their constitutional authority to protect democratic values in any explicit manner, SACC judges tend to frame their decisions around constitutional sections protecting fundamental rights or, as in the Glenister matter, rely upon somewhat open-ended international law standards to support their reasoning. This is a reflection both of legal culture and political context. Theunis Roux notes that the SACC (which sits as a full bench of 11 judges in all cases) is still a relatively new court carrying out its mandate against the background of a historically formalist legal culture and a political system in which the African National Congress (ANC) has remained dominant for 24 years. Patterns are more difficult to discern in the case of the much larger SCI, with its 2-3 judge benches (unless the case concerns a matter of great constitutional importance). But, even in India, where the SCI has, over the years, adopted a role described by Pratap Bhanu Menta as ‘both wide-ranging and largely at the Supreme Court’s own whims and pleasures’, key SCI decisions indicate that the court is responding to institutional constraints. The Telecoms matter has been described as a corruption scandal in which no one was found guilty. This is because the special court set up to investigate the matter after the SCI handed down its orders acquitted the accused in 2017. However, as Mehta notes, even the SCI’s 2012 ruling, whilst it was heavily critical of the policy, focused largely on the wrongdoing of private parties and bureaucrats. Only one Minister (Telecommunications Minister, Mr Raja) was held accountable by the Court. Executive responsibility was largely ignored.
This kind of restraint is also evident in the economic and social rights jurisprudence of each of the courts. In South Africa, where the SACC has a clear constitutional mandate to give effect to rights to housing, health care, social security, etc., it has adopted a cautious approach, focusing on the reasonableness of governmental action and the ostensibly process-driven question of whether government officials had engaged with parties affected by e.g. housing programmes in any meaningful way. The SACC has been reluctant to delineate the content of each of the ESR in an abstract way or to hand down remedies that would have significant budgetary implications. In India, where the SCI’s expansive interpretation of rights to life and equality has led to a large body of case-law on rights to shelter, health, education, and so on, the Court’s robust endorsement of protection of these rights is often married with weak remedies in the sense that these remedies simply require government to make good on pre-existing commitments and/or have limited budgetary implications. The ESR experiences of both courts highlight the fact that their cautious, or at least ambiguous, approaches to good governance matters cannot simply be attributed to the absence of a specific, formal mandate to act as protectors of democratic values. Even where such a mandate exists in some form, pragmatic concerns loom large. Arguments that the courts should not only overturn corrupt practices but do so by consistently and explicitly appealing to their role as protectors of democratic integrity, tend to lose sight of this point. Understandably, there is a resistance to allowing constitutional principle to give way to instrumentalist concerns. However, where courts ignore the consequences of their decisions and the institutional constraints under which they operate, they leave themselves open to a democratic backlash which will ultimately undermine their capacity to have any impact on good governance. Mehta notes that the new burst of anti-corruption jurisprudence in the Indian context was linked to the rise of an anti-corruption popular movement after 2010, itself a response to a series of significant corruption scandals. Having delivered a stable transition to democracy, the ANC’s status has remained secure through several national elections. The party’s poor governance track record had little impact on voting patterns until the 2016 local elections, in which the ANC relinquished control of three major centres – Johannesburg, Tshwane and Nelson Mandela Bay – to the Democratic Alliance. As the political landscape changes, there may be more scope for the SACC to more boldly embrace its role as guardian of democratic values. But the experience in both countries indicates that, far from being a secondary concern, the political context is key to their effectiveness in this role.
The author is an Associate Professor of Law at Durham University, United Kingdom
 Subramanian Swamy v Manmohan Singh (2012) 3 SCC 64; and Centre for Public Interest Litigation v Union of India (2012) 3 SCC 1.
 Glenister v President of South Africa 2011 (3) SA 347 (CC).
 Economic Freedom Fighters v Speaker of the National Assembly  ZACC 11.
 ‘The South African Constitutional Court’s Democratic Rights Jurisprudence’ (2014) 5 Constitutional Court Review 33.
 ‘The Indian Supreme Court and the Art of Democratic Positioning’ in Tushnet and Khosla Unstable Constitutionalism (CUP, 2015) 233.