Despotism in A New Form

DESPOTISM IN A NEW FORM
Judiciary and the Constitution in India
Despotism in a New Form

Aditya Swarup
11/25/2008
SUBMITTED TO ;
PROF. BRADLEY MILLER
COURSE INSTRUCTOR, CONSTITUTIONAL THEORY
Essay submitted as a part of the Constitution Theory Course (Special Topic).
Faculty of Law, University of Western Ontario, London.
1
DESPOTISM IN A NEW FORM :

THE JUDICIARY AND THE CONSTITUTION IN INDIA1
Part I
A BACKGROUND TO THE LAW AND JUDICIAL LAW- MAKING IN INDIA ............................................ 5
Understanding a Theory of Constitutional Limitations and Separation of Powers ..................... 5
Judicial Law- Making in India..................................................................................................... 9
Two Pillars standing tall : Vishaka and Vineet Narain ............................................................ 13
Part II
JUDICIAL SUPREMACY UNDER THE INDIAN CONSTITUTION ............................................................ 16
Interpreting the Constitution: The Solemn Right ...................................................................... 18
The Constitution v. Constitutional Law: Evaluating an Edwin Messe argument ..................... 23
Examining the extent of the Power of Contempt ...................................................................... 25
CONCLUSION.................................................................................................................................. 27
REFERENCES .................................................................................................................................. 29
In 1973, before a thirteen judge bench of the Supreme Court, the great lawyer Nani
Palkiwala argued before the Court that all the creations of the Constitution are subject to the
paramount parchment itself. No organ of the government is above the Constitution and each of
1
The title has been inspired from Jeremy Waldron’s essay titled “Despotism in some Form: Marbury v. Madison”,
in Robert P. George (ed.), GREAT CASES IN CONSTITUTIONAL LAW, 2000, p. 55 (Princeton Univ. Press).
2
them is bound by the idea of ‘constitutional limitations’2. The majority readily accepted this
argument in what was to be known as the famous Keshavananda Bharti case3 but inadvertently
the Court was also made a part of this doctrine; that is the Supreme Court was now itself bound
by Constitutional limitations that it could not legally encroach. This is the first card I’d like to
place on the table.
The second is more political in nature. It is the Parliament that is the conscience of the
people’s liberties, and the judges are only supplementing that. Essential policy must come from
the Parliament only and others must only fill in the gaps. Today’s argument that the Executive
and Legislative branches are not doing their duty and therefore it is justified that the judges step
in is a dangerous argument. If the people’s representatives make mistakes, then it is for them to
correct by the constitutionally mandated democratic process.
The third and final card that I’d like to put before you is that theoretically all the organs
of the Government; the Executive, Legislative and the Judiciary are at par with each other and
each being supreme in their own fields. There should not exist any theory of judicial supremacy
in India.
With these cards placed on the table I would now like to explain each of these propositions in
light of the trends in the working of the judicial system in India. My argument is not just against
what is termed ‘judicial activism’ but also in the manner the judiciary is taking upon the task of
expounding the law and encroaching other fields in an unauthorized manner. What is often
2
VG Ramachandran, “Summary of Arguments in the Fundamental Rights Case”, (1973) 4 SCC (Jour) 35.
3
Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
3
termed as ‘filling in the vacuum’ by the judiciary4 has now led to one of the toughest
constitutional questions in the Country. Few proponents in favour of this approach argue that the
Supreme Court has transformed itself from an institution entrusted with the task of adjudicating
disputes between the parties to one enjoined to promote the ideals of socio- economic and
political justice.5 Its role has undergone a reappraisal and some believe to the extent that if a
judge is to bear true faith and allegiance to the Constitution, he must necessarily imbibe the
social justice values of the paramount instrument.6 It is my submission that the above approach
could be accepted as long as it is within the precincts of the Constitution. Questions are raised;
by what warrant and in what sense is the judiciary authorized to make the law? What if any, are
the effective limits on the exercise of judicial power? What problems flow from it being an ad-
hoc decision process? Can the judiciary be trusted to move in the right direction? In the course of
this paper, I shall attempt to answer the above.
In an attempt to explain and elaborate on the above, part I of this paper would explain the theory
of separation of powers, constitutional limitations and an overview of the process of judicial law
making as it takes place in India. Part II would attempt to explain the legal scenario within which
this activism/ law-making takes place, would explain its implications and the implore the
existence of judicial supremacy under the Indian Constitutional ethos.
4
Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : Vineet Narain v. Union of India, AIR 1998 SC 889.
5
Lord Bingham of Cornhill, Law Day Lecture, (2000) 1 SCC 29 (Jour). See also Shubhankar Dam, Vineet Narain v.
Union of India: A Court of law and not of justice- Is the Indian Supreme Court beyond the Constitution, [2005]
PUBLIC LAW 239.
6
VR Krishna Iyer, Democracy of Judicial Remedies- A rejoinder to Hidayatullah, (1984) 4 SCC 43 (Jour).
4
PART I
A BACKGROUND TO THE LAW AND JUDICIAL LAW- MAKING IN INDIA
Understanding a Theory of Constitutional Limitations and Separation of Powers
James Madison wrote that as the three branches of the Government are co-ordinate and equally
bound to support the constitution, “each must in the exercise of its functions be guided by the
text of the Constitution according to its own interpretation of it.”7 More and more it is
acknowledged that the different classes of power have been apportioned to different departments;
and as all derive their authority from the same instrument which is the Constitution, there is an
implied exclusion of each department from exercising the functions conferred upon the others.8
The idea that there are constitutional limitations on the exercise of power by state organs gives
rise to two main propositions. First that all the three branches of the Government; the judiciary,
executive and the legislature are equal to each other and there exists no hierarchy amongst them.9
The second that the governing mechanisms of each of these organs exist within the Constitution
itself with areas of operation being specified. This idea is closely related to what we call the
7
Edwin Messe III, Law of the Constitution, 61 TUL. L. REV. 979 (1986-1987).
8
Cooley, CONSTITUTIONAL LIMITATIONS, 7th ed., p 126.
9
In the United States this finds mention as early as 1803 with Marbury v. Madison, 5 US (1 Cranch) 137 (1803) and
further explained by Frankfurter J. in Trop v. Dules, 356 US 86. The position in India remains partly the same as
expounded in several case law. See State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453 : Bandhua Mukti
Morcha v. Union of India, (1984) 3 SCC 161 : State of Himachal Pradesh v. Umed Ram Sharma, (1986) 2 SCC 68.
5
doctrine of ‘separation of powers’. Montesquieu’s theory10 found specific mention in the
Constitution of the United States for them to make use of this doctrine and bring in the notion of
constitutional limitations. There however might be some difficulty in directly inferring this
considering no explicit demarcation of powers in the Indian Constitution.11
In In Re: The Delhi Laws12 case, the Indian Supreme Court stated that unlike the US
Constitution, there is no rigid separation of powers in the Indian Constitution however that each
organ of the government respects the other and restricts itself by certain implied limitations
prescribed in the Constitution. It is considered to be an essential principle underlying the
constitution that powers entrusted to one department should be exercised exclusively by that
department without encroaching upon the powers confided to others.13 Thirty four years later, the
court again in Bandhua Mukti Morcha14 asserted this doctrine by submitting that there were
implied limitations prescribed by the Constitution on the functioning of various organs that must
not be encroached.
10
James F Jones, Montesquieu and Jefferson Revisited: Aspects of a Legacy, THE FRENCH REV., Vol LI, No. 4, p.
577.
11
Article 50, The Constitution of India states, “Separation of the judiciary of the executive- The State shall take
steps to separate the judiciary from the executive in the public affairs of the State.”
There is a mention of the powers of the executive under Article 53 of the Constitution but no similar mention as to
the powers of the legislative and the judiciary.
12
In Re: The Delhi Laws Act, 1912, [1951] 2 SCR 747.
13
Ibid. quoting Kilbourn v. Thomson, 103 U.S. 168 at p. 190.
14
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 68 [Pathak J. at para 59].
6
What also needs to be mentioned is that it is the Judiciary that is to ensure that these limitations
are best preserved for an efficient democracy.15 Alexander Hamilton in The Federalist Papers
explained that constitutional limitations “can be preserved in practice no other way than through
the medium of Courts of justice, whose duty it is to declare all acts contrary to the manifest tenor
of the Constitution void. The Courts in exercising this power would be bound by “strict rules and
precedents, which serve to define and point out their duty in every particular case that comes
before them”16 Such a role is evident when the Court seeks to restrict the role of the executive
and legislatures when they transgress their powers17.
There is also an interesting anecdote to assert this doctrine. When King James I stated that his
will was supreme, Lord Coke replied by quoting Bracton, a medieval scholar monk, “Rex non
debet esse sub homine sed sub Deo et Lege” – “The King ought not to be under any man, but
under God and the Law”. The story of this exchange is said to have echoed through the years as a
symbol of judicial courage in establishing the principle that all those who govern are subject to
the supreme law.18
15
Apart from asserting the implied limitations there also has arisen as Doctrine of ‘Checks and Balances’ to help the
judiciary preserve this constitutional ethos. See State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453.
16
Alexander Hamilton, THE FEDERALIST NO. 78, p. 228. See also Archibald Cox, The Role of the Supreme Court:
Judicial Activism or Self- Restraint ?, 47 MD. L. REV. 118.
17
Article 13 of the Indian Constitution embodies this very idea of judicial review of executive and legislative action
when there is a violation of any of the rights guaranteed in Part III governing the Fundamental Rights in the
Constitution.
18
See Archibald Cox, COURT AND THE CONSTITUTION, 1st Indian Reprint, 1989, p. 53.
7
While the Courts have asserted this doctrine in light of the executive and legislative branches, the
judiciary was never meant to be an exception19. But unlike the other organs, the judiciary is the
supervisor of its own function and has the prerogative to decide as to what use of its powers are
legitimate and what aren’t. In some cases, these limitations are preserved by what the judiciary
terms as ‘judicial self-restraint’.20 The Courts must perform functions as are prescribed by the
Constitution rather than step into the roles of the other organs of the Government.21 Chief Justice
Ahmadi was of the opinion that self- imposed discipline and judicial restraint on a judicial
officer on whom power is conferred by the Constitution are qualities to ensure that the
Constitution functions smoothly.22 This idea in India is best articulated in the Asif Ahmed v. State
of Jammu and Kashmir23, where the Court stated,
“Although the doctrine of separation of powers has not been recognized in India in
the rigid sense, the Constitution makers have meticulously defined the functions of
various organs of the State. The legislature, executive and the judiciary have to
function within their own spheres demarcated under the Constitution. No organ can
19
Bhagwati J. in Minerva Mills v. Union of India, AIR 1980 SC 1789.
“In other words, the people of the Country, organs of the government; legislative, executive and the
judiciary are all bound by the Constitution. This is the suprema lex or the paramount law of the land and
no one can be above the Constitution.”
20
AM Ahmadi, Judicial Process: Social Legitimacy and Institutional Viability, (2000) 4 SCC 1 (Jour).
21
Archibald Cox, The Role of the Supreme Court: Judicial Activism or Self- Restraint ?, 47 MD. L. REV. 118. Cox
points that the United State Supreme Court has been oscillating from an activist mode to one of self- restraint and
there is no uniform pattern in its behavior. See also West Coast Hotel Co. v. Parrish, 300 U.S. 294 (1964).
22
AM Ahmadi, Judicial Process: Social Legitimacy and Institutional Viability, (2000) 4 SCC 1 (Jour).
23
Asif Ahmed v. State of Jammu and Kashmir, (1989) Supp 2 SCC 364.
8
usurp the functions assigned to the other. The Judiciary has no power over the sword
or the purse.”24
With time, the Indian Courts have refrained from interfering in policy issues25 of the executive
and ironically in some cases26 as to what they termed as law making by the judiciary.27 In
BALCO Employees Union v. Union of India28 the Court categorically stated that the
disinvestment policy of the executive is not subject to judicial scrutiny and the Court will not
transgress its constitutional limits.
Judicial Law- Making in India
While the above was stated to be a clear position of the law, another argument was being
developed by the side. It was that as a guardian of the Constitution, the Court could interfere in
the activities of the legislature or the executive if it felt that they weren’t doing their duty. This
was justified under the notion of ‘filling the gaps’. This movement started off in the late 1970s
24
See also Mallikarjuna Rao v. State of Andhra Pradesh, (1990) 2 SCC 707 : Supreme Court Employees Welfare
Association v. Union of India, (1989) 4 SCC 187.
25
BALCO Employees Union v. Union of India, (2002) 2 SCC 333 : Narmada Bachao Andolan v. Union of India,
(2000) 10 SCC 664 at para 229.
26
I argue ‘some cases’ because in the past decade judicial law making has been justified on the ground of ‘filling the
gaps’ when the other two branches are considered inactive. I shall be dealing with this idea in the later part of the
paper.
27
State of Jammu and Kashmir v. Zakki, AIR 1992 SC 1546. See also SP Sathe, JUDICIAL ACTIVISM IN INDIA, 1st ed.
2002, p. 253.
28
BALCO Employees Union v. Union of India, (2002) 2 SCC 333.
9
with various cases involving fundamental rights and their interpretations by the Court. For
instance in Maneka Gandhi v. Union of India29, the Supreme Court interpreted the words
‘procedure established by law’ to mean due process thus totally negating the intentions of the
framers who expressly stated that the concept of due process should not exist in India. Just after
this case, Krishna Iyer J. in Sunil Batra v. Delhi Administration30 stated,
“Though Legislation was the best solution, but when law makers take far too long
for social patience to suffer, Courts have to make do with interpretation and curve
on wood and sculpt on stone without waiting for the distant marble.”
While the usage of the words above are quite humorous to read, the message sent out was clear,
that the Courts will not tolerate legislative inaction. With these set of precedents, when the Court
in 1981 was called upon to decide on a procedure for appointment of judges, it evolved a new
concept called ‘Public Interest Litigation’. This basically meant that any concerned person could
approach the Court or even express his grievance about an issue by writing a letter; thus doing
away with the concept of locus standi in matters involving the violations of fundamental rights.31
In years, this concept has been used as an instrument to fight for the rights of the poor in the
29
Maneka Gandhi v. Union of India, AIR 1978 SC 853.
30
Sunil Batra v. Delhi Administration, (1978) 4 SCC 409.
31
See Bhagwati J. SP Gupta v. Union of India, (1981) Supp SCC 87. See also S Muralidhar, Public Interest
Litigation, 1995 ANNUAL SURVEY OF INDIAN LAW, p. 395 available at http://www.ielrc.org/india/litigation.php (Last
visited 14th Oct. 2008).
10
Country who cannot afford to find any representation for their rights and are left forgotten by
government representatives.32
Public Interest Litigation has now become a substantive tool to tackle government action when
resulting in the violation of fundamental rights and affecting the general public. This may be
enforced by the Court issuing a writ of Mandamus thus asking a public authority to not continue
its action and protect the rights of the injured citizen. Before we proceed further, we must note
that in theory the writ of mandamus is one issued by a superior court to compel a lower court or a
government officer to perform mandatory or purely administrative functions correctly.33 It is
supposed to be used as a sword against Government action when it violates the rights of an
individual.
While the movement against government action was pretty much getting settled down, in the
1990s another movement crept in; that to remedy government inaction. The practice of
corruption in the legislative and executive wings and ardent red-tapism made government
functioning a misery that was unheard of. The legislature didn’t seem to make effective laws to
deal with current social situations as political quarrels and swings seemed to take priority. There
was then a large section of the civil society asking the Court to step in and remedy the issue.
While it was felt that the Court could directly issue a writ of mandamus in this regard; one of the
problems that the Court faced was that there was enough precedent to state that the Court could
32
In Olga Tellis v. Bombay Municipal Corporation, the Court ruled that the right to Life includes the Right to
decent livelihood thus protecting the interests of pavement dwellers on a Public Interest Litigation : In Charan Lal
Sahu v. Union of India, the Court entertained a Public Interest Litigation petition to decide the principal of no-fault
liability and the compensation to be paid for the victims of the Bhopal Gas Tragedy.
33
Bryan A. Garner, (ed.), BLACK’S LAW DICTIONARY, 8th ed., p. 980.
11
not issue a mandamus to the Legislature asking it to enact the law and that it was entirely the
prerogative of the legislature do to so.34 With this quagmire at hand, Article 142(1) and its usage
by the Court was seen as the only solution if required. The Article stated35;
142. (1) The Supreme Court in the exercise of its jurisdiction may pass such
decree or make such order as is necessary for doing complete justice in any cause
or matter pending before it, and any decree so passed or order so made shall be
enforceable throughout the territory of India in such manner as may be
prescribed by or under any law made by Parliament and, until provision in that
behalf is so made, in such manner as the President may by order prescribe.
In a catena of decisions, the Supreme Court has held this provision to be the source of the power
to do justice and protect the rights of the parties.36 This power is meant to supplement the
existing legal framework – to do complete justice between the parties37 – and not to supplant it. It
is conceived to meet situations which cannot be effectively and appropriately tackled by the
existing provisions of the law.38 The Court then got the opportunity to put this Article in practice
and application in two cases so as to make a law of its own accord which I shall be dealing with
below.
34
See Narinder Chand v. Lt. Governor, Delhi, (1971) 2 SCC 747 : Bihar Eastern Gangetic Fisherman Society v.
Sipahi Singh, AIR 1977 SC 2149.
35
Article 142, The Constitution of India.
36
Union Carbide Corporation v. Union of India, AIR 1992 SC 248 : In Re Vinay Chandra Mishra, (1995) 2 SCC
621 : Delhi Development Authority v. Skipper Constructions, AIR 1996 SC 2005.
37
Ashok Kumar Gupta v. State of UP, (1997) 5 SCC 201.
38
Vinay Chandra Mishra, (1995) 2 SCC 621. See also ESP Rajaram v. Union of India, (2001) 2 SCC 186.
12
Two Pillars standing tall : Vishaka and Vineet Narain
It so happened that in 1991, the arrest of a certain Hizbul Mujahideen official led to the
procurement of certain evidence that exposed a nexus between the group and political officials in
the high order of the bureaucracy. In as much as some of this data was made public no action
was taken by the police and the Central Bureau of Investigation. On a ‘Public Interest Litigation’
by the petitioner then the Supreme Court stated that the executive and legislative wings had
failed to take any action and thus ordered the Central Bureau of Investigation to conduct an
inquiry of its own accord without sanction by the appropriate authorities as prescribed by Statute.
The Court under Chief Justice Verma then stated39;
“On this basis, we now proceed to give the directions enumerated hereafter for
rigid compliance till such time as the legislature steps in to substitute them by
proper legislation. These directions made under Article 32 read with Article 142
to implement the rule of law wherein the concept of equality enshrined in Article
14 is embedded, have the force of law under Article 14140 and by virtue of Article
14441, it is the duty of all authorities, civil and judicial, in the territory of India to
act in aid of this Court.”
Two points must be noted with such a decision; first that the Constitution with the enumeration
of the doctrine of separation of powers and constitutional limitations as expounded by the Court
39
Vineet Narain v. Union of India, AIR 1998 SC 889.
40
Article 141 of the Constitution of India states;
“The law declared by the Supreme Court shall bebinding on all courts within the territory of India.”
41
Article 144 of the Constitution of India states;
“All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.”
13
could not have authorized such an action. Second, that such actions have been made under the
garb of ‘equity and justice’ and the duty of the Court as a guardian of the Constitution and the
principles sacred to it42.While the interference by the Court in this issue was more in terms of
executive action, the case of Vishaka v. State of Rajasthan43 is a first in terms of interference
with the duties and powers of the legislature.
In Vishaka v. State of Rajasthan44, certain NGO’s and brought a public interest litigation before
the Supreme Court stating that the concept of gender equality had not been totally realized in
India and asking the Court to step in to protect the rights of working women at their respective
workplaces. It was stated that the legislature had failed to make any law on the issue and that the
Court to intervene to realize this right. While it was argued at length that the Court should not
step- in, it nevertheless did do so. The Supreme Court delved at length on India’s international
obligations to the international community under the Universal Declaration of Human Rights45,
International Covenant on Civil and Political Rights46 and the Beijing Platform for Action47 for
42
See AR Antulay v. RS Nayak, (1988) 2 SCC 602, where the Court held;
“Suffice it to say that the court can grant relief where there is some manifest illegality or want of
jurisdiction in the earlier order or some palpable injustice is shown to have resulted. Such a power
can be traced either to Article 142 of the Constitution or to the powers inherent in this Court as the
Apex Court and the guardian of the Constitution.”
43
Vishaka v. State of Rajasthan, AIR 1997 SC 3011.
44
Ibid.
45
Universal Declaration on Human Rights, adopted on 10 Dec. 1948, GA Res. 217 A(III), UN Doc. A/810 at 71.
46
International Covenant on Civil and Political Rights, adopted on 16 Dec. 1966, 999 U.N.T.S. 171.
47
Beijing Platform for Action, adopted at the United Nations 4th World Conference on Women, 1995 available at
http://www.un.org/womenwatch/daw/beijing/platform/plat1.htm#statement (last accessed 12th October 2008).
14
Women and stated that the Government had failed to fulfill any of its obligations under these
instruments. Noting that it is the duty of the judiciary to fill in the gaps where the legislature fails
to do so, the Court went at length and articulated a law on sexual harassment with detailed
provisions and even a procedure on how it is to be implemented. This, was totally unheard of in
the 50 year history of the Constitution and the Supreme Court but however, the Legislature,
under the aegis of Article 14448 was mandated to obey its order.
In time, the Court has gone at length to engage in what it calls ‘judicial law- making’ when it
feels that the gaps or vacuums in the law need to be filled. In Laxmi Kant Pandey v. Union of
India49, the Court formulated a compulsory procedure for inter-country adoption of children and
in MC Mehta v. Union of India50 the Court laid down a mechanism to ensure compliance with
the Child Labour (Prohibition and Regulation) Act, 1986 with additional obligations and duties.
The question that then arises is that if a theory of constitutional limitations is acknowledged then
from where does the judiciary derive its authority to engage in ‘judicial law-making’? Moving
further, despite the fact that all the organs in the Government are suppose to be at par with each
other and bound by Constitutional limitations, can there still be a practice of judicial supremacy
displayed in India?
48
For the text of the Article, see Supra n. 40.
49
Laxmi Kant Pandey v. Union of India, (1987) 1 SCR 383.
50
MC Mehta v. State of Tamil Nadu, (1996) 6 SCC 756.
15
PART II
JUDICIAL SUPREMACY UNDER THE INDIAN CONSTITUTION
In the previous chapter I have explained as to how the judiciary encroaches the domains of the
executive and the legislature and makes an attempt to be more powerful than them. This goes
against the very idea of separation of powers and equality of government organs as envisaged by
the Constitution of India. As mentioned in the introduction, a 13-judge bench in Keshavananda
Bharti v. State of Kerala51; in what is considered to be the most important decision is
Constitutional history has laid down that there exists a theory of ‘constitutional supremacy’ in
India and no organ can be greater than the Constitution or its counterpart. However still, in
practice the judiciary seems to be superior to the other two branches by usurping their powers. It
may also be noted that when the Legislature passed a statute to exclude certain administrative
matters from judicial review by the creation of tribunals, the Judiciary stepped in to declare the
statute unconstitutional on grounds that it negated judicial review52. Thus, legislative
encroachment into the power of the judiciary was also vindicated.
It would be apt at this stage to enquire whether there does exist a theory of judicial supremacy in
the Indian constitution. The theory of separation of powers postulates that each organ of the
government is to be treated at par with the other53 and is superior in its own field54 but at the
51
Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
52
Cases on this point as L Chandra Kumar v. Union of India, (1995) 1 SCC 400 : Sampath Kumar v. Union of India,
(1985) 4 SCC 458.
53
In re Special Reference No. 1 of 1964, AIR 1965 SC 745 : In Re: The Delhi Laws Act, 1912, [1951] 2 SCR 747.
16
same time the judiciary has claimed the right to interfere in the activities of the legislature and
the executive in certain areas. What is more ironical is that by pronouncing that judicial review is
a part of the basic structure55, the executive and the legislature on the other hand are incapable of
taking away or interfering with the functions of the judiciary. These actions prompt us to ask the
question as to whether there does exist a theory of judicial supremacy in India.
Historically the framers of our Constitution decided that there must not exist a theory of judicial
supremacy in India and all the organs of the Government must be at par with each other.56 This
further found approval in AK Gopalan v. State of Madras57 where the Supreme Court has
recognized and held that no judicial supremacy exists in India unlike as in the United States of
America58. MC Setalvad too, in his famed Hamlyn Law Lectures stated59,
54
See supra notes 11- 23 for more on the subject.
55
The basic structure doctrine postulates that there are some features of the Constitution that are fundamental/basic
in nature and cannot be abridged by an amendment to the Constitution. In the case of Indira Gandhi v. Raj Narrain,
AIR 1975 SC 2299, judicial review was first held to be a part of the basic structure of the Constitution. In the case of
L Chandra Kumar v. Union of India, (1997) 3 SCC 261, the Court emphasized that no legislative act can take away
the power of review of the Court under Articles 226 and 32 as they are a part of the basic structure of the
Constitution. See also TK Rangarajan v. Government of Tamil Nadu, (2003) 6 SCC 581.
56
CONST. ASSEMBLY DEBATES OF INDIA, Vol. IX, p. 126.
57
AK Gopalan v. State of Madras, 1950 SCR 88. See also the opinions of Khanna, Mathew and Dwivedi JJ in
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461 stressing that it is ‘constitutional supremacy’ that exists
in India and negating any institutional supremacy between the legislature and the judiciary.
58
A long line of cases in the United States Supreme Court have approved this. See Marbury v. Madison, 5 U.S. (1
Cranch) 137 (1803) : Cooper v. Aaron, 358 U.S. 1 (1958) : City of Boerne v. Flores, 117 S.Ct. 2157 (1997). Also
Daan Braveman, “On Law and Democratic Development: Popular Constitutionalism and Judicial Supremacy”, 33
SYRACUSE J. INT’L L. & COM. 41 (2005-2006) : Shlomo Slonim, “Federalist No. 78 and Brutus’s Neglected theory of
Judicial Supremacy”, 23 CONST. COMMENTARIES 7 (2006).
59
MC Setalvad, THE COMMON LAW IN INDIA, 12TH Hamlyn Law Lectures, p. 181. See also, Lord Bringham of
Cornhill, “Law Day Lecture”, (2000) 1 SCC (Jour) 29.
17
“We have in truth not the supremacy of the Courts but the supremacy of the Constitution.”
In time, what was considered to be the ‘least dangerous branch’60 in the history of governance is
now seemingly becoming India’s most assertive organ61. This transition is marred by
justifications of the executive and the legislature not performing their tasks and the duty of the
Court to enforce the values of the constitution and act as its guardian.62 Such actions bring out a
specter of the existence of judicial supremacy in India despite explicit denial by the Court itself
and it is this aspect that we shall explore further.
Interpreting the Constitution: The Solemn Right
Any theory of judicial supremacy focuses on two main aspects; first that it is emphatically the
province and duty of the judicial department to say what the law is and interpret it. Once it says
what the law is, that should be the end of it. Second, that amongst the three organs of the
government, it is the judiciary that is at a higher level and it is the duty of the executive and the
legislature to assist the judiciary in enforcing its judicial decisions.63 This is further accentuated
by Chief Justice Marshall’s classical rhetoric that once the Supreme Court says a thing, that thing
60
Alexander Hamilton, Jacob E Cook (ed.), THE FEDERALIST NO. 78, at p. 522.
61
AM Ahmadi, “Judicial Process: Social Legitimacy and Institutional Viability”, (1996) 4 SCC (Jour) 1. See also
62
Supra n. 76.
63
See also Jack Knight and Lee Epstein, “On the Struggle for Judicial Supremacy”, 30 LAW & SOC. REV. 87 (1996)
: Herbert Wechsler, “The Courts and the Constitution”, 65 COLUM. L. REV. 1001 (1965) : Linda Greenhouse,
“Because we are Final: Judicial Review 200 years after Marbury”, 56 SMU. L. REV 781 (2003).
18
is not just the ‘law of the land’ but is the ‘supreme law of the land’.64 Thus, in understanding
whether there does exist a theory of ‘judicial supremacy’ in India, we would have to look into
each of the above two aspects and come to an agreement on the same.
As regards the first aspect of interpreting the Constitution, apart from the Constitution itself65,
the Supreme Court has repeatedly held that it is the final arbiter on the interpretation of the
Constitution66. More so, in Nand Kishore v. State of Punjab67 the Court stated
“The Supreme Court is not merely the interpreter of the Constitution as existing
but much beyond that. The Court as a wing of the state is by itself a source of law.
The law is what the Court says it is.”
Even if in a political thicket68, the Court never hesitates to fulfill this constitutional duty69.
However, a broad and liberal construction should inspire those whose duty it is to interpret the
Constitution. The clear language of the provision and not the underlying fathomed spirit there of
64
Marbury v. Madison¸5 U.S. (1 Cranch) 137 (1803). See also Mark Tushnet, “Marbury v. Madison and the Theory
of Judicial Supremacy”, Robert P. George (ed.), GREAT CASES IN CONSTITUTIONAL LAW , 1st. Ed. 2000, p. 25.
65
Article 132 (1) of the Constitution provides for the jurisdiction of the Court to hear a case that involves a
substantial question of law as to the interpretation of this Constitution. However, it is to be noted that this is strictly
to be an appellate power of the Court.
66
P. Kannadasan v. State of Tamil Nadu, (1996) 5 SCC 670 : Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, 2007
(4) Kar LJ. 249 : Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.
67
Nand Kishore v. State of Punjab, (1995) 6 SCC 614, 617.
68
Nair Service Society v. State of Kerala, (2007) 4 SCC 1.
69
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, 2007 (4) Kar LJ. 249.
19
should be the guiding factor.70 In the United States, James Madison echoed and stated that in the
ordinary course of government, the expositor of laws and the constitution devolves upon the
judiciary. But he too was dumbfounded to know upon what principle can it be contended that
anyone department draws from the constitution greater powers than another in marking out the
limits of powers of the several departments71.
It is not just ‘interpreting the Constitution’ but also as to ‘how should to the Court go about
interpreting it’ that forms part of a crucial aspect of judicial supremacy. In the United States and
Canada, these have included debates about the Originalist72 and ‘Living Tree’ interpretations73.
Sadly in India, there has been no debate as such on these doctrines but however, at many
instances, the Supreme Court has gone about interpreting the Constitution with regard to both
these theories. The Indian Constitution clearly articulates the intent of its frames in the
Constitutional Assembly debates and the present Constitution was the result of more than 3 years
of deliberation in such debates. Thus each provision has been exhaustively delved upon and it is
possible to know what the framers intended as regards a certain aspect of the Constitution.
Nevertheless, in many cases the Supreme Court has deemed it appropriate to disregard such
70
Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461. See also VG Ramachandran, “Summary of
Arguments in the Fundamental Rights Case”, (1973) 4 SCC (Jour) 35.
71
Alexander Hamilton also opined that the fact that the judiciary is given the power to interpret the Constitution
must not by any means suppose a superiority of the judiciary over the legislature.
72
For more discussion, see Antonin Scalia, “Common law Courts in a Civil Law System: The Role of the United
States Supreme Court in Interpreting the Constitution and Laws”, in A MATTER OF INTERPRETATION: FEDERAL
COURTS AND THE LAW (Princeton N.J.: Princeton Univ. Press, 1997) : Ian Binnie, “Constitutional Interpretation and
Original Intent”, in Grant Huscroft and Ian Brodie, CONSTITUTIONALISM IN THE CHARTER ERA, 1st Ed. 2004 at p.
348.
73
WJ Waluchow, “Constitutions as Living Trees: An Idiot Defends”, (2005) 18 CAN. JOUR. OF L. & JURIS. 207.
20
intent and declare the law as it deems fit. The starting point of such instances can be seen in the
case of Maneka Gandhi v. Union of India74, where despite the Constitutional framers holding
that ‘due process’ should not exist in India75, the Supreme Court went ahead and articulated the
right to life based on ‘due process’. Moreover, in Francis Coralie Mullin v. Union Territory of
Delhi76, Bhagwati J. held that the declaration of “Right to Life” under Article 2177 not only
includes life but also “the right to live with human dignity and all that goes along with it, namely
the bare necessities of life such as adequate nutrition, clothing and shelter over the hear and
facilities for reading, writing and expressing oneself in diverse forms”.78
In time, the Supreme Court has held that the right to life also includes aspects such as the right to
a clean environment79, right to education80, right to health treatment81 etc.. and justifying all
these with the idea of a growing and developing society. The idea was that in as much as the
Constitutional framers may not have intended it, in a growing society, the Constitution must be
74
Maneka Gandhi v. Union of India, AIR 1978 SC 853.
75
CONST. ASSEMBLY DEBATES OF INDIA, Vol. IX, p. 126. See also B Shiva Rao, THE FRAMING OF INDIA’S
CONSTITUTION, vol. II, p. 242 (New Delhi: Indian Instt of Public Admin., 1968).
76
Francis Coralie Mullin v. Union Territory of Delhi, (1981) 1 SCC 688.
77
Article 21 of the Constitution of India says,
“No person shall be deprived of his life or personal liberty except according to the procedure established by law”
78
Ibid.
79
See Subhash Kumar v. State of Bihar, AIR 1991 SC 420 : Rural Litigation Entitlement Kendra v. State of UP,
AIR 1984 SC 2187.
80
Unnikrishnan v. State of Andhra Pradesh, (1993) 1 SCC 645.
81
State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83.
21
interpreted in such a way as to meet the right’s demands of the citizens and thus such measures
may be justified82. This may lead us to the conclusion that the Indian Supreme Court is following
the ‘living tree’ idea of a constitution thus understanding the Constitution to be a set of ideals
that the Supreme Court, as a guardian of the Constitution83 has to interpret and apply. This then
provides a basis for the Court to disregard literal interpretations of the Constitution and interpret
and impose its will on the other branches of Government.
Before we go ahead, let us study a hypothetical situation. The legislators and the executive each
have taken an oath to uphold and support the Constitution. Now assuming the Court gives out a
certain interpretation of the Constitution which the other two branches feel is against their
understanding of the Constitution, what should be the remedy?84 The dilemma may not seem
important when the interpretation is of a simple provision but turns out to be very serious where
the Court interprets the Constitution to evolve new functions and justify the ‘usurpation of
power’ of the other branches to their exclusion. As it may be seen, the problem is not merely in
interpreting the Constitution, but doing so in such a way that cannot be justified by the ordinary
meanings of constitutional provisions and establishing the judiciary’s supremacy over other
organs. This situation may be appreciated further if we look at the distinction between
82
See Bhagwati J. in Francis Coralie Mullin v. Union Territory of Delhi, (1981) 1 SCC 688.
83
See AR Antulay v. RS Nayak, (1988) 2 SCC 602, where the Court held;
“Suffice it to say that the court can grant relief where there is some manifest illegality or want of jurisdiction in the
earlier order or some palpable injustice is shown to have resulted. Such a power can be traced either to Article 142
of the Constitution or to the powers inherent in this Court as the Apex Court and the guardian of the Constitution.”
84
A similar situation was found in the United States of America in Cooper v. Aaron, 358 U.S. 1 (1958) where the
Arkansas Governor called for segregation in schools believing that the ruling in Brown v. Board of Education, 347
U.S. 483 (1954) did not apply to him and that it was against the Constitution.
22
constitutional law and the Constitution; and understand the usage of the power of contempt by
the Court in this area.
The Constitution v. Constitutional Law: Evaluating an Edwin Messe argument
Edwin Messe, the American Attorney General argued that Supreme Court decisions do not
establish the law of the land that is binding on all persons, organs of the government, henceforth
and forever more.85 In substantiating that he emphasized on the distinction between the
constitution and constitutional law and it is important for us to appreciate this distinction to know
that the Indian Supreme Court has got it wrong in interpreting Article 14186.
Very simply put, the Constitution is the bare text that the Constituent Assembly has voted upon
and that provides a working mechanism for the organs of the Government. Constitutional law on
the other hand is the interpretation that the Court gives to the Constitution. What’s most
important to note is that however the Court may interpret the provisions of the Constitution, it is
still the Constitution that is the law of the land and not the decision of the Court.87
Such a distinction should be seen in the Constitution of India by the incorporation of Article 141
that states that the decisions of the Supreme Court shall be binding on all ‘courts of the Country’.
No where does this provision hint at it being the law of the land applicable to all citizens and its
85
Edwin Messe III, “Law of the Constitution”, 41 TUL. L. REV. 982 (1986-87).
86
Article 141, the Constitution of India states, “ Law declared by Supreme Court to be binding on all courts -The
law declared by the Supreme Court shall be binding on all courts within the territory of India.”
87
Supra n. 72.
23
purpose is merely declaratory in nature and not constitutive. In another dimension, Article 141 is
also the source of stare decisis and should present a solution to understand the crucial distinction
between the Constitution and constitutional law. The text and the literal interpretation of the
provision suggest that the decision of the Supreme Court is binding only on ‘all other courts of
the country’.88 However, the usage of this Article by the Court in Vishaka and Vineet Narain’s
cases as a binding source of law on all the people of the Country seem to provide a different
picture. As a result, both the Constitution and constitutional law are being treated as the same.
In the United States, a constitutional crises of a far greater nature had occurred with Dred Scott v.
Sanford89 with the Court ruling that slavery was imbibed in the Constitution and cannot be
declared illegal. Politicians and jurists alike argued that this decision was not ‘the constitution’
but a mere interpretation of it thus diminishing its binding value. Abraham Lincoln in his
criticism stated90;
“To treat constitutional law same as the Constitution would then mean to submit
to government by judiciary which is surely not intended in any democratic nation.
It would be utterly inconsistent with the very idea of rule of law to which, we as a
people have always subscribed.”
88
See Article 141, Constitution of India.
89
Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856).
90
The Full text of his criticism may be viewed at http://afroamhistory.about.com/library/bllincoln_dred_scott.htm
(Last accessed 09th Nov. 2008) .
24
Dred Scott laid the ground for what was termed the ‘great usurpation of power’ by the judiciary
in making and setting down the law. Chandrachud J. in In Re Special Courts Bill91, did give a
word of caution of this usurpation of power and opined that such should not be the function of
the Courts in India. Furthermore, the expression ‘laws in force’ in Article 13(3)92 did not include
‘constitutional law’ or decisions of the Court; on a parity of reasoning, ‘law’ as used cannot be
said to include constitutional law. In fact, the Supreme Court would face quite a dilemma if its
own constitutional decisions really were the supreme law of the land, binding on all persons and
government entities, including the Court itself, for then the Court would not be able to change its
mind or over-rule its own decision in a case.
Examining the extent of the Power of Contempt
Earlier above I have put forward a hypothetical situation where in the legislators and the
executive each have taken an oath to uphold and support the Constitution and that assuming the
Court gives out a certain interpretation of the Constitution which the other two branches feel is
91
In Re Special Courts Bill, 1978, AIR 1979 SC 478.
92
Article 13 (3) of the Constitution of India states;
(3) In this Article, unless the context otherwise requires, -
(a) “law” includes any Ordinance, order, bye- law, rule, regulation, notification, custom or usages
having in the territory of India the force of law;
(b) “laws in force” includes all laws passed or made by the legislature or other competent authority in
the territory of India before the commencement of the Constitution and not those previously repealed,
notwithstanding that any such law or any part of it thereof may not be then in operation either at all or
in particular areas.
25
against their understanding of the Constitution, how should one go about remedying the
situation? I would like to say that for the members of the executive and the legislature, there
seems to be no remedy to the situation and this is further explained by a discussion of two
important provisions in the Constitution and the attitude of the Court towards it.
The first provision in this regard is Article 14493 of the Constitution by virtue of which all
authorities, civil and judicial, in the territory of India are to act in aid of the Supreme Court. In
Vineet Narain’s case as mentioned above, the Court categorically stated that its decision was to
act as a law and the authorities are bound to aid it in its implementation.94 Now suppose any
member of the executive and legislature feels that the Court has overstepped its boundaries to
pronounce a decision that has led to judicial law-making, can they raise a voice and choose not to
implement it?
This can be answered by virtue of another Constitutional provision that confers upon the Court
the power of contempt. The second clause of Article 14295 puts forth the idea that the Court can
93
For the text of the Article, see Supra n 40.
94
95
Article 142 of the Constitution of India states,
142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.-
(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is
necessary for doing complete justice in any cause or matter pending before it, and any decree so passed
or order so made shall be enforceable throughout the territory of India in such manner as may be
prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such
manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as
respects the whole of the territory of India, have all and every power to make any order for the purpose of
26
charge any member of the executive and legislature for contempt for not implementing its
decision. A case to the point is that of Ibobi Singh v. Union of India96, where the Speaker of the
House refused to give recognition to a Supreme Court decision on disqualification of members
saying that it was exclusively a legislative prerogative to do so; the Supreme Court then
summoned him to Court and issued a contempt notice against the Speaker. Finally after repeated
summons, the Speaker came to Court and the charges were dropped.
This incident brings out the core idea that there does exist a concept of judicial supremacy in
Indian constitutional ethos that cannot be negated by the Court with its present day attitude of
pronouncing decisions and making law. This also has grave consequences as regards the
justiciability of laws and such decisions that I would be discussing in the next part.
CONCLUSION
It is to be noted by the reader that literal readings of the various Constitutional provisions and
decisions cited above do not leave any iota of doubt that the Court cannot go about making law
and attempt to justify it under the written Constitution. For a major part, these actions of the
Court are being justified by unconstitutional principles such as the Court being the ‘guardian of
securing the attendance of any person, the discovery or production of any documents, or the investigation
or punishment of any contempt of itself.
96
Unreported decision, Supreme Court of India, 2001. The decision is available on the Supreme Court’s website.
27
the Constitution’, the protector of the rights of the people etc. If the validity of these
unconstitutional principles are stated to be true, then the Indian Supreme Court cannot go about
claiming that there does not exist a trend of judicial supremacy in the system.
The Indian Supreme Court seems to be the only one displaying such an activist tendency and in
as much as they might be the need of the hour as the legislature may not be doing their duty, they
are totally unjustified under the Constitution. The legitimacy to such decisions then comes from
the common people themselves who find favour in the Court and look upto to it as a guardian of
their rights. In what is rather termed as a ‘populist tendency’, it remains to be judged whether an
independent government organ should direct its decisions towards finding favour from the
people.97
However, while the Court may claim to be the guardian of the Constitution, it can in no way be
above the Constitution itself, transgress provisions and interpret them in such a way as to ‘make
law’ and interfere with the functions of the executive and the judiciary. While on one hand I have
tried to explain such actions of the Indian Supreme Court and their basis; on the other hand I
have made an attempt in this paper to expose the hypocrisy that in as much as the Court claims
that there does not exist an degree of supremacy, in practice it is wrong to claim that. It is in
these circumstances that I have used the word ‘despotism’ in the title of my paper and reference
it with regard to the current actions of the judiciary in India.
97
Robert Post and Reva Siegel, Popular Constitutionalism, Departmentalism and Judicial Supremacy, 92 CALIF. L.
REV. 1027 (2004).
28
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AR Antulay v. RS Nayak, (1988) 2 SCC 602................................................................................. 11
Ashok Kumar Gupta v. State of UP, (1997) 5 SCC 201 ............................................................... 10
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Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161....................................................... 4
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Bihar Eastern Gangetic Fisherman Society v. Sipahi Singh, AIR 1977 SC 2149 ......................... 9
Brown v. Board of Education, 347 U.S. 483 (1954) ..................................................................... 17
City of Boerne v. Flores, 117 S.Ct. 2157 (1997). ......................................................................... 14
Cooper v. Aaron, 358 U.S. 1 (1958) ....................................................................................... 14, 17
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Indira Gandhi v. Raj Narrain, AIR 1975 SC 2299....................................................................... 14
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Kilbourn v. Thomson, 103 U.S. 168 at p. 190................................................................................. 5
L Chandra Kumar v. Union of India, (1995) 1 SCC 400 ............................................................. 13
Laxmi Kant Pandey v. Union of India, (1987) 1 SCR 383 ........................................................... 12
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29
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Nand Kishore v. State of Punjab, (1995) 6 SCC 614, 617............................................................ 16
Narinder Chand v. Lt. Governor, Delhi, (1971) 2 SCC 747 .......................................................... 9
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, 2007 (4) Kar LJ. 249 .......................................... 16
Sampath Kumar v. Union of India, (1985) 4 SCC 458 ................................................................. 13
SP Gupta v. Union of India, (1981) Supp SCC 87 ......................................................................... 8
State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453 .......................................................... 4, 5
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TK Rangarajan v. Government of Tamil Nadu, (2003) 6 SCC 581............................................. 14
Trop v. Dules, 356 US 86................................................................................................................ 4
Union Carbide Corporation v. Union of India, AIR 1992 SC 248 .............................................. 10
Vineet Narain v. Union of India, AIR 1998 SC 889 ..................................................... 2, 10, 14, 20
Vishaka v. State of Rajasthan, (1997) 6 SCC 241 .......................................................................... 2
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31

Despotism in A New Form - Judiciary and The Constitution in India

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