The rise of judicial sovereignty

Journal of Democracy

Volumn 18, Issue 2, 2007, Pages 70-83

  Mehta, Pratap Bhanu ^a  

^a CENTRE FOR POLICY RESEARCH   (India)

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EID: 34248361584     PISSN: 10455736     EISSN: None     Source Type: Journal    
DOI: 10.1353/jod.2007.0030     Document Type: Review

References (17)

1. India's courts by and large fit into a single three-tiered system, with the Supreme Court at the apex. Each state has a High Court, with District Courts below it. The Supreme Court, established in 1950 as a successor to the Federal Court, has broad powers. Under Article 131, it exercises original jurisdiction in cases involving the government and appellate jurisdiction in a variety of cases. Under Article 132, it rules on cases involving constitutional interpretation; under Article 133, it exercises jurisdiction over civil cases that involve a substantial question of law with general importance. In addition, it is an appellate court for some criminal cases, has the power to grant special leave to appeal, has writ jurisdictions over questions of fundamental rights, and has the authority to issue advisory opinions. The High Courts act as courts of first and second appeals in civil matters; in addition, they have extensive writ jurisdiction and act as superintendents for subordinate courts.
2. The warrant for judicial review comes from a combined reading of Articles 13, 32, and 142. Article 13(2) provides that "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void." Articles 32 and 226 give any person the right to move the Supreme Court or the High Court, respectively, for the enforcement of fundamental rights guaranteed in Part III of the Constitution. Finally, Article 142 provides that the Supreme Court "may pass such decree or make such order as is necessary for doing complete justice in any cause or matter," and such decree or order is "enforceable throughout the territory of India." Article 142, especially the phrase "complete justice," has given the judiciary a virtual license to intervene in any matter whatsoever. In addition to these textual enablers, the Court has over the years created its own powers in a number of domains.
3. At the same time, however, the Court's thwarting of the government was not absolute: The justices tended to uphold the state's preventive-detention orders.
4. Different parts of the Constitution can be amended in three ways: 1) by a simple majority of all members of Parliament present and voting; 2) by a two-thirds majority of Parliament subject to a quorum requirement of 50 percent; and 3) by two-thirds vote of Parliament as above, followed by ratification via a two-thirds vote of at least half the state legislatures. In each case, presidential assent is required before an amendment can become law.
5. ADM Jabalpur v. Shivakant Shukla AIR 1976 SC 1207.
6. See S.P. Gupta v. Union of India and Others (First Judges Case) AIR1982 SC149; 1981 Supp(1)SCC87;
7. Supreme Court Advocates-On-Record Association and Anr. v. Union of India AIR1994; SC268; (1993) 4 SCC 441.
8. P.A. Inamdar and Others v. State of Maharashtra AIR 2005 SC 3226; (2004) 8 SCC 139.
9. Golak Nath and Others v. State of Punjab and Anr. AIR 1967 SC 1643.
10. Keshavanda Bharati and Others v. State of Kerala AIR 1973 SC 1461; (1973) 4 SCC 225.
11. Kuldip Nayar v. Union of India and Others W.P. (C) Nos. 217, 262, 266, and 305 of 2004 JT 2006 (8) SC 1 (not yet published in AIR or SCC).
12. S R Bonmai v. Union of India (1994) 3 SCC 1.
13. For a statement of this view, see John Ferejohn, "Law, Legislation and Positive Political Theory," in J.S. Banks and Eric Hanushek, eds., Modern Political Economy: Old Topics, New Directions (Cambridge: Cambridge University Press, 1995), 208.
14. Ralph Lerner, "The Supreme Court as Republican Schoolmaster," Supreme Court Review 1967 (Chicago: University of Chicago Press, 1967), 127-80.
15. Learned Hand, "The Contribution of an Independent Judiciary to Civilization," in Irving Dillard, ed., The Spirit of Liberty: Papers and Addresses of Learned Hand, 3rd ed. (New York: Alfred A. Knopf, 1960), 181.
16. Upendra Baxi, "Introduction" to S.P. Sathe, Judicial Activism in India (Oxford: Oxford University Press, 2001), 3.
17. Learned Hand, "The Spirit of Liberty," in Dillard, The Spirit of Liberty, 190.