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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Supreme Court of India

India [in]

Mahendra Prasad Singh

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 21 September 2020

Constitutional courts/supreme courts — Judiciary

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  The Supreme Court sits at the apex of the integrated federal judiciary in India comprising the High Courts in the states and district courts and courts subordinate thereto. In the hierarchy of this general judiciary dealing with all kinds of civil, criminal, and family law cases (excepting courts-martial or military courts dealing with members of the armed forces subject to military laws), only the High Courts and the Supreme Court are also constitutional courts empowered to adjudicate disputes arising out of the fundamental rights of citizens, separation of powers within governments, and division of powers between Union and state governments (distribution of powers in federal systems).

2.  Despite the lower courts being inordinately dilatory and comprehensively corrupt, and superior courts being excessively expensive and out of reach of the common man, the courts with constitutional jurisdictions are the least corrupt and most judicious and conscientious organs of governance in the Indian political system. In the midst of the functioning political anarchy of Indian federal democracy, the superior courts enjoy an exceptional measure of legitimacy and public esteem. Predictably, where other organs of government in India have suffered erosion of their power and relevance, courts have experienced accretion to their powers and expansion of their role.

B.  Brief Historical Overview

3.  A glimpse of the evolution of judicial systems in the three presidencies of Bengal, Madras, and Bombay in British India may be had from a look at the structure in the Bengal presidency, whose supremacy over other presidencies was legislated in 1773. The only important court that existed in Calcutta prior to the Regulating Act of 1773 (UK), which set up the Supreme Court, was the Mayor’s Court. There were two appellate authorities above it: (i) the President-in-Council in Calcutta, and (ii) the Crown-in-Council in London. The system was thus bereft of any repartee and independent judicial check over the executive. The 1773 Act sought to remedy this by establishing an independent Supreme Court by a Royal Charter in Calcutta with civil, criminal, admiralty, and ecclesiastical jurisdictions. An appeal against its decisions lay in the Crown-in-Council in London (Pylee (1984) 9–13).

4.  The Regulating Act of 1773, especially the establishment of the Supreme Court in Calcutta under it, introduced an element of dialectical conflict between ‘colonial power’ and ‘imperial justice’. The Court’s jurisdiction extended over all persons in the Bengal presidency (which included Bengal, Bihar, and Orissa), except the Governor-General and the members of his Council. Being appointed by the British Crown rather than the Court of Directors of the East India Company, the Supreme Court enjoyed autonomy from the colonial government. This is evident from the fascinating account of cases decided by the Supreme Court and charges and counter-charges between the East India Company and the Supreme Court about the alleged transgression of the latter’s lawful authority in India, in Mukherjee ((2010) at 45–63).

5.  The contrasting visions of the emerging modern state in British India were later sought to be resolved by reconstructing a legislative council with an embedded court of law during the period between the two Charter Acts (UK) of 1833 and 1853 enacted for India by the British Parliament. The former

recognized for the first time the sovereign legislative authority of the East India Company in the Colony and thereby resolved the anomalies and contradictions arising from the clash over functional sovereignty between an autonomous judiciary represented by the Supreme Court and the Company’s government headed by the Governor-General’s Council in India (Mukherjee 63–64).

6.  The latter brought about a convergence between the two authorities by the inclusion of the Chief Justice of the Supreme Court along with one judge and a barrister as the new members, and the enlargement of the Governor-General’s Council by increasing its membership, including the judges and representatives from different presidencies. The proceedings of the Council were also made open to the public and the press. As it happened, the judicial members of the Council, led by the Chief Justice, ‘took on an activist judicial role, inquiring into grievances of the people against the government, calling for information and examination of the conduct of executive officers and demanding accountability at the levels of government’ (Mukherjee 63–71).

7.  The 1857 Indian Revolt against the colonial government caused the replacement of the rule of the East India Company by the direct rule of the British Crown-in-Parliament. Henceforward, there was a distinct shift in the strategy of government inasmuch as the strong sense of imperial justice was watered down; now ‘the discourse of justice as equity went ‘hand-in-hand with an absolutist executive’. The Indian Councils Act of 1861 (UK) ‘made the executive all-powerful and unequivocally subordinated the Indian Legislative Council to it’ (Mukherjee 96–97).

8.  A major landmark in the evolution of judicial institutions in British India, especially from the federal angle, was the establishment of the Federal Court of India (consisting of at least three judges including the Chief Justice) under the Government of India Act, 1935 (UK). This Constitution Act was meant to federate eleven British Indian provinces and some 600 Indian princely states into an asymmetrical Union, with the Central Government (or Union Government, collectively ‘Centre’) having greater power over the former than the latter. The formation of the federation was compulsory for the former and voluntary for the latter. It was also contingent on at least 50 per cent of the Indian states opting to join it, which they eventually opted out from. Alongside the Supreme Court for subjects and Europeans, the Federal Court was contemplated as having jurisdiction over the federal and provincial governments of British India as well as over the princely states. Both these courts were to be appointed by the Crown-in-Parliament in London. Consequent upon the princely rulers refusing to join the proposed all-India federal Union (‘Union’), only the provincial part of the Act was operationalized, with elections held, on the basis of 28.5 per cent of franchise extended to Indian subjects in the provinces, early in 1937. The Centre continued to operate under the preceding Government of India Act, 1919 (UK). In the opinion of MV Pylee ((1984) at 90), ‘[i]n fact, of all the institutions set up under the Act [of 1935], it was the Federal Court which proved to be the most successful in operation’.

9.  In Indian legal history, the Charter of 1726 (UK) first introduced the right of appeal from the three Mayor’s Courts in Calcutta, Madras, and Bombay to the Privy Council (constitutional adjudication of the Privy Council). This jurisdiction of the Crown-in-Council of the Privy Council continued through the medley of changes in judicial institutions until the enactment of the Abolition of Privy Council Jurisdiction Act, 1949 (India), by the provisional parliament of independent India. The judgments of the Privy Council have been a great unifying source of justice and equity in the plurality of Indian legal traditions. Its judgments are still valid precedents (precedent) for courts in India until they are overruled by the courts of constitutional jurisdictions (Dhanokar).

C.  Designing a Supreme Court in the Constituent Assembly of India

10.  In the run-up to India’s independence, the groundwork for the debates in the Constituent Assembly on the Supreme Court was done by the Union Constitution Committee chaired by Jawaharlal Nehru; a special ad hoc committee consisting of S Vardachariar, a former judge of the Federal Court, Alladi Krishnaswami Ayyar, BL Mittar, KM Munshi (all distinguished advocates), and BN Rau, constitutional advisor to the Constituent Assembly who had been an Indian civil service official and a High Court judge; and the Drafting Committee chaired by BR Ambedkar. The various reports and drafts were based on modified provisions of the Government of India Act, 1935, eg abolition of the appellate jurisdiction of the Privy Council, establishment of a Supreme Court of India, etc.

11.  A memorandum by the Constitutional Advisor on the Union Constitution suggested the procedure of appointment of judges by the president with the approval of a Council of States—not the Rajya Sabha, as the federal second chamber of the parliament finally came to be called, but a body similar to the Privy Council in the United Kingdom—for advising the president in exercise of functions and required to be independent of the government in a non-partisan way (Rao 483–6).

12.  Some members of the Constituent Assembly moved amendments to the draft constitution as settled by the drafting committee for (1) appointment of the Chief Justice (‘CJI’) by the president of India subject to confirmation by a two-thirds majority assembled in a joint session of both the houses of parliament, and judges to be appointed by the president on the advice of the CJI; or (2) appointment of judges of the Supreme Court by the president in concurrence with the CJI and the CJI to be appointed in consultation with judges of the Supreme Court and the Chief Justices of High Courts of states; or (3) appointment of CJI by the president in consultation with the federal second chamber of the parliament, and such other judges of the Supreme Court and High Courts as may be considered necessary. All these amendments were finally negatived (Government of India (2003) 229–63).

13.  None of the foregoing proposals was finally accepted either in the draft constitution or the final text of the constitution that emerged from the Constituent Assembly debates. What finally emerged out of the marathon debate in the Constituent Assembly regarding the judicial organs of the Indian government is discussed in the following section.

14.  As to the removal of superior court judges, the Constituent Assembly dealt with the question whether it was to be vested in the president or the parliament. It finally settled for the role of both but only with the sanction of the parliament. This was done by approving the proposal of Sir Alladi Krishnaswami Ayyar (Government of India (2003) 229–367).

D.  Structure and Composition

1.  Appointment, Promotion, and Transfer of Judges

15.  Article 124 of the Constitution of the Republic of India: 26 January 1950 (as Amended to 28 May 2015) provides for a Supreme Court of India consisting of a Chief Justice and not more than 30 judges (raised from seven in the original Constitution incrementally by supplementary parliamentary enactments, the latest being the Supreme Court (Number of Judges) Amendment Act, 2008 (India)). Every judge of the Supreme Court was originally appointed by the president of India, in consultation with the Chief Justice and some other judges, and holds office until the age of 65 years, unless one resigns or is removed from office. This process of appointment has partly changed in constitutional case law since 1993, as discussed in what follows (selection of judges at constitutional courts / supreme courts).

16.  The process of appointment has been changed partly in procedure but very substantially in terms of institutional balance of forces and their relative roles and powers, in terms of causing the final outcome as to appointments and promotion in courts of constitutional jurisdictions (ie the Supreme Court and state High Courts) and transfer of judges of the High Courts. Controversies have often arisen around these issues, mainly during the early 1980s to the present around the larger issues of independence of the judiciary, with the subtexts of appointments and transfers, the executive claiming the final say in these matters and the judiciary resisting it with the plea for its own primacy. These powers and procedures have evolved through four landmark judgments of the apex court, spreading over nearly five decades since the early 1980s: SP Gupta v Union of India (1982) (India); Supreme Court Advocates on Record Association v Union of India (1993) (India); Presidential Reference 1 of 1998; and Supreme Court Advocates on Record Association v Union of India (2015) (India). The issue still continues to be contended between the judiciary and the executive.

17.  The SP Gupta case was actually a bunch of nine petitions of similar nature decided by a majority of a seven-judge constitution bench of the Supreme Court. The convoluted ruling of the Court is best summarized by Granville Austin ((1999) at 527):

[t]he Court’s decision given on 30 December 1981, in the main upheld the government’s positions. Each of the seven judges wrote an opinion, somewhat clouding the resulting law. A majority of justices, Bhagwati, Fazal Ali, Desai, and Venkataramaiah, held that a judge’s consent was not necessary for his transfer. But the transfers were to be in the public interest and not punitive. These four also ruled that the Chief Justice of India does not have ‘primacy’ over other constitutional functionaries regarding judges’ appointments and transfers (an executive branch function, the judges said), and therefore, his advice is not binding on the President. ‘Consultation’ in the Constitution was not to mean the Chief Justice’s ‘concurrence’ in appointments. The other three judges—Untwalia, Gupta, and Pathak—believed the Chief Justice has primacy but no veto.

18.  In Supreme Court Advocates on Record v Union of India (1993) (India), the apex court innovatively introduced a new institutional mechanism which has come to be called the judicial collegium, comprising the Chief Justice of India and four of the senior-most judges of the Supreme Court, whose recommendations under the case law is ruled to be binding on the president of India in the appointment and promotion of judges of the Supreme Court. In case of recommending the appointment, promotion, and transfer of judges of the High Courts to the Supreme Court, the primary collegium at the state level includes the Chief Justice of the concerned state High Court and two of his senior-most colleagues, which recommends to the Supreme Court collegium described above. The executive may return the proposed panel with objections, if any, which the Supreme Court collegium may accept. But if the latter reiterates, the recommendation is finally binding on the president, as the Court considered this an imperative in the interest of the independence of the judiciary in the context of repeated attempts by the executive to undermine it. To quote the succinct comment of Austin ((1999) at 532) on this judgment:

[t]he basic issues reappeared in the nineties: writ petitions of Supreme Court lawyers that worked their way up to a special bench of nine judges. The most basic issues of all was the rampant suspicion with which the judicial and the executive branches regarded each other. This time, for a time, the Court prevailed. In the ‘selection and appointment of judges to the Supreme Court and the High Court as well as transfer of judges from one high court to another high court … the opinion of the Chief Justice of India … is entitled to have the right to primacy’, ruled the majority in the lead judgment by Justice JS Verma. Judicial review of transfers was to be limited to whether or not there was adequate participation by the Chief Justice of India.

19.  In the advisory opinion of the Supreme Court in Presidential Reference 1 of 1998, under Article 143 of the Constitution the consultation process is further amplified, whereby ‘consultation’ with the collegium now virtually means its ‘concurrence’. However, it is added that if a recommendation made by the Chief Justice on behalf of the collegium does not comply with the ‘norms and requirements of the consultation process’ as laid down in the advisory opinion, it is not binding on the president. Moreover, the recommendation must be practically unanimous; if even two judges disagree, it would not be a valid recommendation. The primacy of the opinion of the Chief Justice requires his or her consent with the majority opinion. Yet the sole opinion of the Chief Justice is not sufficient. Strong and cogent reasons (only positive ones) must be given if a person’s name is considered in the process of consultation but not recommended. The views of other judges consulted must be conveyed to the executive.

20.  After winning a single-party majority in May 2014 for the first time since 1984, the Bharatiya Janata Party government, led by Prime Minister Narendra Modi, sought to replace the existing mode of appointment, promotion, and transfer of judges in courts of constitutional jurisdiction by the collegiums of judges, with a National Judicial Appointments Commission (‘NJAC’ or ‘Commission’), through the 99th Constitutional Amendment Act (2014) (India) and the NJAC Act (2014) (India). The NJAC was to comprise the Chief Justice of India and two of the senior-most judges of the Supreme Court, plus the Union Minister of Law and Justice and two ‘eminent persons’ appointed by the Union executive on the basis of nomination by the CJI, the prime minister, and the leader of the official opposition party (or lacking which the largest opposition party) in the Lok Sabha. The Commission was to decide by majority; but any two members of the Commission could veto a name in the panel of prospective judges (or promotees or transferees) collectively prepared by it. However, in a public interest litigation (Supreme Court Advocates on Record Association v Union of India (2015) (India)) the Supreme Court declared the two enactments unconstitutional on 16 October 2015 as violating the principle of judicial autonomy, a part of ‘the basic structure of the Constitution’ which is unamendable under case law (Keshavananda Bharati v State of Kerala (1973) (India), and several other cases since then; see also Minerva Mills Case (India)).

21.  The Court was, however, open to negotiating a memorandum of procedure (‘MoP’) for judicial appointments etc., enhancing the mutually participatory roles of both the judiciary and the executive. At the time of writing (early September 2018) tardy exchanges between the Court and the executive about the process have taken place, but a final consensus is still elusive. Given the trust deficit between the two sides, a finally settled contour of the MoP is still pending, and the contested perceptions and uneasy institutional relations continue. The matter was raised in a public interest petition before a two-judge bench which passed an order seeking an explanation from the government on the delay in finalizing the MoP. Subsequently, a three-judge bench chaired by the CJI recalled the order, saying the MoP issue cannot be heard in open court (The Economic Times (9 November 2017)).

22.  The four years of the Modi government have been marked by an acrimonious relationship between the executive and the judiciary, especially since the invalidation of the constitutional and statutory amendments piloted by the government through the parliament and the aggregate legislatures on the heels of its coming to power in mid-May 2014, with amazing government-opposition unity on this issue. Notably, it is the first single-party majority government after 30 long years, since the Congress party last won a landslide majority under Rajiv Gandhi in 1984. Thereafter, there came to pass 25 years of federal coalitional governance, from the 1989 to 2014 general elections. The Modi regime has witnessed two parallel tendencies or trends. These are the recurrent tensions between the executive and the judiciary, on the one hand, and on the other the increasing intra-judiciary differences often breaking out into the public domain. The chronology of events as narrated in the Rajya Sabha in answer to a question in the winter session of the parliament (2017–2018) is as follows.

  • •  In response to the Supreme Court order in Supreme Court Advocates on Record Association v Union of India (2015) (India) to finalize the existing memorandum of procedure by supplementing it in consultation with the CJI, the Government of India (‘GOI’) sent the proposed changes to the CJI on 22 March 2016.

  • •  Response of the CJI received by the GOI on 25 May 2016 and 1 July 2016.

  • •  The GOI sent its views to the CJI on 3 August 2016.

  • •  Inputs from judicial collegium received through the CJI on 13 March 2017.

  • •  The Supreme Court judgment in the Justice CS Karnan contempt of court case (the first ever instance, in which this Calcutta High Court judge was jailed for six months in May 2017) underlined the need to revisit the process of selection and appointment of judges to courts with constitutional jurisdiction. This was followed by the July 2017 letter of the GOI to the Court (The Indian Express (12 January 2018). (The text of the judgement referred to in the foregoing narrative : ‘Reportable’ In the Supreme Court of India Civil Original Jurisdiction, Suo Motu Contempt Petition (Civil) No. 1 of 2017 in the matter of Rt. Hon.Shri Justice C.S.Karnan. https://www.sci.gov.in/pdf/cir/2017-05-02_1493700006.pdf (accessed on 5.12.2018)).

23.  The details of differences between the government and the judicial collegium were not revealed in the reply of the Minister of State for Law and Justice to the parliamentary question, but they appear in media reports to hinge on differing perceptions of the Court regarding its own autonomy, perceptions of the government regarding the Court’s accountability, and general principles and issues of reconciling merit versus seniority, and intelligence agencies’ inputs about the nominees for judicial appointments as regards concerns of corruption and/or national security (The Indian Express (4 November 2017)).

24.  The delay in the finalization of the MoP has not brought the process of appointments and promotions to a halt. Yet, the delays in the final decisions in the matter on the part of the executive has been an issue of recurrent tension, after the apex court struck down the NJAC enactments seeking to abolish the judicial collegium system in December 2015 (The Indian Express (24 February 2018)).

25.  Things came to such a pass that the then CJI, TS Thakur, was overwhelmed by agonies to tears at the annual conference of Chief Ministers and Chief Justices chaired by the prime minister on 24 April 2016, complaining that the government was missing in action on 170 recommendations for the appointment of judges to the various High Courts, at a time when 434 judicial vacancies were waiting to be filled. He also referred to the 1987 Law Commission recommendation to increase the ratio of ten judges per one million people, to 50 judges per one million people (Live Law (8 July 2016)).

26.  As regards intra-judiciary differences, besides the not-unusual dissenting opinions (eg of Justice J Chelmeswar in the Supreme Court’s judgment invalidating the NJAC amendments in 2015, Supreme Court Advovocates on Record Association v. Union of India (2015), see full reference in List of Cases at the end of this chapter), there was an unprecedented press conference addressed by four of the senior-most judges constituting a part of the collegium (with addition of its chair CJI Dipak Misra)—Justices Chelmeswar, Ranjan Gogoi, Madan Lokur, and Kurian Joseph—complaining against the lack of collegiality and transparency on the part of CJI Dipak Misra in allocating cases to the various benches of the Supreme Court in preferential and arbitrary ways (The Economic Times (12 January 2018)).

27.  Reacting to it, CJI Misra initially asserted his power as the master of the roster, but about 18 days later, on 1 February 2018, decided to make the roster of allocation of cases public by ordering it to be uploaded online with effect from 5 February 2018. This is certainlya welcome development. Yet it needs to go deeper and be reinforced by other steps towards collegiality, accountability, and transparency to adequately address the crisis of credibility in the Supreme Court. Some kind of roster in the Supreme Court as well as in High Courts existed even earlier. The issue is larger and more complex than that. As an Advocate and Senior Resident Fellow of the Vidhi Centre for Legal Policy, New Delhi, Alok Prasanna Kumar, has remarked: ‘[t]he manner in which sensitive cases were being allocated by the CJI to certain judges suggested that it was totally arbitrary and designed to ensure a certain outcome, in some cases favouring the Union government’. Kumargoes on to observe:

[t]he crux lay, and continues to lie, in the absence of any norms or transparency in the manner in which the CJI exercised his discretionary power—to go beyond the roster and allocate specific cases to specific benches. This continues to be a bone of contention and won’t be resolved unless clear and specific norms are laid down guiding the CJI’s exercise of discretion. This is precisely the demand that is being made by the four senior-most judges who have asked for a panel, instead of the roster being determined by the CJI alone (Kumar, 2018).

28.  Kumar is also critical of the CJI’s intention of making his court the only bench to hear public interest litigation (‘PIL’) cases. Even though PIL cases are no more than one per cent of cases in the Supreme Court, these are

also more likely than other case types to raise important issues, and spark confrontation between the judiciary and the executive. Per se, having only the CJI hear PILs is not in a bad move. But in the present context, where questions over his integrity and independence have been raised, this allocation is unlikely to inspire much confidence (ibid.).

29.  The relations between the parliament and the judiciary during the Modi regime have not touched the rock bottom of naked conflict between the two organs of the state characteristic of the Indira Gandhi regime during the 1970s (as discussed below). Yet there is a palpable and ill-concealed tension not seen for about half a century. On 25 April 2018, the Union Law Ministry advised the president to issue the warrant of appointment to Indu Malhotra, the first woman to be elevated to the post of a Supreme Court judge from the Bar, but segregated and returned the file relating to the other name recommended by the Supreme Court collegium along with her at its meeting on 10 January 2018—namely, the Uttarakhand High Court Chief Justice KM Joseph, who had struck down the Union government’s order to impose the president’s rule dismissing the government in that state in 2016, citing reasons of ‘seniority’ in High Courts per se and the need to address the issue of adverse ‘regional representation’ in the apex court (The Indian Express (26 April 2018)). Union Law Ministry sources claimed that the government followed the relevant Supreme Court judgments in 1993 and 1998 and the MoP suggested by the collegium on 13 March 2017, para. 5, which said: ‘[i]n case of elevation of a chief justice of an HC or a judge of the HC as a judge of the Supreme Court, a fair representation shall be given to all HCs. The criterion of ‘seniority’ as an HC judge, subject to merit and integrity will be followed’. The government maintained that Justice Joseph was 42nd in the all-India seniority list of High Court judges, and that Kerala High Court was already represented in the Supreme Court (The Times of India (28 April 2018)).

30.  In the meantime, the Calcutta High Court (in mid-April 2018), having a record backlog of 250,000 pending cases, was reported to be at standstill since 19 February 2018, with more than 5,000 advocates from Calcutta’s three Bar Councils having called for ‘cease of work’ until the Union government filled the vacant posts of judges and appointed a permanent Chief Justice. Under pressure, the Union Law Ministry appointed three new judges in early April 2018 and four new judges around the middle of the same month. But it withheld one nominee from the panel recommended by the judicial collegium (comprising CJI and four senior-most judges of the Supreme Court). The present number of judges of the Calcutta High Court is 33 against the sanctioned strength of 72, ie a vacancy rate of 45 per cent (Sharif, 2018).

31.  On 19 April 2018, a three-judge panel headed by CJI Misra delivered its judgment in a case examining the sudden death of a CBI special judge of Mumbai, Justice BH Loya—who was adjudicating the alleged Sohrabuddin fake encounter case pertaining to Gujarat against the BJP national president and Rajya Sabha MP Amit Shah—that the death was due to natural reasons and no foul play was evident. It also observed that the PIL was politically motivated and aimed to hit the judiciary’s credibility (The Indian Express (20 April 2018)). On 21 April 2018, in an unprecedented move, opposition parties including the Indian National Congress and six other parties a motion for removal of CJI Misra to the Rajya Sabha chairman under Article 124(4), listing five charges of ‘misbehaviour’—such as CBI registering an FIR about conversation between middlemen and a retired judge of Orissa High Court IM Quddusi with purported references to CJI, his dealing with bribery allegations in the Prasad Education Trust in which the said retired judge of Orissa High Court was arrested, ‘ante-dating of a note regarding a petition in the same case, acquiring (later surrendered) plot of land as an Advocate by giving a false affidavit, allocating ‘sensitive matters to particular benches by misusing his authority … with likely intent to influence outcome’ (The Times of India (21 April 2018)). The defiant CJI was reported to have decided not to recuse himself from administrative and judicial work, feeling reassured by a general tone of support from the legal fraternity (The Sunday Times (22 April 2018)). Two days after the notice of removal by seven opposition parties, two senior judges of the Supreme Court—Ranjan Gogoi and Madan Lokur—wrote to the CJI to call a ‘full court’ to discuss ‘institutional issues’ and the ‘future’ of the apex court. This letter follows on the heels of the two other letters by senior members of the collegium in few weeks after December 12, 2017 which had asked the CJI to involve all judges in judicial work and to protect the judiciary from undue interference by the government (The Indian Express (25 April 2018)).

2.  Removal of Judges

32.  Removal of a Supreme Court and High Court judge (removal from office of judges at constitutional courts / supreme courts) is impermissible by the Constitution

except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that house and by a majority of not less than two-thirds of the members of the house present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity (Indian Constitution, Art. 124, Clause 4).

33.  The parliament may by law regulate the procedure of the presentation of an address to the president and the investigation and proof of the charges (Art. 124, Clause 5). It has not so far done so.

34.  The only instance of attempted removal of a judge of the Supreme Court, that of Justice V Ramaswamy, after an investigation by a committee of sitting or retired apex court and High Court judges appointed by the Lok Sabha Speaker found him guilty of moral turpitude, passed muster in the Lok Sabha but failed in the Rajya Sabha in 1993, due to lack of requisite majorities caused by the abstention of the Indian National Congress. This party, a major part of the opposition bloc in the federal second chamber, had got regionally divided in Tamil Nadu, the home state of Justice Ramaswamy, and abstained from voting.

35.  In the case of the motion of removal of CJI Dipak Misra discussed above, the Rajya Sabha Chairman Venkaiya Naidu rejected, on 23 April 2018, the notice of removal of the CJI, citing the relevant articles of the Constitution, the Judges Inquiry Act, 1968 (India), and the Supreme Court judgment in M Krishna Swami v Union of India (1993) (India), and lamenting the ‘absence of credible and verifiable information’ (The Indian Express (24 April 2018)). The opposition parties are contemplating to move the Supreme Court against the decision of Rajya Sabha Chairman Naidu.

E.  Jurisdiction and Power

36.  The Supreme Court is a court of record and also has all the powers of such a court, including the power to punish for contempt of itself (Art. 129). Its seat is in Delhi, or in such other place or places as the Chief Justice of India with the approval of the president may from time to time determine (Art. 130). It has so far sat only in Delhi.

37.  The Constitution grants the Supreme Court original, appellate, curative, and advisory jurisdiction, including the crucial power of judicial review. Subject to the provisions of the Constitution, its original jurisdiction extends, to the exclusion of any other Court, to any intergovernmental dispute between the Union and state(s) or between or among states themselves. This jurisdiction does not extend to international treaties (Art. 131). The Supreme Court or any other Court may, under the constitution, be excluded from adjudication of disputes relating to the waters of inter-state rivers or river valleys by an act of the parliament (Art. 262). The Inter-State Water Disputes Act, 1956 (India) (with subsequent amendments) by its Section 11 excludes the jurisdiction of the Supreme Court from a dispute referred by the Centre on request of a state to a tribunal (with the power to issue binding awards under the Act). However, the Supreme Court can direct the central government to fulfil its statutory obligation to constitute a tribunal under Section 4 of the Act (TN Cauvery Sangam v Union of India (1990) (India)). In this instance, the tribunal held that it had no jurisdiction to grant any interim relief under the Act (interim relief at constitutional courts / supreme courts).

38.  The Supreme Court, on appeal by a special leave petition, held that the parties had agreed to confer such an arrangement before the tribunal, and the Supreme Court directed the tribunal to decide on the merits of the case (State of Tamil Nadu v State of Kanataka (1991) (India)). One observer is highly appreciative of the wisdom of the makers of the constitution and the wisdom of the Supreme Court in respect of this matter, ‘in showing judicial restraints by declining jurisdiction in relation to water disputes (even when presented as a facet of the right to life under Art. 21 of the Constitution) and by restraining states from riding roughshod over tribunal awards (interim and final) which were politically unpalatable’—it has been, in his opinion, ‘[o]ne of the strengths of the federal system’ (Slave (2016) 520).

39.  Under Article 32 of the Indian Constitution, dealing with the right to constitutional remedies for enforcement of fundamental rights, citizens have the fundamental right to directly move the Supreme Court though the remedial option is exercisable in any constitutional court, namely, the concerned High Court of state as well as the Supreme Court of India (remedies at constitutional courts / supreme courts). With respect of fundamental rights, the High Court enjoy simultaneous original jurisdiction with the Supreme Court (Indian Constitution Arts 22 and 226).

40.  The appellate jurisdiction of the Supreme Court extends to appeals from any judgment, decree, or final order of a High Court in the territory of India, whether in a civil, criminal or other proceedings under Article 132, if the High Court certifies under Article 134A that the case involves a substantial question of law as to the interpretation of the constitution (interpretation of constitutions). Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided. Articles 133 and 134 deal with specificities of appellate jurisdictions of the Supreme Court from High Courts in regards to civil and criminal matters respectively. Under Article 134A a High Court may grant a certificate for appeal to the Supreme Court on its own motion, or on an oral application by or on behalf of the aggrieved party immediately after the High Court judgment.

41.  Under Article 136 of the Indian Constitution, the Supreme Court may grant ‘special leave’ to appeal to itself from any judgment made by any court or tribunal in the territory of India, excepting any court or tribunal constituted by or under any law relating to the armed forces. This article may be said to be a ‘corrective jurisdiction that vest[s] a discretion in the Supreme Court to settle the law clear[ly]’… ‘with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence’ (Bakshi (2015) 159). Another curative jurisdiction of the Supreme Court is provided for in Article 137, under which it is empowered to review any judgment made by itself.

42.  The Supreme Court under Article 142 is allowed a stipulative discretionary jurisdiction to pass ‘any such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, any decree so passed or order so made shall be enforceable throughout the, territory of India’; and it shall have ‘all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any document, or investigation or punishment of any contempt of itself’. Any decree or order under this article is enforceable in such manner as may be prescribed under any law made by parliament, or pending it, under prescription made by the president of India. This power is thus shared with the parliament or the executive. Moreover, Article 144 enjoins that ‘[a]ll authorities, civil and judicial, shall act in aid of the Supreme Court’. It is evident from case law that the Supreme Court may inflict exemplary costs against a defaulting government (Dinesh v Motilal Nehru Medical College (1990) (India)).

43.  It may also be added here that a direction made by the Supreme Court under Article 141 constitutes a binding precedent in law, while one issued under Article 142 does not (State of Punjab v RafiqMasih (2015) (India)). In other words, the latter is case-specific rather than universal. While the Supreme Court’s power to do ‘complete justice’ under Article 142 is also traceable to its inherent power as guardian of the constitution, and it can grant appropriate relief in cases of manifest illegality or palpable injustice resulting from manifest want of jurisdiction in lower courts, it should not pass any judicially unmanageable order which is incapable of enforcement (AR Antulay v RS Naik (1988) (India); Pravasi Bhalai Sangathan v Union of India (2014) (India)).

44.  In comparison with its original jurisdiction, the Supreme Court’s appellate jurisdiction looms much larger; approximately 80 per cent of cases are appeals of one kind or the other (Vakil 368). A practicing lawyer in all levels of courts in New Delhi tells me that nowadays the Supreme Court rarely entertains writ petitions under Article 32 original jurisdiction route for protection of fundamental rights, advising petitioners to approach High Courts under Article 131 having concurrent jurisdiction in this respect. The apex court is mostly busy in exercising its extraordinary power called special leave petitions (SLPs) under Article 136. To his estimate, 90 to 95 per cent of cases are SLPs which are technically considered as exercise of appellate jurisdiction. Arts 132–134, which are the normal channels of appellate jurisdiction, have virtually become dead letters. Today, the Supreme Court is practically working as the appellate court from High Courts and various tribunals (interview with an advocate practicing mainly in Delhi High Court and Supreme Court, 7 November 2017).

45.  Moreover, the Supreme Court also has an advisory jurisdiction with great moral authority but without a binding constitutional or legal effect. Under Article 143, the president of India has power to consult the Court on any question of law or fact. It is evident in case law that the initiative in this matter lies with the president and the Court cannot assume suomotu to itself the right to advise by issuing mandamus to make a reference on any issue to itself (Kumar v Union of India (2008) (India)).

46.  Moreover, the Court cannot exceed the terms of reference cited in the president’s request, as the Court clarified in self-restraint in its opinion on the Kerala State Education Bill, 1957, reserved by the governor of the state for consideration of the president when it was presented for the governor’s assent. The bill emanated from the first democratically elected communist government in that state in India (indeed the world), and contained several controversial provisions in law and fact, and the president made a reference to the Supreme Court for its advisory opinion (Re Kerala Education Bill (1958) (India)).

47.  Further, the Supreme Court cannot be asked to reconsider its earlier decisions by another reference, as this will cause inroads into the independence of the judiciary (Re Cauvery Water Disputes (1992) (India)). In one reference, the apex court refused to answer because it found the question ‘vague and general’ (Re Ramjanmbhumi, M Ismail Faruqui v Union of India (1995) (India)). Article 143(1) of the Indian Constitution closely takes after a provision in the Canada Constitution Act, 1867 (Can), and the Government of India Act, 1935 (India), Section 213. The president of India has used this power rather sparingly, with only eleven reported cases under Article 143(1) and none under Article 143(2). Two references are stated to be pending before the apex court (Kothari 3).

48.  The Constitution of India, as already baldly mentioned above, expressly sanctions the power of judicial review of legislative acts and executive actions to the Supreme Court and High Courts in cases of infringement of fundamental rights of citizens (Arts 13 and 32) and federal division of powers between the Union and state governments (Art. 246 and Seventh Schedule). Although in respect of the fundamental right of life and personal liberty, Article 21 prohibits its deprivation ‘except according to procedure established by law’, the Court has belatedly gone beyond it and virtually invoked doctrines of the due process of law à la the US Constitution and principles of natural law and justice (Maneka Gandhi v Union of India (1978) (India)). Besides rights review and federal reviews, the constitutional courts have also invoked the implied principle of separation of power, partly modified by the fusion of powers between the legislature and executive in the Indian parliamentary federal constitution. The Supreme Court, for example, has stipulated that executive power is the residue of functions of government, which are not legislative or judicial (Maharjadhiraja Madhav Rao Jivaji Rao Scindia Bhadur v Union of India (1971) 530 (India)). In another case, the Supreme Court invoked the judicial doctrine of unamendability of the ‘basic structure’ or ‘essential features’ of the constitution, and included the principle of separation powers as a part of these features (Keshavananda Bharati Sripadgalvaru v State of Kerala (1973) (India) (see also entrenched clauses). In yet another judgment, the Supreme Court invalidated the election of Prime Minister Indira Gandhi from a Lok Sabha constituency, denying her the immunity of the elections of the prime minister and president from judicial adjudication granted under the 42nd constitutional amendment by her government through the parliament, and held that adjudication of a specific electoral dispute was a judicial function which parliament, even under its constitutional amending power, cannot exercise (Indira Nehru Gandhi v Raj Narain(1975) (India)).

F.  Notable Jurisprudence

49.  Some relevant adjudications by the Supreme Court have been mentioned in the foregoing discussion in this article in brief. I highlight in what follows the notable jurisprudence emanating from the Supreme Court in three subsections: (1) methodology of constitutional interpretation; (2) adjudication of constitutional amendments; (3) fundamental rights; and (4) structural issues such as separation of powers and federal division of powers.

1.  Methodology of Constitutional Interpretation

50.  In India, as in Anglo-Saxon and Commonwealth federations, every law of the land must conform to the constitution; every article of the Indian Constitution and every entry in the Seventh Schedule of the Constitution is inherently interlinked with integral texts of the constitution and laws. Hence the courts with constitutional jurisdictions—the Federal Court under the 1935 Constitution Act, the Supreme Court and High Courts under the 1950 Constitution—have followed the doctrine of harmonious construction of the provisions with one another, combined with a supplementary doctrine of prospective (not retrospective) overruling of the ultra vires parts, if necessary. This applies to all cases, whether dealing with fundamental rights and directive principles of state policy, separation of powers, federal division of powers, or constitutional and international law. I forgo citation of cases here, as some relevant cases are already mentioned above and the number of additional cases is forbiddingly enormous.

51.  The highest courts of appeal in British India and the imperial Privy Council applied a similar principle of harmonious reconstruction based on equity and justice tempered by colonial reason of the state in the evolving scenario of modern law from the labyrinth of plurality of caste- and religious community-based laws prevalent in India.

52.  Since fundamental rights of citizens are rights against the generic state (inclusive of both Union and state governments), Article 12 of the Constitution sets out to define the state as inclusive of ‘the Government and Parliament of India and the Government and the Legislature of each of the States and all local and other authorities within the territory of India or under the control of the Government of India’. The open and ambiguous category ‘other authorities’ in this article has produced a good deal of litigation over time. The Andhra Pradesh High Court has ruled that the essential tests to determine whether a particular organization or institution is part of the formulation ‘other authorities’ within the meaning of Article 12 are: substantial financial aid from a government, governmental control, or performance of public functions and entrusted governmental activities. One or any combination of some or all of these features are sufficient to deem it such an authority (B Hassan Ali Khan v Director of High Education, Andhra Pradesh (1987) (India)). In a landmark case decided by the Supreme Court, a regional engineering college was held to be an agency of the ‘state’, and Justice PN Bhagwati enunciated the following criteria for such a determination: (1) the holding of the entire share capital by the government; (2) financial assistance to the tune of almost entire expenditure; (3) conferment of monopoly status to the institution; (4) deep and pervasive state control; performance of public or governmental functions; and (5) transfer of a department of government to a corporation (Ajay Hasia v Khalid Mujib (1981) (India)).

53.  While interpreting a statute, the Supreme Court often relies on the doctrine of severability to determine if a provision of an act is violative of a constitutional provision. The test is whether the provisions in question are so inextricably bound up with each other that the legislature would not have enacted the one without enacting the other. If this assumption is maintainable, then the parts of the enactment forming such a nexus are declared unconstitutional save the rest (State of Bihar v Kameshwar Singh (1952) (India); Jalan Trading Company v Mill Mazdoor Sabha (1967) (India); Kihota Hollohan v Zachilhu (1993) (India)).

54.  The framework of fundamental rights and directive principles of state policy in the Constitution of India and the jurisprudential discourse around them produced by the constitutional courts interestingly presaged John Rawls’ Theory of Justice (1971). Rawls’ theory has two pillars of liberty and equality, wherein the former brooks no compromise and the latter only in favour of the most disadvantaged in the society. Within the canvas, a national constitution, the Indian basic law, constructs a theory of rights predicated on the eternal triangle of liberty, equality, and fraternity in a harmonious balance with ‘reasonable restrictions’ largely based on protective discrimination in favour of scheduled castes and scheduled tribes (caste systems), and for the sake of public morality and national security. Individuals are the primary bearers of rights, but certain rights are also meant for communities—linguistic and religious minorities (protection of religious minorities; protection of linguistic minorities) and tribal communities, as well as universally enjoyed freedom of religion, right to assemble peacefully and without arms, and to form associations or unions or cooperative societies. Judicial review has produced considerable rationalization of protective discrimination (eg exclusion of the so-called ‘creamy layers’, ie upper income groups in among the Backward middle castes other than Scheduled Castes and Scheduled Tribes legally entitled to reserved preferential treatment in education and employment from the reserved categories for affirmative action in their favour by the state) and phenomenal expansion under case law of the right to life under Article 21, whereby it has come to include eg the right to health and a clean environment (eg Subhash Kumar v State of Bihar (1991) (India); MC Mehta v Kamal Nath (1997) (India)). During the proclamation of a national emergency due to external aggression or armed rebellion (Arts 352 and 359), judicial enforcement of fundamental rights may be suspended under the constitution, but the 44th Constitutional Amendment (1978) inserted an important exception that the protection against double jeopardy (Art. 20) and right to life and personal liberty (Art. 21) cannot be denied even during the national emergency. The background to this amendment was the Supreme Court’s infamous judgment that during the pendency of internal emergency declared on 25 June 1975 by the president of India, no person had any locus to move any writ petition in any court for enforcement of the rights conferred by Arts 14, 21, and 22 of the Constitution, and all proceedings pending in any court for the enforcement of the aforesaid rights shall remain suspended until the proclamation of the emergency continued (ADM Jabalpur v Shiv Kant Shukla (1976) 1207 (India)).

55.  The Supreme Court has similarly used a number of rules of interpretation while adjudicating federal disputes. Two such rules are the doctrines plenary character of legislative power and of liberal construction. The former begins with the assumption that legislative power in an entry in a list in the Seventh Schedule is plenary based on the answer to the question whether the subject falls in an entry in one list or another. Any limitations on the power in a particular entry is supposed to be restricted to ones explicitly outlined in the constitution (Tinsukia Electric Supply Company Ltd v State of Assam (1990) (India)). The rule of liberal construction assumes that the power to legislate on a particular subject is inclusive of all aspects ancillary to it (Ujagar Prints (II) v Union of India (1989) (India)).

56.  What if a law is cross-referential in dealing with a subject in one list and also with an entry in another of the tripartite division of powers in the Seventh Schedule of the Constitution containing Union, state, and Concurrent Lists? Here, the doctrine of pith and substance applies. The title given to the act by the legislature is no guide. The real character of the legislation has to be ascertained by (1) examining the enactment as a whole, (2) bringing out its main objectives, and (3) scrutinizing the scope and effects of its provisions (State of Bombay v FN Balsara (1951) (India); Southern Pharmaceuticals and Chemicals, Trichur v State of Kerala (1981); Girnar Traders (3) v State of Maharashtra (2011) (India)).

57.  The related principle is that of incidental or ancillary powers. It means that the power to legislate on a subject also includes power to legislate on ancillary matters to that subject (State of Rajasthan v G Chawla (1959) (India)).

58.  The doctrine of colourable legislation is somewhat similar yet different, in that it decodes the confusion between appearance and reality in the impugned legislation. In other words, the legislature in question seems to deal with a matter on which it claims competence, but in reality and substance this claim is false. The classic enunciation of this doctrine was made by the Supreme Court in KC Gajapati Narayan Deo v State of Orissa (1953) (India).

59.  In a series of cases, the Court has proposed certain tests for determining the true nature and effect of a legislation. It has nothing to do with the intent or motive of the legislature, but with competence and its consequences in substances as distinguished from its form and label.

60.  Another principle in the present context is the doctrine of repugnancy. It refers to inconsistency between laws made by the parliament and state legislatures. Wherever field is covered by a parliamentary law in terms of the Union and Concurrent Lists, the law made by the state legislature would, to the extent of repugnancy, be void as provided in Article 254 (Maa Vaishno Devi Mahila Mahavidyalaya v State of Uttar Pradesh (2013) 625 (India)).

61.  Besides the Union–state division of legislative subjects, there is division of territories too. Under Article 245(1), parliament makes laws for the whole or a part of the territory of India, and a state legislature for the whole or a part of the territory of a state. In this context, the constitutional courts have evolved the doctrine of territorial nexus. In certain cases, issue has arisen around the territorial scope of a legislative or taxation power in ambiguous situations. A case arose out of the instance of the imposition of taxes on prize competitions in Bombay. What if the organizers in Bombay operated outside Bombay, and entries received in Bombay were transferred to the organizers’ office in Bangalore? The Supreme Court validated the legislative power in Bombay to tax the organizers’ operations extended in Bangalore, as there was evidence of sufficient territorial nexus (RMD Chamarbaugwalla v Union of India (1957) 628 (India)).

62.  The constitutional courts may also invoke the doctrine of fraud on the constitution in order to prevent the government from perpetrating a subterfuge to subvert the constitution in a devious and diabolical way. It occurs when the constitution is circumvented by fraud or mala fide use of a power. For example, the ordinance-making power of the president or a governor is an exceptional route for provisional or temporary law-making by the executive to be replaced by legislation within a reasonable specified time. In a classic case relating to the Bihar government, it was found that the executive repeatedly issued new ordinance to replace old ones instead of laying them before the state legislature. A total of 259 were re-promulgated, some of them continuing for a span of a decade and a half (DC Wadhwa and Others v State of Bihar and Others (1987) 579 (India)). Union as well as state governments are guilty of this subterfuge. The Supreme Court, in a case as recent as January 2017, ruled by a five to seven majority that ‘the ordinance making power is not a parallel source of legislation’, and that re-promulgation of ordinances is a fraud on the constitution and executive overreach on the legislature, and not immune from judicial scrutiny (The Indian Express (3 January 2017)).

63.  The relational executive power of the Union and states are coextensive with legislative powers and have increasingly become equally open to judicial review, even in a few exceptional areas under the case law, despite express constitutional exemption. The emergency powers of the Union executive under Article 352 (national emergency), Article 356 (breakdown of the constitutional machinery in a state), and Article 360 (financial emergency in India or a part thereof) were immune from judicial review under the constitution. The infamous personal (rather than national) emergency of Prime Minister Indira Gandhi, under threat from an extra-parliamentary mass protest movement led by Jayaprakash Narayan (1975–1977), was never reviewed by the constitutional courts, but it was moderated by the 44th Constitutional Amendment (1978). A financial emergency has so far never been declared.

64.  However, the dismissal of a government of a state and/or dissolution of a state assembly under Article 356 (dissolution of the legislative body) has been so frequently abused by all parties in power at the Centre for partisan purposes against opposition parties’ governments in states, that by the early 1990s this power was made subject to judicial review under case law (which is permissible under the common law system as against the Roman lay system). This turning point came 44 years after the commencement of the constitution in 1950. In SR Bommai v Union of India (1994) 1918 (India), the Supreme Court ruled that, even though Article 74(2) barred the courts to inquire into what advice the president got from the prime minister and his Council of Ministers in taking over a state administration, Article 356 required the president to be ‘satisfied’ that a situation of the breakdown of the constitutional machinery in a state had actually taken place and the government of a state was not sent packing mala fide and for extraneous and irrelevant reasons. The Court even went to the extent of reasoning aloud that a dismissed government in Nagaland under review in that particular case could/should have been restored had a fresh election not in fact already taken place there. In Rameshwar Prasad v Union of India (2006) 980 (India), the Court reasoned that it could have revived the dissolved assembly in Bihar if a new election had not been notified and election process had not reached an advanced stage. In Arunachal Pradesh in 2016, on a SLP petition against the Guahati High Court judgment, a five-judge constitution bench of the Supreme Court unanimously restored the Congress government which had been dismissed by a BJP-led Union government on the recommendation of the governor of the state, and unseated the new government that had taken over in the existing assembly itself as a result of political realignments in fluidity.

65.  The High Court had validated the dismissal of the state government by the Union executive on the report of the governor. The apex court ruled that the facts of this case suggested that the governor had exercised his independent/discretionary powers in a questionable way, where in fact he was bound to act on the advice of the Council of Ministers headed by the Chief Minister. The actions of the governor of the state and the president of India were declared to be unconstitutional inasmuch as they violated the principle of nominal head of the state and effective cabinet government in the state (Nabam Rebia and Bamang Felix v Dy Speaker, Arunachal Pradesh Assembly and Others (2016) 1 (India)).

66.  In the domain of taxation and fiscal federalism, Article 265 of the Constitution requires that no tax shall be levied or collected except by authority of a parliamentary or a state legislature law. The authorization made by a statute to levy a tax or a fee must be express. Moreover, the power to tax or levy a fee or cess is not incidental or ancillary to the power to legislate on a matter (Synthetics and Chemicals Ltd v State of Uttar Pradesh (1990) 1927 (India); Subhash Chander v State of Haryana (1992) 20 (India)). Further, no substantive taxing provision in a statute may be amended or enlarged by an executive notification (Tata Sky Ltd v State of Madhya Pradesh (2013) 656 (India)). Besides, when a question arises as to the competence of a legislature to tax, the courts apply the doctrine of pith and substance as to the nature and effect of the tax in federal division of powers (Goodyear India Ltd v State of Haryana (1990) 781 (India); Mukerian Papers Ltd v State of Punjab (1991) 580 (India)).

67.  Article 285 provides for exemption of property of the Union from state taxation. However, a Union government company or statutory corporation cannot be said to be ‘property of the Union’ and are therefore liable to state or municipal taxation (International Airports Authority of India v Municipal Corporation of Delhi (1991) 302 (India)).

68.  Article 301 of the Constitution provides that subject to other provisions in Part XIII of the Constitution, trade, commerce, and intercourse (ie the free movement/transport and exchange of goods) throughout the country shall be free. Article 304 in this part provides that, notwithstanding anything in Article 301, the legislature of a state may impose ‘reasonable restrictions’ on free trade within that state in the ‘public interest’. The Supreme Court has adjudicated that the test of reasonableness in this context must be the same as adopted for the purpose of Article 19(6) relating to reasonableness of restrictions on the fundamental right of every Indian citizen to practice any profession, occupation, trade, or business (Tika Ramji v State of Uttar Pradesh (1956) 676 (India); Kalyani Stores v State of Orissa (1966) 1696 (India); freedom of occupation or profession).

69.  Legal experts and judicial opinion have varied on the question of free trade stipulated in Article 301, some holding that only discriminatory taxes and barriers on goods from outside a state qualify to be restrictive; others arguing that Article 304(a) itself allows uniform tax on trade of goods manufactured locally or outside and treats them as non-discriminatory. Khosla ((2012) at 70) opines that:

[t]he Supreme Court has legitimized taxation measures to an extraordinary degree by reorienting this debate by asking how tax impacts free trade, commerce, and intercourse. The broad principle which has emerged, through a case like Automobile Transport (Rajasthan) Limited v State of Rajasthan, AIR 1962 SC: 1406 is that regulatory or compensatory taxes do not fall within the purview of restriction in Article 301. The articulated rationale for this is that such taxes do not hinder free trade, commerce, and intercourse at all; in fact, they facilitate it.

70.  A major political development in relation to indirect taxes of the Union and states are the 101st Constitutional Amendment and related statutes concerning a uniform goods and services tax—with major exceptions like electricity, petroleum products, liquor, and real estate—in 2017. A truly federal institution called the GST Council, representing the Union and state finance ministers, is now in place under the 101st Constitutional Amendment Act 2016 (India), for the first time whose consensual collective recommendations cannot arguably be overridden either by the parliament or state legislatures individually or jointly—as the GST Council represents a consensual exercise in executive federalism in pursuit of cooperative federalism. However, we must keep our fingers crossed until a test case actually settles this moot point. The GST Council operates under the decision rule that one-half of its membership form the quorum and a decision requires a majority of not less than three-quarters of weighted votes cast, such that it operationally must include 20 of the 29 states plus the Union Finance Minister. In principle, the Union enjoys one-third weightage of the total votes cast and the states together enjoy two-thirds of the weightage of votes cast (Srinivas 11–12).

71.  It may be pointed out here that a general inter-state commerce commission, contemplated in Article 307 of the Constitution, has still remained elusive, despite the recommendation in its favour by the National Commission to Review the Working of the Constitution (Chair Justice MN Venkatachaliah) in its report (Government of India, Ministry of Law and Justice (2002) 8.8.2).

2.  Fundamental Rights

72.  To highlight the major contours of this jurisprudence, there are six major captions grouping the various rights: right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, and right to constitutional remedies. In terms of basic premises (excepting auxiliary provisos) all are equally ‘fundamental’. Nevertheless, none of these rights, including the right to life and personal liberty (Art. 21), is absolute. Article 21 reads: ‘[n]o person shall be deprived of his life or personal liberty except according to procedure established by law’. For they are subject to ‘reasonable restrictions’ in the interest of public health, public morals, order, and state and national security. India has always had preventive detention acts on the statute book, including more recently the anti-crime and anti-terror acts of the Union and state legislatures. Moreover, the constitution includes the provision for the proclamation of national emergency caused by ‘war or external aggression or armed rebellion’ under Article 352, during which fundamental rights could be suspended as allowed by Articles 358 and 359. It must, however, be noted that the after the internal emergency of 1975–77, the 44th Constitutional Amendment (1979) (India) added the exceptions of the fundamental rights against double jeopardy (Art. 20) and for protection of life and personal liberty (Art. 21) to the general rule of the suspension of enforcement of fundamental rights during the proclamation of a national emergency.

73.  Speaking generally, it is difficult not to agree with Justice PN Bhagwati—speaking for himself and jointly with Justices NL Untwalia, S MurtazaFazal Ali, and PS Kailasham in a seven-judge constitution bench in Maneka Gandhi V Union of India (1978)—that the relationship between Article 14 (right to equality) Article 19 (right to freedom), and Article 21 (right to life and personal liberty) are the crux of the fundamental rights and must be individually as well as jointly protected. The justices went on to reject the view that if a certain article in the constitution exclusively deals with specific matters, and where the requirements of an article dealing with particular matter in question are satisfied and there is no infringement of the fundamental rights guaranteed by the article, no recourse can be had to a fundamental right conferred by another article. They pointed out: ‘[t]his doctrine of exclusivity was seriously questioned in RC Cooper’s case and it was overruled by a majority of the full Court, only Ray, J., as he then was dissenting’. They cited several other cases in support of their argument (eg AK Gopalan v State of Madras (1950) (India), in which the Court had sustained preventive detention on the plea that there existed ‘procedure established by law’ for it under the Preventive Detention Act, 1950 (India), but struck down as unconstitutional Section 14 of the Act which prevented even courts from accessing material that formed the basis of the detention order). They concluded that a law depriving a person of ‘personal liberty’, guaranteed by Article 21, has to stand the test of one or more fundamental rights conferred under Articles 19 and 14, even though the detention may have been ordered under a legislation establishing a procedure for doing that (Maneka Gandhi case judgment, para. 5). Thus, the Maneka Gandhi case went beyond the simplistic notion of procedure established by law, to bring into the Indian constitutional law both procedural as well as substantive due process of law, akin to the US Constitution that the makers of the Indian Constitution had deliberatively decided to avoid (as narrated by Austin 1966). The procedural and substantive due process introduced by Maneka Gandhi was further reinforced by the Supreme Court in Selvi and Others v State of Karnataka (2010) (India) and Union of India v R. Gandhi (2010) (India).

74.  However, two recent cases—Rajbala v State of Haryana (2015) (India), decided by the Supreme Court, and Shaikh Zahid Mukhtar v State of Maharashtra (2016) (India), decided by the Bombay High Court—have revived the old debate between procedure of law and due process of law witnessed at the time of the making of the Indian Constitution. In Rajbala, a two-judge bench of the Supreme Court rejected the plea of substantive due process of law and validated the Haryana Panchayati Raj (Amendment) Act, 2015, making certain categories of persons ineligible to contest elections: those against whom criminal charges of some kinds were framed, those who had not paid their electricity dues, those who did not have specific educational qualifications, and those who did not have functional toilets in their homes, etc. The law was challenged as being arbitrarily violative of the right to equality under Article 14 of the Constitution. In the Mukhtar case, a division bench of the Bombay High Court invalidated Section 5D of the Maharashtra Animal Preservation Act, 1976, as amended in 1995 (India), which made it a crime to have in one’s possession meat of cow and bullock slaughtered outside the state. It was done on the ground that the right to privacy was a part of the right to life and personal liberty under Article 21 of the Constitution; one was entitled to eat the food of one’s choice if it was not injurious to one’s health.

75.  The Supreme Court followed suit in a landmark nine-judge unanimous judgment in Justice (Rtd) KS Puttasawmy v Union of India and Others (2017) (India), in recognizing the right to privacy as a constitutionally protected fundamental right in India, explicitly overruling its own contrary view in MP Sharma and Others v Satish Chandra, District Magistrate, Delhi and Others (1954) (India) and Kharak Singh v State of UP (1962) (India). Exercising substantive due process, the Court ruled that the right to privacy is protected under Articles 14, 19, and 21. This judgment is likely to lead to constitutional challenges to a wide range of legislations, including the Aadhar identification card project which aims to build a database of personal identity and biometric information covering all Indian citizens. The Aadhar case is still pending in the Supreme Court at time of writing (early September 2018).

76.  Besides this comment of general import, a number of cases dealt with are clarificatory in nature, and some relate to India’s cultural and structural socio-economic diversities and inequities. Clarificatory adjudication is illustrated by the relationship of the right to equality with taxation laws. The Court permits a great deal of latitude to the legislature, which can make reasonable discrimination among taxpayers in respect of districts, objects, persons, methods, and even rates of taxation (Mafatala Industries v Union of India (1997) 36 (India)). There is a complex relationship between the right to equality for all and the preferential policy of reservation for the traditionally weaker sections of the society. Clause 4 of Article 15 regarding prohibition of discrimination on the grounds of religion, race, caste, sex, or place of birth appears to be a prima facieblanket provision permitting any kind of beneficial discrimination in the form of special provisions for the benefit of ‘any socially and educationally backward classes of citizens or for the Scheduled Tribes’. However, such a policy must offer satisfactory answer to the question when a particular class can be legitimately regarded as a ‘backward class’. Moreover, discriminatory provisions of such a nature may be struck down as unreasonable in certain circumstances, where the right to equality guaranteed by Article 14 would override the special provisions under Article 15(4). For example, reservation of an excessively high percentage of seats in technical institutions for such classes would be void, such as reservations in excess of 50 per cent of available seats (MR Balaji v State of Mysore (1963) (India); Rajendra v Anil v Dean, Government Medical College, Nagpur, (1985) paragraph 6 (India)).

3.  Structural Issues

77.  Structural issues in adjudication include principles of separation of powers and federal division of powers, and the like. Both of these are principles with chequered structuration rather than an integrated theory of deductive nomological formation. Their forms and contents change, for example, in a parliamentary government (eg Great Britain, where there is no strict separation of power nor a federal division of powers), in a presidential-federal government (eg the USA where there is both a strict separation of powers and federal division of powers and strong state rights), and in a parliamentary-federal government (eg Canada where there is fusion of legislative and executive powers but separation of judicial powers, with power of judicial review of legislative and executive actions as well as federal division of powers, and with limited state rights in theory but quite a wide quantum in practice). India is historically closer to the Canadian model but with some notable and growing variations.

78.  Having a parliamentary system of governments at Union levels as well as state levels, the Indian Constitution is premised on the fusion of legislative and executive branches. Yet the Supreme Court has subsequently stipulated that executive power is the residue of functions of government, which are not legislative or judicial (HH Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur v Union of India (1971) (India)). In another case, the Supreme Court invoked the doctrine of unamendability of the ‘basic structure’ or ‘essential features’ of the constitution, and included the principle of separation of powers as a part of these features (Keshavananda Bharati v State of Kerala (1973) (India)). In yet another judgment, the Supreme Court invalidated the election of Prime Minister Indira Gandhi from a Lok Sabha Constituency in Uttar Pradesh, denying her immunity of the elections of prime minister and president from judicial adjudication granted retrospectively under the 42nd Constitutional Amendment Act of her government by the parliament, and held that adjudication of a specific electoral dispute was a judicial function, which parliament, even under its constitutional amendment power, could not exercise (Indira Nehru Gandhi v Raj Narain (1975) (India)). And in 2011, the Supreme Court observed: ‘[t]here is distinct and rigid separation of powers under the Indian Constitution’ (State of Uttar Pradesh v Sanjay Kumar (2012) (India)).

79.  Adjudication of federal disputes has already been discussed above in parts while analysing some salient judicial doctrine of constitutional interpretation. Here, we may just refer to a chronic pathology in Union–state relations vis-à-vis central intervention in state government in case of a constitutionally contemplated emergency under Article 356, when the government of a state cannot be carried on in accordance with the provisions of the constitution due to the failure of the constitutional machinery there for whatever reasons (unspecified in the constitution). In the post-Nehru years, since the late 1960s, this power was frequently and grossly abused by all parties in power at the Centre, for partisan purpose against opposition parties’ governments in the states. Central intervention in state governments under Article 356 was first tested in State of Rajasthan and others v Union of India (1977) (India), challenging the dismissal of nine Congress party state governments by the newly elected Janata Party government in 1977 on the plea that in the Lok Sabha elections—just then held in all these mainly north Indian states—the people had voted to power at the Union level the first ever non-Congress party since India’s Independence in 1947. The Court sustained the action of the central government; it cited the principle of separation of powers as well as noted the absence of clear criteria of the breakdown of the constitutional machinery in a state in Article 356 as also of the constitutional bar to the courts to inquire into the contents of the cabinet advice to the president in this regard. The matter was said to be constitutionally construed to be a ‘political thicket’ left to be largely determined by the Union executive, with only a ‘limited sphere of operation’ for the courts if the reasons given by the president in his order are absolutely extraneous, irrelevant, and based on personal and illegal considerations, which was not the case in the instances in point.

80.  The issue of judicial review of presidential proclamation under Article 356 was decisively clinched in SR Bommai and Others v Union of India (1994) (India). The seven-judge bench of the Supreme Court ruled that although the president’s ‘satisfaction’ about the situation in a state regarding the emergency entailed by the breakdown of the constitutional machinery is ‘subjective’, the power to take action is not absolute but reasonable and must be based on relevant material. It must be exercised having regard to the overall constitutional scheme, keeping in view the requirement of parliamentary approval of the proclamation within two months in general, and in the extant cases consistent with the principles of federalism and secularism, which are parts of the ‘basic structure of the constitution’. Hence, while dismissing a state government, the state assembly ought not to be automatically and simultaneously dissolved so that in case of parliamentary disapproval the suspended assembly may be revived and dismissed government restored. Moreover, the proclamation is open to judicial review. Hence, when called upon, the Union of India will produce the material before the Court on the basis of which the action was taken. The Court will not examine the correctness of the material to the action taken. If it is struck down, the Supreme Court has the power to restore the government and reactivate the assembly kept under suspension. The Court declared the proclamation of President’s Rule in the states of Karnataka and Meghalaya under Article 356 of the Constitution ultra vires or unconstitutional for violation of the federal principle of state autonomy in Madhya Pradesh, Rajasthan; the same was done with regard to proclamation of President’s Rule in Himachal Pradesh in defence of the constitutional principle of secularism. However, for the practical reason that fresh elections and a new government formations had already taken place in the first two states, the Court stopped short of undoing the fait accompli (para. 434 of the judgment).

4.  Adjudication of Constitutional Amendments

81.  For over a decade and a half after the commencement of the Constitution in 1950, the working of the Supreme Court of India broadly followed the pattern set by the apex courts in the Commonwealth parliamentary federations in Canada and Australia. Some early decisions of the Indian Supreme Court, relating to land reforms and the nationalization of private economic operations like road transport by Congress governments in Bihar and Uttar Pradesh, seemed to diverge from the judicial restraint and legal formalism of Canadian and Australian judges. Constitutional invalidation of zamindari abolition and road transport nationalization acts, on the ground of violation of fundamental rights to property and occupation,put the Congress governments on their toes, and parliament enacted the first amendment to the Constitution in 1951. This amendment added the Ninth Schedule to the Constitution as a strong room or stronghold against judicial interference in the progressive laws and policies of the governments in India. Any legislative enactment of the parliament or state legislatures parked in the Ninth Schedule would become impervious to judicial review. It paradoxically made those laws higher than even the Constitution, so to say, which in legal theory is supposed to be a higher kind of law, presumably next only to the natural law in political and constitutional theory. Charismatic Prime Minister Nehru and his Law Minister Ambedkar, however, carried all before them, and judicial restraint became the hallmark of the behaviour of judges for the rest of the Nehru era. It was later, in 1973, in the early Indira Gandhi era that the Suprem Court ruled in Keshavanda Bharati Sripadgalvaruv. State of Kerala that any legislation out in the Ninth Schedule would thereafter be open to judicial review.

82.  A 1967 verdict by the Supreme Court marked a turning point in judicial behaviour in India, and in the institutional equation between the parliament and the executive, on the one side, and the constitutional courts, on the other. The issue arose out of a case challenging the Punjab Security of Land Tenures Act. The Act was put in 1964 in the Ninth Schedule of the Constitution, to make it impervious to judicial review. The Ninth Schedule as mentioned above was added to the Constitution by the first constitutional amendment Act in 1951. This Schedule was contrived by the executive and parliament, when agrarian reform legislations of the Congress governments relating to abolition of zamindari system across different states were challenged under Articles 19 and 31 of the Constitution that guaranteed the fundamental right to property. The Patna High Court declared the Bihar Zamindari Abolition Act unconstitutional, which was challenged in the Supreme Court and the apex court sustained it in State of Bihar v Kameshwar Singh. In IC Golak Nath and Others Case (India) (1967), the Supreme Court belatedly ruled that parliament’s power to amend the constitution stopped short of Part III of the Constitution, comprising fundamental rights, arguing that the makers of the constitution had envisioned fundamental rights in an image of permanence. The Court clarified that, under the doctrine of prospective overruling, the First Amendment (1951), the Fourth Amendment (1955), and the Seventeenth Amendment (1964) that had all abridged fundamental rights will continue to be valid on the basis of the earlier decisions of the Court, but no further amendment would be valid.

83.  How did this judgment fundamentally alter Indian constitutional law? This shift can be understood by the change in the judicial interpretation of the term ‘law’ in Article 13 of the Constitution. Article 13 makes any law that contravenes the fundamental rights unconstitutional and therefore void. An explanatory clause attached to this Article says that the term law ‘includes’ any legislation, ordinance, order, by-law, regulation notification, custom, or usage having the force of law in the territory of India. The majority of judges on the Golak Nath bench departed from the benches of the Supreme Court that had earlier decided the Shankari Prasad Singh Deo v Union of India (1951) (India) and Sajjan Singh v State of Rajasthan (1965) (India), which had also considered the question of amenability of fundamental rights. In the earlier judgments, the Court had treated constitutional amendments beyond the meaning of the term ‘law’ in Article 13. This was indeed consistent with comparative political and legal theories that make a distinction between the ‘constituent power’ and ‘legislative power’. In Golak Nath, the Court departed from this interpretation and thought that the word ‘includes’ in the explanatory clause in Article 13 is illustrative rather than exhaustive of the meaning of the term ‘law’; amendments are indeed included within the extension of its meaning. The Court contended that the heading of Article 368 is ‘Amendment of the Constitution’ but its subheading reads ‘Procedure for Amendment of the Constitution’. It went on to contend that it cannot be construed as a power in relation to a part called ‘Fundamental Rights’. The Court also justified its reversal of its earlier decision as follows: ‘[a]s we are convinced that the decision in Shankari Prasad’s case is wrong, it is pre-eminently a typical case where this court should overrule it. The longer it holds the field the greater will be the scope for erosion of fundamental rights. As it contains the seeds of destruction of the cherished rights of the people the sooner it is overruled the better for the country’ (para. 56 of the Golak Nathjudgment).

84.  The Indira Gandhi Congress government, which was re-elected with an enhanced majority in the snap election in 1971, reacted by enacting the Twenty-Fourth Amendment to the Constitution (1971) to supersede the Golak Nath judgment, as it had the result of making the parliament ‘to have no power to take away or curtail any of the fundamental rights even if it became necessary to do so for giving effect to the directive principles of state policy and for the attainment of the objectives set out in the Preamble to the Constitution’ (Statement of Objectives and Reasons of the Amendment). This amendment altered the subheading of Article 368 to ‘Power of Parliament to amend the Constitution and procedure thereof’. It also added a new Section (3): ‘[n]othing in article 13 shall apply to any amendment made under this article’. A new Section (4) read: ‘[n]o amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article ... shall be called in question in any court on any ground’. It went on to reiterate ‘[f]or removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation, or repeal the provisions of this Constitution under this article’ (Section 5). The government proceeded to enact the Twenty-Fifth Constitutional Amendment (1971) (India) to curtail the power of judicial review. This amendment gave a total immunity to any legislation seeking to give effect to certain directive principles (Art. 39, Sections b and c) from judicial scrutiny either on the ground that they were inconsistent with fundamental rights (under Arts 14, 19, or 31) or on the ground that they did not give effect to such policy.

85.  The Supreme Court’s response came in its judgment in Keshavananda Bharati Sripadgalvaru v State of Kerala (1973) (India). The Court retreated and conceded that the parliament had the power to amend any part of the constitution, including the fundamental rights. But it bounced back with the ingenious argument that in doing so the parliament must not alter or destroy the ‘basic structure’ or ‘essential features’ of the constitution. For the power to amend does not amount to obliteration of the existing constitution or rewriting a new constitution. The constituent power of the magnitude of repealing the constitution or making a new constitution belongs to only a new Constituent Assembly. The judicial doctrine of the unamendability of the basic structure of the constitution has been criticized by some on the ground that it was propounded by a razor-thin majority of seven to six of the thirteen-judge constitution bench, and that different judges subscribing to this theory gave different lists of the supposed essential features of the constitution, only some of which happen to be common. The defenders say that the procedure by which the majority judgment was delivered is a valid one, and the lists of essential features are only illustrative and not meant to be, nor can they ever be, definitive for all time to come. In some of its subsequent judgments, the Supreme Court has further illustratively added to the list of essential features (eg in Minerva Mills Ltd v Union of India (1980) (India); SR Bommai v Union of India (1994) (India)), and consolidated the basic structure doctrine by a unanimous constitution bench in IR Coehho v State of Tamil Nadu (2007) (India).

86.  Extension of judicial review power to constitutional amendments by the Supreme Court of India is the strongest instance of judicial activism in Commonwealth parliamentary federations, where the general tendency has tended towards judicial restraint even in respect of parliamentary acts and executive actions, and is thus divergent from the judicial behaviour in the United States. The Federal Constitutional Court in Germany, despite the unamendability proviso in Article 371(3) the German Basic Law about certain constitutional principles, has sought to maintain a delicate and even balance between judicial activism, in view of the fact that the constitution is a living document amenable to adaptability to changing times and social mores, and judicial restraint to preserve the balance of power in favour of the parliament and the need not to replace the political view of the parliament by the judicial view of the court (Streinz 107–9).

87.  Another dimension of the evolution of the new judicial power of the Supreme Court that goes beyond the express intentions of the Constituent Assembly of India is the power of appointment of the judges of the constitutional courts. This is already discussed in a previous part of this paper and need not be repeated here.

5.  Public Interest Litigation / Social Action Litigation

88.  A major dimension of the evolution of judicial power in new directions is what has commonly come to be popularly known as PIL or what some legal experts have called ‘social action litigation’ (‘SAL’) (Bhagwati (1987); Baxi (1987)). This democratization of judicial power in India was partly fuelled by the political populism of the internal emergency regime of Prime Minister Indira Gandhi (1975–77), and the guilty conscience of some Supreme Court judges who had found themselves practically powerless to resist, or acquiescent to, the authoritarian political pressures from the powers that be during the emergency. PIL/SAL coincided with the electoral restoration of democracy in the post-emergency parliamentary and assembly elections in 1977–78. This popular accessibility to the courts is facilitated by changing the conventional rule of standing (locus standi) whereby a case would arise only on narrow legality and be brought to a court of constitutional jurisdiction only by the directly affected parties. The Supreme Court in the late 1970s and early 1980s showed inclination to liberalise and open up public access to the courts of constitutional jurisdictions, and changed its rules of business, or procedures, by permitting a third party, a non-governmental organization, a judge or judges themselves, or a stray letter to the court to initiate a legal action in a case of oppression, or denial of rights and justice to some, in general. To quote Upendra Baxi ((1987) at 32):

[p]eople now know that the Court has constitutional power of intervention, which can be invoked to ameliorate their miseries arising from repression, governmental lawlessness or administrative deviance. Under trial as well as convicted prisoners, women in protective custody, children in juvenile institutions, bonded and migrant labourers, unorganized labourers, untouchables and tribes, landless agricultural labour who fell prey to faulty mechanization, women who are bought and sold, slum dwellers and pavement dwellers, kin of victims of extra-judicial executions—these and many other groups—now flock to the Supreme Court seeking justice.

89.  As a first step in Sunil Batra v Delhi Administration (1979) (India) the Court recognized a departure from strict rule of locus standi in favour of the down-and-out, and permitted civic social activists and non-governmental organizations to move the court for the enforcement of their legal and constitutional rights. Commenting on the PIL cases, Lavanya Rajmani and Arghya Sengupta ((2010) at 87), commenting on the four decades of judicial activism via PIL, remark:

[t]he Court typically passes a series of interim orders in the nature of ‘continuing mandamus’—that is, it keeps an issue under the judicial gaze and passes orders tailored to the demands of continually evolving situations… In such public interest cases, the Court has passed over 200 orders in two decades. At the conclusion of this process, the Court can and usually will pass forward-looking and wide-reaching decree, whose enforcement it may well continue to monitor through relevant committees.

90.  There are, however, critics who do not share the appreciation and optimism evident above. Prashant Bhushan ((2007) at 170) sounds a note of caution:

[t]he activism of the Supreme Court in the last decade is most evident in environmental cases, particularly cases involving the urban environment or deforestation… [It] must be noted that in a number of cases where the cause of environment was pitted against ‘development projects’ such as large dams, or even hotels and housing colonies, even the cause of environment gave way to the interest of such development. It is important to note that in many of these cases, the legal soundness of the case was also evident from the fact that some of the judges gave dissenting judgments, or that the court went against the advice of its own expert committee.

91.  Moreover, the halcyon days of PIL/SALs appear to have suffered some loss of élan. For one thing, the Court has faced increasing ideological headwinds from ascendant neoliberalism, as well as a vengently confrontational executive branch, especially after the return of a single-party BJP majority in the Lok Sabha in 2014 after three decades of hung houses since the last one-party majority won by the Congress in 1984. The executive has been slow in filling judicial vacancies and the Court itself has shown internal decay and division. There are also problems of excessively expensive justice and creeping corruption in the higher judiciary, and rampant corruption and inordinate delays in the lower courts. There was a rare case of attempted removal of a Supreme Court judge, Justice V Ramaswamy, in 1993, on charges of financial irregularities during his tenure as the Chief Justice of the Punjab and Haryan High Court, which had failed due to the requisite majority in the Rajya Sabha. More recently, incidences of allegations of corruption against Chief Justices of the Supreme Court and High Court judges have tended to increase. A Calcutta High Court judge, Justice Soumitra Sen, was the first judge in independent India to be removed in August 2011 for misappropriation of funds, after a judicial inquiry and parliamentary proceedings. A Sikkim High Court judge, Justice Paul Daniel Dinakaran, resigned in July 2011 in the trail of allegations of corruption and an initiation of the process of removal in parliament, even before its conclusion. In January 2018, CJI Dipak Misra recommended the removal of the Allahabad High Court judge, Justice Shri Narayan Shukla, after an adverse report by an in-house panel in the Supreme Court on granting of permission by him to a private medical college to admit students, despite a ban by the Medical Council of India and Supreme Court orders on the issue.

92.  Nevertheless, the higher judiciary in India continues to be more professionally committed, least corrupt and authoritarian, more likely to self-correct, and the most legitimate organ of the Indian political system in public perception. The reasonably high standards of performance of the higher judiciary in India has been sought to be emulated by the judiciaries in neighbouring South Asian countries, in some ways, in Bangladesh and Pakistan. For example, the Supreme Court of Bangladesh, in July 2017 in a PIL case, quashed the 16th constitutional amendment, which had divested the Supreme Judicial Council, consisting of the Chief Justice and the next two senior most judges of the Supreme Court, of the power to remove Supreme Court judges after following due process for incompetence or misconduct, and instead armed the country’s parliament with this power, as was the case in the original Constitution of the People’s Republic of Bangladesh (16 December 1972) (Bangladesh). The Supreme Court sustained the judgment of the High Court, against which the government had gone in appeal. In the opinion of the High Court, the amendment was ‘illegal and unconstitutional’ as it went against the principles of separation of powers and independence of the judiciary. The High Court verdict had also maintained that ‘[k]eeping Art. 70 of Bangladesh Constitution as it is, members of parliament must toe the line in case of removal of any judge of the Supreme Court. Consequently, the judge will be left at the mercy of the party high command’ (Habib).

G.  Concluding Remarks

93.  The post-1970s literature on the Supreme Court of India are unanimous on the paradigm shift in judicial behaviour and the balance of forces in the equation among the governmental institutions. The Rudolphs ((1987) at Chapter 3) problematized the evident ‘struggle over stateness: judicial review versus parliamentary sovereignty’. Austin ((2000) at 13), writing about ‘the struggle for custody of the Constitution’ opined: ‘[d]espite occasional self-inflicted wounds, the Court had been the bastion of the Constitution. Parliament enjoys the authority to amend the Constitution. The Court has authority to measure amendments against the basic structure doctrine’. Mehta ((2007) at 74–5) concedes the contingent rise of judicial sovereignty’ in ‘India’s unlikely democracy’, but adds that ‘there is a profound inner conflict at the heart of India’s constitutionalism: The question “who is the Constitution’s final arbiter?” admits no easy answer. The Court has declared itself to be the ultimate judge, and has even assumed the power to override duly enacted constitutional amendments ... In India, parliament and the judiciary have been and are likely to remain competitors when it comes to interpreting the constitution’. Upendra Baxi ((2016) at Chapter 6), reflecting on the emergent phenomenon of what he calls ‘constitutional hegemony’ in India, postulates three forms of prudence, ie legisprudence, jurisprudence, and demosprudence, and hypothesizes the Indian the Supreme Court’s moving towards ‘demosprudence’ via SAL, Court-appointed ‘socio-legal inquiry commissions’ and ‘a new partnership of learned professions with social and human rights movements and investigative and print and electronic journalism’ (Baxi (2016) at 105). However, like Mehta above, Baxi here leaves his conclusion open-ended: ‘[y]et any verdict on demosprudence is premature; is it true to say that in the full absence of a degree of judicial consistency, substantive due process may amount neither to jurisprudence nor to demosphere?’ (at 109). Our own analytical elaboration in this paper conforms to this broad scholarly consensus, verging on something akin to Heisenberg’s uncertainty or indeterminacy principle in quantum mechanics!

94.  The first single-party majority in the Lok Sabha—after a decade-and-a-half of minority party-led coalition governments—won by the BJP in the Modi-led NDA government, has, since 2014, revived some of premonitions of uncertain institutional balance between the government and the Supreme Court. Although the judiciary has not faced the same degree of threat to its independence as during the 1970s, including the internal emergency proclaimed by the Congress party regime under Prime Minister Indira Gandhi in 1975, the issues of judicial reforms with implications for the appointments and promotions in the courts with constitutional jurisdictions have been reopened by the Modi government. The tension between the parliament and executive on the one hand, and the judiciary on the other is not new. But the latest round of conflict is the unprecedented combination of factors, like the Supreme Court more strongly determined to resist yet publicly divided between the CJI and his senior most colleagues in the judicial collegium, the CJI facing the motion of removal in the Rajya Sabha, and the government willing to help out but not without the motive of gaining favours from the Court. A lot depends on the judicial instinct for independence and impartiality, and the electoral fortunes of the Modi government in the forthcoming general election in the summer of 2019.

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