Constitutional Law II 1

I Year B.A., LL. B (Div.-D and E) – Semester-II (2021)

1st -Internal Assessment – Constitutional Law II

Research Paper

The Supreme Court: judicial power and federal protection

Keywords: Supreme Court, federalism, judiciary

Words (including bibliography): 2998

NAME: SHIVANGI MISHRA

DIVISION: D

PRN: 21010125327

COURSE: BA LL.B. (H)

BATCH: 2021-2026
Constitutional Law II 2

Abstract

The idea of federalism in India stands extremely different and unique as compared to other
federal countries. The combination of a democratised federalist nation while giving the nation
states their own identity and representation is what makes the concoction politically unique.
But the real essence of the country’s federalist nature lies with the benches of the Supreme
Court that adjudicate and balance the country’s collated political and executive systems. The
Courts demarcate the line between cooperative and competitive federalism and fosters
protection of the same. But in the current trend of centralization by the NDA government
which spheres does it extend to and how uninfluenced is the judiciary in its flambeau of
federal protection, is the discussion of the paper.

Introduction

The Indian Constituent Assembly enacted a constitution that prioritised the geographical
integrity of the Indian state and established a strong centre despite the immensity of its
territory and also the diversity of its population 1 which was also a part of the Congress
Party’s ideology as they considered it a crucial factor for the modernization of the country.2

When time came for the interpretation of the Constitution by the judicial Courts, they came
forth as a hand that shaped the federal system of the country with their interpretations
regarding distribution of powers and other elements that affected the structure of the federal
country.3 In this way, the Courts had also become a politically important tool for the
stabilization of the country.

The paper seeks to understand the country’s federalist nature and the impact the apex Court
has over the political and constitutional influence of the country and how it eventually
cascades to the citizens as well as understanding the influence the Supreme Court has on the
protection of federalism in the country and how unaffected it is at the present moment from
majoritarian politics.

1
Glanville Austin, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION 25 (Oxford University
Press 1966)
2
Wilfried Swenden, Rekha Saxena, Policing the federation: The Supreme Court and judicial federalism in
India, 10 T&F 1, 1-2 (2020)
3
Nicholas Aroney, John Kincaid, COURTS IN FEDERAL COUNTRIES: FEDERALISTS OR UNITARISTS?
8 (University of Toronto Press 2017)
Constitutional Law II 3

The paper shall ask three questions: What is India’s current federalist nature? How is the
Supreme Court a guiding light to federal protection? And lastly, how unscathed is the
Supreme Court from a majoritarian government? The paper will also give recommendations
on how the problems can be resolved.

Research and Analysis

1. What is India’s current federalist nature?

In general, India's constitutional courts have gradually shifted from rigorous legalistic
restriction to judicial activism during the post-Nehru era. The courts have consistently
refrained from taking an interpretive stance that is federalist or statist in adjudication. Its
decisions are the result of a complex, frequently non-partisan evaluation of the union which is
sensitive to both the wording of the constitution and the situations and periods in which we
live.4 As iterated by a reputed analyst, the Supreme Court has found it hard to create impartial
constitutional principles that prohibit the conflating of partisan political intentions with
legally legitimate government interests in the years since the 1989 election and the end of the
Congress Party's hegemony.5

Federalism adjudication has largely maintained the autonomy of state legislatures and
governments even though the constitutional text does not explicitly contain a theory of strong
states' rights, whereas the effect of rights review has generally been to foster national policies
and actions, thus reinforcing the parliamentary aspect of the Constitution.

The Supreme Court has expanded its power of review further than legislative and executive
actions to also include amendments to the constitution, making it the most influential
constitutional court in the world. This has happened particularly since the introduction of the
judicial doctrine of the unamendability of the Constitution's structure in Keshavananda
Bharati v. State of Kerala6.

The supremacy of the constitutional courts has also been made possible by the relative
weakness of Parliament and the union government's executive branch as a result of divided
4
Manish Tiwari, Rekha Saxena, THE SUPREME COURT OF INDIA: RISE OF JUDICIAL POWER AND
PROTECTION OF FEDERALISM 224 (University of Toronto Press 2017)
5
Sudhir Krishnaswamy, UNSTABLE CONSTITUTIONALISM: LAW AN POLITICS IN SOUTH ASIA 360
(Cambridge University Press 2015)
6
Keshavananda Bharati v. State of Kerala, (1973) 4 SCC 225
Constitutional Law II 4

governments brought on by India's enormous cultural, regional, and social diversity and the
emergence of a state-based multiparty system since the early 1990s, which requires the use of
federal coalition and/or minority governments.

In a parliamentary federal constitution that is otherwise highly centralised and includes a

union executive with emergency powers for dealing with local, state, and financial
emergencies, constitutional courts have so emerged as a potent counter-majoritarian
institution. The courts have created a system of constitutional supremacy, as ultimately
construed by them, in the contest for superiority between Parliament and the courts. Because
of this, the judiciary has been able to play a vital role in achieving a balance between
majoritarian democracy and constitutional as well as mutually beneficial federal governance.
It is a later discussion whether this tendency will change as a result of the 2014 general
election that handed the Bharatiya Janata Party (BJP) dominance of the union cabinet.

Instead of a dualist federal-and-state system like in the United States, the court system is one
cohesive judicial organisation, like in Canada. High courts and district courts are parts of the
state governments, while the Supreme Court is a component of the union government. The
Supreme Court's authority over the union list can be expanded by law at the behest of
Parliament. 7

Similar to this, Parliament may grant the Supreme Court new jurisdiction in connection to the
state and concurrent lists, as well as through a union-states agreement 8. Additionally, if the
union leadership deems it "expedient to acquire the opinion of the Supreme Court," the
Supreme Court has advisory jurisdiction by presidential referral. 9 Although state high courts
and subordinate courts have a great deal of administrative authority, courts at all levels are
bound by the laws established by higher courts.

Federalism disputes are more or less equally decided by India's courts alongside other
disputes including human rights, the separation of powers, and governmental structure. Along
with fundamental rights review and basic constitutional structure review, union-state
jurisdictional review is a crucial component of the exercise of judicial review, which is

7
INDIA CONST. ART 138 cl. 2
8
Ibid.
9
INDIA CONST. ART 143
Constitutional Law II 5

applied to all forms of state action to make sure that such action does not "damage or
destroy" "basic features of the Constitution."10

2. How is the Supreme Court a guiding light to federal protection?

The division of legislative and other functions between the union and the states is one of the
most significant federalism-related issues that India's courts are required to decide. A law
frequently impacts or connects to the subject matter of another legislature when it deals with
a thing that is obviously within the purview of one body. In these circumstances, the Court
looks to the law under challenge to determine its "pith and substance." When assessing
whether a certain issue stated is included in one list or another, the court considers the
substance of the case. Therefore, if the substance is on the Union List, the law's accidental
intrusion on the State List does not render it invalid.11

An example that can be taken is the case of The State of Bombay and others v. F.N. Balsara 12
which was regarding the Bombay Prohibition Act, 1949. The case was decided in accordance
with the Government of India Act 1935, which predates the Indian Constitution of 1950. The
issue in contention was whether the Bombay Prohibition Act of 1949 would fall under entry
19 of the central list of powers or entry 31 of the provincial list of powers (production, ,
possession, manufacture, purchase, transit, and sale of narcotics drugs and alcoholic liquor)
(import and export across customs frontiers as defined by the Dominion Government of
India). The court determined that although the prohibition on alcohol would have an impact
on imports, this was only incidental to the law's primary goal. The Federal Court of India
decided in favour of the provincial government based on the pith-and-substance doctrine. 13
The idea of "colourable law" is somewhat similar. In making decisions based on this theory,
the Court considers the fundamental intent and ramifications of the contested statute rather
than its outward appearance and results.14

10
Sudhir Krishnaswamy, DEMOCRACY AND CONSTITUTIONALISM IN INDIA: A STUDY OF THE
BASIC STRUCTURE DOCTRINE 10 (Oxford University Press 2011)
11
P.M Bakshi, THE CONSTITUTION OF INDIA 246 ( 12th ed. 2013)
12
The State of Bombay and others v. F.N. Balsara, 1951 SC 318
13
Madhav Khosla, THE INDIAN CONSTITUTION: OXFORD INDIA SHORT INTRODUCTION 60 (Oxford
Publishing Press 2012)
14
Ibid.
Constitutional Law II 6

In order to accept the exclusivity of the union and state lists, judicial rulings reflect the wide
rules of interpretation of union-state jurisdictions. Unless the state passes legislation with the
prior approval of the union administration, the Constitution states that union laws have
precedence in items on the concurrent list. According to Article 248 of the Constitution,
which states that the Parliament has the exclusive authority to create any law with regard to
any subject not listed in the state or concurrent list," the courts interpret the Union
Parliament's remaining powers to include everything that is not on the state list as falling
under this category. A nine-judge bench's unanimous decision of Attorney General for India
v. Amrat Lal Prajivandas15, which followed the precedent laid under Union of India v. H.S.
Dhillon16 reflects this

The smooth operation of the cooperative federalism system created by the Constitution has
generally benefited from court adjudication. Since the establishment of the multiparty system
and split governments, when court interventions have allowed the system to deal with
complicated and highly contentious circumstances, the judicial review powers have been
carried to the degree of judicial activism.

The constitutional courts have made substantial contributions to the advancement of a

federal, multicultural understanding of nationhood and state. India is the only country with a
"fundamental structure" philosophy governing court building. It has been used to state actions
other than constitutional changes, such as the use and misuse of emergency powers by the
union executive, the holding of free and fair elections, and the rejection of secular and
cultural constitutional principles. It has a widespread influence on federal adjudication.

3. How unscathed is the Supreme Court from a majoritarian government?

The court was forced to come up with a remedy to protect its independence as a result of the
painful experiences of the Indira Gandhi era, when judges were hired, replaced, and relocated
at the executive's whim. It came up with the solution of the Collegium system of judges
appointing judges with the suppressed role for the executive. But since 2014, there is a
significant change in the balance of power regarding judge selections. Has the Central
government's newly discovered assertiveness prevented the Supreme Court from claiming its

15
Attorney General for India v. Amrat Lal Prajivandas (1994), 5 SCC 54
16
Union of India v. H.S. Dhillon, AIR 1972 SC 1061
Constitutional Law II 7

independence? The reply cannot be a resounding yes. The NDA government set out to
determine who would have the last say in judicial nominations as soon as it came into power.

The government quickly introduced a Constitutional amendment to establish the "National

Judicial Appointments Commission" with the goal of removing the judiciary's dominance
over judicial appointments (NJAC). The amendment only lasted for 10 months before being
unanimously overturned by the Supreme Court's constitution bench by a 4:1 vote. The
majority judgement reveals the judiciary's concern for maintaining its own primacy in
judicial selections rather than constitutional soundness. The judgement stated that a fresh
Memorandum of Procedure (MoP) for the nomination of judges was to be drafted and
recognised the need for improvements to the collegium system.17

Prior to 2014, the Supreme Court did not hesitate to rule against the Central government in
cases with significant political ramifications. This was made clear in the cases involving the
cancellation of 2G licences and the coal fraud. Although the coal-gate case verdict was
announced in September 2014, after the NDA government took office, its hearings took place
during the final days of the UPA-II, during which the court made several remarks that were
very hurtful to the administration. The public and media applauded loudly at the court's
interventions, hailing the judiciary as a champion against mismanagement and corruption.

However, after 2014, the Supreme Court dealt with cases in a weaker manner in order to
protect the political interests of the ruling party. In politically contentious cases like Sahara-
Birla, Loya, Bhima-Koregaon, Rafale, and Aadhaar, among others, the court's decisions have
drawn a lot of criticism for its hesitation to challenge the status quo.

The Modi government has engaged in open conflict with the court over a number of issues,
emboldened by its overwhelming power. The judiciary has been bruised and weakened over
the past five years by its collision course with the political wing. In addition to that, the
court's involvement in various controversies (such as the medical college bribery case, the
master of roster controversy, and the impeachment motion against former Chief Justice Dipak
Misra) gave the impression that it was a divided body, which diminished the moral authority
it once held in the eyes of the general public.18
17
Supreme Court Advocates-on-record Association & Anr. vs. Union of India, (2016) 5 SCC 1

18
Manu Sebastian, How has the Supreme Court Fared during the Modi Years? , The Wire (Sept 18, 2022, 1:35

AM) https://thewire.in/law/supreme-court-modi-years
Constitutional Law II 8

However, it would be overstating things to claim that the Supreme Court did not act in a
reforming manner to protect constitutional principles throughout this time. It may have been
muted, but it wasn't completely put out. The Court has taken a progressive stance in civil
liberties cases where there are no political considerations at play, furthering the
transformative ambition of the Constitution. This was made abundantly obvious in the
privacy case, the Sabarimala case, and the rulings invalidating Section 66A of the IT Act and
Sections 377 and 497 of the IPC.

But in the midst of thick clouds of scepticism created around judicial independence, these
cases offer meagre beams of hope. In conclusion, after five years of Modi rule, we observe a
timid, uncertain, dispersed, and vulnerable Supreme Court that is apprehensive of
endangering the central government, which has become great in strength.

Conclusion and Suggestion

Based on the analysis and pointed stated, it is clear that the apex judiciary holds the
importance of an impartial adjudicator that currently is under the influence of a majoritarian
government which is influencing and hindering the true potential of the Supreme Court. What
should have been an independent body capable of adjudicating right from wrong and
protecting the sanctity of the parliamentary, legal and executory processes of the country
needs help itself to be freed from parliamentary and political influence. While this situation,
sadly enough is not new, it certainly needs to be checked into and corrected. Failure of which
could lead to the loss of the independence of the judiciary as well as the protection of the
constitutional intents and federalist structures.

It is highly suggested that a decentralization of the judicial system would help create a better
mechanism, not only for the disposal of justice but also to maintain the impartiality of the
court. The most efficient method to do this would be to divide the Court into two halves 19.
This mechanism would also save time for citizens who have to travel from far-off places in
the country to the capital and incurring heavy costs in the name of justice. If the Supreme
Court gets split into two courts, namely he Constitutional Court and the Court of Appeal, it
would reduce costs as well as give the litigant the advantage of having their case being heard
by the same advocate who they chose during the High Court trials. With regards to the
question of constitutionality, the Supreme Court can reside en banc in the capital and deal
19
Law Commission of India, https://lawcommissionofindia.nic.in/51-100/Report95.pdf (last visited Sept. 19,
2022)
Constitutional Law II 9

with it.20 Such a bifurcated system can ensure that the political influence is controlled and the
adjudication to the protection of state’s interest is harmonious and constructive. Bringing
about the principles laid down under the Indian Constitution.

Bibliography
1. Glanville Austin, THE INDIAN CONSTITUTION: CORNERSTONE OF A
NATION 25 (Oxford University Press 1966)
2. Wilfried Swenden, Rekha Saxena, Policing the federation: The Supreme Court and
judicial federalism in India, 10 T&F 1, 1-2 (2020)
3. Nicholas Aroney, John Kincaid, COURTS IN FEDERAL COUNTRIES:
FEDERALISTS OR UNITARISTS? 8 (University of Toronto Press 2017)
4. Manish Tiwari, Rekha Saxena, THE SUPREME COURT OF INDIA: RISE OF
JUDICIAL POWER AND PROTECTION OF FEDERALISM 224 (University of
Toronto Press 2017)
5. Sudhir Krishnaswamy, UNSTABLE CONSTITUTIONALISM: LAW AN POLITICS
IN SOUTH ASIA 360 (Cambridge University Press 2015)
6. Sudhir Krishnaswamy, DEMOCRACY AND CONSTITUTIONALISM IN INDIA: A
STUDY OF THE BASIC STRUCTURE DOCTRINE 10 (Oxford University Press
2011)
7. P.M Bakshi, THE CONSTITUTION OF INDIA 246 (12th ed. 2013)
8. Madhav Khosla, THE INDIAN CONSTITUTION: OXFORD INDIA SHORT
INTRODUCTION 60 (Oxford Publishing Press 2012)
9. Manu Sebastian, How has the Supreme Court Fared during the Modi Years? , The
Wire (Sept 18, 2022, 1:35 AM) https://thewire.in/law/supreme-court-modi-years
10. Law Commission of India, https://lawcommissionofindia.nic.in/51-100/Report95.pdf
(last visited Sept. 19, 2022)
11. Law Commission of India,
https://lawcommissionofindia.nic.in/101-169/Report125.pdf ) (last visited Sept. 19,
2022)
12. INDIA CONST. ART 138 cl. 2
13. INDIA CONST. ART 143

20
Law Commission of India, https://lawcommissionofindia.nic.in/101-169/Report125.pdf ) (last visited Sept. 19,
2022)
Constitutional Law II
10

14. Keshavananda Bharati v. State of Kerala, (1973) 4 SCC 225

15. The State of Bombay and others v. F.N. Balsara, 1951 SC 318
16. Attorney General for India v. Amrat Lal Prajivandas (1994), 5 SCC 54
17. Union of India v. H.S. Dhillon, AIR 1972 SC 1061
18. Supreme Court Advocates-on-record Association & Anr. vs. Union of India, (2016) 5
SCC 1