On the 24thof August this year, the Indian Supreme Court (“ISC”), in a historicnine-judge bench1,unanimously asserted that the right to privacy was an inalienable universalright.
2On the 9th and 14th of November, 2017, respectively, adivision bench, and subsequently, a three- member bench, heard a Petitiondemanding the Chief Justice of India be recused due to a conflict of interestin a matter relating to bribery in medical college admissions3.The Bribery Allegations case waseventually dismissed. This case has led to op-eds asking: “Is this really the greatest credibility crisis the Judiciary is facingsince the Emergency?4″For the purposes of this proposal, I argue that these two cases symbolize theway we view the ISC today. In thefirst case, the ISC plays the role we most associate it with—that of anActivist Court—and in the second, we have an institution that is struggling tojustify its legitimacy whilst holding onto its immunity from democraticdiscourse.Thisthesis proposes to examine the ISC and its transformation from an institutionof the state to an institution of government.5 Further, it questions how the Court hasconsistently reached a compromise between its increasing intervention and thecounter majoritarian difficulty often associated with powerful courts globally.
- Thesis Statement
- Structure and Outline
- Voice and Grammar
This thesis aims to locate the legitimacy of the ISC by examining the Courtitself.Thedomestic body of work in relation to the understanding of judicial review inIndia is often occupied with evaluating its pros6and cons. 7In the international context, Indiais classified as a post-colonial example of constitution making; she adopted awritten constitution and provided for an independent judiciary. More often thannot, this classification is used to justify strong-form judicial review inIndia. Much of comparative literature with respect to India is reductive andtends to mainly focus on constitutional amendment procedure and affirmativeaction. BruceAckerman8terms India an example of his ‘new beginnings’ scenario. He states that the ISCindulges in a ‘redemptive style of adjudication.
‘ In effect, the ISC and other such courtsensure that constitutional guarantees do not remain mere paper promises.Further, he highlights the importanceof the India National Congress Party (“INC”) and the role it plays inensuring constitutionality in the country. The ‘insurance theory’ and the’commitment theory’ put forth by Tom Ginsberg9place similar importance on the INC. Inthe former, he states that the presence of a dominant party10implies a weak judicial review and in the latter, he shows the attractivenessof strong judicial review from the point of credibility. Both these theoriesare applicable, however their emphasis lies more on the classification andorigin of review— rather than the use and application of review itself.
Takinghis cue from Ginsberg’s ‘commitment theory’, Ran Hirschl’s work11on judicialization of politics questionswhy self-binding would be in the interest of dominant actors. Citing India tobe an example of this hegemonic preservation, he states that it is in theinterest of political, economic, and judicial elites to transfer certaincontroversial decisions to the court. This may to an extent explain the tensionbetween the Parliament and ISC as to custody of the constitution. However,there has been little or no literature, which attempts to find in a cohesiveexploration, a justificatory process, to label actions of the court as activistor restrained.12 Thisproject will involve normative methods of research. Reliance will be placed onprimary sources of information such as Constitutional Assembly debates, SupremeCourt Judgments and Procedure Rules and parliamentary proceedings availableonline as well as the LSE library resources. Secondary sources will includemainly but not limited to the works of Indian authors such as Professor UpendraBaxi13alongside a review of fractured studies which explore India albeit briefly.Further, this project will employ the following framework in order to analyzethe ISC: 1.
Constitutional Design Unlikeother Constitutions, the basis of judicial review in the Indian Constitution isindirect14.The court was envisioned to have a modest role15and the tenant of parliamentary supremacy was emphasized. An example of this isconstitutional incrementalism16,which left decisions as to official language, justiciablity of directiveprinciples and personal religious laws open ended. In doing so, the aim of thissection is to understand the historic origin of the ISC and also understand howthe court has widened or bridged the gap between foundational ideals andconstitutional realities as a means to explain its discretionary powers. 2.
Social and Political Changes Thisproject reviews the effect a culturally diverse and socially heterogeneoussociety has had on the ISC. In order to do so, this thesis divides the studyinto three time periods beginning post independence being the Nehruvian Era(1950s-1960s) and culminating in the 1990s. Inthe Nehruvian Era the Court was considered to be relatively dormant17.Here, it is important to analyze the role played by a dominant political partybeing the INC, the charismatic influence of national leaders like JawaharlalNehru and the foundational ideal of Parliamentary supremacy in India. Thisposition is to be contrasted with the court’s continued practice of strikingdown property rights legislation18,whilst upholding the tenant that the Parliament was only textually bound19in exercise of its constitution amending powers.
Thesecond period begins in the 1970s. A series of amendments to erode the power ofreview 20,the formulation of the basic structure doctrine21,and the cancelled election of a sitting Prime Minister22,the result of which was a National Emergency, ushered in a new constitutionalshift of power in the country. The Basic structure doctrine is viewed as thebasis of Indian Constitutional Identity23and is described as a principle of good governance24.However, I propose to evaluate the doctrine not only as a judicial innovationbut also as a more direct basis and extension of judicial review. Thethird era begins in the 1980s, where with the aid of its own innovations andthe advent of unstable coalition governments, the ISC successfully transitionedinto the ‘Peoples court’. This was accelerated with the introduction of PublicInterest Litigation (‘PIL’). The court’s power stoodincreased in terms of accessibility25.I propose to study its impact against the background of its checkeredtrajectory26when it comes to challenging state action more directly.
27I also propose an alternate hypothesis that the Court’s intervention in suchmatters is a consequence of ineffectiveness of other democratic institutions. 3. InstitutionalStructure Thisthesis will examine the structure of the single integrated Indian JudicialSystem28.It will study the effects of a top-heavy judiciary and the pressures ofincreased litigation on the court’s accessibility and the difficulty associatedwith implementing its judgments. An impact-based investigation of the structureof the judiciary will help bring out the contrast between the idealisticportrayal of the ISC and its pronouncements and the administrative difficultiesin the judicial system.
4. The Leastdangerous branch The Court in the 1990s until presenthas made law exceeded its domain in opposition of the Parliament’s constituentpower. With traditional boundaries crossed the question of the court’saccountability is of vital importance. In this regard the debate often stallsat the method of appointment of judges to the higher judiciary. The current appointment schemeis the Collegium system essentially controlled by the judges themselves,however the collegium has been challenged and ruled upon in three casesreferred to as the three judges case29.
Though there have been several attempts toreplace the collegium, the most recent attempt was made by the passing of the NationalJudicial Appointment Commission Act (“NJAC”), 2014 by a majority of bothhouses of Parliament. This Act was held unconstitutional by the ISC30in 2015. A collective reading of the above mentioned cases makes it clear thatthe Court is stubbornly holding on to the appointment procedure as the means tosecure it’s constitutionally guaranteed independence. While the discoursesurrounding the court’s accountability often stops at appointment, this thesishypothesizes that the court has chosen situations to assert certain valuesthereby balancing competing values and apart from appointments avoiding serioushead on collisions with the other organs of the State. Elaboratingon this framework, the thesis will examine the idea that the action of theJudges, and the court rulings are what institutionalize judicial review.31Itis hypothesized that ISC was entrusted with the commitment to protect constitutionalvalues, which has now transformed into protecting the activist court itself asa constitutional value. The aim of this project is to show that the ISC is notbound by anteceding theories and oversimplified labels but maintains itsposition by its own calculated balancing in a varied political setting. Thisthesis hopes to show that the discourse on judicial review requires moreindividual studies of judicial institutions in order to better understand notonly how a court increases its powers but also how it maintains it in thepublic domain.
1 The ISC does not preside over matters as onecourt but sits in panels of two or threejudge benches with an ascending hierarchy. When met with deciding a fundamentalquestion of law the court sits in a constitutional bench which comprises 5 or more judges. 2 Justice K.S. Puttaswamyand Anr. vs Union of India and Ors., WP (C) No.
494 of 20173Campaign for JudicialAccountability and Reforms vs. The Union of India, WP (Crl) No. 169 of 2017.
Inthe interest of natural justice the Petitioner demanded that the CJI recusehimself in this case and demanded that a Constitutonal Bench hear the petition.Though the division bench passed an order for constitutuing such bench, it wasrendered ineffective. A bench constituted by the Court heard the Petitions anddismissed them admonishing thePetitioners for casting doubts on the intergity of the CJI as well as the wholejudicial system. 4 Pratap Bhanu Metha, SupremeCourt, diminished, INDIAN EXPRESS, Nov. 14, 2017, available at http://indianexpress.com/article/opinion/columns/supreme-court-diminished-judiciary-judges-cji-cbi-justice-chelameswar-legal-law-advocate-dipak-misra-4936101/5 RajeevDhavan, The Supreme Court under strain: The challenge of Arrears (1977)6See,e.g.
, Vijayashri Sripati, Human Rights in India – Fifty Years afterIndependence, 26 DENV. J. INT’L L. & POL’Y 93, 136 (1997) and see Arun Shourie, Courts and their judgments.
7 See supra 5; See Pratap BhanuMehta, ‘The Rise of Judicial Sovereignty’ 2007 18(2) Journal of Democracy70-83; See, e.g., Raju Ramachandran, The Supreme Court and the Basic StructureDoctrine, in SUPREME BUT NOT INFALLIBLE 107, 108 (B.N. Kirpal et al. eds.,2000)8BruceAckerman, “The Rise of World Constitutionalism” (1997).
FacultyScholarship Series. Paper 129. http://digitalcommons.law.
yale.edu/fss_papers/1299 Tom Ginsberg, Judicial Reviewin New Democracies: Constitutional Courts in Asian Cases. Cambridge, CambridgeUniversity Press, 2003.10 Also see Mark Ramseyer,”The Puzzling (In)Dependence of Courts: A ComparativeApproach.” The Journal of Legal Studies 23, no. 2 (1994):721-47.
http://www.jstor.org/stable/724464.11 Ran Hirschl, Towards Juristocracy the Origins andConsequences of the New Constitutionalism. Harvard University Press,2007.12 Madhav Khosla, AddressingJudicial Activism in the Indian Supreme Court: Towards an Evolved Debate(January 1, 2009).
Hastings International and Comparative Law Review, Vol. 32,No. 55, 200913See generallyUpendra Baxi, The Indian Supreme Court and Politics (1980); Upendra Baxi,Courage, Craft and Contention: The Indian Supreme Court in the Eighties (1985)Upendra Baxi: The Avatars of Indian Judicial Activism: Explorations in theGeographies ofInjustice, in Fifty Years of the Supreme Court of India : ItsGrasp and Reach 157 (S.K. Verma et al.
eds., 2000) and Upendra Baxi, “Law, Politics, and ConstitutionalHegemony: the Supreme Court, jurisprudence, and demosprudence.” In TheOxford Handbook of the Indian Constitution. : Oxford University Press 201614 The warrant for judicialreview in India comes from a combined reading of Articles 13, 32, and 142 ofthe Constitution. Article 13(2) provides that “The State shall not make any lawwhich takes away or abridges the rights conferred by this Part and any law madein contravention of this clause shall, to the extent of the contravention, bevoid.
” Articles 32 and 226 give any person the right to approach the SupremeCourt or the High Court, respectively, for the enforcement of fundamentalrights guaranteed in Part III of the Constitution. Finally, Article 142provides that the Supreme Court “may pass such decree or make such order as isnecessary for doing complete justice in any cause or matter,” and such decreeor order is “enforceable throughout the territory of India.”15 Upendra Baxi,”Law, Politics, and Constitutional Hegemony: the Supreme Court,jurisprudence, and demosprudence.” In TheOxford Handbook of the Indian Constitution. : Oxford University Press,16 Hanna Lerner, Constitution-writing in deeply dividedsocieties: the incrementalist approach: Nations and Nationalism,16: 68–88, 2010and Hanna Lerner, “The Indian Founding: acomparative perspective.” In The Oxford Handbook ofthe Indian Constitution. : Oxford University Press, 2016-03-01.
17Havingsaid that, during the first 17 years of its existence, the Court ruled against128 pieces of parliamentary legislation. (SanjayRuperalia, “A Progressive Juristocracy? The Unexpected Social Activism ofIndia’s Supreme Court.” (February 2013): 1-55. Kellogg Institute.)18 ShankariPrasad vs Union of India (AIR 1951 SC 455); Sajjan Singh vs State Of Rajasthan1965 AIR 84519 Article 368 of the IndianConstitution, 1950 envisages two procedures, one whichapplies to all subject matters and second, a’special’ amending power that applies to specifiedsubjects. While some amendments need only a majority in both houses to be passed,certain amendments require a special majority of both houses and ratificationby the state legislatures20 The 24th, 25th,27th Amendments to the Constitution were passed as a reaction to theGolaknath judgment and to nullify its effect in an attempt to make theamendment power of the Parliament, absolute. 21 Kesavananda Bharati Sripadagalvaru and Ors. v.
State of Kerala and Anr. (1973)4 SCC 225) 22 Indira Nehru Gandhi vs Shri Raj Narain & Anr. (1975 SCC (2) 159)23 GaryJacobsohn, “Constitutional Identity.” In The Oxford Handbook ofthe Indian Constitution. : Oxford University Press, 2016-03-01. 24Nick Robinson, Expanding Judiciaries: India and theRise of the Good Governance Court, 8 Wash. U.
Global Stud. L. Rev. 1(2009),http://openscholarship.
wustl.edu/law_globalstudies/vol8/iss1/225PILslowered any requirement of locus standi and gave birth to social actionlitigation in India. The courts have entertained letters from social activistsand prison inmates as petitions.26 Charles Epps studied the ISCfrom 1960 to 1990 and claims that the court tried to start a right revolutionbut seemingly failed, while this conclusion suffers mainly due to the timeperiod, his process will be of vital importance to have an empirical idea ofthe court’s impact during such period. See Charles R. Epp, The RightsRevolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (1998)27 ibid 1 28 See generally Nick Robinson;Structure Matters: The Impact of Court Structure on the Indian and U.S. SupremeCourts, The American Journal ofComparative Law, Volume 61, Issue 1, 1 January 2013, Pages 173–208,29 First Judges Case: S.
P. Guptavs. Union of India, (AIR 1982 SC 149); Second Judges Case : Court Advocates onRecord and Ors. vs. Union of India,( 1993(4) SCC 44); Third Judges Case : SpecialReference 1998, (1998 (7) SCC 739)30 Supreme Court Advocates-on-RecordAssociation & Anr.
v/s Union of India (WRIT PETITION (CIVIL) NO. 13 OF2015) Court of India. 16 October 2015.31Ibid 1