Fifty Years of the Supreme Court of India: Its Grasp and Reach

Vol. 14 No. 6 (June 2004), pp.406-409

FIFTY YEARS OF THE SUPREME COURT OF INDIA: ITS GRASP AND REACH, by S. K. Verma and Kusum Kumar (eds.). New Delhi: Oxford University Press, 2003. 850pp. Paperback. INR 595. £17.95 $35.00. ISBN: 0195662555.

Reviewed by Gary Jeffrey Jacobsohn, Department of Political Science, Williams College. Email: Gary.J.Jacobsohn@williams.edu .

To commemorate the golden jubilee of the Indian Supreme Court, twenty-two contributors to this volume have offered their impressions of that tribunal’s achievements over the last half-century. Not surprisingly, the tone is consistently celebratory. More surprisingly, at least for those who might be new to the Indian constitutional scene, the consistently articulated object of celebration is the Court’s well-deserved reputation for judicial activism. The cumulative sense one receives from this collection is that whatever the wrongs (of commission and omission) that might be perpetrated by the institutions of a democratic polity, they can always be righted by judges motivated by a desire to do the right thing.

This is the thematic thread running through the diverse areas of law that are represented in this comprehensive review of Indian Supreme Court jurisprudence. Subjects (to name just a few) ranging across areas as distinctive as fundamental rights, matrimonial adjudication, mercantile law, environmental justice, agrarian reforms, industrial jurisprudence, and election laws, are all viewed through the approving lens of proactive adjudication. Typical of the interpretive unity of the book’s essays are the following observations: “[N]o other institution is more deeply decisive in its effect upon our understanding of government and its governance and the court still remains the best hope for individuals and small groups, who cannot influence governmental action, to combat administrative arbitrariness” (p.101, chapter on administrative law). “[I]n India the guardian of democracy is not the legislative wisdom but the wisdom of the highest court of the land” (p.230, chapter on election law). “[T]he court has acted as protector of the workers, and at time played the role legislator where labour legislation is silent or vague” (p.424, chapter on industrial jurisprudence). “The Supreme Court of India has stood tallest not only before the other two organs of the ‘State’ – the Legislature and the Executive – but also, before its other counterparts, age-old or young, in the developed and developing countries” (p.494, chapter on environmental justice). “In the face of the sad reality of the masses being taken for a ride by their elected representatives and their considerable control over the bureaucracy, the citizen’s only hope lies with the judiciary” (p.567, chapter on adjudicating rent matters).

With rare exceptions these representative illustrations are unaccompanied by reservations or concerns over the appropriateness or desirability of the Supreme Court’s enhanced and substantial role in governing India. What is striking to the student of comparative constitutionalism is the [*407] absence of a lively debate on matters that implicate the very soul of a constitutional democracy. The authors make clear their agreement with most of the results that have flowed from the Court’s high profile adjudication but voice minimal skepticism regarding a process by which electorally accountable officials are effectively diminished as key political actors. In 800 pages of text one has to look very hard to discover anything like a John Hart Ely moment when a commentator questions the wisdom of employing the judicial power to achieve a desirable social or economic end in the absence of an explicit constitutional mandate to do so. Thus, in a chapter on law pertaining to rental issues, the author exclaims rather matter-of-factly that “the law as declared by the Supreme Court is the law of the land” (p.546). The American Supreme Court’s similar assertion in COOPER v. AARON has over the years attracted much criticism as an example of judicial overreaching, of a failure to distinguish between judicial review and judicial supremacy. This volume makes the reader wonder whether such a distinction would resonate within the Indian constitutional environment.

The reason for the difference can be explained on the basis of alternative assumptions about the role of a constitution in the life of a polity. The two most interesting essays in the collection – M. P. Jain’s “The Supreme Court and Fundamental Rights” and Upendra Baxi’s “The Avatars of Indian Judicial Activism: Explorations in the Geographies of [In]justice” – provide insight into the distinctive character of Indian constitutional design that illuminate the question of why judicial activism in that country is not freighted with more controversy.

Jain’s essay is the more straightforward of the two, clearly laying out the high-water marks of judicial inventiveness and virtuosity. Three initiatives warrant particular attention: the development of the doctrine of non-amendability, the construction of a jurisprudence of public interest litigation, and the expansion of fundamental rights protection through creative interpretation of Article 21 of the Constitution. Under the first, the Court has enumerated certain “basic features” of the Constitution that may not be amended under the procedures set out in the document. For example, judicial review is one such feature, which means that the authority of the Court to void acts of other political actors on grounds of unconstitutionality is itself immune from constitutional emendation. Jain correctly quotes from the landmark KESAVANANDA ruling of 1973 to describe the philosophy underlying the doctrine. “Our Constitution is not a mere political document. It is based on a social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains constant but the latter is subject to change. The core of a religion always remains constant but the practices associated with it may change. Likewise, a constitution like ours contains certain features which are so essential that they cannot be changed or destroyed” (p.13).

This same rationale for judicial intervention underlies the other initiatives as well. The social philosophy upon which the Constitution is based is fundamentally egalitarian, [*408] representing a commitment to restructure a society to conform to the precepts of social justice that animated the efforts of the framers. Public interest litigation, a signature achievement of Indian constitutional interpretation, and the principal vehicle by which the poor are granted access to the courts, embraces the idea that legal redress for the disadvantaged should not succumb to the exclusionary criteria of traditional adversarial jurisprudence. Similarly, judicial interpretation of article 21, which provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law,” has led to a vast extension of substantive rights. Jain rightly depicts this interpretation as “the Indian version of the American concept of due process of law” (p.25), but the scope of the expansion into the substantive domain engineered by the Indian Court far exceeds that of its American counterpart.

That the Indian Court has emerged relatively unscathed in recent decades as a leading actor in the ordering of domestic priorities within the polity can be attributed in no small measure to a constitutional ethos that encourages all institutions, including the judiciary, to become active participants in the realization of particular ideological aspirations. In effect there exists a constitutional mandate for judicial activism. As noted by Upendra Baxi, “What is justice? The Indian Constitution has a tolerably clear answer: only those public decisions are just that disproportionately benefit India’s impoverished” (p.207). Baxi, a distinguished legal scholar and political activist, writes eloquently of the pitfalls of applying perspectives and categories taken from Western constitutional theory to the experience of places such as India where the conventional normative theories “fail to provide a road map for understanding the Heraclitan labours confronting Indian justices” (p.209). Yet, it is to Baxi’s credit that he allows that “Indian activism promises more than it could ever historically deliver in terms of embodied, living human rights” (p.164). While they are legitimated by indigenous regime principles, activist courts are, in Baxi’s estimation, no substitute for direct political action. Moreover, unlike most of the other authors in the collection, he is not reluctant to discuss the Court’s failures as well as its achievements. Without dwelling on the reasons why courts in India are occasionally unsuccessful in achieving their objectives, Baxi at least acknowledges what is disappointingly missing in the rest of the volume, namely that a comprehensive assessment of a Supreme Court’s contribution to the life of a nation must take account of the efficacy of judicial intervention as well as the consistency of such intervention with the constitutional assumptions of the polity.

FIFTY YEARS OF THE SUPREME COURT OF INDIA provides a good overview of constitutional developments in a wide array of legal domains. Occasionally, as in B. Sivaramayya’s chapter on “Gender Justice,” it thoughtfully engages some very lively issues of controversy in Indian politics—e.g., the tension between equality and secularism, the difficulty in reconciling the political and legal goals of a uniform civil code. American readers in particular will benefit from the opportunity it presents for encountering a constitutional environment that will [*409] lead them to examine, and perhaps question, assumptions that they have long taken for granted.

CASE REFERENCES:

COOPER v. AARON, 358 US 1 (1958).

KESAVANANDA BHARATI SRIPADAGALVARU v. STATE OF KERALA, 4 SCC 225 (1973).

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