Skirmishes between the Court on the one hand and the Executive or the Legislature on the other hand are not unknown. The Judiciary is often considered the custodian of the Constitution – to the protest of the elected. Scholars, some scholarly politicians and most politicians have termed the power of the judicial organ as the "tyranny of the unelected". Yet, over the years, history...
Skirmishes between the Court on the one hand and the Executive or the Legislature on the other hand are not unknown. The Judiciary is often considered the custodian of the Constitution – to the protest of the elected. Scholars, some scholarly politicians and most politicians have termed the power of the judicial organ as the "tyranny of the unelected". Yet, over the years, history and experience show that the legitimacy of the judicial organ is akin to the legitimacy of the rule of law – the legitimacy of the Constitution.
After the unanimous decision of the Supreme Court of the United States in Marbury[2] penned by Chief Justice Marshall, President Thomas Jefferson, in correspondence with Abigail Adams[3] lamented that "the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves, in their own sphere of action, but for the legislature & executive also, in their spheres, would make the judiciary a despotic branch."[4] At that time, Chief Justice Marshall's judgment in Marbury sent shock waves across the spectrum – for a powerful and independent judiciary was believed to be an anathema to a democracy. After Chief Justice Marshall's decision in Worcester[5] - where the Court struck down Georgia's legal system qua the Cherokees as being repugnant to the Constitution – President Jackson reportedly remarked "John Marshall has made his decision, now let him enforce it."[6] He even sent troops to evict the Cherokees and defeat the enforcement of the Court's decision.[7] In the early days of the long Presidency of Franklin Roosevelt, having to deal with the Great Depression, he initiated the New Deal legislations. However, much to his dismay the Court began striking down legislation. So he wanted to pack the Court. After the failure to launch the Judicial Reforms Procedure Bill, 1937 – whereby President Roosevelt sought to increase the number of Justices on the Bench to ensure that his New Deal legislation were not defeated – President Roosevelt was able to fill the vacancies on the Bench. Although the Court Packing plan failed, he was able to control the Court.
Soon after our Constitution was enacted and given to ourselves, the Indian Judiciary and the Executive fell on the different sides with regard to the Land Reforms agenda of the Government as against the fundamental right to property guaranteed by Part III of the Constitution. The judgment in Kameshwar Singh[8] holding the Bihar Land Reforms Act to be in violation of Articles 14 and 31 of the Constitution was a big blow. Reportedly, Prime Minister Nehru furiously remarked that "(i)f the Constitution is interpreted by the Courts in a way which comes in the way of the wishes of the legislature in regard to basic social matters, then it is for the legislatures to consider how to amend the Constitution so that the will of the people as represented in the legislature should prevail."[9] The result was a unique Schedule to the Constitution – to immunize certain laws from the rights guaranteed in Part III of the Constitution. In other words, the Ninth Schedule saved laws from the Constitution. The continuous inclusion of legislation in the Ninth Schedule had often been agitated before the Supreme Court up until Golak Nath[10], when a majority led by Chief Justice K. Subba Rao held that the Constitution could not be amended to take away or abrogate rights guaranteed in Part III of the Constitution. Parliament attempted to undo Golak Nath – as Prime Minister Nehru had prophetically said three decades prior – with the 24th Amendment to the Constitution. The struggle for the supremacy between the Court and the Legislature was far from over. When the basic structure doctrine was first propounded in Kesavananda Bharati[11], it met with criticism from several quarters. They argued that it was not reflected in the text of the Constitution, and that the judgment was a road block to the socio-economic programmes of the Government. The immediate aftermath of the Kesavananda Bharati was the suppression of Judges not holding a view favouring the Government. Conceding to the basic structure doctrine in the Indira Gandhi[12] resulted in the striking down of the unfortunate 39th Amendment to the Constitution – perhaps one of the finest hours of the Court during the gloom of the Emergency. But the Government did not stop there. Within days of the judgment in Indira Gandhi, an attempt was made to review the judgment in Kesavananda Bharati and the basic structure doctrine. Even after the review was aborted by an embarrassed Chief Justice, the infamous 42nd Amendment sought to add clause (5) to Article 368 – the purpose of which was "For the removal of doubts" about the lack of limitation on the constituent power of Parliament to amend the Constitution. It was only with the end of the Emergency and the subsequent General Elections that drew the curtains on the battle for supremacy between the Court and the Executive with the authoritative reiteration of the basic structure doctrine in Minerva Mills[13].
More recently, in the United Kingdom, when the British Parliament was prorogued by the Queen after a deadlock on Brexit, the Supreme Court declared that Parliament had not been prorogued. It was in a challenge brought by Gina Miller[14]. Pertinently, the Court held that it was not precluded from considering the validity of the prorogation by Parliamentary Privilege. In this battle of Parliament on one side and the Executive on the other, the Court cast the die in favour of Parliament, and upheld the accountability of the Executive Government to the British Parliament. While the Executive was fiercely critical of the decision, they did abide by it – as informed to the Supreme Court. Prime Minister Boris Johnson did however declare in the House that he thought that the Supreme Court "was wrong to pronounce on what is essentially a political question."[15] Pertinently, the Prime Minister Johnson accepted the judgment of the Court – even though he thought it was wrong.
In a democratic polity governed by the Rule of Law, it is quintessential that the authority of the Court not be challenged. Like Prime Minister Johnson, Vice President Al Gore accepted the verdict of the Supreme Court in Bush v. Gore[16] and told his supporters to not attack the legitimacy of the Supreme Court[17] - even though the effect of the decision of the Court was to hand over the Presidency to George W. Bush. Likewise, even though abortion rights are a deeply emotive issue in the United States, for the almost half a century that Roe v. Wade[18] stood, the Legislatures and the Executive respected the decision of the Court – even though the conservative politicians voiced their opinion of how horribly wrong the judgment was. It was only by the constitutional process that Roe was overruled earlier this year in Dobbs[19] - which also faced severe criticism and protest – but not disobedience. Neither the basic structure doctrine nor the reading of the due process clause into Article 21 came naturally to our Supreme Court. In the early days, the Court refused to determine limits on the amending power of Parliament[20] or read the due process clause into Article 21[21]. It was only due to constitutional exigencies that Court reversed its original stand. And both these have become a part of our constitutional ethos, and are here to stay. Criticism of a view taken the Court on the meaning of the Constitution is one thing – but a challenge to the very legitimacy of the decision of the Court is quite another. While the former is welcome in any democratic polity, the latter is a threat to the Rule of Law, and thus a threat to the Constitution itself.
The author is an Advocate on Record, the Supreme Court of India.
[2] Marbury v. Madison, 5 U.S. 137
[3] Abigail Adams was the wife of President John Adams.
[4] Cliff Sloan & David McKean, The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court, Public Affairs, New York, 2009, Page 168
[5] Worcester v. Georgia, 31 U.S. 515
[6] Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries That Defined America, A Holt Paperback, New York, 2007, Page 67.
[7] Stephen Breyer, Making Our Democracy Work: A Judge's View, Vintage Books, New York, 2000, Page 70
[8] Kameshwar Singh v. State of Bihar, AIR 1951 Pat 91
[9] As quoted in Tripurdaman Singh, Sixteen Stormy Days: The Story of the First Amendment to the Constitution of India, Vintage Penguin Random House, 2020, Page 102
[10] I.C. Golak Nath v. State of Punjab, (1967) 2 SCR 762
[11] Kesvananda Bharati v. State of Kerala, (1973) 4 SCC 225
[12] Indira Gandhi v. Raj Narain, 1975 Supp SCC 1
[13] Minerva Mills v. Union of India, (1980) 3 SCC 625
[14] R (Miller) v. The Prime Minister, [2019] UKSC 41
[15] As quoted in John Bercow, Unspeakable: The Autobiography, Weidenfeld & Nicolson, 2020, Page 8.
[16] 531 U.S. 98
[17] Stephen Breyer, Making Our Democracy Work: A Judge's View, Vintage Books, New York, 2000, Page 70
[18] Roe v. Wade, 410 U.S. 113
[19] Dobbs v. Jackson Women's Health Organization, 597 U.S. ____
[20] Shankari Prasad Singh Deo v. Union of India, 1952 SCR 89
[21] A.K. Gopalan v. State of Madras, AIR 1950 SC 27