Judicial Review

Abstract

This article challenges the prevailing conception of judicial supremacy in comparative constitutional law as informed by U.S. and western models of constitutionalism, and argues for reconceptualizing judicial supremacy in a way that captures the broader range of institutional roles courts play globally. Drawing on insights from global constitutional systems, this is the first article to argue for and develop an institutional conception of judicial supremacy that focuses on three key institutional roles played by courts globally: constitutional guardianship, institutional guardianship, and governance optimization. It then provides a dynamic account of the emergence of “expansive” judicial supremacy in India through a study of the Indian Supreme Court’s assertion of these institutional roles. The article seeks to uncover the institutional conception of judicial supremacy and its global applicability by comparatively analyzing the institutional roles asserted by courts in India, Germany, Turkey, Colombia, and South Africa. It concludes by suggesting that India represents an “expansive” model of judicial supremacy that poses challenges for regime politics theories of judicial power and constitutionalism, by illustrating how courts themselves can redefine constitutional norms, consolidate institutional control over the judiciary, and restructure governance. Reconceptualizing judicial supremacy based on courts’ institutional roles has implications for the comparative study of public law and courts, and normative implications in terms of understanding the broad and varied role courts can play in protecting and stabilizing constitutionalism.

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S.

CONTENTS

Page No

No I

INTRODUCTION

3

II

CONCEPTUALIZING JUDICIAL SUPREMACY

7

A

JUDICIAL SUPREMACY AND CONSTITUTIONAL

8

INTERPRETATION. B

JUDICIAL SUPREMACY AS A MODEL OF

10

CONSTITUTIONALISM. II

CONSTRUCTING JUDICIAL SUPREMACY IN INDIA.

12

A

THE BASIC STRUCTURE DOCTRINE: CONSTITUTIONAL

14

GUARDIANSHIP B

JUDICIAL APPOINTMENTS: INSTITUTIONAL

24

GUARDIANSHIP 35

A

THE INSTITUTIONAL CONCEPTION OF JUDICIAL SUPREMACY IN COMPARATIVE CONSTITUTIONAL LAW CONSTITUTIONAL GUARDIANSHIP

IV

CONCLUSION: CONTEXTUALIZING JUDICIAL

39

III

SUPREMACY

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36

INTRODUCTION “…There's no such thing as judicial supremacy. What the judges did, both at the Ninth and at the district level was to take power for themselves that belongs squarely in the hands of the president of the United States.”1 -Stephen Miller, Senior Policy Advisor to President Donald J. Trump

Debates over judicial supremacy are not limited to the United States, and the concept of judicial supremacy is contested in polities worldwide. However, public law scholars studying judicial supremacy globally have largely taken a U.S. and western-centric approach in assessing judicial decision-making by constitutional courts globally. The relatively narrow scope of judicial supremacy in the U.S. is illustrated by the Trump administration’s response to the Ninth Circuit’s decision upholding a district court’s temporary restraining order blocking President Trump’s executive order restricting travel from certain nations. This article aims to reconceptualize judicial supremacy in terms of the broader range of institutional roles played by global constitutional courts in the 21st century, and to argue for and develop an institutional conception of judicial supremacy. It seeks to broaden our understanding of judicial supremacy beyond existing scholarship that has focused primarily on the U.S. and European constitutional systems, which has failed to capture the rich and varied contextual range of judicial roles and understandings of constitutionalism that exist across the globe.

Take for example a recent judicial decision by the Supreme Court of India. In October 2015, the Indian Supreme Court invalidated the 99th Constitutional Amendment—which created National

1

Meet the Press, Interview by Chuck Todd with Senior Policy Advisor Stephen Miller (NBC television broadcast,

February 12, 2017)(discussing Ninth Circuit decision in Washington v. Trump upholding restraining order blocking President’s executive order on travel ban)

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Judicial Appointments Commission—on the grounds that the Amendment violated the basic structure of the Indian Constitution.2

Enacted by large majorities by the BJP-NDA national government and ratified by the states, the NJAC replaced the existing “collegiums” system of judicial appointments under which the Chief Justice and senior justices had primacy in appointments. The NJAC built on decisions in two earlier cases—the Second Judges Case and Third Judges’ Case—in which the Court interpreted applicable constitutional provisions governing appointments and created the “collegiums” appointment process that has now been locked-in to the Constitution by the NJAC decision.

Remarkably, the Indian Court went far beyond its earlier decisions in holding that judicial primacy in appointments itself was part of the basic structure of the Constitution. This follows decisions holding that judicial review, secularism, and equality are all parts of the basic structure of the Indian Constitution.3 The Court’s power to review amendments under the basic structure doctrine can be traced to its earlier confrontations with Indira Gandhi’s Congress Government’s efforts to curb judicial review, constitutionalism and fundamental rights during the 1970s and early 1980s, during which the Court developed and consolidated the basic structure doctrine. The Court would build on, expand and further define the contours of that doctrine from the 1990s through the late 2000s.4 In fusing its power to entrench core features of the basic structure of the Constitution with the power to control its own judicial appointments processes, the 2015 NJAC decision arguably represents a novel conception of judicial supremacy in comparative law.

In analyzing variation in the scope of judicial roles in assessing judicial supremacy, existing public law scholarship has heavily focused on courts in the U.S., Germany, France, the European Court of Justice, and other western courts as exemplars of judicial supremacy. In this article, I

2

Supreme Court Advocates on Record Association v. Union of India, 5 SCC 1 (2016)

3

The Court’s holding that judicial primacy in appointments is part of the basic structure has sparked a torrent of critical

commentary suggesting the lack of support for judicial primacy as a basic feature of the Constitution in the original debates on judicial appointments in the Constituent Assembly, and the actual text of the Indian Constitution. 4

S.R. Bommai v. Union of India, 3 S.C.C.

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seek to look beyond U.S. and European constitutional systems to advance a more inclusive and comprehensive conception of judicial supremacy as reflected in the broad range of institutional roles constitutional courts play globally. Scholars have identified the U.S. constitutional system and model of judicial review as an exemplar of a judicial supremacy based on the system’s entrenchment of a written constitution and bill of rights, the inability of majoritarian processes to override judicial decisions challenging legislation and government actions, and strong-form judicial review.

In comparative law scholarship, this conception of judicial supremacy has been juxtaposed against a spectrum of constitutionalism based on alternate conceptions of judicial review, comparing judicial supremacy as a model of constitutionalism to systems based on parliamentary supremacy, and to “new commonwealth” models of judicial review based on “weak-form” judicial review. Existing scholarship has thus analyzed judicial supremacy as part of a broader spectrum of constitutionalism that ranges from systems of parliamentary or legislative supremacy (political constitutionalism) to systems based on constitutional or judicial supremacy (legal or total constitutionalism).

This article thus argues for and develops an institutional conception of supremacy, by drawing on insights from the roles and functions played by comparative courts. In contrast to the horizontal dimension of constitutionalism, the article explores the “vertical” dimension or conception of institutional supremacy, by exploring three key roles played by courts: constitutional guardianship; institutional guardianship; and governance optimization. In order to illustrate this alternate institutional conception of supremacy, the article analyzes the emergence of key institutional roles of the Supreme Court of India within the broader spectrum of constitutional courts, tracing the Indian Court’s path to supremacy by examining key moments of judicial assertiveness across time. First, the Indian Court plays a central role as a constitutional guardian and as an institution of constitutional entrenchment through its basic structure doctrine decisions. Second, acting as an institutional guardian, the Court has asserted and consolidated control over judicial appointments and administration. Third, the Indian Court plays a significant role as a governance optimizer in shaping and restructuring existing regulatory governance structures, and where needed, in creating new judicially-led and managed governance 5|Page

institutions. These distinct institutional roles and features suggest the need for comparative law scholars to seriously consider India’s constitutional system as a distinct and alternate model of judicial supremacy from the American model.

Part I presents the theoretical framework of the article, by examining how judicial supremacy is conceptualized in U.S. and comparative constitutional law scholarship, and suggesting the need for a more expansive conception based on the institutional roles played by constitutional courts. Part II analyzes the evolution and development of key roles and powers of the Indian Supreme Court’s, examining the sequential assertion of expanded powers and institutional roles. Part III situates the Indian model among other global constitutional systems in order to assessing supremacy, and second, responds to normative critiques of judicial supremacy by examining the unique historical and political context of India’s constitutional and political system. Part IV concludes by describing the empirical and normative implications of the institutional conception of judicial supremacy.

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I.

CONCEPTUALIZING JUDICIAL SUPERMACY

Judicial supremacy has been conceptualized in distinct ways within scholarship on U.S. constitutional law, and comparative constitutional law. Scholars studying U.S. constitutional law have focused on judicial supremacy as a theory of the proper institutional role of courts in constitutional interpretation within U.S. constitutional law, juxtaposing judicial supremacy against other theories including departmentalism, and popular constitutionalism. In contrast, comparative law scholars have identified the American model as an exemplar of judicial supremacy, based on a system of “strong-form” judicial review, and an entrenched constitution and rights.5 In this section, I explore these conceptions of supremacy, and then suggest the need for an alternate conception of judicial supremacy that reflects the broader range of institutional roles played by constitutional courts globally.

5

STEPHEN GARDBAUM, THE NEW COMMONWEALTH MODEL OF CONSTITUTIONALISM: THEORY AND

PRACTICE (2013) (analyzing the emergence of weak-form judicial review in the United Kingdom, New Zealand, and Canada).

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A. JUDICIAL SUPREMACY AND CONSTITUTIONAL INTERPRETATION

Within U.S. constitutional law scholarship, judicial supremacy has been used to describe the extent to which the United States Supreme Court and federal judiciary have interpretive supremacy—that is, exclusivity and finality vis-à-vis the other branches of government in interpreting the scope and meaning of the Constitution.6 In Cooper v. Aaron, the U.S. Supreme Court asserted a particular conception of judicial supremacy in asserting that that the U.S. Supreme Court and federal courts’ interpretation of the meaning and scope of the Constitution is supreme.7 And in City of Boerne v. Flores, the U.S. Supreme Court asserted its supremacy over constitutional interpretation in holding that Congress could not alter the meaning and scope of constitutional rights in enacting the Religious Freedom Restoration Act, which overturned the Court’s earlier decision in Smith in reintroducing the Sherbert compelling interest standard for the review of laws that infringe on religious rights.8 The Court’s decisions in Cooper and Boerne also suggest a second and related conception of judicial supremacy as federal supremacy—the supremacy of federal court interpretation of the Constitution vis-à-vis state and local actors.9

This model of interpretive supremacy as a theory is informed by broader normative debates about the proper role of the United States Supreme Court vis-à-vis majoritarian electoral practices. This includes scholarship and judicial opinions arguing for judicial assertiveness based on what John Hart Ely termed a “representation reinforcement” model of judicial review, other rights-foundation list based approaches, as well as judicial assertiveness based on defenses of federalism and state sovereignty.10 6

Mark Tushnet, New Forms of Judicial Review, 38 WAKE FOREST L. REV. 813 at 817 (2003)

7

MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS

8

City of Boerne v. Flores 521 U.S. 507 (1997) (holding that Religious Freedom and Restoration Act is invalid as applied to

states). 9

S.R. Bommai v. Union of India

10

City of Boerne v. Flores 521 U.S. 507 (1997)

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Within studies of American constitutional law, this particular conception of judicial supremacy as interpretive supremacy has been contrasted from departmentalism and popular constitutionalism. According to the departmentalism approach, each department or branch of government has a coordinate and coequal role in constitutional interpretation. In contrast, according to Kramer’s conception of popular constitutionalism “the role of the people is not confined to occasional acts of constitution making, but includes active and ongoing control over the interpretation and enforcement of constitutional law.”11

11

Larry Kramer, Popular Constitutionalism Circa 2004,

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B. JUDICIAL SUPREMACY AS A GLOBAL MODEL OF CONSTITUTIONALISM In contrast to conceptions of judicial supremacy that center on the exclusivity and finality of constitutional interpretation by constitutional courts, a second body of scholarship has focused on analyzing the U.S. model of judicial supremacy as a distinct model of constitutionalism. Notwithstanding scholarly debates about the actual global influence of the U.S. Constitution on other constitutions, the American model is commonly touted and framed as an exemplar of the “judicial supremacy” model based on strong-form judicial review, in contrast to systems based on “parliamentary supremacy” and the “new commonwealth model” (or weak-form judicial review models).

In his recent work on comparative courts, Stephen Gardbaum has advanced the most comprehensive analysis on conceptualizing judicial supremacy in comparative law. Gardbaum argues that constitutional systems can be situated along a spectrum that ranges from systems based on “political constitutionalism” on one end, to systems based on “legal constitutionalism.” Systems based on political constitutionalism embrace variants of parliamentary or legislative supremacy. Legal constitutionalist systems include systems like Germany and the United States, which exhibit varying degrees of interpretive supremacy and decisional supremacy. In contrast to interpretive supremacy, decisional supremacy focuses on the forms of judicial review that exist in different systems, and the power and force of judicial review and decisions vis-à-vis the political branches of government.12

Existing public law scholarship suggests that the United States and Germany represent distinct types of judicial supremacy. Tushnet suggests that the American model of judicial supremacy is characterized as having three elements: “(1) a constitution and bill of rights that is recognized as the supreme law of the nation; (2) entrenchment of the constitution and bill of rights against override through majoritarian legislative processes; and (3) judicial enforcement of the constitution and bill of rights through judicial review and the power to invalidate or disapply 12

COMPARATIVE CONSTITUTIONAL THEORY (GARY JACOBSOHN & MIGUEL SCHOR EDS., ELGAR PUBLISHING)

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legislation and governmental actions found to violate the constitution.”13 These elements roughly capture both interpretive and decisional supremacy. Gardbaum suggests that the German model of constitutionalism represents an even stronger conception of legal or “total” constitutionalism than the U.S, noting how the German Basic Law significantly restricts the discretion of political branches more significantly than the U.S. Constitution.14

In contrast to the American model of judicial supremacy, the parliamentary supremacy model (based on the British parliamentary model) is premised on a model of legislative supremacy with a highly limited and circumscribed role for courts. Gardbaum argues that the “weak form” model of judicial or “new commonwealth” model has been theorized as representing a hybrid between the U.S. model of judicial supremacy and parliamentary supremacy. Weak-form models involve alternate mechanisms of judicial review that creatively allow for less confrontational and more collaborative approaches between legislatures and courts. Tushnet describes examples of these weak-form models in Canada, New Zealand, and Great Britain. In Canada, Section 33 of Canada’s Charter of Rights (containing the “notwithstanding clause) allows the legislature to enact statutes with the proviso that they will be effective “notwithstanding” possible conflict with specific provisions of the Charter, and allows the legislature to reenact legislation found invalid by the Canadian Supreme Court. The New Zealand Bill of Rights requires that nation’s constitutional court to interpret statutes so as to render them consistent with the Bill of Rights, but does not allow the court to invalidate statutes deemed to be incompatible with the Bill of Rights.

13 14

Stephen Gardbaum, The New Commonwealth Model of Constitutionalism Ibid

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II. CONSTRUCTING JUDICIAL SUPREMACY IN INDIA

India’s constitutional system today is far different than the colonial model of British parliamentary supremacy, and indeed, looks far different today than it did during the early years following the ratification of the Indian Constitution in 1950. 15 Like the U.S. Supreme Court, the history of the Indian Supreme Court has been one of gradual empowerment over time, although the Indian Court’s trajectory and path toward empowerment is impressive given its relatively brief history. The Indian Court’s assertion and consolidation of power illustrates how interactions between courts, their institutional and elite intellectual contexts, and political regimes help influence and shape these key moments of judicial assertiveness, and second, how judicial “lock in” of new powers and jurisprudential frameworks guide and shape the subsequent evolution and development of power, and ultimately, supremacy.

The Indian Constitution, in its original form, created a political system predicated on the idea of parliamentary sovereignty, sharing important similarities with the British system. This included the grant of the constituent power of amendment to Parliament. However, in adopting a written constitution with judicial review, an independent judiciary with a Supreme Court and High Courts, expansive writ jurisdiction for these courts, the Constitution created a framework with features of a legal constitutionalist system, and the potential of an activist judiciary that could seek to expand the role of the courts in Indian politics.

Several key provisions of the Constitution defined the original scope and parameters of the Court’s powers of judicial review. Article 13 provides for judicial review of ordinary legislation enacted by Parliament based on the fundamental rights in Part III of the Constitution. Article 368 sets forth the scope of the constituent power of amendment, by defining the process by which Parliament could amend the Constitution. In addition, Article 32 of the Indian Constitution provided for original writ jurisdiction for fundamental rights claims before the Supreme Court, 15

GRANVILLE AUSTIN, THE INDIAN CONSTITUTION (1966)

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and also provides for remedial powers and procedures for the enforcement of the fundamental rights.16 Beyond the powers of judicial review, original writ jurisdiction for fundamental rights claims, and advisory jurisdiction, the Court today possesses impressive powers that it did not assert in its early years. This includes the power to review and invalidate constitutional amendments under the basic structure doctrine and the Court’s control over its own judicial appointments processes. In this Part, I trace how the Court was able to establish supremacy through patterns of assertiveness in the basic structure doctrine cases over a series of decades beginning in the 1960s and 1970s. In contrast to the expectations of regime politics models, the Court itself played a significant role in shaping its own destiny and in redefining and expanding its role and powers in the constitutional system of India.17

16

Article 32 (1) and (2) of the Indian Constitution

17

The Rise of Judicial Governance in the Supreme Court of India

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A.THE BASIC STRUCTURE DOCTRINE: CONSTITUTIONAL GUARDIANSHIP The birth of India’s basic structure doctrine can be traced to confrontation and contestation between the Court and Indira Gandhi’s Congress regime over the constitutionality of the Congress government’s social-egalitarian reform legislation in the 1960s and 1970s, and the validity of constitutional amendments enacted to override judicial decisions.18 Through its decisions in Kesavananda, the Indira Gandhi Election case, and the Minerva Mills and Waman Rao cases, the Court locked in the foundations of the basic structure doctrine that would help frame the future contours of constitutionalism and judicial power in India.

Early contestation over the constituent power involved challenges to these amendments based on Article 31 of the Constitution which provided protections for the fundamental right of property. In this period, the Court upheld the First and Fourth Amendments in Shankari Prasad v. Union of India in 1951, and later, the Court upheld the 17th Amendment in Sajjan Singh v. State of Rajasthan in 1965. These amendments had added a set of immunity provisions (or saving clauses) to the Constitution—Articles 31A and 31B, along with the newly added Ninth Schedule to the Constitution—that immunized legislation that contravened the fundamental rights provisions. However in the 1960s and 1970s, contestation over the constituent power of amendment quickly escalated. The Court signaled a new approach to judicial review of amendments in Golak Nath v. State of Punjab. In Golak Nath, the Court asserted the power to review and invalidate constitutional amendments under Article 13 of the Constitution. The majority, led by Chief Justice K. Subba Rao, held that Article 13, which had previously been held to only authorize judicial review of ordinary legislation, also extended the definition of “laws” to include constitutional amendments.

19

Following the Golak Nath decision, the Gandhi

Congress government enacted a series of amendments—the Twenty-Fourth, Twenty-Fifth, and Twenty-Ninth Amendments—aimed at overriding the Court’s decision and immunizing legislation from judicial review.

18

Priests in the Temple of Justice: The Indian Legal Complex and the Basic Structure Doctrine

19

Golak Nath v. State of Punjab (1967) 2 SCR 762 at 777-779.

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1. Kesavananda: Origins of the Basic Structure Doctrine. In its landmark decision Kesavananda v. State of Kerala, the Court fundamentally redefined its own role as a constitutional guardian, in asserting the basic structure doctrine and the power to review and invalidate constitutional amendments on substantive grounds—based on a conception of the broader basic structure of the entire Constitution—as opposed to the procedural requirements of Article 368. The Court in Kesavananda adjudicated a series of challenges to the recently enacted amendments aimed at overriding the Court’s recent decisions invalidating constitutional amendments and government legislation. The Twenty-Fourth Amendment sought to overrule Golak Nath by reasserting Parliament’s unlimited power to amend the Constitution under Article 368, and held that such amendments were not ordinary “laws” under Article 13, and could not be subject to judicial review by the Court. The Twenty-Fifth Amendment made compensation associated with land acquisition laws nonjusticiable, and stipulated that laws enacted to give effect to the Directive Principles could not be challenged in Court. The TwentyNinth Amendment inserted the 1969 Kerala Land Reform Act in the Ninth Schedule to immunize it from judicial review.20

In a remarkable decision spanning close to 1000 pages and featuring 11 separate opinions, a closely divided 7-6 bench overruled its earlier decision in Golak Nath and held that Parliament could amend the fundamental rights provisions. However, the Court also found that under Article 368, Parliament could not enact constitutional amendments that altered the “basic structure” of the Indian Constitution. The majority voted to uphold the Twenty-Fourth and Twenty-Ninth amendments in their entirety and the first part of the Twenty-Fifth Amendment. However, the Court held that the second part of the Twenty-Fifth Amendment was invalid and violated the basic structure of the Constitution. The second part of the amendment had added a new Article 31C to the Constitution, which provided that “no law containing a declaration that is for giving effect to” the directive principles under Articles 39(b) and (c) shall be reviewed by a Court to determine whether the law gives effect to the directive principles.

A majority of the Court ruled that Article 368 prohibited Parliament from abrogating basic

20

(1973) 4 S.C.C. 225 (India).

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features of the Constitution, and held that the provision contained “implied limitations” which barred Parliament from altering or destroying the “basic structure” of the Constitution. In contrast, six other judges in dissent held that Article 368 did not contain any implied limitations on the power of constitutional amendment, and that Parliament could amend any provision of the Constitution. The “swing” vote for the majority was Justice H.R. Khanna. While Khanna argued that Parliament, in exercising its constituent power of amendment, must leave “the basic structure or framework of the Constitution” intact, he also agreed with the second bloc of six judges in voting to uphold Article 31C that had been added by the second part of the TwentyFifth Amendment.21

The decision was noteworthy in that there was not a clear majority consensus among the various opinions. However, nine justices of the Court (including two of the justices who dissented) signed a “summary” statement of the opinion of the Court. Chief Justice Sikri drafted the summary statement of the Court’s opinion largely based on the statement of conclusions in Khanna’s opinion, in which Justice Khanna recognized that there were limits on the amending power. The Kesavananda Court’s central holding, as set forth in this summary, was that under Article 368, Parliament could not enact constitutional amendments that altered or destroyed the “basic structure” or essential elements of the Indian Constitution. Significantly, although there was a consensus in the decision on the recognition of a basic structure doctrine, the justices diverged on what features might constitute basic features.22

In his lead opinion for the majority, Chief Justice Sikri argued that the basic structure doctrine and implied limits on the amending power could be inferred from both the constitutional text and structure, as well as evidence of original intent. Sikri’s opinion recognized implied limitations on the amending power in Article 368. Sikri interpreted Article 368 in light of the entire structure of the Constitution as well as the original intent of the framers. In setting forth the procedural requirements for constitutional amendment, Article 368 provided that most sections of the Indian Constitution could be amended by a majority vote of both houses of Parliament (the Lok Sabha and Rajya Sabha) and the assent of the President. However, as Sikri noted, Article 368 required

21

Kesavananda, (1973) 4 S.C.C.

22

Kesavananda, (1973) 4 S.C.C

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an additional level of process for the amendment of certain provisions—ratification by at least half of the state legislatures of the states specified in Parts A and B of the First Schedule of the Constitution.

2. The Indira Gandhi Election Case Following Prime Minister Indira Gandhi’s declaration of Emergency Rule in 1975, the Supreme Court largely acquiesced to the new regime. However, one important exception to this was the Court’s assertiveness in the Indira Gandhi Election Case. On June 12, 1975, a state high court judge in the Allahabad High Court found Indira Gandhi guilty on two corrupt electoral practices violations of the Representation of People Act, and ruled that she was disqualified from running for election for six years.110 The Government appealed to the decision to the Supreme Court and requested an immediate and unconditional stay, but on June 24, Justice V.R. Krishna Iyer declined to grant a stay. However, Krishna Iyer did issue a conditional order allowing Gandhi to attend Parliamentary sessions as Prime Minister and a member, but without any voting powers, pending resolution of the matter in the appeal. Gandhi issued a proclamation for Emergency rule that day which went into effect on June 26. During the Emergency, the Indian Supreme Court upheld the regime’s suspension of democratic rule and fundamental rights, including the suspension of habeas corpus for detainees under the Maintenance of Internal Security Act 23 and acquiesced to the regime’s attacks on the Court’s jurisdiction and power.24In order to retrospectively validate Gandhi’s election following the Allahabad High Court’s decision, Parliament enacted the 39th Amendment to the constitution, inserting Article 329 A into the Constitution. The amendment superseded the applicability of all previous election laws and immunized all elections involving the Prime Minister or Speaker of the Lok Sabha from judicial review.25 Notwithstanding its acquiescence to the Emergency, in Indira Nehru Gandhi v. Raj Narain (hereinafter the “Election Case”), a five-judge bench of the Court applied the basic structure

23

Additional Dist. Magistrate Jabalpur v. Shivakant Shukla, A.I.R. 1976 S.C

24

Union of India V.Bhanudas, A.I.R. 1977 S.C.

25

Ibid

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doctrine in reviewing the validity of the 39th Amendment (adding Article 329A).26 The Court invalidated the amendment, and in its decision built on its earlier decision in Kesavananda in promulgating doctrinal principles for identifying what constitute basic features. Justice Khanna held that the provision in the amendment adding 329A violated the basic structure of the Indian Constitution, by contravening the “democratic set-up” of the Constitution and the “rule of law,” because democracy requires that “elections should be free and fair.”27 In addition, Justice Y.V. Chandrachud also voted to invalidate the provision on the grounds that it violated the basic structure in that it represented “an outright negation of the right to equality,” and was “arbitrary, and calculated to damage or destroy the rule of law.”28 Further, Justice Matthew held that the provision adding 329 in the 39th Amendment was invalid “because constituent power cannot be employed to exercise judicial power.” Significantly, Chandrachud’s majority opinion was noteworthy in that it articulated a concrete framework for identifying whether principles or provisions of the Constitution were “basic features”. In order to identify whether a feature is part of the basic structure, Chandrachud held that “one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of country’s governance.” Following this approach, Chandrachud held that the following features formed a part of the basic structure: “(i) India is a Sovereign Democratic Republic; (ii) Equality of status and opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion and that (iv) the Nation shall be governed by a Government of laws not of men.”

26

Indira Gandhi v. Raj Narain (1975) Supp S.C.C Ibid 28 Ibid 27

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3. Minerva Mills v. India: Entrenching and Restoring Constitutionalism In the 1977 parliamentary elections, the Congress Party was defeated by the Janata Party coalition, signaling the electorate’s repudiation of the excesses of the Emergency regime. Janata’s campaign manifesto advocated for ending the Emergency and repeal of the draconian MISA, rescinding amendments,29 and restoring democracy and constitutionalism. Following Kesavananda, the Court was confronted with significant backlash, including supersession of judges and court-packing, and the enactment of constitutional amendments that curbed the Court’s power of judicial review and jurisdiction. However, the Janata Party’s victory in the 1977 election fundamentally transformed the political landscape. The Janata government reversed the Emergency decrees and repealed some of the amendments enacted by the Emergency regime. Facing a more favorable political environment, the Court shifted toward a new activism in this period. In Maneka Gandhi, the Court expanded the scope of the fundamental rights provisions in Articles 14, 19, and 21, and recognized a substantive due process component to life and.30 Following Maneka, the Court issued a number of decisions recognizing new fundamental rights based on the right to life and liberty, and based on rights contained in Article 19. The Court in Maneka also expansively interpreted the right to equality in Article 14 in articulating a new standards of “non-arbitrariness” and reasonableness review.31

However, in one of the most significant decisions issued by the Court, the Court in Minerva Mills helped complete the restoration of constitutionalism initiated by the Janata regime, by reasserting the basic structure doctrine to invalidate parts of the Emergency regime amendments. In Minerva Mills,the Court adjudicated a constitutional challenge to the Sick Textiles Nationalization Act of 1974. The law had been added to the Ninth Schedule of the Constitution through the Thirty-Ninth Amendment, thus immunizing the law from judicial review. ” However, the advocates in Minerva Mills were able to reframe the case as a challenge to the 42nd Amendment enacted during the Emergency. The Janata government was able to repeal most of the Emergency regime amendments, however it was unable to completely repeal the 42nd Amendment. 29 30 31

The Maintenance of Internal Security Act (MISA) had originally been enacted in 1971 UPENDRA BAXI, THE INDIAN SUPREME COURT AND POLITICS (1980) Maneka Gandhi v. Union of India, (1978) 1 S.C.C

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Applying the basic structure doctrine, the majority in Minerva Mills invalidated Sections 4 and 55 of the Forty-Second Amendment as violative of the basic structure. Section 4 amended Article 368 so as to subordinate the fundamental rights in Articles 14 and 19 to the directive principles. And Section 55 amended Article 31-C to provide that no law enacted to advance the Directive Principles could be challenged in court as violative of the fundamental rights in Articles 14, 19, or 31. In his lead opinion for the majority Chief Justice Chandrachud reaffirmed the basic structure doctrine and held both Sections 4 and 55 unconstitutional, ruling that these provisions sought to expand Parliament’s amending power to enable the Government to abrogate the Constitution or destroy its basic features, given that “a limited amending power is one of the basic features of our Constitution.”

In addition to identifying a limited amending power as one of the basic features of the Indian Constitution, Chandrachud built on the Election Case and proceeded to articulate which rights and provisions were basic features included in the basic structure doctrine. Chandrachud further held that the fundamental rights protections in Articles 14 (equality), 19, and 21 (due process, life and liberty) formed a “golden triangle” that was basic to the Indian Constitution, along with the Directive Principles of State Policy decision in Minerva Mills. While observing that this golden triangle of fundamental rights was a core part of the basic structure, Chandrachud’s decision also carefully struck a delicate balance between the Directive Principles and the fundamental rights provisions of the Constitution. Thus, Chandrachud held that the harmony between the fundamental rights and directive principles “is an essential feature of the basic structure of the constitution.”32 In Waman Rao v. Union of India,33 the Court reaffirmed the basic structure doctrine and ruled that amendments enacted after the Kesavananda decision of April 24, 1973, including all legislation added to the Ninth Schedule, could be reviewed for validity under the basic structure doctrine. Applying the basic structure doctrine, the majority upheld Articles 31A and 31C, added by the First and Fourth Amendments, on the grounds that these amendments were enacted to 32

Minerva Mills, 1981 S.C.R. (1) at 255.

33

(1981) 2 SCC 362 (India).

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effectuate the Directive Principles of State Policy contained in Articles 39(b) and (c). The Court also upheld the unamended version of Article 31C (the amended version had been struck down in Minerva Mills) as consistent with the basic structure doctrine, ruling that “laws passed truly and bona fide for giving effect to directive principles contained in clauses (b) and (c) of Article 39” would fortify, not damage, the basic structure.

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Expanding the Basic Structure: Recent Cases In the late 1980s and 1990s, the Court built on and expanded the basic structure doctrine in a series of cases involving administrative tribunals. Through the enactment of the 32 nd and 42nd Amendments, the Central Government had created a system of administrative tribunals with jurisdiction to adjudicate disputes involving the service of government employees and over matters involving government policies. In Sambamurthy v. Andhra Pradesh,34 the Court invalidated clause 5 of Article 371(D) that had been added through the enactment of the ThirtySecond Amendment. The provision allowed state governments to overturn decisions and orders issued by administrative tribunals. The Court invalidated the provision under the basic structure doctrine as violative of the rule of law and the principle of judicial independence. In L. Chandra Kumar v. Union of India, the Court held that Article 323(A) violated the basic structure because it effectively excluded the appellate jurisdiction of High Courts to hear appeals from administrative tribunals, only allowing direct appeals to the Supreme Court. As a result, the court held that these tribunals effectively were empowered to exercise jurisdiction in substitute of the High Courts, and that this violated the principle of judicial independence.

Even in cases in which the Court has not directly invalidated constitutional amendments, the Supreme Court issued decisions aimed at strengthening its power of review under the basic structure doctrine. Moreover, recent decisions within the past decade suggest that the Court has significant power to elevate rights and principles previously recognized by the court in earlier decisions to the level of basic features that are part of the basic structure doctrine. In 2007, a nine-judge bench of the Court in I.R. Coelho v. State of Tamil Nadu (2007) reaffirmed the basic structure doctrine. The majority in this decision held that all laws, including those added to the Ninth Schedule after April 4, 1973 (the cutoff date based on the date of the Kesavananda decision) infringing upon the fundamental rights provisions that contravened the basic structure must held invalid. In its decision, the Court suggested that the Government had improperly used the Ninth Schedule to protect a wide array of laws unrelated to agrarian reform. Additionally, the Court in Coehlo reaffirmed its decision in Minerva Mills holding that the “golden triangle” of

34

(1987) 1 SCC 362

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Articles 14, 19 and 21 was part of basic structure. As illustrated in the next section, the Court’s NJAC decision represents the height of the Court’s assertiveness in its basic structure doctrine decisions, as the Court effectively entrenched its own court-created institutional appointment processes into the constitution as a “basic feature.”

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B. JUDICIAL APPOINTMENTS: INSTITUTIONAL GUARDIANSHIP

The Indian Supreme Court asserted an important role as an institutional guardian in response to challenges to judicial independence posed by Indira Gandhi’s Congress government in the 1970s and 1980s. Over the course of the 1980s and 1990s, the Indian Court was forced to adjudicate and interpret key provisions governing the appointment of Supreme Court and High Court judges. While the Court largely acquiesced to the pressure of Gandhi’s government in upholding executive primacy in the early 1980s, the Court in the 1990s reasserted itself as an institutional guardian by asserting judicial primacy in appointments in the Second Judges’ Case in 1993. During the first three decades of the Indian republic, the appointment process for the Supreme Court of India was a consultative and collaborative one in which the Prime Minister and Council of Ministers would closely consult with the Chief Justice of India and other functionaries in selecting new justices for the Court. In practice, all appointments were made with the consent of the Chief Justice of India.35

The provisions governing judicial appointments in the Indian Constitution are set forth in Articles 124, 217, and 222. Article 124 establishes the Supreme Court of India. These provisions delineate a consultative process in which the President and Executive (in reality, the Prime Minister and Council of Ministers) were to consult with the Chief Justice and other constitutional functionaries in the appointment process. During the first two decades of the Indian republic, the Court’s appointments processes was a consultative one that stressed non-political criteria, and one in which the government accorded a high degree of deference to the Chief Justice of India in making appointments, and also followed the informal norm of seniority in elevating justices to become Chief Justice of India.

35

ABHINAV CHANDRACHUD, THE INFORMAL CONSTITUTION: UNWRITTEN CRITERIA IN SELECTING

JUDGES FOR THE SUPREME COURT OF INDIA.

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In a precursor to the Judges’ Cases, the Supreme Court in Union of India v. Sheth adjudicated a challenge by a high court judge to his transfer, without consent, to another High Court during the Emergency. Although the Janata government reversed the transfer, and Sheth ultimately withdrew his petition, the Court proceeded to rule on the case. The Court’s decision in Sheth was thus arguably issued in the form of a quasi-advisory opinion. Although the Court ultimately ruled that the President could transfer high court judges without their consent, the Court interpreted the consultation requirement in Article 222 of the Constitution as not requiring the concurrence of the Chief Justice of India in transfers. The Court thus held that while consultation was a mandatory requirement, the executive was not required to abide by the recommendation of the Chief Justice of India.36

36

Union of India v. Sankalchand Himatlal Sheth (1978) 1 SCR 423.

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1. The First Judges Case (1981)

Upon her return to power following the Janata interlude, Gandhi’s government began to assert significant political pressure on the judiciary. As part of a broader effort to appoint new and loyal judges aligned with Gandhi’s ideology, the government adopted a new appointments and transfer policy in 1981.As part of this new policy, the Government stated that each state High Court “should have one-third of its judges and its chief justice from outside the State and that such a task should be accomplished by transferring judges from one High Court to another.”173 Law Minister Shiv Shankar issued a circular to state Chief Ministers noting that the policy would be used to help “further national integration and to combat narrow parochial tendencies bred by caste, kinship and other local links and affiliations.” During debates on the transferpolicy in early 1981, the government broke with earlier conventions175 in confirming additional judges but only providing them with “last-minute short-term extensions” or refusing to reappoint them altogether. Although he initially resisted, Chief Justice Y.V. Chandrachud ultimately went along with the proposed transfers in the face of significant pressure from the government. In The Judges’ Case,37 a seven-judge bench of the Supreme Court led by Justice Bhagwati, heard a group of petitions by advocates challenging the transfer of High Court judges by the government. Overall, the Court was highly deferential to the regime on the specific claims at issue, and deferential to the broader exercise of executive power in upholding the transfer of high court judges. Doctrinally, the Court expanded the scope of the Executive’s power in judicial appointments in ruling that the executive had primacy and final authority in judicial appointments and transfers. The court based its holding on the constitutional text and original intent and on the debates of the Constituent Assembly support the reading of “consultation” as not signifying “concurrence” with the opinion of the Chief Justice. The Court’s deferential holding was arguably motivated by the judges’ concerns about institutional preservation (which included a fear of potential backlash and attack from the Government). 37

S.P. Gupta v. Union of India, 1981 Supp(1) SCC 87.

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Significantly, the Court expanded standing for third-party public interest litigation claims. The Court rejected the Government’s arguments in ruling that the advocates in the case did have standing to bring claims in the case, as the advocates had an interest in the judicial appointments process and its broader implications for judicial independence within the system. In expanding standing doctrine, the Court helped lay the doctrinal foundations for Public Interest Litigation (PIL) in India, which would help transform the Court’s role in governance. Beyond these holdings, the Court’s decision in the First Judges’

Case was noteworthy for entrenching judicial independence as a norm. Significantly, Justice Bhagwati’s opinion held that judicial independence was part of the basic structure of the Constitution. However, the definition of judicial independence embraced by the Court was not necessarily independence from the political regime and government. Instead, Justice Bhagwati’s lead opinion suggested an alternative conception in noting: …it is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions, namely fearlessness of other power centers, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belong.38 This conception of judicial independence was consistent with Bhagwati and the other justices’ desire to appoint judges to the court who shared a commitment to using law to advance social justice and equality. As Bhagwati observed: “We need judges who are alive to the socioeconomic realities of Indian life, who are anxious to wipe every tear from every eye.” In addition, Bhagwati also observed that the “judiciary has a socio-economic destination” given that the Constitution is “not a non-aligned document” (italics added). It is also worth noting here that Justice Bhagwati also suggested the idea of a collegium for judicial appointments in his opinion. In addition, Justice D.A. Desai also suggested additional criteria for appointing justices to the court.

38

S.P. Gupta, supra note 178 at 218-219.

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The Court’s endorsement of, and deference to the Central Government’s transfer policies in the First Judges Case’ suggests that institutional preservation concerns can often override the assertion of other goals or values, such as advancing judicial independence. The justices of the Supreme Court were unable to assert independence in this case because of fears of political override and backlash. Gandhi’s executive was unified in its support for her judicial appointments and transfer policies and the Congress Party controlled 351 out of the 545 seats in the Lok Sabha, and her allied parties controlled an additional 23 seats, suggesting that the government had sufficient power to override decisions that challenged government policies.

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2. The Second Judges’ Case: Asserting Judicial Primacy Following Indira Gandhi’s assassination in 1984, the Congress Party selected her son Rajiv Gandhi to be its new leader, and Rajiv Gandhi became Prime Minister following the Congress Party’s victory in elections that year. However, conflict between the executive and judiciary persisted well into the late 1980s under Rajiv Gandhi’s regime. After Chief Justice Y.V. Chandrachud retired in 1984, P.N. Bhagwati became Chief Justice. During the mid-1980s, Bhagwati’s tenure as Chief Justice (from 1985-1986) was marked by controversy and clashes with Law Minister A.K. Sen. While Bhagwati was able to secure the appointment of a few justices who shared his pro-PIL, pro-poor and social-egalitarian activist outlook, Sen was able to initially block another pro-PIL judge, Judge Sawant, delaying the appointment long enough to prevent Sawant from being appointed in line to become Chief Justice. After Bhagwati’s retirement, R.S. Pathak became Chief Justice of India. During this period, the Government did effectively veto certain appointments recommended by Pathak by simply not accepting certain recommendations and asking Pathak for additional names.193 In addition, justices on the Court complained of long delays on the part of the government in filling appointments. The Court’s frustration with the executive continued into the 1990s. During the tenure of Chief Justice Ranganath Misra, the Court sought to counter executive failure to redress key deficiencies in appointments, and in the lower judiciary. In All India Judges’ Association v. Union of India, the Court recommended a detailed set of proposals for improving working conditions in the lower judiciary, and ordering the establishment of an All India Judges’ Association.39

In the 1990s, in response to perceptions among Supreme Court judges of excessive interference by the executive in judicial appointments, excessive delay in filling appointments in a timely fashion, and appointment of non-meritorious justices, the Court became more aggressive in asserting control over judicial appointments and transfers, and asserting judicial independence. In 1990, the Court in Subhash Sharma v. Union of India heard a PIL brought by several advocates seeking a mandamus to the Union of India to fill vacancies in the judiciary. In its 39

All India Judges Association v. Union of India AIR 1992 SC 165

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decision, the Court questioned the merits of the First Judges’ Case, noted that there was a strong basis for criticism of the “arbitrariness on the part of the Executive and the modality adopted following S.P. Gupta ratio has led to delay in the making of appointments.” The Court in Sharma thus ruled that “correctness of the majority view in S.P. Gupta” should be considered by a larger bench.40

In 1993, the Supreme Court instituted a nine-judge bench to adjudicate these issues in Supreme Court Advocates-on-Record Ass’n v. Union of India41 (the “Second Judges’ Case”). Petitioners’ argued the holding in the First Judges’ Case that the issue of judge-strength was not justiciable was incorrect and should be overturned, because the appointment of judges “is not a matter of discretion resting with the executive” but rather a constitutional obligation under Article 216 which is enforceable in a court of law.” Second, petitioners also argued that the requirement of “consultation” with the judiciary in matters of appointment in Articles 124, 217, 222, and 233, was included by the framers of the Indian Constitution in order to safeguard judicial independence. Because “neither Article 124(2) nor Article 217 indicates that any of the constitutional authorities named therein has primacy in the process of making appointments” the issue of primacy must be decided independently of the text of these provisions and “in conformity with the principle that all appointments to the superior judiciary shall be free from executive influence.” Consequently, the Chief Justice and senior justices must have primacy in appointments in order to advance the cause of judicial independence, “ensure the timely filling up of vacancies,” and “ensure effective consultation with the executive.”

In a 7-2 decision, the Court overturned the First Judges Case in holding that the Chief Justice of India, not the Executive, had primacy (and the final say) in judicial appointments and transfers. Justice J.S. Verma, in his majorit opinion, interpreted the applicable constitutional provisions as not mandating executive primacy in judicial appointments. Drawing on analysis of original intent of the framers of the Indian Constitution from the Constituent Assembly debates, Verma held that the Constituent Assembly had actually sought to create a “participatory consultative” process in which the executive must confer with the Chief Justice of India in making 40

Subhash Sharma v. Union of India (1990) 1991 Supp(1) SCC 574 at 582

41

Second Judges Case, (1993) 4 S.C.C

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appointments to the judiciary in a collaborative process. Verma held that the Assembly had rejected a model based on executive primacy and instead had chosen a “middle of the road” approach based on executive-judicial consultation. In directly overturning its holding in the First Judges’ Case, Verma held that where the executive and Chief Justice were in disagreement, that the Chief Justice’s opinion must be given primacy, unless the executive disclosed reasons and evidence to the Chief Justice that a particular appointment was unsatisfactory. In holding that the Chief Justice should have primacy, Justice Verma held that the Chief Justice of India was in the best position and best equipped to assess and judge candidates for appointment, and that a consultative process based on judicial primacy, would safeguard judicial independence. The decision was noteworthy in that the Court effectively created a new appointments process based on a collegium of justices, in which the Chief Justice would be required to consult with two senior justices in making recommendations. Significantly, the majority held that judicial independence was part of the basic structure of the Constitution.

Additionally, in his majority opinion, Verma held that preserving judicial independence was essential for protecting the rule of law and good governance, and that judicial primacy in appointments would help in achieving these goals. The Court in the Second Judges’ Case thus recognized an important shift in its institutional function in securing accountability in governance matters, including the administration of the judiciary itself, and the Bar’s important role as a vigilant “constituency” of the Court.42 Justice Pandian in his separate opinion held that an independent judiciary and professionalized appointment system would mitigate judicial favoritism and nepotism. Writing in dissent, Justice Ahmadi argued, however, that, given the text of the Constitution and the original intent of the framers, conferring primacy on the Chief Justice in appointments and transfers would require the enactment of a new constitutional amendment. Pursuant to the recommendations of the National Commission to Review the Working of the Constitution (NCRWC), in 2003, the BJP Government introduced the Constitution (98th Amendment) Bill that would establish a National Judicial Commission, consisting of the Chief Justice as chair, two Judges of the Supreme Court next to the CJI in seniority; the Law Minister; 42

In In re Special Reference No. 1 of 1998 (1998) 7 S.C.C. 739 (the “Third Judges’ Case”),

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and one eminent citizen to be nominated by the President in consultation with the Prime Minister, who will hold office for a period of three years. However, due to divisions and disagreement between the Executive, Parliament, and disagreement and opposition to the bill from the Bar and the CJA and other lawyers’ groups such as the PUCL, the Amendment and bill failed to gain approval. Some critics, including the People’s Union for Civil Liberties and former Justice V.R. Krishna Iyer opposed the legislation on the grounds that it did not allow for members of opposition parties to sit on the NJC. Other groups including the Committee on Judicial Accountability, consisting of leading PIL lawyers and leading Senior Advocates, criticized the bill for including the Executive and current judges, and suggested appointing panel consisting of retired judges, top Senior Advocates, and legal experts. Despite multiple calls for a National Judicial Commission, BJP and Congress regimes were initially unable to overturn the system of judicial appointments established in the Court’s decisions in the Second and Third Judges’ Cases. However, following the BJP’s landslide victory in the 2014 parliamentary elections, the new government was finally able to enact a the 99th Constitutional Amendment and NJAC Act creating the new National Judicial Appointments Commission (NJAC).

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3. The Third Judges’ Case: Expanding the Collegium

The battle over judicial appointments did not completely subside following the Second Judges’ Case. Although the Government was unable to overturn the Second Judges’ Case, it sought to challenge the Chief Justice’s primacy in judicial appointments by attempting to limit the discretion of the Chief Justice in appointments and transfers. This resulted in clashes between the BJP Government in power and Chief Justice M.M. Punchhi. The Government opposed several of Chief Justice Puncchi’s appointments, and the Government’s Law Ministry alleged that during the eight months of Chief Justice M.M. Punchhi’s tenure,the Chief Justice had not properly consulted with two senior justices as required under the collegium standards of the Second Judges’ Case.

However, in correspondence between the Chief Justice and Law Ministry, Punchhi denied this assertion and suggested the Law Ministry could not inquire into consultations of the Chief Justice. In response, the BJP Government brought a presidential reference to the Court, asking for clarification on the procedures for appointment. In a tacit acknowledgement of the Court’s supremacy, the Government in its pleadings stated that it “is not seeking a review or reconsideration of the judgment in the Second Judges case and that the Union of India shall accept and treat as binding the answers of this Court to the questions set out in the Reference.” However, in oral arguments, the government argued that the Chief Justice should be required to consult with a larger collegium of four judges to check the discretion of the Chief Justice.

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4. The NJAC Decision (2015): The Triumph of Judicial Primacy The Court’s recent decision in Supreme Court Advocates-on-Record Association v. Union of India (the “NJAC decision” or “NJAC case”) invalidating the 99th Constitutional Amendment signals a new phase of the Court’s assertiveness as an institution, and a consolidation of its institutional autonomy. The NJAC Act, together with the 99th Amendment, created a new National Judicial Appointments Commission to replace the existing collegium system. Enacted by large majorities by the recently elected BJP-NDA national government and ratified by the states, the NJAC replaced the existing “collegium” system of judicial appointments under which the Chief Justice and senior justices had primacy and the final say in appointments as part of a consultative process between the Executive and Judiciary and other constitutional functionaries. The 99th Amendment inserted Article 124 into the Constitution established the NJAC. The Amendment sought to override the existing collegium system of appointments by deleting the existing language concerning executive “consultation” from Article 124(2), Article 2222, and Article 217(1) of the Constitution, and replacing it with language providing for executive appointment of judges based on the recommendation of the NJAC.43

The NJAC was to be comprised of the Chief Justice of India and two senior-most Supreme Court judges, the law minister, and two “eminent people,” who would be selected by a panel comprised of the Chief Justice of India, the Prime Minister, and the Leader of the Opposition. Under the proposed NJAC, each of the members would have a vote and two members could veto appointments to the Court. In addition, the NJAC would have had the power to issue regulations governing criteria for appointment of judges. In a remarkable decision, the Court invalidated both the 99th amendment and the NJAC on the grounds that the Amendment and Act violated the basic structure of the Indian Constitution. The NJAC built on decisions in two earlier cases—the Second and Third Judges’ Cases—in which the Court interpreted applicable constitutional provisions governing appointments and created the “collegiums” appointment process that has now been locked-in to the Constitution by the NJAC decision.44

43

THE CONSTITUTION (NINETY-NINTH AMENDMENT) ACT, 2014

44

See Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 S.C.C.

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The Institutional Conception of Supremacy In Comparative Constitutional Law

India’s expansive model of judicial supremacy suggests the need to expand our understanding of judicial supremacy beyond conceptions based on interpretive and decisional supremacy. Understanding how the institutional conception of judicial supremacy operates in different systems has important implications for how expansive judicial roles can alter the nature and scope of constitutionalism across different constitutional systems.

An exploration of the roles played by courts in other polities reveals that the Indian Supreme Court is not alone in playing a wide range of institutional roles in constitutional governance. In this section, this article explores the institutional conception of judicial supremacy by analyzing how constitutional courts in other polities have asserted constitutional guardianship, institutional guardianship, and governance optimization functions, in order to illustrate how institutional conception of judicial supremacy operates in different contexts.

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1. COURTS AS CONSTITUTIONAL GUARDIANS

The U.S. model of judicial supremacy reflects a particular conception of “interpretive supremacy.” As noted in Part I, the U.S. Supreme Court’s decisions in Cooper and Boerne arguably suggest two conceptions of the Court’s role as a constitutional guardian in upholding interpretive and federal supremacy. In Cooper, the Court upheld the federal judiciary’s supremacy as a guarantor of the 14th Amendment Equal Protection Clause’s promise of equality vis-à-vis states. Following the resistance of Southern states and jurisdictions to Brown I and II, and lower court decisions that followed, the Court’s decision in Cooper was significant in that the Court itself reasserted judicial supremacy and a strong federal judicial role in vindicating equality and rights.

However, other constitutional systems, including India, feature constitutional courts that not only assert interpretive supremacy, but also play a much more expansive role in judicial review of constitutional amendments, and in playing key roles in entrenching constitutional norms and principles. Here, India can be situated along a continuum of courts exercising strong-form judicial review, but varying in the degree and extent to which they engage in basic structure review and constitutional entrenchment.

The Supreme Court of India has not only developed and asserted its power of judicial review as a constitutional guardian under the basic structure doctrine. In addition, it has also expanded the scope of its power in constitutional entrenchment. By constitutional entrenchment, I refer to the court’s power to define which principles, norms, or provisions are part of the basic structure doctrine. Through the basic structure doctrine cases the Court gradually expanded the scope of the basic features. However, the Court’s decision in the NJAC case suggests that the court’s powers may be even broader than previously thought. The Court’s recent decision the NJAC case (2015) represents an expansion of this power—in that case, the Indian Court effectively entrenched judicial primacy and the collegium system of appointments as a basic feature or norm— an unprecedented decision among constitutional courts worldwide. The basic structure cases illustrate that the Court can initially recognize doctrinal principles in earlier decisions, and 36 | P a g e

then entrench those principles as basic features in later decisions. Indeed, the Indian Supreme Court’s assertion of a constitutional guardian role represents just one example of the broader roles courts play as institutions of constitutional entrenchment globally. Constitutional courts in other polities have asserted distinct roles as guardians and as institutions of entrenchment. Germany is often cited along with the U.S. as an exemplar of a system with a strong constitutional court and strong-form judicial review. However, one crucial difference between the German system and the U.S. system is that the German Constitution or Basic Law contains fundamental and nonamendable principles that entrench certain principles and rights against constitutional amendment, and authorizes the Constitutional Court to invalidate amendments on the basis of these provisions. Article 20 of the Basic Law codifies these nonamendable principles, and both Articles 20 and 28 set forth foundational principles that have now been entrenched in constitutional law, including the constitutional state, the social state, federalism, and the principle of representative democracy.

Building on this framework of entrenched constitutional principles, the Federal Constitutional Court (FCC), the Court pursuant to Article 79(3) has asserted the power to engage in substantive review of constitutional amendments that violate these immutable principles in the Basic Law, including the principle of human dignity in Article 1(1), and the structural principles of the constitutional state, the social state, federalism, and the principle of representative democracy. 274 In the Southwest State Case (1951), the FCC recognized the concept of implied limitations on the amending power outside of the scope of the principles set forth in Article 79(3), and later in the Article 117 Case, the FCC.Later in the Article 117 Case, the FCC also appeared to suggest the existence of implied limitations on the amending power. Despite the Court’s assertion of the power to review amendments in the Southwest State Case, the German Federal Constitutional Court has not actually invalidated a constitutional amendment to date.

In the Luth case (1958), the German Court also engaged in a form of constitutional entrenchment in articulating the doctrine of “an objective order of values”, and simultaneously clarifying the relationship between fundamental rights and the domain of private law. The Court 37 | P a g e

in Luth invalidated an order of a regional court that enjoined Eric Luth’s his call for a boycott of a film produced by a film director who had ties to the previous Nazi regime. In entrenching the right to freedom of opinion within the objective order of values, the Court held that the basic right to freedom of opinion “…is absolute basic to a liberal-democratic constitutional order.” However, as Kommers and Miller note, in the Lisbon Treaty Case, the Court appeared to invoke a “constitutional identity” argument based on Article 79(3) and while upholding the act ratifying the treaty, the Court held that the accompanying law was unconstitutional on the grounds that it effectively “reduced the roles of the Bundestag and Bundesrat in EU affairs.” The Court thus asserted the power to review the validity of European sovereign laws and decisions of the European Court of Justice.

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CONCLUSION: CONTEXTUAL JUDICIAL SUPREMACY AND ITS IMPLICATIONS Reconceptualizing judicial supremacy based on courts’ institutional roles has significant implications for the comparative study of courts, and normative implications in terms of understanding the role courts can play in protecting and stabilizing constitutionalism. First, this article’s articulation of the institutional conception of judicial supremacy highlights the need for more scholarly inquiry into how the particular constitutional, socio-political, and historical context of different systems affects the nature and scope of the institutional roles played by courts. As Ran Hirschl has persuasively argued, it is impossible to compare the constitutional jurisprudence and roles of courts in different polities without fully understanding the actual context in which those courts operate. By tracing the development of judicial supremacy in India, this article suggests that it is necessary to understand judicial supremacy in polities as part of a broader contextual and dynamic model of judicial empowerment.

While other constitutional courts play one or more institutional roles as constitutional guardians, institutional guardians, and governance optimizers, few have come close to the Indian Court’s high level of assertiveness in all three areas. Based on analysis of the institutional roles of the Indian Supreme Court, I argue that the Indian model of constitutionalism represents an example of a model of what I refer to as expansive judicial supremacy, in which the Indian Court plays a major role in constitutional entrenchment, exerts a strong role as an institutional guardian in judicial appointments, and plays a significantly greater role in intervening in and structuring governance than courts in other polities. India’s expansive model of judicial supremacy thus poses challenges for existing theories that posit that judicial review is politically constructed by dominant political elites, and suggests that independent judiciaries can and do act independently in asserting judicial review in defense of constitutionalism and fundamental rights. In contrast to Whittington’s account of the empowerment of the U.S. Supreme Court, the supremacy of the Indian Supreme Court is not purely a product of the assertion of political power by political regimes who construct judicial review to advance political or partisan agendas and goals.

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The Indian model, then, must be understood in terms of the historical context of constitutional development in India, as well as the socio-economic and political conditions that postcolonial and new democracies must confront. In India, Gandhi’s move to limit and restrict judicial power and alter the Constitution during the Emergency, arguably necessitated judicial intervention in the form of the basic structure doctrine to preserve core aspects of India’s original constitutional framework. Similarly, the Court’s entrenchment of the rule of law and secularism as constitutional principles in the Bommai decision also highlights how courts can play an important role in protecting and stabilizing constitutionalism in pluralistic democracies against movements that threaten to erode and undermine the unity and stability of systems based on divisive communal and religious politics. Indeed, the Court’s recent decision in the NJAC case reflected the Court’s embrace of a particularistic approach to constitutional interpretation in light of the experience of other constitutional systems. The majority in the NJAC case rejected comparisons to other systems in which the executive and legislative branches have primacy in judicial appointments, noting India’s unique historical context. The expansive judicial supremacy in India and other polities’ pose an important challenge to existing “regime politics” conceptions of judicial empowerment. However, the emergence of an alternative conception of judicial supremacy in India and other polities suggests that judges and courts act independently in asserting constitutional and institutional guardian functions, as well as governance optimizing roles. Faced with high levels of systemic corruption and malgovernance, courts in these systems have emerged as powerful forces for protecting constitutionalism and optimizing governance. The institutional conception of judicial supremacy also has important normative implications for the study of constitutionalism and judicial governance globally. Normative critiques of judicial supremacy have focused on the antidemocratic nature of interpretive supremacy and its negative implications in terms of democratic accountability. Indeed, scholars including Tushnet and Gardbaum have suggested that weak-form judicial review can in part alleviate these democratic legitimacy concerns by allowing for a more dialogical form of interaction between courts and the elected political branches of government. However, the typical concerns about maintaining strict boundaries in terms of separation of powers that informs jurisprudential debates in the U.S. and western polities cannot translate neatly to India and other polities because of key contextual 40 | P a g e

differences in these countries political history. Consequently, the expansive model of judicial supremacy may represent a more pragmatic model of judicial supremacy for newer constitutional democracies across the globe that faces the same challenges that India confronts today. Indeed, other nations in South Asia, including Pakistan and Bangladesh, have followed India in adopting variants of the basic structure doctrine and public interest litigation to respond to specific threats to constitutionalism, governance, and the rule of law

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