Judicial Review in India
Judicial Review in India
Judicial Review in India
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independent judiciary has been a mainstay of government. Courts have been created or
evolve into existence either at the time of a state's inception, such as the United States,
India. India's modern judicial system was introduced in the late 1700s and went through
several stages of development before reaching its current structure and form. Even
though each branch of government has as one of its prime objectives the promotion and
protection of the state and society, conflict between the different branches of
government over the role and power of the judiciary has been relatively commonplace.
We would expect that such discord would have an effect on the way courts make
decisions and situate themselves in the wider politics of the state and in relation to other
state institutions. Surprisingly, this facet of judicial development has not been widely
studied, although the conflicts between courts and elected governments in newly
1996, Scheppele 1999, Vanberg 2001, Epstein et al. 2001, Helmke 2002, Helmke
2004).
propose that judges are politically astute, strategic in their actions, and interested in
achieving specific policy goals. Others suggest that judges are politically disinterested,
sincere in their actions, and motivated by issues of law rather than policy outcomes.
These characterizations focus on judges’ attitudes about the specifics of the cases they
decide and the political ramifications of specific outcomes (or lack thereof), but they
tend to neglect any consideration of judges’ attitudes toward the establishment and
maintenance of the institutions in which they are situated. Since the U.S. has driven the
development of theory, this focus is not surprising; the Court has been well established
for two centuries and its social and political legitimacy is rarely questioned. The neglect
is harder to justify for studies of judicial politics in new democracies and developing
countries, however. In these contexts, the court’s ability to issue decisions, the extent
to which these decisions are honored in the implementation process, and the its
insulation from political pressure are still being determined. We should expect to see
conflicts that arise from different preferences over policy, but we should also find that
conflicts arise because of different preferences over the role of judicial institutions.
In this paper we examine the creation and early tenure of three apex courts in
India, which were created at three different points in time and by three different
governments. The first, the Supreme Court of Judicature, was chartered by the British
Crown and Parliament in 1773 and appeared to be endowed with wide and powerful
jurisdiction. The second, the Federal Court of India, was established by the
Government of India Act of 1935 and was intended to consider disputes among British
provinces and Indian princely states. The third, the Supreme Court of India, was
established in the Constitution of India and given original and appellate jurisdiction as
well as explicit powers of judicial review. While the political and institutional context in
which the three courts operated were quite different, they shared traditions of British
common law and British political institutions and cultures. In addition, all three
governments shared a key characteristic: all had the ability to alter the courts if they
became sufficiently dissatisfied with them. The governments of the British Raj had the
system in which the Congress Party dominated and faced no unified oppos ition.
Nevertheless, all three courts soon found themselves issuing dec isions that were in
direct conflict with the desires of the executive branches that had created them and
We explore these cases to try and solve the contradictions of why new courts
challenge the authority and power of more powerful institutions and why judges make
decisions that put the autonomy and authority of their courts in jeopardy. We adopt the
framework of the strategic theory of judicial politics, which assumes that judges are
acting rationally, and we then analyze whether the courts' actions comport with the
theory. In addition, we pay particular attention to the interests and preferences of the
governments that created the new courts. We hypothesize that conflicts emerge in new
courts between the creators and the created because frequently the two actors'
interests are at odds. Courts are created by executives to serve executive interests, but
judges develop their own, often competing, sets of goals. The two are almost inevitably
In the next section of the paper we discuss research in the current literature on
judicial politics that speaks directly to our questions. We then summarize briefly the
history of the Supreme Court of Judicature, the Federal Court of India, and the first
decade of the Supreme Court of India. We emphasize their composition, their powers,
and their relations with other branches of government. We then discuss critical cases
by each court to compare their processes of judicial decision making and to highlight the
the applicability of our findings for research in other contexts and other periods.
The extensive literature on judicial politics includes two discussions that are especially
pertinent to our analysis: studies of judicial decision making and studies of interbranch
bargaining. We begin by asking what factors predict how judges will decide cases, and
the literature on decision making offers a wide range of motivations. At one end of the
spectrum lie judges who are motivated almost entirely by issues in the law itself and are
largely uninterested in either the policy outcomes under consideration or the political
ramifications of their decisions. In the India-specific literature this approach has been
termed “black-letter law” (Galanter 1989, Dhavan 1977). There is evidence to suggest
that Indian judges had relatively apolitical backgrounds, even during the independence
movement (Gadbois 1969), and that they were deeply concerned with issues like
precedent and prior case law (Dhavan 1977). But it is a stretch to argue that their
decisions were made in a completely apolitical or asocial context. For example, the
early decisions of the Federal Court as well as the concurrent writings of its Chief
Justice demonstrate that the Court was intensely aware that its early decisions would
judges have preferences over policies as well as over points of law. Particularly in the
case of judges' policy preferences, we would expect to find conflict with other branches
of government. Both of the dominant and competing approaches, the attitudinal and the
separation of powers (SOP) approaches, assume that judges hav e policy preferences
but take different paths to achieve them (Segal and Spaeth 1993, Epstein and Knight
1988, Gely and Spiller 1990). The Indian case does not provide direct evidence that
judges had policy preferences independent of issues of law, but there is clear evidence
that they preferred certain outcomes over others, which pitted them against the
preferences of the executive (Dhavan 1977, Galanter 1989, Pylee 1966, Austin 1999).
combination of the two, how do they ensure that their preferences are achieved? On
this point the attitudinal and SOP models diverge sharply. The attitudinal model
assumes judges are generally apolitical actors who decide cases based on their sincere
policy preferences, while the SOP model posits that in order for judges to achieve their
sincerely preferred outcomes they must take into account the behavior of other
possible responses, at times judges may choose to act strategically and issue decisions
that reflect second choices that are likely to be supported rather that first choices that
behavior affect judicial decision making, and it assumes explic it or implicit bargaining
consider how legislatures and executives will implement their decisions and shape their
rulings accordingly. Legislators and executive actors in turn will draft statutes and
variety of time periods and political settings, scholars have shown how interbranch
bargaining narrows the range of possible judicial and political policies chosen (Eskridge
and Ferejohn 1993, Epstein and Knight 1998, Vanberg 1998, Vanberg 2001).
Researchers have offered a range of explanations for why and how the judicial
hypothesizes that because judges receive cases after laws have been passed and
implemented, they have more knowledge than the original legislators and therefore the
court’s decision may be better informed (Rogers 2001). Several scholars point to the
institutional and public legitimacy court decisions can giv e legislation and constitutional
provisions, a consideration which may override legislative or exec utive preferences over
a specific bill (Epstein and Knight 2000, Vanberg 2001, Epstein et al. 2001). And, of
course, since legislative and executive branches can punish the court for decisions it
dislikes, judges may constrain themselves in order to avoid being sanctioned (Rogers
generally is the assumption that because the actors behave strategically, they will strive
courts challenging legislatures and executives unless they are certain to prevail. But
our evidence from Indian courts contradicts this assumption. All three of the courts we
studied issued rulings that resulted in sanctions by the executive, and the most recent,
the Supreme Court, engaged in a long-term, clearly losing battle. We cannot explain
this behavior within the rational-actor paradigm as it is presented in the SOP model; we
would have to assume judges were either badly informed or acting irrationally. But
courts but may also occur at times in mature, established courts. We assert that the
current theories of judicial behavior and Interbranch bargaining pay insufficient attention
to judges’ preferences over the institution itself. Judges care about policies and issues
of law, but they also have preferences over the strength and stability of the court.
Indeed, it seems obvious that unless judges can assume a stable and powerful court,
their policy or black-letter law preferences are much less likely to be achieved. In new
courts, issues of stability, strength, and scope of decision making are often still
contested (Orkeney and Scheppele 1996, Vanberg 2001, Epstein et al. 2001, Helmke
2002). Therefore, we hypothesize that judges are likely to challenge the legislature and
executive in two instances. First, they will issue decisions contrary to executive
institutional legitimacy or sphere of influence. Second, they will be more likely to make
these decisions in the early years of the court, when it is less established and therefore
more vulnerable, but when precedents are less binding and the judges are in the
We now turn to the three cases, the Supreme Court of Judicature in Calcutta
under Elijah Impey's tenure as Chief Justice, the Federal Court of India, and the first
decade of the Supreme Court of India. We discuss the conditions that led to the
creation of each court and provide evidence about the preferences both of the exec utive
branch institutions who established the courts and of the judges who were appointed.
We then discuss critical decisions issued by each court and explore how these cases
reflect the competing preferences of judges and governments. While these cases are
the exception rather than the rule (Darnell and Parikh 2006), they are important
because they generate interbranch conflict, and they often test the courts’ jurisdictional
When the ships carrying the members of the new Supreme Council and the new
Supreme Court left England in 1773, all parties involved thought they had solved a
difficult problem. The Crown and Parliament had created a new court that would have
greater power than the patchwork judicial system that had been under increasing strain
in Bengal. At the same time, they had strengthened the gover nance structure by
creating a council that would serve along with the newly styled and appointed Governor-
General, Warren Hastings. Although British political parties were engaged in intense
competition at the time, they had been able to agree on an institutional solution that
would regulate the East India Company and provide a more systematic rule of law for
British agents in India and the indigenous population who interacted with them. The
three judges of the new Supreme Court, all of whom were experienced jurists drawn
from the King's Bench, saw themselves as bringing the rule of law to a new British
territory. But by the time the two ships landed in Bengal in October of 1774, the schisms
that were to mark the first decade of Court and Council were already becoming
apparent.
The conflicts between the Governor General, his Supreme Council and the Court
have been analyzed and commented upon for over a century. Hastings' impeachment
trial in Parliament was the penultimate use of impeachment in British politics, and the
divisions between members of the Supreme Council, in particular between Hastings and
Philip Francis, reflected the intense party polarization and conflict within domestic British
politics (Marshall 1965, Marshall 1968, Sutherland 1952). Edmund Burke held up
Hastings as the archetype of the corrupt imperial East India agent, and fifty years later,
studies have failed to dislodge as the dominant view (Stephen 1885, Feiling 1954,
Sutherland 1957, Marshall 1965). But the long-standing emphasis on individuals and
personal conflicts has tended to obscure the institutional mismatch that the Regulating
Act of 1773 created. In recent years, historians have emphasized institutional factors in
their analyses, and although their foci have been on larger issues of colonial rule or law
rather than interbranch relations (Benton 1999, Hussain 2003, Travers 2007), they help
us think about how institutional configurations and strategies shaped actors' behavior.
The new Supreme Court of Judicature was bedeviled from its inception by
ambiguities in its jurisdiction and its scope of authority. While scholars have explained
these ambiguities as arising from the role of the East India Company and its unusual
relation to the British government (Pandey 1967, Sen 2006, Travers 2007), they also
arose because of competing inter ests in Parliament and the often contradictory aims of
the Regulating Act. The competing interests were a result of the intense partisan
conflict within British politics during the latter half of the 18th century; this conflict led to
a deep divide over how to oversee the actions of the East India Company. The
Company had been reporting significant debts and paying lower dividends to its
shareholders and to the Crown for several years, and one faction in Parliament sought
greater control over the Company's actions, while the other fought against increased
Council, but the Council in Calcutta mirrored the divide between the two political
factions in London.
For the Supreme Court, the effect of this parliamentary infighting was to endow
the Court with apparently immense powers in some areas and leave other issues
were also empowered to review all policies and regulations emanating from the
Supreme Council, which gave them not only the right of judicial review in the
conventional sense, but the potential responsibility for day-to-day oversight of the
Council's actions. While this sweeping authority was unusual, it was understandable
given the fears within Parliament that the Company was insufficiently regulated.
Surprisingly, however, this review authority was not the source of the most controversy
The strongest repercussions from the Court's mandate arose from its authority to
hear suits against British agents of the Company and its Indian employees. Agents who
had been used to acting unilaterally suddenly found that they could be called before a
judicial bench and held to English law, and the Court's reach extended through Bengal,
Bihar, and Orissa, not just the towns and factories that were recognized as British
settlements (Travers 2007). And the judges were not hesitant to use this authority,
because they saw themselves as bringing British law and justice to a corrupt, lawless
territory (Hussain 2003, Travers 2007). As Justice Robert Chambers wrote to Lord
North, whose government passed the Regulating Act, the Act rescued "oppressed and
Regularity or Knowledge," and the judges served as "an Instrument of this glorious
Purpose" (quoted in Travers 2007: 184). Given this perspective, it is hardly surprising
that Company agents and Council members were protesting the Court's decisions to
However extensive the formal power granted to the court, it was undercut by
factors that weakened the judges' ability to issue decisions that would be accepted by
the litigants, Indian elites more generally, and the East India Company. The greatest
handicap the justices faced was their complete ignorance of local laws, customs, and
languages. While the justices were well versed in English law and had a mandate to
extend that law to Britons in India, they were also instructed to apply it only "as nearly
as the Condition and Circumstance of the Place, and the Persons will admit of" (Letters
Patent, quoted in Travers 2007: 183). There had been considerable debate within
Parliament about the advisability of imposing British law in such a different social and
political context, and the result was a confusing mixture of judicial responsibilities: on
the one hand, the Court was to respect indigenous laws and customs, but on the other
they were to extend the protections of British law to anyone engaged in business with
the Company's agents, even if their rulings went against the Company's interests.
Given the background of the judges, it is hardly surprising that they chose to emphasize
the latter rather than the former. Two well-known and extremely controversial cases
The first case, which has become known as the Patna Cause, involved the Court
in an inheritance dispute between the widow of the property holder and his nephew
(Benton 1999). The indigenous Muslim law officers who had initially heard the case in
Patna had ruled for the nephew. The Court claimed appellate jurisdiction on the
grounds that the nephew was a Company employee and overturned the decision. In
the original charter, they rejected the Muslim law officers' bases for their decision, and
they invoked "universal reason, natural law, and common sense to see [them] through
to an area of jurisdiction beyond the usual remit of English law" (Travers 2007: 198). In
a single case, Impey's Court went beyond the English settlements to Patna, overturned
Company-appointed indigenous legal officials, and adjudicated a case in which the East
India Company was not a direct party. The Court's actions in the Patna Cause became
a critical component of the Company's case against the Court's jurisdiction in their later
petition to Parliament.
The second case is perhaps the most famous case in the legal history of the
British Raj and comprised the main part of the impeachment case against Hastings.
The case of Nandakumar (Nuncomar in the terminology of its time) has been
exhaustively debated, from just after the decision, through Hastings' trial, to Macaulay’s
Marshall 1965, Noorani 2005). The anthropologist Nicholas Dirks has recently
American and British decisions to go to war in Iraq (Dirks 2006). It is far outside the
scope of this paper to revisit these debates; whether Nandakumar was the victim of
"judicial murder" is still a subject of contention. We instead draw attention to the crime
for which he was convicted, that of forgery. Impey's and the Court's grounds for
executing Nandakumar were forgery with intent to defraud. But while forgery was still a
capital crime in Britain, it had traditionally been treated with much more lenience in
Indian law. Therefore, even if we do not believe that Impey convicted and
hanged
Nandakumar in order to help his friend Hastings, he certainly imposed a sentence that
These and other cases in which the Company was either a party, such as the
Kasijora case (Pandey 1967, Sen 2006), or in which the Company's allies were losing
cases, led the Supreme Council, individual members of the Company, and Indians to
petition Parliament to change the jurisdiction of the Court (Touchet Committee, 1781).
Impey himself narrowly escaped being impeached by Parliament, and the Court's
jurisdiction over the Company was sharply circumscribed in the Judicature Act of 1781.
Ironically, however, many of the judicial reforms that Impey and Hastings sought to
implement were eventually carried out: the integration of the country and town courts,
the increasing application of English common law, and the extens ion of jurisdiction to
The conflicts between the Company and the Court and the subsequent
intervention of Parliament seem almost inevitable given the ambiguities both in the
Court's mandate and the preferences of Parliament. British political actors were
seeking to regulate the Company through the Court, but they wanted above all for the
Company to be solvent, productive, and prosperous. The Court, on the other hand, was
made up of judges who saw their role as that of bringing English common law to a
lawless and corrupt people, and they included Company agents in those categories.
When it became clear to Parliament that the Court's rulings were likely to inhibit the
Company's ability to strengthen and extend its political and economic reach, the choice
was to constrain the Court rather than the Company. Could the Court have employed
more wisdom and prudence in its decisions? Without question, but had it deferred too
much to the Company's wishes, the Court's own authority would have been
compromised. If we assume that Chief Justice Impey was a corrupt judicial officer who
took every opportunity to exceed his authority and help his friends, then the explanation
becomes simple. If we assume that he was sincerely and lawfully following what he
choice: The Court could draw on British law and make decisions that infuriated the
The Federal Court was established through provisions of the British Parliament’s 1935
Government of India Act and issued judgments from 1938 to 1950. The last three years
of its tenure are difficult to categorize because there was no constitution in place in
1947 after the partition of India and Pakistan at Independence. Therefore, 1947 marks
the end of the relationship of the Federal Court with the regime that created it, as well
as the departure of the last British Chief Justice, Sir Patrick Spens.
The reign of the Federal Court has been perceived to be one of a weak court that
the Court does not support the conventional wisdom: in nearly one-half of the
decisions in which the government was a party, the Court failed to side with the
government (Darnell and Parikh 2006: Table 1). To understand the Federal Court's
relation to the central government and why it challenged the authority and power of the
institutions that created it, we need to explore a complex set of issues. We identify
sources of institutional weakness and bases for conflicts with other branches of
government by examining the terms of its creation, the interests of those creators, the
The Federal Court faced a number of constraints and ambiguities from its
inception. The Act of 1935 was designed to provide a framework in which Indians and
colonial rulers governed together (although not equally ). Passed by the British
Parliament and implemented by the Government of India, it was not the creation of an
indigenous democratic regime. The establishment of the court had been discussed
extensively at the All-Parties’ Round Table Conferences, which brought together all the
organizations, ethnic and religious groups, and princely states in order to develop a
new institutional framework to govern India (Moore 1974, Parikh 1997). While the
outcome of the conferences was inconclusive, the debates were sophisticated and
wide-ranging, and the 1935 Act incorporated many of the suggestions raised there
The introduction of a Federal Court at the apex of the Indian judicial system was
a response to a new political configuration that joined British India with the nominally
independent princely states. But the history of the judicial administration of the British
Raj dated from the early days of the British presence in India and preceded formal
colonial rule by nearly a century. It had clear judicial and institutional ties to the courts
created by Parliament in the late 1700s. In its rulings, the Federal Court made attempts
to expand its jurisdiction throughout the subcontinent and continued previous efforts to
dispense decisions based on English common law, Hindu law, and Islamic law.
The Court was grafted on to the existing judicial system above the long-
established High Courts in the provinces. Indeed, the prestige of the High Court system
produced opposition to the idea of the Federal Court, with many of the sitting High Court
judges fearing that the new court would undermine their prestige. They argued that the
existing system, in which cases appealed at the High Court level were sent on to the
Privy Council in England, could be adapted to suit the new circumstances. However,
the forces that supported the new court prevailed, and the provisions of the 1935 Act
empowered a Federal Court at the apex of an integrated judiciary. The Court was
intended to have a very limited jurisdiction. Under the terms of the Act, British India was
established as a federation for the first time; until then, provinces had had bilateral
relations with the central Government of India, but they had not been statutorily
connected to each other. The princely states were not required to be members of the
federation, but provisions for their voluntary inclusion were set forth. The very name,
Federal Court, reflects the decision of the British government to avoid establishing a
The Federal Court had carefully delineated areas of original, appellate, and
advisory jurisdiction. The scope of its original jurisdiction seems fairly expansive at first
the Federal Court shall ... have an original jurisdiction in any dispute between any
two or more of the following parties, that is to say, the Federation, any of the Provinces
or any of the Federated States.
However, the Act goes on to stipulate restrictions on this jurisdiction which take up more
room than the previous section, and which feature the following clause: “The Federal
Court in the exercise of its original jurisdiction shall not pronounce any judgment other
than a declaratory judgment.” The Court’s original jurisdiction ''was to cover the
minimum grounds of dispute in a federation ... Nevertheless, ... [it] was certainly in
Parikh & Darnell 16
conformity with the position of such a court as the sole defender of the federal compact''
(Pylee 1966, 106). Significantly, the stipulated jurisdiction of the Court bound only the
British provinces; the princely states were not required to subject themselves to its
jurisdiction.
The enumerated aspects of the Court's appellate jurisdiction appeared, like its
original jurisdiction, to be quite extensive at first glance. It was given the power to
consider on appeal any civil or criminal case that involved a ''substantial question of law
as to the interpretation of the Constitution Act [of 1935]'' (Pylee 1966, 110). And the
lower and High Courts were to consider its decisions as binding on them. But this was
a less extensive grant of appellate power than it first appeared. Once again, the
princely states were not required to adhere to its rulings, and the provincial courts were
only bound insofar as the particulars of the case fell under the provisions of the Act of
1935. Indeed, the British government expected few cases to arise this way (Linlithgow
papers, IOLR). As we shall see, however, both litigants and the Court expanded their
reading of relevance under the Constitution Act to develop a jurisdiction that was broad
Finally, the third arena of jurisdiction was the obligation of the Court to provide
Federal Legislatures. This was expected to be infrequently used, but it was included in
the expectation that a new constitution would occasionally give rise to ambiguities in
pending legislation.
Not surprisingly, the Federal Court was confronted with a number of problems in
establishing its authority. First, it met some resistance as a new judicial institution from
the High Courts and had to assert its autonomy in relation to them. Second, it did not
have universal jurisdiction on two fronts: princely states were not obligated to submit to
its rulings and its role relative to certain aspects of the Government of India was only
Parikh & Darnell 17
advisory. Finally, the tenure of individual justices was generally brief given the criteria
for being a justice. No member of the court was likely to serve more than a few years
due to the mandatory age retirement provision, and talented Indian justices could be
Several lines of potential conflict existed during the era of the Federal Court,
including the composition of the justices and the substantive issues of the cases before
the Court. Unlike the judges on the Supreme Court of Judicature, the justices who
comprised the Federal Court combined longstanding ties to the British Raj with a deep
knowledge of Indian legal institutions. The first Chief Justice, Sir Maurice Gwyer, was
probably the most distinguished British jurist serving in India, and at the time of his
appointment he was Chief Justice of the Calcutta High Court. The first Muslim
associate justice, Sir Shah Suleiman, was Chief Justice of the Allahabad High Court for
six years, and the Hindu associate justice, M. R. Jayakar, was a leading Indian lawyer
who had been elected to the Bombay Legislative Council and the Bombay Legislativ e
Assembly as a member of the Swaraj Party and the Nationalist Party respectively.
Later appointments were also distinguished, although by the middle and late 1940s the
Governor-General and the Secretary of State both complained about finding qualified
British candidates in the waning years of the Raj (Wavell collection, IOLR). The Indian
judges continued to be selected from the High Courts of the provinces, and the last
Indian justices of the Federal Court became the first justices of the new Supreme Court
in 1950.
Many members of the judiciary in India, particularly those in the High Courts,
prided themselves on remaining above politics. The British judges, not surprisingly, saw
themselves as agents of the Raj who were responsible for administering the rule of law
in British India. But even Indian judges tended to avoid politics, or to embrace a
moderate or conciliatory brand of politic al participation that frequently drew scorn from
the left wing of the Indian National Congress and from strong nationalist and radical
Parikh & Darnell 18
political actors (Dhavan 1977). These attributes meant that the Federal Court judges
were perceived by both the British and Indian political leaders as conservative, removed
from the heated politics of the independence period, and unlikely to be legal innovators.
On the one hand, this perception provided a sense of relief to the British, who relied on
the courts to support their efforts to quash the independence movement; on the other
hand, there were reservations concerning the Chief Justice's commitment to the British
dominance because of his adherence to civil and individual rights in India. The latter
suspicion was reinforced by Gwyer's stated belief that it was the court's “duty to
administer the law as it is and not to seek to change it into what we may think it ought to
be. . . . [and] that there is no attempt to interfere with the independence of the judiciary
and the open and upright administration of justice” (Gwyer n.d.: 177).
The Court adhered to its mandate to hear only cases having to do with the
constitutionality of existing and new laws. And given that the Court turned down as
Court grasped at every case that had a constitutional question in order to increase the
number of decisions it made. But the Court's support of civil liberties arguments brought
it into direct conflict with the Government of India, most often in cases that involved the
Defence of India Act. The Act had been promulgated by the Government in the early
1940s as a wartime necessity to maintain order and crush sedition, and in this case
sedition included the civil disobedience of the Quit India movement. The Government
had argued that national security in wartime overrode civil liberties protections. But in
its first case challenging a provision of the Defence of India Act, the Court unanimously
ruled against the Government ( Keshav Talpade v. King Emperor , 30 AIR 1943). In
another case, ( Niharendu Dutt Mazumdar v. King Emperor , 29 AIR 1942), the Court
held that the speech of the appellant did not meet the definition of sedition under the
act. The Government was infuriated by these decisions, but it accepted them and
Parikh & Darnell 19
amended the relevant parts of the Defense of India Act where possible (Linlithgow
papers, IOLR).
challenging the Court in the first civil liberties cases. In 1943, however, when its first
Chief Justice reached retirement age, the government chose a new British Chief Justice
who was more likely to vote in their favor: Sir Patrick Spens was a respected judge, but
he had never spent time in India and unlike his predecessor, he had no particular
attachment to the place or its institutions. He was frequently dissented from the majority
in civil liberties cases, and his position made it easier for the Government to take cases
it lost in the Spens Court to the Privy Council rather than allowing the Federal Court
We have characterized the Federal Court as an institution that did not shy away
from overruling the Executive, but it is important to note that the Court ruled for the
Government slightly more often than it ruled against. In addition, it upheld much of the
new legislation passed by the provincial and central legislatures and it regularly affirmed
the legislatures’ rights to a wide scope of authority. We cannot argue, therefore, that
the Court grasped at every case that might allow it to assert itself over the executive.
But it clearly used individual rights cases to signal the importance of the civil liberties
provisions of the Government of India Act, even in the face the Government’s assertions
The Federal Court's history reveals several conditions that converged to create a
confrontational relationship with the government that created it. Faced with an
institutional structure that had some significant weaknesses, some British and most
Indian justices were prepared to be assertive in order to promote and protect the
authority of the Court, especially in with respect to those aspect of the law that they
deemed most important. These facets of law, however, were in areas the British
wanted maximum authority because of its importance to their ability to maintain political
Parikh & Darnell 20
stability and control in India. In contrast to the choice of Parliament in the late 18th
century, however, the British government did not alter the Court's jurisdiction to
constrain it. Instead, it used the power of appointment to ensure that the next Chief
The Supreme Court of India came into being when the Constitution of India was
adopted in 1950, and like the courts discussed previously, it faced institutional
limitations that justices had to confront in order to assert the authority of the Court.
Structurally, the provisions for the judicial branch of government are taken almost
verbatim from the Government of India Act. It is unclear why the Congress party, which
was frequently dismissive of colonial institutions, was willing to adopt so thoroughly the
colonial judicial system. Perhaps because the courts and their judges played little role
The potential for conflict with the Government was further forged by following in the
steps of the Federal court in continuing to protect and advance individual and civil rights
against the spread of Government control. Indeed, in the early years of the Supreme
Court, some justices viewed the prime role of the Court to be the protector of the
Constitution.
When the delegates to the Constituent Assembly took up the judicial provisions
of the constitution, they were concerned with creating an autonomous judiciary that
would command respect. But they also wanted to forestall a Supreme Court that would
1 The career of Justice Gwyer is worthy of much more attention than it has received; in the course
of less than a decade Gwyer went from being the preeminent legal counsel of the Government of India to
a problematic civil servant who had "gone native" and was a source of regular annoyance to the Viceroy
and the Secretary of State for India (Linlithgow papers, IOLR).
Parikh & Darnell 21
impede the Parliament in its efforts to direct Indian economic, social, and political
development. The result, in Austin's elegant phrase, was that they “created an idol and
then fettered at least one of its arms” (Austin 1966: 174). The requirements for passing
with a comfortable majority in Parliament. For cases that did not involve state-level
as long as more than half the members were present. If state-level issues were at
stake, then half the state governments also had to pass the amendment. That this
process has been fairly easy to achieve can be seen from the number of constitutional
amendments passed in less than fifty years (currently more than eighty).
In addition to the political constraints, legal norms and rules specific to the court
as a political institution further limited its ability to develop strong and sustained
Indian common-law tradition, Parliament has the right to delegate the power to pass and
administer legislation to central and state administrative agencies and to state and local
contradictory to the statute authorizing it, or “repugnant to the general law” (Sarathi
1981: 399). Even more constraining is the related doctrine of “subjective satisfaction.”
Under this norm, the agent is given enormous discretion to choose how legislation is to
the formula of subjective satisfaction] has been laid on the amplitude of the
discretionary power rather than on the need to relate it to the purposes of the Act”
(Dhavan 1977: 239). The only recourse available under statutory review is if the agent
has intentionally and on mala fide grounds misinterpreted the legislation. The Indian
court has used this last option with considerable ingenuity to develop a pattern of review
Parikh & Darnell 22
based on the argument that any interpretation that fails the ultra vires test “is in fact a
mala fide exercise of power” (Dhavan 1977: 237), but the strategy has inherent limits.
The Supreme Court’s jurisdiction followed closely the provisions laid down for its
predecessor. It was granted the explicit power of judicial review, and it had original,
appellate, and advisory jurisdiction. Unlike the Federal Court, however, the Supreme
Court’s caseload was heavy from the outset. The Court has no tradition of certiorari ,
but must take every case present and act upon it. While it disposes of many cases
without comment, hundreds of decisions are officially reported, and the majority of
reported cases have written judgments. While the court is allowed some discretion in
when it decides to rule on a case, in theory it must rule upon them all at some point.
This means that Indian judges have far less ability to pick and choose cases that suit
confrontations. Supreme Court justices, for example, also function as trial court judges
much of the time. Additionally, the size of the court works against collective action. The
Court was initially established with eight justices, but justices were added regularly from
the mid-1950s, until today’s full bench of twenty-six was reached. The bench system
allows routine cases to be disposed with two- and three-judge panels, but cases with
constitutional import must be heard by a minimum of five justices, and cases that
overturn previous Supreme Court decisions must be heard by a larger bench than the
original case. The largest bench ever convened was made up of the thirteen judges
In brief, the structure of the institution imposed limitations on its ability to assert
undermine the Court's oversight of legislation and its implementation. Their options as
to cases are also limited because of the requirement to take all cases that fall in its
The Court, however, did rule against the Government, even though opposition to
the Government's position was not as frequent in the early years of the Supreme Court
as was the case for the Federal Court. The latter ruled against the colonial government
far more often than the Supreme Court ruled against the Congress Party government.
Nearly half the Federal Court’s decisions rejected the government’s argument, while
less than a third of the Supreme Courts decisions went against the government.
Despite the conventional wisdom that the Federal Court was relatively weak and
ineffectual while the Supreme Court was aggressively obstructionist, this position is not
supported by a simple numerical tally; we would have to argue that the cases in which
the Supreme Court rejected government positions were somehow more important than
those it upheld. It is hard to argue that a Court that rules with the government two-thirds
of the time (Darnell and Parikh 2006: 25) insists upon challenging the executive, but this
view is widely held. The interpretation is understandable because, as in the Courts that
preceded the Supreme Court, the nature of the cases in which it opposed the
The first critical case heard by the Court was A. K. Gopalan v. State of Madras
(1950 (1) SCR). Gopalan was a Communist who had been repeatedly jailed under the
Preventive Detection Acts for speech that was allegedly threatening. He challenged his
detention, arguing that it violated his fundamental rights as provided by the new
constitution.
The Preventive Detention Act had an interesting legislative and policy history.
The colonial government had issued Preventive Detention (PD) provisions during World
War II and the Indian National Congress had repeatedly denounced the government for
them. The Federal Court’s rulings against PD policies in the early 1940s wer e among
the few cases that helped them find favor with the Congress. But in the tumultuous and
violent period that characterized independence, Congress was now the party in
government and found that PD was a convenient tool. The PD Act before the Supreme
Parikh & Darnell 24
informed of the reasons for their detention. While there were provisions for an advisory
board to review the legitimacy of the detention, the government was not required to give
the board the reasons for detention, and the board’s recommendations were not
binding.
wrote a separate opinion, and the majority upheld certain provis ions of the PD Act while
invalidating others. It did not declare the Act itself unconstitutional, but it ruled that the
withholding of the reasons for detention and the failure to give the advisory board
authority over its legitimacy violated the fundamental rights clauses of the constitution.
Government leaders were nonetheless displeased with the Court. While they agreed
that PD should only be used in cases of security and threats to the nation, they were
loath to give up their ability to decide what constituted security and when information
about detenus should be offered (Austin 1999). The Act was amended to take account
of the Supreme Court’s ruling in 1950 and in successive reenactments, but the essential
The Gopalan case is noteworthy because the Supreme Court was seen by the
government as challenging its authority even as other observers criticized the Court for
being insufficiently protective of fundamental rights and failing to strike down the Act in
its entirety (Austin 1999). In the land reform and compensation cases, the Court went
farther, and found itself in a battle with the executive over which branch was the
Among the most important policy initiatives put forth by the Congress
advocacy of a “social revolution” and socialist policies led to the policy of “zamindari
abolition,” where large absentee landlords, or zamindars, would have their land seized
and (in principle) redistributed to the people who actually worked it. Congress also
Parikh & Darnell 25
challenged these efforts in the Supreme Court as violations of their fundamental rights,
and the Supreme Court ruled against the government in several of these cases.
Like the PD case, land reform and compensation cases posed a problem for the
government. On the one hand, the redistribution of land and the public ownership of
property was critical to the Congress vision of socialist economic and political
the constitution. The ongoing confrontation that resulted between the executive and the
judiciary led to a debate over who had the ultimate authority over constitutional
interpretation. Nehru asserted that Parliament, not the Supreme Court, has the “duty to
see whether the Constitution so interpreted was rightly framed and whether it is
desirable to change it ... to give effect to what really ... was intended or should be
intended” (quoted in Austin 1999, 87). As for the challenges to fundamental rights, he
remarked, “inevitably in big social changes some people have to suffer” (Austin 1999,
87-8).
The Court took a different view. In a series of cases it upheld the individual’s
compensation. The government passed legislation overriding the decisions, and the
Court in turn consistently responded by issuing narrower but equally negative decisions.
The resulting interbranch debate was not fully resolved until 1980 and put the Court in
institutional jeopardy during the Indira Gandhi administration. During this period the
Court lost considerable public prestige because Nehru and the Congress party were
successfully able to portray it as elitist and out of touch with popular needs (Rudolph
and Rudolph 1987). The Court, on the other hand, considered itself to be protecting an
essential part of the constitution, even as some justices worried about challenging the
government.
Parikh & Darnell 26
The oppositional character of the early Supreme Court was grounded not in the
sheer numbers of cases they rule against the Government, but instead resided in the
Court's efforts to constrain the Government's efforts to amass power. They challenged
principles (Galanter 1984), and since the language had been written and approved by
Congress party leaders the latter were put into a difficult position. The Government, in
turn, viewed the Court as obstructionist to resolving the need for economic and social
change that were necessary for the country's development. But the constraints they
imposed on the Court took the form of piecemeal responses, as policies were
repeatedly taken out of the realm of judicial review but judicial review itself remained
intact (until Indoor Gandhi’s 1971-77 term). When the Janata government that followed
the Emergency period restored judicial review, the Court in turn offered a compromise
response in the Minerva Mills decision, in which it removed the right to property from the
list of fundamental rights. Since that time, the Court has found other avenues, most
notably public interest litigation, through which to reinforce its authority and extend its
power.
Conclusion
The three cases discussed in this paper have illustrated the conditions under which new
courts attempt to fortify and enhance their power and authority. New courts take risks in
order to establish their legitimacy and issue decisions that are unpopular with other
advantage. Rather than waiting until they are more established and safer, courts
confront the preferences of other branches directly. It is difficult to call this behavior
“strategic” in the SOP model’s sense, because judges cannot easily calculate the
probability of success or failure. But the consistency with which judges confront
executives with specific types of cases, most notably civil liberties and habeas corpus
Parikh & Darnell 27
(Sen 2006), suggests that they select intentionally among the range of cases available
to them. Since all three courts had both appellate and original jurisdiction, they had a
wide range from which to choose, even the Supreme Court of Judicature, and the
A second finding that deserves further research and scrutiny is the way in which
here, only one, the 18th-century British Parliament, substantially altered the jurisdiction
and composition of the Supreme Court in response to its decisions. Neither the late
colonial nor the early independent governments (with the eventual exception of Indira
Gandhi’s government) went as far, instead working within the available channels of
response. It is somewhat surprising that the British government supported the Federal
Court despite outrage at the Preventive Detention decisions. But the government was
and if the British undermined a key institution, the door was opened for the Indian
National Congress and the Princely States to challenge other provisions. A few years
later, when the Attlee government had committed to withdrawal, the colonial
preferences and interests of actors from both branches. Conflict is not inevitable, but
the greater the distance between the goals of the executive in creating the court and the
goals of the judges in establishing their authority and legitimacy, the more likely it is that
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