Vol. 13 No. 2 (February 2003)

JUDICIAL ACTIVISM IN INDIA: TRANSGRESSING BORDERS AND ENFORCING LIMITS, by S.P. Sathe.  New Dehli: Oxford University Press, 2002.   326 pp. Hardback, $36. ISBN 019-565-5435.

Reviewed by Jayanth K. Krishnan, William Mitchell College of Law.

The year 2000 marked the fiftieth anniversary of the passage of India’s Constitution.  Over the past three years, several scholars have published pieces commemorating India’s legal system, and more generally, the “success” (Kohli 2001) of its democracy (see e.g., Verma & Kusum 2000; Kirpal et al. 2000; Austin 2000). However, no one work has provided as nuanced an analysis of the Supreme Court’s jurisprudence since Independence, than Professor S.P. Sathe’s recent book entitled JUDICIAL ACTIVISM IN INDIA.  Long viewed as one of India’s pre-eminent constitutional legal scholars, Sathe, in this study, offers a careful and detailed treatment of how the Supreme Court has shifted from an originally detached, positivist institution to one that is an active player in daily political life.  As Upendra Baxi notes in his prefatory comments, Sathe’s quest is not only to document that such a shift has occurred but also to offer a normative perspective on whether the Court’s increased activism has been good for India’s democracy.  For those who are interested in an historical, jurisprudential, and political analysis of the Indian Supreme Court, this book is a must read.

Chapter one begins with Sathe explaining how early Indian judges were heavily

influenced by the English ideal that the courts needed to retain a positivist role within the governmental framework. The first justices of the Indian Supreme Court functioned in a very technocratic manner, hesitant (like their British counterparts) “to assume wider powers for the Court” (page 6).  Most members of the Court during the 1950s and 1960s believed that the Nehru government needed time and latitude to enact its economic, political, and social agenda. However, Sathe goes to great length in this chapter, as well as in chapter two, to explain that the Court refused to give Parliament carte blanche power to pass whatever it deemed appropriate.

For example, in the famous 1967 case of GOLAKNATH v. PUNJAB, the Court ruled that Parliament could not curtail any of the Fundamental Rights in the Constitution. Although it backtracked on the forcefulness of this decision some six years later, the Court continued to proclaim that in principle no institutional body could alter the democratic essence of the Constitution. Similarly, in property law disputes, the Court did not hesitate to rule on more than one occasion that individuals whose land was taken by the government were receiving inadequate compensation. Nevertheless, between 1950 and 1975, Sathe notes that the Supreme Court refused to challenge the Parliament’s power in most other areas. As the state increasingly failed to deliver on its promises and the public grew tired of the country’s lack of prosperity, more people began turning to the Court as the one legitimate institution with the power to protect their interests.

In Chapter Three Sathe argues that in the ensuing years this public desire to see the Court become a leader in political life partially materialized. Beginning with its 1967 ruling in GOLAKNATH, the Court developed a jurisprudence around what was known as the “basic structure doctrine.” According to this doctrine, the Court was in charge of “prevent[ing] the erosion of those enduring values that constitute the essence of constitutionalism” (p. 99).  However, with Indira Gandhi’s imposition of Emergency Rule between 1975 and 1977, many observers believed that the Court’s independence and legitimacy would be suppressed. As Sathe counters, though, during this period the Supreme Court refused to relinquish its institutional obligation to protect the Constitution.  Sathe points to the famous 1975 PRIME MINISTER ELECTION judgment as a brave, watershed moment in the Court’s history.  In this case, the justices voided a proposed constitutional amendment forwarded by Mrs. Gandhi that prohibited the judiciary from deciding on the validity of contested elections. The basic structure of the Constitution would be forever altered, the Court held, if as Mrs. Gandhi had wanted, the executive branch could determine how elections were administered. As Sathe documents, although judicial invalidation of subsequently proposed constitutional amendments has not become a frequent course of action, the basic structure doctrine continues to remain an essential part of the Court’s jurisprudence, particularly when examining Parliamentary legislation.

Sathe spends Chapter Four detailing how the Court between 1977 and 1998 handed down a series of rulings that increased its prominence as a legal as well as a political institution. He shows that during this period the Court engaged in heavy judicial activism, a point frequently made by previous scholars. But Sathe’s analysis is distinguishable, because he argues that the Court enhanced – in a strategic and purposive manner – substantive and procedural due process rights, equal protection rights, and other rights-based claims made on social, gender, and economic grounds.  Although the Court stood tall in the PRIME MINISTER ELECTION case during the Emergency period, it strategically had to expand individual rights between 1977 and 1998 in order “to overcome the negative image it had acquired because of its [1976] decision in . . . the Fundamental Rights case” (p. 100).  In this ruling, the Court held that upon the proclamation of a state emergency, the President could suspend an individual’s right to petition the judiciary for enforcement of one’s Fundamental Rights. Sathe makes the case that once the Emergency Rule was lifted, the Court spent the next two decades actively rendering decisions that promoted a liberal social agenda as a strategic way to repair its legitimacy.

Chapter Five, on secularism and the judiciary, is perhaps the most sophisticated section of Sathe’s book.  He explains that the Constitution’s Framers were clear in their drafting of Article 25, which gives every individual the right to freedom of religion but leaves this right subject to the Constitution’s other Fundamental Rights.  More opaque, however, is the language of Article 26, which deals with the rights of religious denominations.  The question of whether Article 26 is constrained by the Fundamental Rights of the Constitution has confounded the Supreme Court for over fifty years. As Sathe discusses, there is much historical evidence suggesting that the Constitution’s Framers sought to make India a strong secular state. To its credit, the Court has declared that secularism is part of the Constitution’s basic structure. Yet, as Sathe contends, Supreme Court precedent has been inconsistent on this issue. In some cases, such as in S.R. BOMMAI v. UNION OF INDIA, the Court has exhibited resolve in defending the principle of secularism. On the other hand, in cases such as DESHMUKH v. KADAM and ISMAIL FARUQUI v. INDIA, the language of the opinions seems to indicate a lack of commitment towards maintaining a separation between religion and state power.

Sathe’s last two chapters focus on the growth of public interest litigation in the Supreme Court and how the Court’s activism over the past two and one-half decades has translated into increased legitimacy for the institution. In the penultimate chapter, Sathe details the various ways that the Supreme Court has attempted to provide greater access for people to use the legal process. For example, the Court has interpreted the Constitution’s provisions regarding “writs” to mean that petitions may be filed directly in a state High Court where the state government is accused of violating a statutorily or constitutionally protected right. Additionally, where the central government is charged with infringing upon the Fundamental Rights of an individual, writs may be filed directly in the Supreme Court. The Court has also liberalized standing requirements and has held that issues in front of it or before the state High Courts need not be ripe nor involve an actual case in controversy in order to be heard.  Sathe methodically then covers a broad range of public interest litigation judgments that were issued by the Court since the end of the Emergency. He notes in this section, and then elaborates in the final chapter, that the Court’s willingness to tackle some of the most controversial political and legal issues to date  – almost always in a serious and thoughtful manner – has given it prime legitimacy, which has resulted in making it “the most powerful apex court in the world” (p. 249).

JUDICIAL ACTIVISM IN INDIA is an important book and one that provides great insight into how the Indian Supreme Court has operated and evolved over the past fifty years.  I only have a few minor critiques of Sathe’s work.  First, there is not enough detail given as to how Sathe decided which cases to choose as part of his study.  Marc Galanter’s (1984) observation nearly twenty years ago still rings true.  That because of the volume of cases on the Court’s docket as well as the fact that case reporters can be incomplete, it is not uncommon for a justice on the Supreme Court or judges sitting in the lower courts to be unaware of certain past decisions.  If those on the bench may be unfamiliar with potentially important precedent, could Professor Sathe’s analysis have missed some cases too?  While I trust his thoroughness, I would be interested in learning how Sathe went about gathering his set of judgments.  Moreover, Sathe seems to intimate that after 1977 the Supreme Court had numerous opportunities to deliberate on an array of rights-based matters.  But Charles Epp’s (1998) empirically-sophisticated work on the Indian Supreme Court shows that in the post-Emergency era, the Court’s rights-based agenda was not as extensive as many have thought.  Here, I would be curious to see how Epp’s data might be reconciled with Sathe’s statement that, “the fact that so many people and social activists have invoked the Court’s jurisdiction shows that there has been greater reliance on the judicial method for redressing people’s grievances . . . ” (p. 245).

Second, I found Sathe’s detailed argument regarding the pivotal 1975 PRIME MINISTER ELECTION ruling (noted above) to be unpersuasive.  Sathe contends that the Court in that case displayed courage by voiding  IndiraGandhi’s proposed constitutional amendment, which attempted to remove election conflicts from the judiciary’s jurisdiction.  Although the Court did strike this measure down, the decision, which was released during the Emergency, still lacked a formal condemnation of Mrs. Gandhi’s suspension of democracy.  The judgment also allowed  Mrs. Gandhi’s 1975 election victory in Gujarat to stand, despite that state’s High Court finding that she had won her seat through corrupt means. By claiming that the Supreme Court’s decision reflected a strong defense of democratic ideals, Sathe omits acknowledging how many people at the time believed that the justices in fact capitulated to Mrs. Gandhi in order to preserve their own positions.

Third, to his credit, Sathe recognizes that while the Supreme Court has sought to increase individual access to the legal process, overall “ordinary civil and criminal justice systems are in a chaotic condition.  Justice is expensive, time-consuming, and over-technical” (p. 301). These statements hit the nail right on the head. My quibble, however, is with how little time Sathe spends on these crucial deficiencies. The courts in India are thought to be the most crowded of any in the world. A recent report states there are “23 million pending court cases—20,000 in the Supreme Court, 3.2 million in the High Courts and 20 million in lower or subordinate courts” (Debroy 2002).  Cases take decades, and sometimes generations, to resolve. By focusing on the Supreme Court, Sathe captures only a sliver of the judicial activity ongoing in India. Most Indians deal with the dreaded, inefficient lower courts, where the public’s sentiments towards these courts, and the law more generally, are negative and hostile, not respectful or deferential.  Given his expertise, Sathe surely is aware of these attitudes.  I just wish that he had discussed how the Supreme Court is able to retain such high levels of legitimacy in light of the massive failings of the lower courts.

Again, these minor critiques should not detract interested observers from reading this valuable book. S.P. Sathe is an accomplished legal scholar, and JUDICIAL ACTIVISM IN INDIA is a major contribution to the comparative constitutional law literature.      

REFERENCES:

Austin, Granville.  2000.  WORKING A DEMOCRATIC CONSTITUTION. New Delhi: Oxford University Press.

Debroy, Bibek.  2002. “Losing a World Record,” FAR EASTERN ECONOMIC REVIEW, Feb. 14.

Epp, Charles.  1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: University of Chicago Press.

Galanter, Marc.  1984. COMPETING EQUALITIES. Berkeley: University of California Press.

Kirpal, B.N., Ashok H. Desai, Gopal Subramanium, Rajeev Dhavan and Raju Ramachandran.  2000. SUPREME BUT NOT INFALLIBLE. Delhi: Oxford University Press.

Kohli, Atul.  2001. THE SUCCESS OF INDIA’S DEMOCRACY. Cambridge: Cambridge University Press.

Verma, S.K. and Kusum.  2000.  FIFTY YEARS OF THE SUPREME COURT OF INDIA: ITS GRASP AND REACH. Delhi: Oxford University Press.

CASE REFERENCES

A.D.M. JABALPUR v. SHIV KANT SHUKLA, AIR,1976 SC 1207.

DESHMUKH v. KAMAL KISHORE KADAM, 5 SCC 139 (1995).

INDIRA GANDHI v. RAJ NARAIN, AIR 1975 SC 2299 (Prime Minister Election Case).

ISMAIL FARUQUI v. INDIA, 6 SCC 360 (1994).

L.C. GOLAKNATH v. STATE OF PUNJAB, AIR 1967 SC 1643.

S.R. BOMMAI v. UNION OF INDIA, AIR 1994 SC 1918; 3 SCC 1 (1994).

*********************************************************************
Copyright 2003 by the author, Jayanth K. Krishnan.