On is reductive and tends to mainly focus on

On the 24th
of August this year, the Indian Supreme Court (“ISC”), in a historic
nine-judge bench1,
unanimously asserted that the right to privacy was an inalienable universal
right.2
On the 9th and 14th of November, 2017, respectively, a
division bench, and subsequently, a three- member bench, heard a Petition
demanding the Chief Justice of India be recused due to a conflict of interest
in a matter relating to bribery in medical college admissions3.

The Bribery Allegations case was
eventually dismissed. This case has led to op-eds asking: “Is this really the greatest credibility crisis the Judiciary is facing
since the Emergency?4”
For the purposes of this proposal, I argue that these two cases symbolize the
way we view the ISC today.

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In the
first case, the ISC plays the role we most associate it with—that of an
Activist Court—and in the second, we have an institution that is struggling to
justify its legitimacy whilst holding onto its immunity from democratic
discourse.

This
thesis proposes to examine the ISC and its transformation from an institution
of the state to an institution of government.5  Further, it questions how the Court has
consistently reached a compromise between its increasing intervention and the
counter majoritarian difficulty often associated with powerful courts globally.

This thesis aims to locate the legitimacy of the ISC by examining the Court
itself.

The
domestic body of work in relation to the understanding of judicial review in
India is often occupied with evaluating its pros6
and cons. 7
In the international context, India
is classified as a post-colonial example of constitution making; she adopted a
written constitution and provided for an independent judiciary. More often than
not, this classification is used to justify strong-form judicial review in
India. Much of comparative literature with respect to India is reductive and
tends to mainly focus on constitutional amendment procedure and affirmative
action.

Bruce
Ackerman8
terms India an example of his ‘new beginnings’ scenario. He states that the ISC
indulges in a ‘redemptive style of adjudication.’  In effect, the ISC and other such courts
ensure that constitutional guarantees do not remain mere paper promises.

Further, he highlights the importance
of the India National Congress Party (“INC”) and the role it plays in
ensuring constitutionality in the country. The ‘insurance theory’ and the
‘commitment theory’ put forth by Tom Ginsberg9
place similar importance on the INC.  In
the former, he states that the presence of a dominant party10
implies a weak judicial review and in the latter, he shows the attractiveness
of strong judicial review from the point of credibility. Both these theories
are applicable, however their emphasis lies more on the classification and
origin of review— rather than the use and application of review itself.

Taking
his cue from Ginsberg’s ‘commitment theory’, Ran Hirschl’s work11
on judicialization of politics questions
why self-binding would be in the interest of dominant actors. Citing India to
be an example of this hegemonic preservation, he states that it is in the
interest of political, economic, and judicial elites to transfer certain
controversial decisions to the court. This may to an extent explain the tension
between the Parliament and ISC as to custody of the constitution. However,
there has been little or no literature, which attempts to find in a cohesive
exploration, a justificatory process, to label actions of the court as activist
or restrained.12

 

 

This
project will involve normative methods of research. Reliance will be placed on
primary sources of information such as Constitutional Assembly debates, Supreme
Court Judgments and Procedure Rules and parliamentary proceedings available
online as well as the LSE library resources. Secondary sources will include
mainly but not limited to the works of Indian authors such as Professor Upendra
Baxi13
alongside a review of fractured studies which explore India albeit briefly.

Further, this project will employ the following framework in order to analyze
the ISC:

 

1.     Constitutional Design

Unlike
other Constitutions, the basis of judicial review in the Indian Constitution is
indirect14.

The court was envisioned to have a modest role15
and the tenant of parliamentary supremacy was emphasized. An example of this is
constitutional incrementalism16,
which left decisions as to official language, justiciablity of directive
principles and personal religious laws open ended. In doing so, the aim of this
section is to understand the historic origin of the ISC and also understand how
the court has widened or bridged the gap between foundational ideals and
constitutional realities as a means to explain its discretionary powers.

 

 

2.     Social and Political Changes

This
project reviews the effect a culturally diverse and socially heterogeneous
society has had on the ISC. In order to do so, this thesis divides the study
into three time periods beginning post independence being the Nehruvian Era
(1950s-1960s) and culminating in the 1990s.

In
the Nehruvian Era the Court was considered to be relatively dormant17.

Here, it is important to analyze the role played by a dominant political party
being the INC, the charismatic influence of national leaders like Jawaharlal
Nehru and the foundational ideal of Parliamentary supremacy in India. This
position is to be contrasted with the court’s continued practice of striking
down property rights legislation18,
whilst upholding the tenant that the Parliament was only textually bound19
in exercise of its constitution amending powers.

The
second period begins in the 1970s. A series of amendments to erode the power of
review 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 constitutional
shift of power in the country. The Basic structure doctrine is viewed as the
basis of Indian Constitutional Identity23
and is described as a principle of good governance24.

However, I propose to evaluate the doctrine not only as a judicial innovation
but also as a more direct basis and extension of judicial review.

The
third era begins in the 1980s, where with the aid of its own innovations and
the advent of unstable coalition governments, the ISC successfully transitioned
into the ‘Peoples court’. This was accelerated with the introduction of Public
Interest Litigation (‘PIL’). The court’s power stood
increased in terms of accessibility25.

I propose to study its impact against the background of its checkered
trajectory26
when it comes to challenging state action more directly.27
I also propose an alternate hypothesis that the Court’s intervention in such
matters is a consequence of ineffectiveness of other democratic institutions.

 

3.    
Institutional
Structure

This
thesis will examine the structure of the single integrated Indian Judicial
System28.

It will study the effects of a top-heavy judiciary and the pressures of
increased litigation on the court’s accessibility and the difficulty associated
with implementing its judgments. An impact-based investigation of the structure
of the judiciary will help bring out the contrast between the idealistic
portrayal of the ISC and its pronouncements and the administrative difficulties
in the judicial system.

 

4.     The Least
dangerous branch

The Court in the 1990s until present
has made law exceeded its domain in opposition of the Parliament’s constituent
power. With traditional boundaries crossed the question of the court’s
accountability is of vital importance. In this regard the debate often stalls
at the method of appointment of judges to the higher judiciary. The current appointment scheme
is the Collegium system essentially controlled by the judges themselves,
however the collegium has been challenged and ruled upon in three cases
referred to as the three judges case29.  Though there have been several attempts to
replace the collegium, the most recent attempt was made by the passing of the National
Judicial Appointment Commission Act (“NJAC”), 2014 by a majority of both
houses of Parliament. This Act was held unconstitutional by the ISC30
in 2015. A collective reading of the above mentioned cases makes it clear that
the Court is stubbornly holding on to the appointment procedure as the means to
secure it’s constitutionally guaranteed independence. While the discourse
surrounding the court’s accountability often stops at appointment, this thesis
hypothesizes that the court has chosen situations to assert certain values
thereby balancing competing values and apart from appointments avoiding serious
head on collisions with the other organs of the State.

 

Elaborating
on this framework, the thesis will examine the idea that the action of the
Judges, and the court rulings are what institutionalize judicial review.31It
is hypothesized that ISC was entrusted with the commitment to protect constitutional
values, which has now transformed into protecting the activist court itself as
a constitutional value. The aim of this project is to show that the ISC is not
bound by anteceding theories and oversimplified labels but maintains its
position by its own calculated balancing in a varied political setting. This
thesis hopes to show that the discourse on judicial review requires more
individual studies of judicial institutions in order to better understand not
only how a court increases its powers but also how it maintains it in the
public domain.

1 The ISC does not preside over matters as one
court but sits in panels of two  or three
judge benches with an ascending hierarchy. When met with deciding a fundamental
question of law the court sits in a constitutional bench  which comprises 5 or more judges.

2 Justice K.S. Puttaswamy
and Anr. vs Union of India and Ors., WP (C) No. 494 of 2017

3Campaign for Judicial
Accountability and Reforms vs. The Union of India, WP (Crl) No. 169 of 2017. In
the interest of natural justice the Petitioner demanded that the CJI recuse
himself in this case and demanded that a Constitutonal Bench hear the petition.

Though the division bench passed an order for constitutuing such bench, it was
rendered ineffective. A bench constituted by the Court heard the Petitions and
dismissed them  admonishing the
Petitioners for casting doubts on the intergity of the CJI as well as the whole
judicial system.

4 Pratap Bhanu Metha, Supreme
Court, 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 Rajeev
Dhavan, The Supreme Court under strain: The challenge of Arrears (1977)

6
See,
e.g., Vijayashri Sripati, Human Rights in India – Fifty Years after
Independence, 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 Bhanu
Mehta, ‘The Rise of Judicial Sovereignty’ 2007 18(2) Journal of Democracy
70-83; See, e.g., Raju Ramachandran, The Supreme Court and the Basic Structure
Doctrine, in SUPREME BUT NOT INFALLIBLE 107, 108 (B.N. Kirpal et al. eds.,
2000)

8
Bruce
Ackerman, “The Rise of World Constitutionalism” (1997). Faculty
Scholarship Series. Paper 129. http://digitalcommons.law.yale.edu/fss_papers/129

9 Tom Ginsberg, Judicial Review
in New Democracies: Constitutional Courts in Asian Cases. Cambridge, Cambridge
University Press, 2003.

10 Also see Mark Ramseyer,
“The Puzzling (In)Dependence of Courts: A Comparative
Approach.” The Journal of Legal Studies 23, no. 2 (1994):
721-47. http://www.jstor.org/stable/724464.

11 Ran Hirschl, Towards Juristocracy the Origins and
Consequences of the New Constitutionalism. Harvard University Press,
2007.

12 Madhav Khosla, Addressing
Judicial Activism in the Indian Supreme Court: Towards an Evolved Debate
(January 1, 2009). Hastings International and Comparative Law Review, Vol. 32,
No. 55, 2009

13
See generally
Upendra 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 the
Geographies ofInjustice, in Fifty Years of the Supreme Court of India : Its
Grasp and Reach 157 (S.K. Verma et al. eds., 2000) and  Upendra Baxi, “Law, Politics, and Constitutional
Hegemony: the Supreme Court, jurisprudence, and demosprudence.” In The
Oxford Handbook of the Indian Constitution. : Oxford University Press 2016

14 The warrant for judicial
review in India comes from a combined reading of Articles 13, 32, and 142 of
the Constitution. Article 13(2) provides that “The State shall not make any law
which takes away or abridges the rights conferred by this Part and any law made
in contravention of this clause shall, to the extent of the contravention, be
void.” Articles 32 and 226 give any person the right to approach the Supreme
Court or the High Court, respectively, for the enforcement of fundamental
rights guaranteed in Part III of the Constitution. Finally, Article 142
provides that the Supreme Court “may pass such decree or make such order as is
necessary for doing complete justice in any cause or matter,” and such decree
or order is “enforceable throughout the territory of India.”

15 Upendra Baxi,
“Law, Politics, and Constitutional Hegemony: the Supreme Court,
jurisprudence, and demosprudence.” In The
Oxford Handbook of the Indian Constitution. : Oxford University Press,

16 Hanna Lerner, Constitution-writing in deeply divided
societies: the incrementalist approach: Nations and Nationalism,16: 68–88, 2010
and  Hanna Lerner, “The Indian Founding: a
comparative perspective.” In The Oxford Handbook of
the Indian Constitution. : Oxford University Press, 2016-03-01. 

17
Having
said that, during the first 17 years of its existence, the Court ruled against
128 pieces of parliamentary legislation. (Sanjay
Ruperalia, “A Progressive Juristocracy? The Unexpected Social Activism of
India’s Supreme Court.” (February 2013): 1-55. Kellogg Institute.)

18 Shankari
Prasad vs Union of India (AIR 1951 SC 455); Sajjan Singh vs State Of Rajasthan
1965 AIR 845

19 Article 368 of the Indian
Constitution, 1950 envisages two procedures, one which
applies to all subject matters and second, a

‘special’ amending power that applies to specified
subjects. While some amendments need only a majority in both houses to be passed,
certain amendments require a special majority of both houses and ratification
by the state legislatures

20 The 24th, 25th,
27th Amendments to the Constitution were passed as a reaction to the
Golaknath judgment and to nullify its effect in an attempt to make the
amendment 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 Gary
Jacobsohn, “Constitutional Identity.” In The Oxford Handbook of
the Indian Constitution. : Oxford University Press, 2016-03-01. 

24
Nick Robinson, Expanding Judiciaries: India and the
Rise of the Good Governance Court, 8 Wash. U. Global Stud. L. Rev. 1
(2009),http://openscholarship.wustl.edu/law_globalstudies/vol8/iss1/2

25
PILs
lowered any requirement of locus standi and gave birth to social action
litigation in India. The courts have entertained letters from social activists
and prison inmates as petitions.

26 Charles Epps studied the ISC
from 1960 to 1990 and claims that the court tried to start a right revolution
but seemingly failed, while this conclusion suffers mainly due to the time
period, his process will be of vital importance to have an empirical idea of
the court’s impact during such period. See Charles R. Epp, The Rights
Revolution: 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. Supreme
Courts, The American Journal of
Comparative Law, Volume 61, Issue 1, 1 January 2013, Pages 173–208,

29 First Judges Case: S.P. Gupta
vs. Union of India, (AIR 1982 SC 149); Second Judges Case : Court Advocates on
Record and Ors. vs. Union of India,( 1993(4) SCC 44); Third Judges Case : Special
Reference 1998, (1998 (7) SCC 739)

30 Supreme Court Advocates-on-Record
Association & Anr. v/s Union of India (WRIT PETITION (CIVIL) NO. 13 OF
2015) Court of India. 16 October 2015.

31
Ibid 1 

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