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The Struggles of the Indian Constitution in the Face of Autocratic Legalism: Constitutionalism at Crossroads?

Published online by Cambridge University Press:  01 January 2025

Shameek Sen  and
Shouvik K Guha Open the ORCID record for Shouvik K Guha [Opens in a new window]
Shameek Sen
Affiliation:
The West Bengal National University of Juridical Sciences, Kolkata, India
Shouvik K Guha
Affiliation:
The West Bengal National University of Juridical Sciences, Kolkata, India
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Abstract

In this article, we seek to delineate the nature of India’s ongoing constitutional struggles against a grave crisis, considering the threat that such crisis poses to the functioning of the country’s constitutional democracy. Using the acceptable definitive models of such a crisis, we then try to examine the extent to which India’s constitutional struggle might have been necessary in order to confront such a crisis. The role played by the deliberate usage of the legal and prima facie constitutional routes to render the very spirit and safeguards of the constitutional system redundant, or the concept of autocratic legalism, as a singular symptom displayed by such a crisis, is focused upon in this context. We draw analogies from multiple jurisdictions with myriad political legacies, including the USA, Poland, Hungary, Turkey, Russia and the Latin American nations. Increasing the judicial burden to cripple the adjudicating machinery; appointment of judges exhibiting specific political inclination; emergence of a charismatic political leader commanding mass support — the potential impact of these factors on liberal constitutionalism is examined. The article delves into the Indian narrative, citing instances from the past such as the Nehruvian legacy of superseding the judiciary as watchdogs of constitutional values, emergency and relevant constitutional amendments, as well as from the present, such as abrogation of special status of Indian states like Jammu and Kashmir, introduction of national population register and modification of citizenship norms, passing contentious legislation via the Money Bill route to avoid close scrutiny and constitutional debates, reservation on economic grounds and introducing new tax structures impinging on the federal relationship. We assess the role played by the Indian judiciary in each of these instances, along with instances of judicial (pro)activism, and their impact on the overall stability of the judicial institution.

Type
Special Issue (Part 2): Constitutional Struggles in Asia
Information
Federal Law Review , Volume 50 , Issue 3: Special Issue (Part 2): Constitutional Struggles in Asia , September 2022 , pp. 275 - 291
Copyright
Copyright © 2022 The Author(s)

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References

1. See Sanford Levinson and Jack M Balkin, ‘Constitutional Crises’ (2009) 157(3) University of Pennsylvania Law Review 707, 715.

2. Gautam Bhatia, ‘“A Little Brief Authority”: Chief Justice Ranjan Gogoi and the Rise of the Executive Court’, Indian Constitutional Law and Philosophy (Blog Post, 17 November 2019) <https://indconlawphil.wordpress.com/2019/11/17/a-little-brief-authoritychief-justice-ranjan-gogoi-and-the-rise-of-the-executive-court/>; The Constitution of India (the ‘Constitution’) art 142. For the complete text of Article 142, see below:

  • Article 142: Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.

  • (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

  • (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

3. See Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford University Press, 2011).

4. See Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (Cambridge University Press, 2016).

5. Krishnaswamy (n 3).

6. Gautam Bhatia, ‘Judicial Evasion, Judicial Vagueness and Judicial Revisionism: A Study of the NCT of Delhi vs Union of India Judgment(s)’ (27 June 2020) <https://ssrn.com/abstract=3637009>.

7. Kim Lane Scheppele, ‘Autocratic Legalism’ (2018) 85(2) University of Chicago Law Review 545.

8. C Raj Kumar, ‘Reasons Why the NJAC Act is Bad in Law’, The Economic Times (online), 3 May 2015 <https://economictimes.indiatimes.com/news/politics-and-nation/reasons-why-the-njac-act-is-bad-in-law/articleshow/47133370.cms?from=mdr>; Prashant Bhushan, ‘#NJAC Judgement is welcome, especially at a time when the government is seeking to control various independent accountability institutions’, Livelaw.in (online), 16 October 2015 <https://www.livelaw.in/njac-judgment-is-welcome-especially-at-a-time-when-the-government-is-seeking-to-control-various-independent-accountability-institutionsprashant-bhushan/>.

9. Editorial, ‘Scrapping J&K’s special status is the wrong way to an end’, The Hindu (online), 6 August 2019 <https://www.thehindu.com/opinion/editorial/scrapping-jks-special-status-is-the-wrong-way-to-an-end/article28827024.ece>; Karan Thapar and Faizan Mustafa, ‘Neither Abrogated Nor Removed: The Ploy Behind Centre’s Article 370 Move’, The Wire (online), 28 August 2019 <https://thewire.in/rights/neither-abrogated-nor-removed-the-ploy-behind-centres-article-370-move>.

10. Sushil Aaron, ‘CAA+NRC Is the Greatest Act of Social Poisoning By a Government in Independent India’, The Wire (online), 23 December 2019 <https://thewire.in/communalism/caa-nrc-bjp-modi-shah>; Citizens for Justice and Peace Team, ‘Why the CAA + NPR + NRC is a Toxic Cocktail for Everyone’, Citizens for Justice and Peace (online), 27 January 2020 <https://cjp.org.in/why-the-caanprnrc-is-a-toxic-cocktail-for-everyone/>.

11. Arvind P Datar and Rahul Unnikrishnan, ‘Aadhaar: The Money Bill Controversy’, Bar and Bench (online), 15 October 2018 <https://www.barandbench.com/columns/aadhaar-money-bill-controversy>; Alok Prasanna Kumar, ‘By Passing Aadhaar Act as Money Bill, Has the SC Saved or Sacrificed the Rajya Sabha?’ The Wire (online), 27 September 2018 <https://thewire.in/law/aadhaar-verdict-money-bill-rajya-sabha>.

12. C P Chandrasekhar, ‘The Great GST Impasse Threatens India’s Federal Structure’, The Wire (online), 31 August 2020 <https://thewire.in/economy/india-gst-tax-states-centre-federalism>; Ajitesh Kir, ‘The GST Council Is a Constitutional Crisis in the Making’, The Wire (online), 9 August 2020 <https://thewire.in/economy/the-gst-council-is-a-constitutional-crisis-in-the-making>.

13. Scheppele (n 7) 582.

14. Shubhankar Dam, ‘Chains of Command: With Federal Resistance to the CAA, Article 256 Prepares to Take Centre Stage’, The Caravan (online), 1 March 2020 <https://caravanmagazine.in/politics/article-256-with-federal-resistance-to-caa>.

15. See Tarunabh Khaitan, ‘Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India’ (2020) 14(1) Law and Ethics of Human Rights 49.

16. Alan Brinkley, ‘The Debate over the Constitutional Revolution of 1937: Introduction’ (2005) 110(4) The American Historical Review 1046.

17. Madhav Khosla, ‘With Freedom at Stake, Courts Are Collapsing’, The New York Times (online), 9 September 2020 <https://www.nytimes.com/2020/09/09/opinion/hungary-turkey-india-courts.html>.

18. Agence France-Presse, ‘Egypt Forces 32 Judges Who Opposed Removal of Morsi to Retire’, The Guardian (online), 29 March 2016 <https://www.theguardian.com/world/2016/mar/29/egypt-forces-32-judges-who-opposed-removal-of-morsi-to-retire>; ‘Poland: Witch Hunt of Judges Threatens Independence of Judiciary’, Amnesty International (Web Page, 4 July 2019) <https://www.amnesty.org/en/latest/news/2019/07/poland-witch-hunt-of-judges-threatens-independence-of-judiciary/>.

19. Carlotta Gall, ‘Erdogan’s Purges Leave Turkey’s Justice System Reeling’, The New York Times (online), 21 June 2019 <https://www.nytimes.com/2019/06/21/world/asia/erdogan-turkey-courts-judiciary-justice.html>.

20. Andrew Roth, ‘Russia: New Law Allows Governors to Be Appointed, Undoing Reform’, The New York Times (online), 2 April 2013 <https://www.nytimes.com/2013/04/03/world/europe/russia-new-law-allows-governors-to-be-appointed-undoing-reform.html>.

21. Javier Corrales, ‘The Authoritarian Resurgence: Autocratic Legalism in Venezuela’ (2015) 26(2) Journal of Democracy 37.

22. Ibid 38.

23. Scheppele (n 7) 545.

24. Khaitan (n 15) 56–8.

25. Ibid.

26. Madhav Khosla, ‘The Possibility of Modern India’ (2021) Global Intellectual History 1 <https://doi.org/10.1080/23801883.2021.1962582>.

27. Amit Prakash, ‘Shadow of the Pandemic and the Beleaguered Liberal-Democratic Script in India’ (2021) 20(2) India Review 104.

28. [1951] All India Reporter 226 (Supreme Court of India).

29. Similar introduction of constitutional amendments to overrule the impact of Supreme Court Judgements on reservation can be witnessed subsequently as well. The 77th, 81st, 82nd and 85th Amendments (which introduced and made decisive alterations to Articles 16(4A), 16(4B) and 335 of the Constitution (n 2)) were primarily responses to Supreme Court judgements in cases like Indra Sawhney v Union of India [1993] All India Reporter 477 (Supreme Court of India), Ajit Singh Januja v State of Punjab [1996] All India Reporter 1189 (Supreme Court of India), S Vinod Kumar v Union of India (1996) 6 SCC 580 (Supreme Court of India) etc. Similarly, the 93rd Amendment was brought in primarily to negate the impact of the Supreme Court judgements in TMA Pai Foundation v Union of India (2002) 8 SCC 481 (Supreme Court of India) and PA Inamdar v State of Maharashtra (2005) 6 SCC 537 (Supreme Court of India).

30. [1950] All India Reporter 124 (Supreme Court of India).

31. [1950] All India Reporter 129 (Supreme Court of India).

32. [1951] All India Reporter Pat 246 (Supreme Court of India).

33. Baldev Singh, ‘Ninth Schedule to Constitution of India: A Study’ (1995) 37(4) Journal of Indian Law Institute 457; A G Noorani, ‘Ninth Schedule and the Supreme Court’ (2007) 42(9) Economic and Political Weekly 731.

34. India, Parliamentary Debates, Proceedings, Volume XII, 1951, Column 9632 (Jawaharlal Nehru, Prime Minister).

35. The Constitution (Thirty-Ninth Amendment) Act 1975 (India) s 5, inserting Constitution (n 2) art 87. This added the Representation of People (Amendment) Act 1974 (India) into the Ninth Schedule.

36. See Varsha Bhagat-Ganguly, ‘Revisiting the Nav Nirman Andolan of Gujarat’ (2014) 63(1) Sociological Bulletin 95.

37. See Bipan Chandra, In the Name of Democracy: JP Movement and the Emergency (Penguin Random House India, 2017).

38. See Special Correspondent, ‘Railway Strike in Retrospect’ (1975) 10(3) Economic and Political Weekly 53.

39. See Indira Nehru Gandhi v Shri Raj Narain [1975] 3 SCR 333 (Supreme Court of India).

40. Constitution (Forty-Second Amendment) Act 1976 (India) s 55.

41. Ibid s 4. Article 31C, introduced by The Constitution (Twenty-Fifth Amendment) Act 1971 (India) s 3, initially sought to immunise from Fundamental Rights scrutiny only those laws which sought to implement the socialist policies enshrined in articles 39(b) and (c) of the Constitution (n 2).

42. While the main objective behind the creation of the tribunals was for them to act as a support mechanism for the existing courts by reducing the caseload of the latter and offering expedited verdicts, their role in dispensing justice has time and again been questioned. Although bound by the principles of natural justice, the tribunals are nonetheless not mandated to adhere to the provisions of the Code of Civil Procedure 1908 (India) or the Indian Evidence Act 1872 (India), and the scope for subjecting the decisions taken by the tribunals to judicial review also remains considerably limited. Moreover, questions are often raised about the objectivity and impartiality of the adjudicatory process because the appointment of the tribunal members is predominantly under the control of the government, which also happens to be the principal litigating party before the tribunals. See Gautam Swarup, ‘Indiscriminate Tribunalisation and the Exclusive Judicial Domain: An Analysis of the 42nd Amendment in the Light of Decisions of the Supreme Court’ (2012) 23(2) National Law School of India Review 97.

43. In fact, the Sardar Swaran Singh Committee made other recommendations which would have quite substantially curtailed the Supreme Court and the High Court’s power to engage in judicial review altogether. See Arun Thiruvengadam, ‘Tribunals’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press, 2016) ch 23, 412–31.

44. (1973) 4 SCC 225 (Supreme Court of India).

45. The insertion of clauses (4) and (5) into article 368, and the expansion of article 31C were struck down by the Supreme Court on Basic Structure grounds in Minerva Mills Ltd v Union of India [1980] All India Reporter 1789 (Supreme Court of India). Similarly, the rendering of virtual finality to the decisions of tribunals was held to violate the Basic Structure in L Chandra Kumar v Union of India (1997) 2 SCR 1186 (Supreme Court of India).

46. Bandhua Mukti Morcha v Union of India [1984] All India Reporter 802 (Supreme Court of India). In this case, the Supreme Court invoked its epistolary jurisdiction and admitted a letter as a writ petition. This case and several others decided at around the same time were instrumental in heralding the public interest litigation movement in India.

47. [1978] All India Reporter 597 (Supreme Court of India).

48. [1982] All India Reporter 149 (Supreme Court of India).

49. [1975] All India Reporter 865 (Supreme Court of India). This case established the principle that eventually led to the enactment of the Right to Information Act 2005 (India), allowing general public access to government documents.

50. (1997) 4 SCC 306 (Supreme Court of India).

51. Vishaka v State of Rajasthan (1997) 6 SCC 241 (Supreme Court of India). In this case, the Supreme Court laid down certain guidelines (referred to as the ‘Vishaka Guidelines’) to be followed in the matter of the prevention of sexual harassment in the workplace, while noting the lack of legislative provisions relating to the same. Eventually, these guidelines formed the foundation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (India).

52. DC Wadhwa v State of Bihar [1987] All India Reporter 579 (Supreme Court of India). This case dealt with the power of the President and the Governor of the State under Articles 123 and 213 to issue ordinances, which are essentially enabling orders for the government to take immediate legislative action. The court clarified that such powers are not immune to judicial review and an attempt to re-promulgate such ordinances on a recurring basis without subjecting those to legislative debate would be considered to be a subversion of the democratic procedure and in essence, a fraud on the Constitution.

53. Naz Foundation v Govt. of NCT of Delhi [2009] 160 Delhi Law Times 277; Navtej Johar v Union of India [2018] All India Reporter 4321 (Supreme Court of India). In the first case, the Delhi High Court opined that treating consensual homosexual acts between two adult individuals in private as a criminal offence would be a violation of the fundamental rights provided under Articles 14, 15 and 21 of the Constitution (n 2). In the second case, while discussing the constitutionality of Section 377 of the Indian Penal Code, the Supreme Court decriminalised all consensual sex including homosexual sex between adults. Both of these judgements faced considerable criticism from a large section of the populace, yet the court refrained from paying heed to such ‘objections on moral grounds’.

54. (1976) 2 SCC 521 (Supreme Court of India).

55. See The National Judicial Appointment Commission Act 2014 (India). See Prianka Rao, ‘Rethinking Judicial Appointments: Collegium vs Commission’, PRS Legislative Research (Blog Post, 16 October 2015) <https://www.prsindia.org/theprsblog/rethinking-judicial-appointments-collegium-vs-commission>.

56. It would be constituted by the Chief Justice of India and two of the senior-most Supreme Court Judges, the Union Law Minister and two eminent persons selected by a body that would consist of the Chief Justice of India, the Prime Minister and the Leader of Opposition in the Lok Sabha. One of the two eminent persons was required to be a woman or one belonging to a minority or SC/ST community, if people from such categories were otherwise absent in the NJAC.

57. There were other issues with the NJAC that worried the judiciary. For example, the provision that allowed any two members to veto a prospective appointment was looked at as diluting the role of the judicial members and possibly allowing vested interests to hijack the process. See Supreme Court Advocates-On-Record Association v Union of India (2015) 11 SCALE 1 (Supreme Court of India).

58. ‘Constitution (Application to Jammu and Kashmir) Order 2019’ in India, CO 272, The Gazette of India, Extraordinary, part II, section 3, 5 August 2019; ‘Declaration under Article 370(3) of the Constitution’ in India, CO 273, The Gazette of India, Extraordinary, part II, section 3, 6 August 2019; Jammu and Kashmir Reorganisation Act 2019 (India).

59. In fact, between 1956 and 1994, as many as 47 Presidential Orders were issued rendering various parts of the Indian Constitution applicable to the State of Jammu and Kashmir, but none of those had the overarching effect of making Article 370 virtually redundant despite its continuing existence in the Indian Constitution, unlike the Presidential Order dated August 5 that made the entirety of the Indian Constitution applicable to the said State. Gazala Peer and Javedur Rahman, ‘An Unpleasant Autonomy: Revisiting the Special Status for Jammu and Kashmir’ (2012) 47(23) Economic and Political Weekly 72; M Sridhar Acharyulu, ‘The Legal Subversions That Helped the Centre Undercut J&K’s Powers’, The Wire (online), 18 August 2019 <https://thewire.in/law/article-370-jammu-kashmir-constituent-assembly>.

60. PTI, ‘Massive Uproar in Rajya Sabha Over Abolition of Provisions of Article 370’ The Hindu (online), 5 August 2019 <https://www.thehindu.com/news/national/massive-uproar-in-rajya-sabha-over-abolition-of-provisions-of-article-370/article28821618.ece>. In fact, this approach of parliamentary bulldozing has been pointed out to be instrumental in a systematic democratic decline and thus symptomatic of autocratic legalism: Amal Sethi and Prannv Dhawan, ‘Abusing Parliamentary Procedures: Partisan Presiding Officers in India’s Parliament and What Can be Done About Them’, Verfassungsblog (Blog Post, 9 October 2020) <https://verfassungsblog.de/abusing-parliamentary-procedures/>.

61. PTI, ‘145 Days of Internet Shutdown in Kashmir, No Word on Service Restoration’, The Economic Times (online), 27 December 2019) <https://economictimes.indiatimes.com/news/politics-and-nation/145-days-of-internet-shutdown-in-kashmir-no-word-on-service-restoration/articleshow/72996839.cms?from=mdr>; Editorial, ‘Extended folly: On invocation of PSA against Omar Abdullah and Mehbooba Mufti’, The Hindu (online), 8 February 2020 <https://www.thehindu.com/opinion/editorial/extended-folly-the-hindu-editorial-on-invocation-of-psa-against-omar-abdullah-and-mehbooba-mufti/article30765636.ece>.

62. Anuradha Bhasin v Union of India [2020] All India Reporter 1308 (Supreme Court of India).

63. There have been petitions asking for the restoration of 4G internet services in the valley, instead of the low speed 2G services. The Court has refrained from taking a call on the matter and has in turn referred the matter to a committee.

64. [1959] All India Reporter 749 (Supreme Court of India).

65. [1970] All India Reporter 1118 (Supreme Court of India).

66. Shah Faesal v Union of India, (2020) 4 SCC 1, Writ Petition (Civil) No 1099 of 2019 (online, 2 March 2020) Supreme Court of India <https://scobserver-production.s3.amazonaws.com/uploads/case_document/document_upload/1180/Judgment_on_Reference_Question.pdf>.

67. Assam Public Works v Union of India (2018) 9 SCC 231.

68. Kaushik Deka, ‘Did the SC give Assam a flawed NRC?’ India Today (online), 15 December 2020 <https://www.indiatoday.in/india-today-insight/story/did-the-sc-give-assam-a-flawed-nrc-1749520-2020-12-14>; Gautam Bhatia, ‘The SC Is Exceeding Its Brief as the Apex Judicial Organ in the NRC Case’, The Wire (online), 26 April 2019 <https://thewire.in/law/nrc-case-article-21-supreme-court>; Gautam Bhatia, ‘The Judicial Presumption of Non-Citizenship’, The Hindu (online), 23 July 2019 <https://www.thehindu.com/opinion/lead/the-judicial-presumption-of-non-citizenship/article28660624.ece>.

69. [1993] All India Reporter 477 (Supreme Court of India) (‘Indra Sawhney’). An essential point of difference between the Office Memorandum that was called for scrutiny in Indra Sawhney and the constitutional amendment in the instant case lies in the fact that the constitutional amendment can only be scrutinised on Basic Structure grounds. Naturally, the threshold of scrutiny is far higher.

70. Justice K S Puttaswamy v Union of India [2017] All India Reporter 4161 (Supreme Court of India).

71. Justice Puttaswamy v Union of India, Writ Petition (Civil) No 494 of 2012 [Majority Opinion of Justice Sikri] (online, 26 September 2018) Supreme Court of India <https://scobserver-production.s3.amazonaws.com/uploads/case_document/document_upload/457/Aadhaar_35071_2012_FullJudgement-1-567.pdf>.

72. Justice Puttaswamy v Union of India, Writ Petition (Civil) No 494 of 2012 [Dissenting Opinion of Justice Chandrachud] (online, 26 September 2018) Supreme Court of India <https://scobserver-production.s3.amazonaws.com/uploads/case_document/document_upload/459/Aadhaar_35071_2012_FullJudgement-568-1048.pdf>.

73. Constitution (n 2) sch 7.

74. Refer to ‘Operation Kamal’, supposedly a plan by the Bharatiya Janata Party (‘BJP’) to engineer the defection of opposition MLAs, with similar schemes occurring in states like Madhya Pradesh, Karnataka, etc post-election: see Editorial, ‘What is Operation Kamal?’ The Indian Express (online), 16 May 2018 <https://indianexpress.com/elections/what-is-operation-kamal-bjp-congress-jds-horse-trading-poaching-5178843>. Also refer to the concept of ‘Congress-mukt Bharat’ (‘India free from Congress’) voiced by the senior leadership of the BJP, including Prime Minister Narendra Modi himself: see Editorial, ‘What does Modi mean when he says Congress-mukt? He explains’, India Today (online), 1 January 2019 <https://www.indiatoday.in/india/story/pm-narendra-modi-interview-congress-mukt-1421348-2019-01-01>.

75. For further details about the GST Council and its powers and functions: see ‘GST Council’ Goods and Services Tax Council (Web Page) <http://www.gstcouncil.gov.in/gst-council>.

76. Alok Kumar Prasanna, ‘Goods and Services Tax’ (2016) 51(34) Economic and Political Weekly 10 <http://www.epw.in/journal/2016/34/law-and-society/goods-and-services-tax.html>. See also Suhrith Parthasarathy, ‘Taxing times for the States’, The Hindu (online), 25 July 2017 <http://www.thehindu.com/todays-paper/tp-opinion/taxing-times-for-the-states/article19352828.ece>.

77. One can possibly attribute some part of the delay to the ongoing COVID-19 pandemic. However, there are instances of far less significant cases being fast-tracked and immediately disposed of even during the pandemic: see Apoorva Mandhani, ‘Reasons Why Supreme Court Granted Bail to Arnab Goswami’, The Print (online), 27 November 2020 <https://theprint.in/judiciary/reasons-why-supreme-court-granted-bail-to-arnab-goswami/553076/>.