SSRN Id2955300

Judicial Supremacy in Comparative
Constitutional Law
Manoj Mate*
This Article challenges the prevailing conception of judicial supremacy in comparative

constitutional law as informed by U.S. and Western models of constitutionalism and argues for
reconceptualizing judicial supremacy in a way that captures the broader range of institutional
roles courts play globally. Drawing on insights from global constitutional systems, this Article
argues for and develops an institutional conception of judicial supremacy that focuses on three
key institutional roles played by courts globally: constitutional guardianship, institutional
guardianship, and governance optimization. It then provides a dynamic account of the
emergence of “expansive” judicial supremacy in India through a study of the Indian Supreme
Court’s assertion of these institutional roles.
The Article seeks to uncover the institutional conception of judicial supremacy and its
global applicability by comparatively analyzing the institutional roles asserted by courts in
India, Germany, Turkey, Colombia, and South Africa. It concludes by suggesting that India
represents an “expansive” model of judicial supremacy that poses challenges for regime
politics, theories of judicial power, and constitutionalism by illustrating how courts themselves
can redefine constitutional norms, consolidate institutional control over the judiciary, and
restructure governance. Reconceptualizing judicial supremacy based on courts’ institutional
roles has implications for the comparative study of public law and courts and normative
implications in terms of understanding the broad and varied role courts can play in protecting
and stabilizing constitutionalism.
I. INTRODUCTION............................................................................. 395
II. CONCEPTUALIZING JUDICIAL SUPREMACY ................................. 399
A. Judicial Supremacy and Constitutional
Interpretation ...............................................................400
B. Judicial Supremacy as a Global Model of
Constitutionalism .........................................................402
C. Toward an Institutional Conception of Judicial
Supremacy ....................................................................404
1. Constitutional Guardianship...................................... 408
2. Institutional Guardianship ......................................... 410
3. Courts as Governance Optimizers ............................ 411
III. CONSTRUCTING JUDICIAL SUPREMACY IN INDIA........................ 412
* © 2017 Manoj Mate. Visiting Scholar, East Asian Legal Studies, Harvard Law
School (2017-2018); B.A, M.A., Ph.D., U.C. Berkeley, J.D. Harvard Law School. I thank
William Aceves, Tendayi Achiume, Erez Aloni, Deepa Badrinarayana, Stewart Chang,
Hannah Gerry, Sheldon Lyke, Wayne Sandholtz, Gregory Shaffer, Chris Whytock, Seval
Yildirim, participants of the 2017 Southern California International Law Scholars’ Workshop
at USC Gould School of Law (February 2017), and participants at a faculty workshop at
Whittier Law School for comments and conversations about this Article.
393
Electronic copy available at: https://ssrn.com/abstract=2955300

394 TULANE LAW REVIEW [Vol. 92:393
A.The Basic Structure Doctrine: Constitutional

Guardianship ...............................................................414
1. Kesavananda: Origins of the Basic Structure
Doctrine ...................................................................... 415
2. The Indira Gandhi Election Case ............................. 419
3. Minerva Mills v. India: Entrenching and
Restoring Constitutionalism ...................................... 421
4. Federalism and the Basic Structure Doctrine ........... 424
5. Expanding the Basic Structure: Recent Cases ......... 428
B. Judicial Appointments: Institutional
Guardianship ...............................................................429
1. The First Judges’ Case (1981) .................................. 431
2. The Second Judges’ Case: Asserting Judicial
Primacy ...................................................................... 434
3. The Third Judges’ Case: Expanding the
Collegium ................................................................... 439
4. The NJAC Decision (2015): The Triumph of
Judicial Supremacy .................................................... 441
C. Public Interest Litigation: Governance
Optimization .................................................................443
1. Vineet Narain: The Court as an Anti-
Corruption Institution ................................................ 445
2. Godavarman: The Forest Case.................................. 450
IV. THE INSTITUTIONAL CONCEPTION OF SUPREMACY IN
COMPARATIVE CONSTITUTIONAL LAW ...................................... 452
A. Courts as Constitutional Guardians ............................452
B. Courts as Institutional Guardians................................458
1. Court-Centered vs. Council-Centered
Independence ............................................................. 458
2. Political Independence vs. Institutional
Independence ............................................................. 460
C. Courts as Governance Optimizers ...............................462
V. CONCLUSION: CONTEXTUAL JUDICIAL SUPREMACY AND
ITS IMPLICATIONS ........................................................................ 464

2017] JUDICIAL SUPREMACY 395
“There’s no such thing as judicial supremacy. What the judges did,

both at the [N]inth [Circuit] and at the district level was to take power
for themselves that belongs squarely in the hands of the president of the
United States.”1
—Stephen Miller,
Senior Policy Adviser to President Donald J. Trump
I. INTRODUCTION
Debates over judicial supremacy are not limited to the United
States, and the concept of judicial supremacy is contested in polities
worldwide. However, public law scholars studying judicial
supremacy globally have largely taken a U.S.- and Western-centric
approach in assessing judicial decisionmaking by constitutional courts
globally.2 The relatively narrow scope of judicial supremacy in the
United States is illustrated by the Trump administration’s response to
the decision of the United States Ninth Circuit Court of Appeals
upholding a district court’s temporary restraining order blocking
President Trump’s executive order restricting travel from certain
nations.3
1. Meet the Press, Interview by Chuck Todd with Stephen Miller, Senior Policy
Adviser (NBC television broadcast Feb. 12, 2017) (emphasis added) (discussing the United
States Court of Appeals for the Ninth Circuit’s decision in Washington v. Trump, 847 F.3d
1151 (9th Cir. 2017), upholding a restraining order blocking the president’s executive order
on travel ban).
2. See STEPHEN GARDBAUM, THE NEW COMMONWEALTH MODEL OF
CONSTITUTIONALISM: THEORY AND PRACTICE 12-14 (2013) (arguing that Germany’s
constitutional system represents an example of legal or total constitutionalism, while the U.S.
model represents a conception of “limited” legal constitutionalism); Larry Alexander &
Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359
(1997); Alec Stone Sweet, The European Court of Justice and the Judicialization of EU
Governance, 5 LIVING REVIEWS EUR. GOVERNANCE, no. 2, June 2010 (analyzing impact of
European Court of Justice on the European Union through judicialization and governance);
Mark Tushnet, New Forms of Judicial Review and the Persistence of Rights- and Democracy-
Based Worries, 38 WAKE FOREST L. REV. 813, 817 (2003) (arguing that the U.S. Supreme
Court’s decisions in Cooper v. Aaron, 358 U.S. 1 (1958), and City of Boerne v. Flores, 521
U.S. 507 (1997), represent examples of “strong-form” judicial review and judicial
supremacy).
3. See Trump, 847 F.3d at 1156-57 (denying the federal government’s motion for an
emergency stay of the district court’s temporary restraining order against Executive Order
13769 (the “executive order”) imposing an immigration ban on entry into the United States
from seven nations and holding that the executive order on immigration had resulted in the
infliction of significant and ongoing harm “on substantial numbers of people, to the
detriment of the States, by means of an Executive Order that the States were likely to be able
to prove was unlawful”); Washington v. Trump, No. C17-0141JLR, 2017 WL 462040, at *2
(W.D. Wash. Feb. 3, 2017) (enjoining and restraining nationwide enforcement of provisions of
the executive order that “purport[] to prioritize refugee claims of certain religious minorities”
and prohibiting the government from “proceeding with any action that prioritizes the refugee
claims of certain religious minorities”).

This Article reconceptualizes judicial supremacy in terms of the

broader range of institutional roles played by global constitutional
courts in the twenty-first century and to argue for and develop an
institutional conception of judicial supremacy. It seeks to broaden our
understanding of judicial supremacy beyond existing scholarship that
has focused primarily on U.S. and European constitutional systems.4
Take for example a recent judicial decision by the Supreme
Court of India. In October 2015, the Indian Supreme Court
invalidated the Ninety-Ninth Constitutional Amendment—which
created the National Judicial Appointments Commission (NJAC)—on
the grounds that the amendment violated the basic structure of the
Indian Constitution.5 Enacted by large majorities by the Bharatiya
Janata Party-National Democratic Alliance (BJP-NDA) national
government and ratified by the states, the NJAC replaced the existing
“collegium” system of judicial appointments under which the chief
justice and senior justices had primacy in appointments.6 The NJAC
built on decisions in two earlier cases—Supreme Court Advocates-on-
Record Ass’n v. Union of India in 1993 (Second Judges’ Case)7 and In
re Special Reference No. 1 of 1998 (Third Judges’ Case).8 There, the
Court interpreted applicable constitutional provisions governing
appointments and created the “collegium” appointment process that
was effectively entrenched into the constitution in 2015 by Supreme
Court Advocates-on-Record Ass’n v. Union of India (NJAC decision
or NJAC case).9
Remarkably, the Indian Court went far beyond its earlier
decisions in holding that judicial primacy in appointments itself was
4. For critiques of the U.S- and Western-centric focus of existing scholarship, see
generally RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE
NEW CONSTITUTIONALISM (2004) (arguing that global shift toward judicialization and
constitutionalization is a product of strategic entrenchment of power in judiciaries by political
elites seeking to preserve and maintain power); TEEMU RUSKOLA, LEGAL ORIENTALISM:
CHINA, THE UNITED STATES, AND MODERN LAW (2013) (critically analyzing how U.S. and
Western imperialist notions of the rule of law have distorted understandings of Chinese law
and constitutionalism).
5. Supreme Court Advocates-on-Record Ass’n v. Union of India, (2016) 5 SCC 1
(2015); see Manoj Mate, A Challenge to Judicial Independence in India: The National
Judicial Appointments Commission (NJAC), JURIST: ACAD. COMMENT. (July 23, 2015),
http://jurist.org/forum/2015/07/manoj-mate-judicial-independence.php (providing a historical
and institutional analysis of the Court’s judicial appointments cases and predicting that the
Court would invalidate the NJAC).
6. See infra Part III.B.
7. (1993) 4 SCC 441.
8. (1998) 7 SCC 739.
9. See Advocates-on-Record, (2016) 5 SCC 1; infra Part III.B.

part of the basic structure of the constitution.10 This follows decisions

holding that judicial review, secularism, and equality are all parts of
the basic structure of the Indian Constitution.11 The Court’s power to
review amendments under the basic structure doctrine can be traced to
its earlier confrontations with the efforts of Indira Gandhi’s Congress
government to curb judicial review, constitutionalism, and
fundamental rights in the 1970s and early 1980s, during which the
Court developed and consolidated the basic structure doctrine. The
Court would build on, expand, and further define the contours of that
doctrine from the 1990s through the late 2000s.12 In fusing its power
to entrench core features of the basic structure of the constitution with
the power to control its own appointments processes, the 2015 NJAC
decision arguably represents a novel conception of judicial supremacy
in comparative law.
In analyzing variation in the scope of judicial roles in assessing
judicial supremacy, existing public law scholarship has heavily
focused on courts in the United States, Germany, France, the
European Court of Justice, and other Western courts as exemplars of
judicial supremacy.13 In this Article, I look beyond U.S. and
European constitutional systems to advance a more inclusive and
comprehensive conception of judicial supremacy as reflected in the
broad range of institutional roles constitutional courts play globally.14
10. The Court’s holding that judicial primacy in appointments is part of the basic
structure has sparked a torrent of critical commentary suggesting the lack of support for
judicial primacy as a basic feature of the Constitution in both the original debates on judicial
appointments in the Constituent Assembly and the actual text of the Indian Constitution. See,
e.g., Kalraj Mishra, NJAC Was the People’s Will, INDIAN EXPRESS (Oct. 26, 2015, 12:27 AM),
http://indianexpress.com/article/opinion/columns/njac-was-the-peoples-will/.
11. See S.R. Bommai v. Union of India, (1994) 3 SCC 1, 137-38, 151-53, 172-75
(upholding the declaration of president’s rule and the dismissal of three state governments on
the grounds that the declaration of president’s rule was necessary to preserve secularism and
the rule of law as part of the basic structure of the Constitution); infra Part III.A.
12. See infra Part III.A.5.
13. See, e.g., KAREN J. ALTER, ESTABLISHING THE SUPREMACY OF EUROPEAN LAW:
THE MAKING OF AN INTERNATIONAL RULE OF LAW IN EUROPE (2001) (tracing the emergence
and development of a transnational legal and constitutional order in Europe); Martin Shapiro,
The Success of Judicial Review and Democracy, in ON LAW, POLITICS, AND JUDICIALIZATION
149 (Martin Shapiro & Alec Stone Sweet eds., 2002) (arguing that systems of constitutional
judicial review in the United States, Canada, the ECJ, and European systems represent
stronger and more successful models than in non-Western systems including India and
Japan); ALEC STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE
(2000) (analyzing the judicialization of politics in France and Germany).
14. For scholarship exploring the nature of law and judicial politics in other systems,
see generally TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL
COURTS IN ASIAN CASES (2003) (analyzing the development of judicial review in Mongolia,
Korea, and Taiwan); HIRSCHL, supra note 4 (analyzing the origins and development of
judicial review in Israel, New Zealand, and South Africa); HEINZ KLUG, CONSTITUTING

Scholars have identified the U.S. constitutional system and model of

judicial review as an exemplar of a judicial supremacy based on the
constitutional system’s entrenchment of a written constitution and bill
of rights, the inability of majoritarian processes to override judicial
decisions challenging legislation and government actions, and strong-
form judicial review.15
In comparative law scholarship, this conception of judicial
supremacy has been juxtaposed against a spectrum of
constitutionalism based on alternate conceptions of judicial review,
comparing judicial supremacy as a model of constitutionalism to
systems based on parliamentary supremacy and to “new
commonwealth” models of judicial review based on weak-form
judicial review.16 Existing scholarship has thus analyzed judicial
supremacy as part of a broader spectrum of constitutionalism that
ranges from systems of parliamentary or legislative supremacy
(political constitutionalism) to systems based on constitutional or
judicial supremacy (legal or total constitutionalism).17
This Article thus argues for and develops an institutional
conception of supremacy by drawing on insights from the roles and
functions played by comparative courts. In contrast to the horizontal
dimension of constitutionalism, the Article explores the “vertical”
dimension or conception of institutional supremacy, by exploring
three key roles played by courts: constitutional guardianship,
institutional guardianship, and governance optimization. In order to
illustrate this alternate institutional conception of supremacy, the
Article analyzes the emergence of key institutional roles of the
Supreme Court of India within the broader spectrum of constitutional
courts, tracing the Indian Court’s path to supremacy by examining key
moments of judicial assertiveness across time. First, the Indian Court
plays a central role as a constitutional guardian and as an institution
of constitutional entrenchment through its basic structure doctrine
decisions. Second, acting as an institutional guardian, the Court has
asserted and consolidated control over judicial appointments and
DEMOCRACY: LAW, GLOBALISM AND SOUTH AFRICA’S POLITICAL RECONSTRUCTION (2000)

(analyzing the history and development of the post-apartheid constitutional regime in South
Africa).
15. See generally GARDBAUM, supra note 2 (identifying an alternative “new
commonwealth model” of constitutionalism based on weak-form judicial review in the
United Kingdom, New Zealand, and Australia).
16. Id. at 25-36, 77-94 (discussing normative benefits of the new commonwealth
model of constitutionalism).
17. Id. at 37-61 (analyzing strengths and weaknesses of legal and political
constitutionalism).

administration. Third, the Indian Court plays a significant role as a

governance optimizer in shaping and restructuring existing regulatory
governance structures and, where needed, in creating new judicially
led and managed governance institutions. These distinct institutional
roles and features suggest the need for comparative law scholars to
seriously consider India’s constitutional system as a distinct and
alternate model of judicial supremacy.
Part II presents the theoretical framework of the Article,
examining how judicial supremacy is conceptualized in U.S. and
comparative constitutional law scholarship and suggesting the need
for a more expansive conception based on the institutional roles
played by constitutional courts. Part III analyzes the evolution and
development of key roles and powers of the Indian Supreme Court,
examining the sequential assertion of expanded powers and
institutional roles. Part IV first situates the Indian model among other
global constitutional systems in order to assess supremacy, and
second responds to normative critiques of judicial supremacy by
examining the unique historical and political context of India’s
constitutional and political system. Part V concludes by describing
the empirical and normative implications of the institutional
conception of judicial supremacy.
II. CONCEPTUALIZING JUDICIAL SUPREMACY

Judicial supremacy has been conceptualized in distinct ways
within scholarship on U.S. constitutional law and comparative
constitutional law. Scholars studying U.S. constitutional law have
focused on judicial supremacy as a theory of the proper institutional
role of courts in constitutional interpretation within U.S. constitutional
law, juxtaposing judicial supremacy against other theories including
departmentalism and popular constitutionalism.18 In contrast,
comparative law scholars have identified the American model as an
exemplar of judicial supremacy, based on a system of strong-form
18. See LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM

AND JUDICIAL REVIEW 125 (2004) (defining judicial supremacy as judicial finality in
constitutional interpretation); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE
COURTS (1999) (arguing against judicial supremacy in constitutional interpretation); David
Chang, A Critique of Judicial Supremacy, 36 VILL. L. REV. 281, 283 (1991) (“Judicial
supremacy posits that (i) the Supreme Court has ultimate authority to interpret the
Constitution’s meaning; (ii) the Court’s constitutional decisions should be taken as binding
on, and by, all other governmental actors—including Congress and the President; and
(iii) only by amending constitutional text can the electorate supersede the Court’s declarations
of constitutional law.” (footnotes omitted)).

judicial review and an entrenched constitution and rights.19 In this

Part, I explore these conceptions of supremacy and then suggest the
need for an alternate conception of judicial supremacy that reflects the
broader range of institutional roles played by constitutional courts
globally.
A. Judicial Supremacy and Constitutional Interpretation

Within U.S. constitutional law scholarship, judicial supremacy
has been used to describe the extent to which the United States
Supreme Court and federal judiciary have interpretive supremacy—
that is, exclusivity and finality vis-à-vis the other branches of
government in interpreting the scope and meaning of the
Constitution.20 As Mark Tushnet argues, in Cooper v. Aaron, the U.S.
Supreme Court asserted a particular conception of judicial supremacy
in asserting that the U.S. Supreme Court and federal courts’
interpretation of the meaning and scope of the Constitution is
supreme.21 And in City of Boerne v. Flores, the U.S. Supreme Court
asserted its supremacy over constitutional interpretation in holding
that Congress could not alter the meaning and scope of constitutional
rights in enacting the Religious Freedom Restoration Act (RFRA),
which overturned the Court’s earlier decision in Employment Division
v. Smith22 in reintroducing the Sherbert v. Verner23 compelling interest
standard for the review of laws that infringe on religious rights.24 The
Court’s decisions in Cooper and Boerne also suggest a second and
related conception of judicial supremacy as federal supremacy—the
supremacy of federal court interpretation of the Constitution vis-à-vis
state and local actors.25
19. See Tushnet, supra note 2; GARDBAUM, supra note 2 (analyzing the emergence of
weak-form judicial review in the United Kingdom, New Zealand, and Canada).
20. See KRAMER, supra note 18, at 125; Tushnet, supra note 2, at 817.
21. See Cooper v. Aaron, 358 U.S. 1, 18-19 (1958) (upholding the supremacy of the
federal judiciary vis-à-vis state and local actions); TUSHNET, supra note 18, at 4-8, 14-15, 21-
26; Tushnet, supra note 2, at 817.
22. Emp’t Div. v. Smith, 494 U.S. 872 (1990).
23. Sherbert v. Verner, 374 U.S. 398 (1963).
24. See City of Boerne v. Flores, 521 U.S. 507, 532-35 (1997) (holding that the
Religious Freedom and Restoration Act (RFRA) is invalid as applied to states); Tushnet,
supra note 2, at 817-18.
25. As I argue later, this federal dimension of judicial supremacy can be understood
in terms of the broader institutional role that courts play in safeguarding and protecting
constitutionalism vis-à-vis violations of the rule of law by state and local actors. See infra
notes 167-185 and accompanying text (discussing S.R. Bommai v. Union of India, (1994) 3
SCC 1).

This model of interpretive supremacy as a theory is informed by

broader normative debates about the proper role of the United States
Supreme Court vis-à-vis majoritarian electoral practices.26 This
includes scholarship and judicial opinions arguing for judicial
assertiveness based on what John Hart Ely termed a “representation
reinforcement” model of judicial review,27 other rights-foundationalist
based approaches,28 as well as judicial assertiveness based on defenses
of federalism and state sovereignty.29
Within studies of American constitutional law, this particular
conception of judicial supremacy as interpretive supremacy has been
contrasted from departmentalism and popular constitutionalism.30
According to the departmentalist approach, each department or
branch of government has a coordinate and coequal role in
constitutional interpretation.31 In contrast, according to Larry
Kramer’s conception of popular constitutionalism “the role of the
people is not confined to occasional acts of constitution making, but
includes active and ongoing control over the interpretation and
enforcement of constitutional law.”32
From a normative standpoint, judicial supremacy has been
heavily criticized as a model of constitutional interpretation that is
26. It is worth noting that the terms judicial supremacy and constitutional supremacy
are often used interchangeably in the extant literature, although some scholars have suggested
conceptual differences between these terms. See, e.g., Chang, supra note 18, at 286
(distinguishing judicial supremacy from a conception of constitutional supremacy and
arguing that constitutional supremacy posits that the “constitutional text may not be enacted,
repealed, or amended by Congress” and that “constitutional provisions supersede conflicting
national legislation”).
27. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL
REVIEW (1980) (arguing for a representation-reinforcement model of judicial review).
28. See generally BRUCE ACKERMAN, 1 WE THE PEOPLE: FOUNDATIONS (1991)
(discussing rights foundationalist scholarship).
29. See, e.g., City of Boerne, 521 U.S. 507; Shelby Cty. v. Holder, 133 S. Ct. 2612
(2013) (invalidating the preclearance formula in Section 4 of the Voting Rights Act on the
grounds that it violated principles of proportionality and state sovereignty).
30. See Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism,
and Judicial Supremacy, 92 CAL. L. REV. 1027, 1032 (2004). As Post and Siegel note:
Kramer observes that what is “at stake in the choice between a system of judicial
supremacy and one based on departmental or coordinate construction” is precisely
that “[i]n the latter system, the authority of judicial decisions formally and
explicitly depends on reactions from the other branches and, through them, from
the public.”
Id. (quoting KRAMER, supra note 18, at 252).
31. See id. at 1031.
32. Larry D. Kramer, Popular Constitutionalism, Circa 2004, 92 CAL. L. REV. 959,
959 (2004) (distinguishing popular constitutionalism from legal constitutionalism, which
“relocates final authority to interpret and enforce fundamental law in the judiciary,” and
critiquing the shortcomings of the judicial supremacy model).

inconsistent and incompatible with notions of democratic

majoritarianism and popular sovereignty.33 Mark Tushnet argues
against judicial supremacy, arguing that it runs counter to the original
conception of the U.S. Constitution and constitutional practice during
the 19th century, which he argues was based on departmentalism.34
Similarly, in his work on judicial review, Jeremy Waldron critiques
judicial review of legislation as antidemocratic, and further suggests
that systems based on judicial supremacy are problematic in that they
enable judges to engage in decisionmaking that is not restrained or
bound by clear doctrinal principles but rather is informed by judicial
attitudes and worldviews.35
B. Judicial Supremacy as a Global Model of Constitutionalism

In contrast to conceptions of judicial supremacy that center on
the exclusivity and finality of constitutional interpretation by
constitutional courts, a second body of scholarship has focused on
analyzing the U.S. model of judicial supremacy as a distinct model of
constitutionalism. Notwithstanding scholarly debates about the actual
global influence of the U.S. Constitution on other constitutions, the
American model is commonly touted and framed as an exemplar of
the “judicial supremacy” model based on strong-form judicial review,
in contrast to systems based on “parliamentary supremacy” and the
“new commonwealth model” (or weak-form judicial review
models).36
In his recent work on comparative courts, Stephen Gardbaum
argues that constitutional systems can be situated along a spectrum
that ranges from systems based on “political constitutionalism” on
one end, to systems based on “legal constitutionalism” on the other.37
Systems based on political constitutionalism embrace variants of
33. See Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE
L.J. 1346 (2006) (offering a theoretical critique of strong-form judicial review based on
democratic theory and representation arguments).
34. See MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND
SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW (2008) (developing a
theory of weak-form judicial review).
35. See Pratap Bhanu Mehta, India’s Unlikely Democracy: The Rise of Judicial
Sovereignty, 18 J. DEMOCRACY 70, 72 (2007) (critiquing the activism of the Indian Supreme
Court in public interest litigation cases on the grounds that decisions are not guided by clear
doctrinal principles); Jeremy Waldron, Judicial Review and Judicial Supremacy 5 (NYU Pub.
Law & Legal Theory Research Paper Series, Working Paper No. 14-57, 2014) (distinguishing
between judicial review and judicial supremacy).
36. See Waldron, supra note 35, at 5; Tushnet, supra note 2, at 813-15.
37. See GARDBAUM, supra note 2, at 16 (analyzing different typologies of
constitutionalism in comparative constitutional law).

parliamentary or legislative supremacy. Legal constitutionalist

systems include systems like Germany and the United States, which
exhibit varying degrees of interpretive supremacy and decisional
supremacy.38 In contrast to interpretive supremacy, decisional
supremacy focuses on the forms of judicial review that exist in
different systems, and the power and force of judicial review and
decisions vis-à-vis the political branches of government.39
Existing public law scholarship suggests that the United States
and Germany represent distinct types of judicial supremacy.
Gardbaum suggests that the American model of judicial supremacy is
characterized as having three elements: (1) a constitution and bill of
rights that is recognized as the supreme law of the nation;
(2) entrenchment of the constitution and bill of rights against override
through majoritarian legislative processes; and (3) judicial
enforcement of the constitution and bill of rights through judicial
review and the power to invalidate or disapply legislation and
governmental actions found to violate the constitution.40 These
elements roughly capture both interpretive and decisional supremacy.
Gardbaum suggests that the German model of constitutionalism
represents an even stronger conception of legal or “total”
constitutionalism than the United States’, noting how the German
Basic Law significantly restricts the discretion of political branches
more significantly than the U.S. Constitution.41
In contrast to the American model of judicial supremacy, the
parliamentary supremacy model (based on the British parliamentary
model) is premised on a model of legislative supremacy with a highly
limited and circumscribed role for courts. Gardbaum argues that the
weak-form or new commonwealth model has been theorized as
representing a hybrid between the U.S. model of judicial supremacy
and parliamentary supremacy.42 Weak-form models involve alternate
mechanisms of judicial review that creatively allow for less
confrontational and more collaborative approaches between
38. Id. at 12.

39. In a recent article, Gardbaum suggests that there are four facets of supremacy:
interpretive, attitudinal, decisional, and political. See Stephen Gardbaum, What Is Judicial
Supremacy?, in COMPARATIVE CONSTITUTIONAL THEORY (Gary Jacobsohn & Miguel Schor
eds., forthcoming 2018) (analyzing different conceptions of judicial supremacy, including
decisional supremacy).
40. Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49
AM. J. COMP. L. 707, 712-13 (2001).
41. GARDBAUM, supra note 2, at 38-40.
42. Id. at 45.

legislatures and courts.43 Tushnet describes examples of these weak-

form models in Canada, New Zealand, and Great Britain. In Canada,
section 33 of Canada’s Charter of Rights (containing the
notwithstanding clause) allows the legislature to enact statutes with
the proviso that they will be effective “notwithstanding” possible
conflict with specific provisions of the charter and allows the
legislature to reenact legislation found invalid by the Canadian
Supreme Court.44 The New Zealand Bill of Rights requires that
nation’s constitutional court to interpret statutes so as to render them
consistent with the Bill of Rights but does not allow the court to
invalidate statutes deemed to be incompatible with the Bill of
Rights.45
The British Human Rights Act of 1998, while allowing for
judicial review powers to declare legislation incompatible with
protected rights, also allows for the ministerial power to alter the
statute in order to bring legislation into compliance with these rights.46
In his recent book, Gardbaum traces how these weak-form models
represent a hybrid between systems of parliamentary or legislative
supremacy and judicial supremacy, by creating mechanisms and
structures that allow for the judiciary and elected branches to engage
each other in different ways.47 Gardbaum suggests while the U.S.
model of judicial supremacy is based on strong-form judicial review,
exclusivity, and monologue in judicial reasoning, the new
commonwealth model features weak-form mechanisms that allow
courts and political branches to resolve constitutional disputes and
other issues in a more collaborative and dialogical manner.48
C. Toward an Institutional Conception of Judicial Supremacy

In contrast to existing conceptions of judicial supremacy that
identify the U.S. and German constitutional systems as exemplars of
total constitutionalism or legal constitutionalism, I argue for a
different approach for conceptualizing supremacy, one that takes stock
43. See TUSHNET, supra note 34, at 43-79 (analyzing attributes of weak-form judicial
review in commonwealth countries).
44. See GARDBAUM, supra note 2, at 97-108 (analyzing weak-form review under the
Canadian Charter of Rights).
45. See id. at 129-75 (analyzing weak-form review under the Bill of Rights Act in
New Zealand).
46. See id. (discussing weak-form review in the United Kingdom under the Human
Rights Act).
47. Id.
48. See id. at 13-14 (citing Kent Roach, Dialogic Judicial Review and Its Critics, 23
SUP. CT. L. REV. 49 (2004)).

of constitutional courts’ actual roles and institutional features in the

political and constitutional order. This Article thus suggests an
understanding of judicial supremacy that is distinct from the concept
of judicial power, in that it encompasses a much broader
understanding of a Court’s institutional roles, powers, and overall
impact on the constitutional and political system.49
Existing public law scholarship on the U.S. and comparative law
has focused on two aspects of judicial supremacy—first, the degree of
interpretive or constitutional supremacy, and second, the types of
decisional supremacy that exist in different systems.50 On both
measures, the U.S. and German models of judicial supremacy have
been identified as exemplars of judicial supremacy in comparative
law. Another type of system of judicial review—the weak-form
model or the new commonwealth model—has been theorized as
representing a hybrid between systems of parliamentary supremacy
and judicial supremacy by creating mechanisms and structures that
allow for the judiciary and elected branches to engage each other in
different ways.51 Gardbaum suggests that while the U.S. model of
judicial supremacy is based on strong-form judicial review,
exclusivity, and monologue in judicial reasoning, the new
commonwealth model is based on alternative weak forms of judicial
review that foster and encourage dialogue and collaboration between
the judiciary and the branches of government.52 This “horizontal”
dimension of constitutionalism can be illustrated along a continuum
(see Figure 1 below).
Figure 1. Judicial Supremacy and Types of Constitutionalism
United Kingdom United States Germany
Political Legal
Constitutionalism Constitutionalism
However, this focus on the interpretive and decisional aspects of

judicial supremacy are still too limited to capture the full range of
49. Gardbaum suggests that judicial power corresponds to a facet of judicial

supremacy that he defines as “political supremacy.” See Gardbaum, supra note 39 (arguing
that judicial supremacy’s “essential status in the field, however, likely turns on further
comparative experience”).
50. See GARDBAUM, supra note 2, at 2.
51. See id.
52. See id. at 74-77.

institutional roles that courts play globally. In a recent article,

Gardbaum has advanced a broader understanding of judicial
supremacy and identifies four dimensions of judicial supremacy—
interpretive, attitudinal, decisional, and political. Drawing on
understandings of supremacy in the United States, Gardbaum defines
interpretive supremacy as referring to both the finality of the authority
of the Supreme Court in constitutional interpretation and the extent to
which the authority of the Supreme Court extends to bind the
legislative and executive branches.53
Attitudinal supremacy refers to the manner in which
constitutional courts exercise powers of judicial review as “a
particular approach, attitude, mode, or style of the highest court or
certain members of it that goes beyond the function of reviewing laws
for compatibility with the constitution.”54 Citing to Jeremy Waldron,
Gardbaum suggests that attitudinal supremacy entails the use of
“programmatic” approaches to judicial review rather than case-by-
case review, with judges deciding cases on the basis of their own
values and/or on the basis of their understanding of a more dynamic
and evolving “living constitution.”55 Indeed, Waldron himself
suggests that judicial supremacy can result in the emergence of
“judicial sovereignty.”56 Pratap Mehta has raised a similar critique of
the Indian Supreme Court, in arguing that “even as the Supreme
Court has established itself as a forum for resolving public-policy
problems, the principles informing its actions have become less
clear. . . . To the extent that the rule of law means articulating a
coherent public philosophy that produces predictable results, the
Court's interventions look less impressive.”57 As noted earlier,
decisional supremacy, according to Gardbaum, refers to the forms of
judicial review applied by courts vis-à-vis other branches of
government.58 Finally, Gardbaum suggests that political supremacy
refers to the authority and political power of the courts relative to the
other branches of government, including the ability of the court to
53. See Gardbaum, supra note 39.

54. Id.
55. Id.
56. Waldron, supra note 35, at 14-15 (critiquing judicial sovereignty for allowing
courts to assume the role of a Hobbesian super-sovereign with unrestricted control over
lawmaking without any legal constraints).
57. Mehta, supra note 35, at 72, 80-82 (critiquing the antidemocratic implications of
judicial activism in India).
58. Gardbaum, supra note 39.

secure compliance with their decisions and the impact of those

decisions on interbranch politics and policy outcomes.59
Gardbaum groups these different conceptions of judicial
supremacy along two key dimensions—legal-constitutional
supremacy and political supremacy.60 The legal supremacy
conception is informed primarily by scholarship on constitutional and
legal doctrine, while the political supremacy conception is informed
by political theory and political science.61 While Gardbaum’s
conceptualization of judicial supremacy represents a highly developed
theoretical understanding of the concept, it still does not fully
elucidate how the actual institutional roles played by constitutional
courts can be used to assess judicial supremacy in comparative terms.
Figure 2. U.S. and Comparative Conceptions of Judicial Supremacy

Comparative Constitutional Law
U.S. Constitutional Law
(Legal-Constitutional
(Legal-Constitutional)
and Political)
Interpretive
Interpretive Decisional
Federal Attitudinal
Political
Instead, I argue for an institutional conception of judicial

supremacy that takes stock of the broader institutional roles and
functions played by constitutional courts globally and the implications
of those roles for constitutional and political systems.62 As developed
here, institutional supremacy focuses on several key aspects of a
court’s role: first, the role courts play as constitutional guardians;
second, the institutional guardianship role courts assert in protecting
judicial independence; and third, the role courts play as governance
optimizers in shaping and restructuring governance. This institutional
dimension of judicial supremacy can be juxtaposed against the
horizontal dimension of constitutionalism, as reflected in Figure 3
below.
59. Id.
60. Id.
61. Id.
62. For earlier scholarship on the functional roles of courts, see MARTIN SHAPIRO,
COURTS: A COMPARATIVE AND POLITICAL ANALYSIS (1981) (analyzing roles and functions
courts play in different types of constitutional systems). A recent example of scholarship on
institutional roles is CONSEQUENTIAL COURTS: JUDICIAL ROLES IN GLOBAL PERSPECTIVE
(Diana Kapiszewski et al. eds., 2013) [hereinafter CONSEQUENTIAL COURTS] (analyzing
different roles constitutional courts play in politics, governance, and society).

Figure 3. Constitutionalist and Institutionalist

Dimensions of Supremacy
1. Constitutional Guardianship
Extant scholarship on judicial supremacy has largely focused on
assessing the degree of interpretive supremacy in a particular
system—that is, the degree to which constitutional courts serve as the
exclusive and final interpreter of the Constitution—or decisional
supremacy, referring to the strength or weakness of forms of judicial
review.63 However, other constitutional systems feature constitutional
courts that go beyond wielding interpretive supremacy and assert a
more expanded role as constitutional guardians. This includes
asserting the power of judicial review over the constitutionality of
constitutional amendments and engaging in constitutional
entrenchment.64 I define constitutional entrenchment here as the
process by which courts define and entrench constitutional norms,
principles, and rights.65
The U.S. Supreme Court’s decisions in Cooper and Boerne
arguably represent distinct aspects of judicial supremacy and
63. See Gardbaum, supra note 39; TUSHNET, supra note 34, at 3-43.
64. See infra Part IV.A (discussing courts’ roles in constitutional entrenchment in
India, Germany, and Colombia).
65. See Ernest A. Young, The Constitutive and Entrenchment Functions of
Constitutions: A Research Agenda, 10 J. CONST. L. 399 (2008). While the U.S. Supreme
Court does not have the power to invalidate amendments, it has arguably restricted the scope
of constitutional amendments through narrow interpretations in certain cases, including the
Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873), and City of Boerne v. Flores, 521 U.S.
507 (1997).

constitutional guardianship.66 Tushnet argues that the Court’s decision

in Cooper represented the triumph of the supremacy of the federal
judiciary over state and local jurisdictions resisting the Court’s
decisions in Brown v. Board of Education (Brown I ) in 195467 and
Brown v. Board of Education (Brown II ) in 1955.68 In invalidating the
RFRA, which had been enacted in response to the Court’s decision in
Employment Division v. Smith, Boerne represented another example
of judicial supremacy.69 In Smith, the Court went against its earlier
precedent in Sherbert v. Verner, holding that neutral laws of general
applicability that infringed religious freedom were to be reviewed
under a rational basis review.70 Congress responded by enacting
RFRA, which effectively restored the Sherbert standard, requiring that
laws that infringe religious freedom be reviewed under a compelling
interest test (strict scrutiny).71 The Court in Boerne held that
Congress did not have the authority to enact RFRA because in
overturning Smith and reinstating the Sherbert test, Congress was
effectively appropriating the power to redefine the scope of
constitutional rights.72 The Court held that RFRA was invalid as
applied to states. In doing so, RFRA effectively intruded on the
Court’s role as the exclusive and final interpreter of the Constitution.73
Boerne thus represents two facets of supremacy—interpretive
supremacy vis-à-vis Congress with respect to constitutional
interpretation and federal supremacy vis-à-vis state governments.74
However, a closer look at the institutional roles played by
constitutional courts in India and other polities suggest the need to
expand our understanding of supremacy and constitutional
guardianship in terms of a broader spectrum of roles that courts play
in entrenching constitutional norms, principles, and rights as core or
basic features that cannot be amended by the government. The U.S.
66. See Boerne, 521 U.S. at 532-35; Cooper v. Aaron, 358 U.S. 1, 18-19 (1958).
67. 347 U.S. 483 (1954).
68. 349 U.S. 294 (1955).
69. See Boerne, 521 U.S. at 532-35 (holding that RFRA is invalid as applied to
states); Emp’t Div. v. Smith, 494 U.S. 872, 888-90 (1990); TUSHNET, supra note 34, at 21-22
(analyzing how Boerne represents an assertion of interpretive supremacy).
70. See Boerne, 521 U.S. 507; Smith, 494 U.S. 872 (overturning Sherbert v. Verner,
374 U.S. 398 (1963), in holding that the compelling interest test does not apply to review of
neutral laws of general applicability).
71. See TUSHNET, supra note 34, at 16-17, 21; see generally Boerne, 521 U.S. 507
(finding that the RFRA exceeded Congress’s power under the Fourteenth Amendment);
Sherbert, 374 U.S. 398 (holding that laws that infringe religious freedom may be justified by
a compelling state interest).
72. See Boerne, 521 U.S. at 532-35.
73. See id.
74. See TUSHNET, supra note 34, at 21-22; Chang, supra note 18, at 285 n.10.

model of judicial supremacy is arguably based on a conception of the

Court’s “interpretive supremacy” as the exclusive and final interpreter
of the Constitution. In contrast, other constitutional systems,
including India, Germany, and Turkey, feature constitutional courts
that not only feature interpretive supremacy but also play a much
more expansive role in judicial review of constitutional amendments
and entrenching constitutional norms and principles.75 Here, India
can be situated along a continuum of courts exercising strong-form
judicial review but varying in the degree and extent to which they
engage in basic structure review and constitutional entrenchment.
2. Institutional Guardianship
A second major institutional role that courts can assert is as
institutional guardians. I define institutional guardianship as the
judicial assertion of a key institutional role in consolidating and
entrenching independence from the other branches of government. As
illustrated in Part III, the Indian Supreme Court’s NJAC decision
arguably reflects a particular exercise of both constitutional
guardianship and institutional guardianship in that the Court sought to
entrench constitutional norms related to judicial primacy in
appointments.76 In terms of efforts to advance and consolidate greater
levels of judicial independence, the institutional guardianship role of a
court must be understood as a court-centric strategy that reflects the
distinct historical and political context of judicial empowerment in a
polity.
The NJAC decision can be situated within a broader global trend
toward more professionalized modes of judicial appointment that seek
to minimize political interference and increase judicial
independence.77 In contrast to other systems where external actors
have restructured the judicial appointments systems to foster greater
independence,78 the Indian case is unique in that the judiciary itself
75. While the U.S. Supreme Court does not have the power to invalidate
amendments, it has arguably restricted the scope of constitutional amendments through
narrow interpretations in certain cases, including the Slaughterhouse Cases, 83 U.S. (16
Wall.) 36 (1873), and Boerne, 521 U.S. 507.
76. Supreme Court Advocates-on-Record Ass’n v. Union of India, (2016) 5 SCC 1
(2015).
77. See id. at 429 (citing Nuno Garoupa & Tom Ginsburg, Guarding the Guardians:
Judicial Councils and Judicial Independence (John M. Olin Program in Law & Econ.
Working Paper Series, Paper No. 444; Pub. Law & Legal Theory Working Paper Series, Paper
No. 250, 2008)) (analyzing the global trend toward adoption of judicial appointment
commissions).
78. See Garoupa & Ginsburg, supra note 77.

has asserted and entrenched institutional independence from the

executive and legislative branches of the national government.79
The assertion of an institutional guardianship role by courts can
have profound implications for judicial supremacy by significantly
increasing the degree of judicial independence and even judicial
autonomy.80 Courts that possess a strong degree of influence or
control over their own appointments systems arguably reflect a higher
degree of supremacy as compared to those that are appointed by
political regimes mainly on the basis of political ideology. Even in
systems where commissions or judicial councils play a significant
role in judicial appointments, the elected political branches of
government generally appoint a portion of the membership of these
commissions and therefore retain some institutional control over the
appointment process.
3. Courts as Governance Optimizers

A third institutional role that constitutional courts play globally
is as institutions of governance optimization. By governance
optimization, I refer to the role that constitutional courts play in
intervening in, overseeing, and restructuring the domains of
governance and regulation. In contrast to the relatively limited role of
the U.S. Supreme Court and other high courts, constitutional courts in
India, Colombia, South Africa, and other polities have exerted a role
that is distinct from and more expansive than strong-form judicial
review. The Indian Supreme Court plays a key role as a political
regulator and governance optimizer in seeking to improve and
enhance governance through various forms of intervention.81 For
example, the Indian Supreme Court has asserted a major institutional
role in monitoring and checking the excesses of government
corruption, as illustrated by its intervention in the Vineet Narain case,
involving one of the most significant corruption scandals in Indian
history, the Jain Hawala scandal.82 Since then, the Indian Court has
built on that intervention to take on governmental corruption in other
major corruption scams, including the 2G Telecom scam and the
Coalgate scam.83 It has also asserted expanded power and jurisdiction

81. See infra Part III.C.
82. See generally Vineet Narain v. Union of India, (1997) 4 SCC 778 (1996)
(discussing the Hawala scandal in India and the failure of the Central Bureau of Investigation
to investigate allegations of public corruption).
83. See infra Part III.C.

over environmental governance, including the virtual judicial takeover

of management of India’s forests from the Ministry of Environment
and Forests in the Godavarman litigation.84 In these cases, the Indian
Supreme Court has restructured existing regulatory bureaucratic
structures, and in other cases, created new court-led bureaucracies.
The Indian Supreme Court’s expanded role in governance
appears to mark a global trend toward courts intervening in, and in
some cases taking over, the domains of governance and regulation.
This emerging institutional trend in global judicial governance
suggests the need to look beyond existing measures of interpretive
and decisional supremacy to fully assess the scope of courts’ roles as
institutions of governance. The active role constitutional courts play
globally in governance also cannot be neatly captured within existing
spectrums of constitutionalism that focus on political and legal
valences. As illustrated in Part IV.C, other constitutional courts,
including the Colombian Constitutional Court, have also asserted
similar roles in taking over and restructuring governance domains.85
This global trend in the emergence of new institutional roles for
courts suggests that scholars should pay significant attention to the
degree to which courts alter, structure, or displace formal governance
functions of the government, including but not limited to executive
and administrative agency functions.
III. CONSTRUCTING JUDICIAL SUPREMACY IN INDIA

India’s constitutional system today is far different than the
colonial model of British parliamentary supremacy and indeed looks
far different today than it did during the early years following the
ratification of the Indian Constitution in 1950.86 Like the U.S.
Supreme Court, the history of the Indian Supreme Court has been one
of gradual empowerment over time, although the Indian Court’s
trajectory and path toward empowerment is impressive given its
relatively brief history.87 The Indian Supreme Court’s assertion and
84. See Armin Rosencranz et al., The Godavarman Case: The Indian Supreme
Court’s Breach of Constitutional Boundaries in Managing India’s Forests, 37 ENVTL. L. REP.
10,032 (2007); infra Part III.C.
85. See infra Part IV.B.
86. See generally GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF
A NATION (1966) (providing a political history of the Constituent Assembly’s debates and the
drafting of the Indian Constitution).
87. See Robert A. Kagan, A Consequential Court: The U.S. Supreme Court in the
Twentieth Century, in CONSEQUENTIAL COURTS, supra note 62, at 199, 200-26 (tracing the
political empowerment of the United States Supreme Court through analysis of key
“constitutional moments”).

consolidation of power illustrates two concepts: first, how interactions

between courts, their institutional and elite intellectual contexts, and
political regimes help influence and shape these key moments of
judicial assertiveness; and second, how judicial “lock in” of new
powers and jurisprudential frameworks guide and shape the
subsequent evolution and development of power and, ultimately,
supremacy.
The Indian Constitution, in its original form, created a political
system predicated on the idea of parliamentary sovereignty, sharing
important similarities with the British system.88 This included the
grant of the constituent power of amendment to Parliament.89
However, in adopting a written constitution with judicial review, an
independent judiciary with a Supreme Court and high courts, and
expansive writ jurisdiction for these courts, the Constitution created a
framework with features of a legal constitutionalist system and the
potential of an activist judiciary that could seek to expand the role of
the courts in Indian politics.
Several key provisions of the Constitution defined the original
scope and parameters of the Court’s powers of judicial review. Article
13 provides for judicial review of ordinary legislation enacted by
Parliament based on the fundamental rights in Part III of the
Constitution.90 Article 368 sets forth the scope of the constituent
power of amendment by defining the process by which Parliament
could amend the Constitution.91 In addition, Article 32 of the Indian
Constitution provided for original writ jurisdiction for fundamental
rights claims before the Supreme Court and also provides for remedial
powers and procedures for the enforcement of the fundamental
rights.92 Beyond the powers of judicial review, original writ
jurisdiction for fundamental rights claims, and advisory jurisdiction,
the Court today possesses impressive powers that it did not assert in
its early years. This includes the power to review and invalidate
88. See AUSTIN, supra note 86, at 13-18.

89. See INDIA CONST. art. 368.
90. Id. art. 13.
91. See id. art. 368.
92. Article 32, sections (1) and (2) of the Indian Constitution provide:
Remedies for enforcement of rights conferred by this Part.
(1) The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or
writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this
Part.

constitutional amendments under the basic structure doctrine and the

Court’s control over its own judicial appointments processes.93 In this
Part, I trace how the Court was able to establish supremacy through
patterns of assertiveness in the basic structure doctrine cases over a
series of decades beginning in the 1960s and 1970s. In contrast to the
expectations of regime politics models, the Court itself played a
significant role in shaping its own destiny and in redefining and
expanding its role and powers in the constitutional system of India.94
A. The Basic Structure Doctrine: Constitutional Guardianship95

The birth of India’s basic structure doctrine can be traced to
confrontation and contestation between the Court and Indira Gandhi’s
Congress regime over the constitutionality of the Congress
government’s social-egalitarian reform legislation in the 1960s and
1970s, and the validity of constitutional amendments enacted to
override judicial decisions.96 Through its decisions in Kesavananda
Bharati Sripadagalvaru v. State of Kerala; Indira Nehru Gandhi v. Raj
Narain (Indira Gandhi Election Case or Election Case); and Minerva
Mills Ltd. v. Union of India and Waman Rao v. Union of India, the
Court locked in the foundations of the basic structure doctrine that
would help frame the future contours of constitutionalism and judicial
power in India.97
Early contestation over the constituent power involved
challenges to these amendments based on Article 31 of the
Constitution, which provided protections for the fundamental right of
property. In this period, the Court upheld the First and Fourth
Amendments in Shankari Prasad v. Union of India in 1951, and later,
the Court upheld the Seventeenth Amendment in Sajjan Singh v. State
93. See Golak Nath v. State of Punjab, (1967) 2 SCR 762, 777-79.
94. See Manoj Mate, The Rise of Judicial Governance in the Supreme Court of India,
33 B.U. INT’L L.J. 169, 203-05, 208-21 (2015) (arguing that the Indian Supreme Court’s
activism and selective assertiveness can be explained by the model of elite institutionalism).
95. This subpart draws on Manoj Mate, Priests in the Temple of Justice: The Indian
Legal Complex and the Basic Structure Doctrine, in FATES OF POLITICAL LIBERALISM IN THE
BRITISH POST-COLONY: THE POLITICS OF THE LEGAL COMPLEX 112 (Terence C. Halliday et al.
eds., 2012) [hereinafter Mate, Priests in the Temple of Justice] and Manoj Mate, State
Constitutions and the Basic Structure Doctrine, 45 COLUM. HUM. RTS. L. REV. 441 (2014)
[hereinafter Mate, State Constitutions].
96. See Mate, Priests in the Temple of Justice, supra note 95, at 120-22.
97. Minerva Mills v. Union of India, (1981) 1 SCR 206; Waman Rao v. Union of
India, (1981) 2 SCR 1 (1980); Indira Nehru Gandhi v. Shri Raj Narain, (1975) Supp. SCC 1;
Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225.

of Rajasthan in 1965.98 These amendments had added a set of

immunity provisions (or saving clauses) to the Constitution—Articles
31A and 31B, along with the newly added Ninth Schedule—that
immunized legislation that contravened the fundamental rights
provisions.99 However in the 1960s and 1970s, contestation over the
constituent power of amendment quickly escalated. The Court
signaled a new approach to judicial review of amendments in Golak
Nath v. State of Punjab. In Golak Nath, the Court asserted the power
to review and invalidate constitutional amendments under Article 13
of the Constitution.100 The majority, led by Chief Justice K. Subba
Rao, held that Article 13, which had previously been held to only
authorize judicial review of ordinary legislation, also extended the
definition of “laws” to include constitutional amendments.101
Following the Golak Nath decision, the Gandhi Congress government
enacted a series of amendments—the Twenty-Fourth, Twenty-Fifth,
and Twenty-Ninth Amendments—aimed at overriding the Court’s
decision and immunizing legislation from judicial review.
1. Kesavananda: Origins of the Basic Structure Doctrine

In its landmark decision Kesavananda Bharati v. State of Kerala,
the Court fundamentally redefined its own role as a constitutional
guardian, in asserting the basic structure doctrine and the power to
review and invalidate constitutional amendments on substantive
grounds—based on a conception of the broader basic structure of the
entire Constitution—as opposed to the procedural requirements of
Article 368.102 The Court in Kesavananda adjudicated a series of
challenges to the recently enacted amendments. The amendments
were aimed at overriding the Court’s recent decisions invalidating
constitutional amendments and government legislation.103 The
Twenty-Fourth Amendment sought to overrule Golak Nath by
reasserting Parliament’s unlimited power to amend the Constitution
under Article 368, holding that such amendments were not ordinary
“laws” under Article 13 and could not be subject to judicial review by
98. Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933; Shankari Prasad v. Union
of India, (1952) SCR 89 (1951).
99. See Golak Nath v. State of Punjab, (1967) 2 SCR 762, 777-79; Mate, Priests in
the Temple of Justice, supra note 95, at 120-22.
100. Golak Nath, (1967) 2 SCR at 777-79.
101. Id.
102. Kesavananda Bharati, (1973) 4 SCC at 1007.
103. See id.; GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: THE
INDIAN EXPERIENCE 258-59 (1999).

the Court.104 The Twenty-Fifth Amendment made compensation

associated with land acquisition laws nonjusticiable and stipulated
that laws enacted to give effect to the Directive Principles could not be
challenged in Court.105 The Twenty-Ninth Amendment inserted the
1969 Kerala Land Reform Act in the Ninth Schedule to immunize it
from judicial review.106
In a remarkable decision spanning close to 1000 pages and
featuring eleven separate opinions, a closely divided 7-6 bench
overruled its earlier decision in Golak Nath and held that Parliament
could amend the fundamental rights provisions.107 However, the
Court also found that under Article 368, Parliament could not enact
constitutional amendments that altered the “basic structure” of the
Indian Constitution.108 The majority voted to uphold the Twenty-
Fourth and Twenty-Ninth amendments in their entirety and the first
part of the Twenty-Fifth Amendment. However, the Court held that
the second part of the Twenty-Fifth Amendment was invalid and
violated the basic structure of the Constitution, as it would allow for
completely taking away the fundamental rights in Articles 14, 19, and
31.109 The second part of the amendment had added a new Article
31C to the Constitution, which provided that “no law containing a
declaration that is for giving effect to” the directive principles under
Article 39 clauses (b) and (c) shall be reviewed by a Court to
determine whether the law gives effect to the directive principles.110
A majority of the Court ruled that Article 368 prohibited
Parliament from abrogating basic features of the Constitution and held
that the provision contained “implied limitations” that barred
Parliament from altering or destroying the “basic structure” of the
Constitution.111 In contrast, six other judges in dissent held that
Article 368 did not contain any implied limitations on the power of
constitutional amendment and that Parliament could amend any
provision of the Constitution.112 The “swing” vote for the majority
was Justice H.R. Khanna. While Justice Khanna argued that
104. AUSTIN, supra note 103, at 265.

105. Id. at 266.
106. Id. at 266-67.
107. Raju Ramachandran, The Supreme Court and the Basic Structure Doctrine, in
SUPREME BUT NOT INFALLIBLE: ESSAYS IN HONOUR OF THE SUPREME COURT OF INDIA 107,
107-33 (B.N. Kirpal et al. eds., 2000) [hereinafter SUPREME BUT NOT INFALLIBLE].
108. Id.
109. Kesavananda Bharati Sripadagalvaru v. Kerala, (1973) 4 SCC 225, 1007.
110. Id. at 393.
111. A.G. Noorani, Behind the ‘Basic Structure’ Doctrine, FRONTLINE, May 11, 2001,
at 95; see S.P. SATHE, JUDICIAL ACTIVISM IN INDIA 69-70 (2002).
112. Noorani, supra note 111, at 95.

Parliament, in exercising its constituent power of amendment, must

leave “the basic structure or framework of the Constitution” intact,113
he also agreed with the second bloc of six judges in voting to uphold
Article 31C that had been added by the second part of the Twenty-
Fifth Amendment.114
The decision was noteworthy in that there was not a clear
majority consensus among the various opinions. However, nine
justices of the Court (including two of the justices who dissented)
signed a “summary” statement of the opinion of the Court. Chief
Justice Sikri drafted the summary statement of the Court’s opinion
largely based on the statement of conclusions in Justice Khanna’s
opinion, in which Justice Khanna recognized that there were limits on
the amending power.115 The Kesavananda Court’s central holding, as
set forth in this summary, was that under Article 368, Parliament
could not enact constitutional amendments that altered or destroyed
the “basic structure” or essential elements of the Indian
Constitution.116 Significantly, although there was a consensus in the
decision on the recognition of a basic structure doctrine, the justices
diverged on what features might constitute basic features.117
In his lead opinion for the majority, Chief Justice Sikri argued
that the basic structure doctrine and implied limits on the amending
power could be inferred from both the constitutional text and
structure, as well as evidence of original intent.118 Justice Sikri’s
opinion recognized implied limitations on the amending power in
Article 368. Justice Sikri interpreted Article 368 in light of the entire
structure of the Constitution as well as the original intent of the
framers.119 In setting forth the procedural requirements for
constitutional amendment, Article 368 provided that most sections of
the Indian Constitution could be amended by a majority vote of both
houses of Parliament (the Lok Sabha and Rajya Sabha) and the assent
of the president. However, as Justice Sikri noted, Article 368 required
an additional level of process for the amendment of certain
113. Kesavananda, (1973) 4 SCC at 290.

114. Kesavananda, (1973) 4 SCC at 739, 767-69; SUDHIR KRISHNASWAMY,
DEMOCRACY AND CONSTITUTIONALISM IN INDIA: A STUDY OF THE BASIC STRUCTURE
DOCTRINE 27 (2009) (citing N.A. Palkhivala, Fundamental Rights Case: Comment, (1973) 4
SCC (Jour.) 57).
115. Kesavananda, (1973) 4 SCC at 1007; KRISHNASWAMY, supra note 114, at 27.
117. Id. at 366 (Sikri, C.J.), 454 (Shelat & Grover, J.J.), 483-85 (Hegde & Mukherjea,
J.J.), 637-39 (Jaganmohan Reddy, J.).
118. Id. at 315-29 (majority opinion).
119. Id. at 315-20.

provisions—ratification by at least half of the state legislatures of the

states specified in Parts A and B of the First Schedule of the
Constitution.120
Consequently, Justice Sikri’s opinion thus argued that this
omission of certain articles suggested that the constitutional framers
recognized implied limitations on the constituent power of
amendment.121 Applying a structural approach to interpretation,
Justice Sikri proceeded to articulate a limited conception of the
amending power based on a reading of the preamble, the directive
principles, and the non-inclusion in Article 368 of certain
constitutional provisions.122 Chief Justice Sikri held that the basic
structure included “(1) Supremacy of the Constitution; (2) Republican
and Democratic form of Government[;] (3) Secular character of the
Constitution; (4) Separation of powers between the legislature, the
executive and the judiciary; (5) Federal character of the
Constitution.”123
In engaging in structural analysis, Justice Sikri implicitly
suggested that there was a hierarchy of constitutional provisions in the
Constitution by recognizing three categories of provisions in terms of
their relative status as entrenched provisions.124 The first category of
provisions can be amended by the normal process, requiring
ratification by a majority vote in both houses of Parliament and the
assent of the president.125 A second category requires parliamentary
and presidential ratification and ratification by at least half the
states.126 Finally, a third category of provisions or principles—
120. Id. at 314-15. These provisions included:

(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article[.]
121. See id. at 313-16, 335, 338-42, 345-46, 405; KRISHNASWAMY, supra note 114, at
31-35 (citing Kesavananda, (1973) 4 SCC at 313-29). For example, Justice Sikri’s opinion
analyzed how Article 54 provided for the procedure and manner of election of the president
of India by an electoral college consisting of (a) the elected members of both houses of
Parliament; and (b) the elected members of the legislative assemblies of the states. In
addition, the opinion noted how Article 55 prescribes the manner of election of the president.
And yet, as Justice Sikri observed, Article 52 (stipulating that there shall be a president of
India) and Article 53 (vesting the executive power of the union in the president of India and
directing the exercise of that power) were omitted from the proviso.
122. Ramachandran, supra note 107, at 114 (citing Kesavananda, (1973) 4 SCC at
405).
124. Id. at 313-29.
125. Id.
126. Id.

identified by Justice Sikri as basic features—cannot be amended by

normal constitutional processes and presumably can only be altered or
changed by a new Constituent Assembly with the power to create a
new or modified Constitution.127 Other justices in the majority argued
for a more expansive conception of the basic structure. For example,
Justice Shelat argued that “[t]he unity and the integrity of the Nation”
and “the mandate to build a welfare State” were also basic features.128
While the legitimacy of the basic structure doctrine is now recognized
and defended by most advocates and legal scholars, legal and media
commentary immediately following the decision was critical of the
decision.129
2. The Indira Gandhi Election Case

Following Prime Minister Indira Gandhi’s declaration of
emergency rule in 1975, the Supreme Court largely acquiesced to the
new regime. However, one important exception to this was the
Court’s assertiveness in the Election Case.130 On June 12, 1975, a
state high court judge in the Allahabad High Court found Indira
Gandhi guilty on two corrupt electoral practices violations of the
Representation of People Act and ruled that she was disqualified from
running for election for six years.131 The government appealed the
decision to the Supreme Court and requested an immediate and
unconditional stay, but on June 24, Justice V.R. Krishna Iyer declined
to grant a stay.132 However, Justice Krishna Iyer did issue a
conditional order allowing Gandhi to attend parliamentary sessions as
prime minister and a member but without any voting powers pending
resolution of the matter in the appeal.133 Gandhi issued a
proclamation for emergency rule that day, which went into effect on
127. Id.
128. Id. at 454 (Shelat & Grover, JJ. concurring); see Ramachandran, supra note 107,
at 114 (citing Kesavananda, (1973) 4 SCC at 406-63 (Shelat & Grover, JJ., concurring)). In
addition, Justice Jaganmohan Reddy held that Parliamentary democracy, separation of
powers, and the three organs of the State form the basic structure of the Constitution.
Kesavananda, (1973) 4 SCC at 638 (Jaganmohan Reddy, J., concurring).
129. See, e.g., Upendra Baxi, The Constitutional Quicksands of Kesavananda Bharati
and the Twenty-Fifth Amendment, (1974) 1 SCC (Jour.) 45, 46 (noting that the decision
represented the “constitution of the future”); H.M. Seervai, The Fundamental Rights Case at
the Cross Roads, 75 BOMBAY L. REP. 47 (1973); P.K. Tripathi, Kesavananda Bharati v. The
State of Kerala Who Wins?, (1974) 1 SCC (Jour.) 3.
130. Indira Nehru Gandhi v. Shri Raj Narain, (1975) Supp. SCC 1.
131. T.R. Andhyarujina, When the Bench Buckled, INDIAN EXPRESS (July 8, 2015,
12:03 AM), http://indianexpress.com/article/opinion/columns/when-the-bench-buckled.
132. Id.
133. Id.

June 26, 1975.134 During the Emergency, the Indian Supreme Court
upheld the regime’s suspension of democratic rule and fundamental
rights, including the suspension of habeas corpus for detainees under
the Maintenance of Internal Security Act (MISA)135 and acquiesced to
the regime’s attacks on the Court’s jurisdiction and power.136 In order
to retrospectively validate Gandhi’s election following the Allahabad
High Court’s decision, Parliament enacted the Thirty-Ninth
Amendment to the constitution, inserting Article 329A into the
Constitution.137 The amendment superseded the applicability of all
previous election laws and immunized all elections involving the
prime minister or speaker of the Lok Sabha from judicial review.138
In the Election Case, a five-judge bench of the Court applied the
basic structure doctrine in reviewing the validity of the Thirty-Ninth
Amendment (adding Article 329A).139 The Court invalidated the
amendment and built on its earlier decision in Kesavananda in
promulgating doctrinal principles for identifying what constitute basic
features. Justice Khanna held that the provision in the amendment
adding Article 329A violated the basic structure of the Indian
Constitution by contravening the “democratic set-up” of the
Constitution and the “rule of law” because democracy requires that
“elections should be free and fair.”140 In addition, Justice Y.V.
Chandrachud also voted to invalidate the provision on the grounds
that it violated the basic structure in that it represented “an outright
negation of the right of equality” and was “arbitrary and . . . calculated
to damage or destroy the rule of law.”141 Further, Justice Matthew
held that the provision adding Article 329 in the Thirty-Ninth
Amendment was invalid “because constituent power cannot be
employed to exercise judicial power.”142
134. Id.
135. See Union of India v. Bhanudas Krishna Gawde, (1977) 2 SCR 719 (holding that
the Supreme Court cannot examine whether conditions of detention were in compliance with
prison legislation and legal and constitutional requirements during a period of emergency
rule); Jabalpur v. S.S. Shukla, (1976) SCR 172 (upholding the government’s suspension of
habeas corpus under MISA).
136. Bhanudas, (1977) 2 SCR 719; see SATHE, supra note 111, at 73-76.
137. Ramachandran, supra note 107, at 115. The regime also enacted the Forty-First
Amendment, which raised the age of retirement of the chairman and the members of the State
Public Service Commissions from sixty to sixty-two years.
138. Id. at 116.
139. Indira Nehru Gandhi v. Shri Raj Narain, (1975) Supp. SCC 1, 88-94, 114-15
(Khanna, J.); id. at 245-50, 258-62 (Chandrachud, J.)
140. Id. at 87, 90-92.
141. Id. at 257-58.
142. UPENDRA BAXI, THE INDIAN SUPREME COURT AND POLITICS 58 (1980) (citing
Indira Nehru Gandhi, (1975) Supp. SCC at 120-29).

Significantly, Justice Chandrachud’s majority opinion was

noteworthy in that it articulated a concrete framework for identifying
whether principles or provisions of the Constitution were “basic
features.”143 In order to identify whether a feature is part of the basic
structure, Justice Chandrachud held that “one has perforce to examine
in each individual case the place of the particular feature in the
scheme of our Constitution, its object and purpose, and the
consequences of its denial on the integrity of the Constitution as a
fundamental instrument of country’s governance.”144 Following this
approach, Justice Chandrachud held that the following features
formed a part of the basic structure:
(i) India is a sovereign democratic republic; (ii) Equality of status and
opportunity shall be secured to all its citizens; (iii) The State shall have
no religion of its own and all persons shall be equally entitled to
freedom of conscience and the right freely to profess, practise and
propagate religion and that (iv) the nation shall be governed by a
Government of laws, not of men.145
3. Minerva Mills v. India: Entrenching and Restoring

Constitutionalism
In the 1977 parliamentary elections, the Congress Party was
defeated by the Janata Party coalition, signaling the electorate’s
repudiation of the excesses of the Emergency regime.146 Janata’s
campaign manifesto advocated for ending the Emergency, repealing
the draconian MISA, rescinding amendments,147 and restoring
democracy and constitutionalism.148 Following Kesavananda, the
143. Indira Nehru Gandhi, (1975) Supp. SCC at 252.

144. Id.
145. Id.
146. See AUSTIN, supra note 103, at 391-94 (discussing the political implications of
the 1977 elections for the constitutional reforms of the Gandhi regime).
147. MISA had originally been enacted in 1971 by the Gandhi Congress regime in
order to deal with Naxalite agitation in the northeastern states but was renewed to deal with
agitation by opposition leaders prior to and during the Emergency.
148. See 1 MADHU LIMAYE, JANATA PARTY EXPERIMENT: AN INSIDER’S ACCOUNT OF
OPPOSITION POLITICS: 1975-1977, at 263 (1994); AUSTIN, supra note 103, at 399-400. The
Emergency regime enacted the Thirty-Eighth, Thirty-Ninth, Fortieth and Forty-Second
Amendments. These amendments sought to restore parliamentary supremacy and restrict
constitutionalism, judicial review, and individual rights. The Forty-Second Amendment
sought to solidify the Gandhi regime’s control of the government by authorizing the
government to dissolve state governments under certain conditions, restricting judicial power,
barring judicial review of the 1971 elections (including the election of Indira Gandhi),
overturning Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225, by
barring judicial power to review constitutional amendments, and changing judicial norms to

Court was confronted with significant backlash, including

supersession of judges, court-packing, and the enactment of
constitutional amendments that curbed the Court’s power of judicial
review and jurisdiction. However, the Janata Party’s victory in the
1977 election fundamentally transformed the political landscape. The
Janata government reversed the Emergency decrees and repealed
some of the amendments enacted by the Emergency regime.149 Facing
a more favorable political environment, the Court shifted toward a
new activism in this period. In Maneka Gandhi v. Union of India, the
Court expanded the scope of the fundamental rights provisions in
Articles 14, 19, and 21 and recognized a substantive due process
component to life and liberty.150 Following Maneka, the Court issued
a number of decisions recognizing new fundamental rights based on
the right to life and liberty and based on rights contained in Article
19.151 The Court in Maneka also expansively interpreted the right to
equality in Article 14 in articulating a new standards of “non-
arbitrariness” and reasonableness review.152
However, in one of its most significant decisions, the Court in
Minerva Mills helped complete the restoration of constitutionalism
initiated by the Janata regime by reasserting the basic structure
doctrine to invalidate parts of the Emergency regime amendments. In
require two-thirds majorities of court benches in order to invalidate statutes. See Burt
Neuborne, The Supreme Court of India, 1 INT’L. J. CONST. L. 476, 494-95 (2003).
149. See Neuborne, supra note 148.
150. See Maneka Gandhi v. Union of India, (1978) 2 SCR 621; Manoj Mate, The
Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive
Detention Cases, 28 BERKELEY J. INT’L L. 216 (2010); see generally BAXI, supra note 142
(analyzing the activism of the post-Emergency Indian Supreme Court in fundamental rights
cases and arguing that this activism was motivated by a desire for legitimation and
redemption); SATHE, supra note 111, at 110-22 (arguing that the Indian Supreme Court’s
post-Emergency activism in fundamental rights cases was motivated by a desire to “atone” for
its acquiescence during the Emergency); Upendra Baxi, Taking Suffering Seriously: Social
Action Litigation in the Supreme Court of India, 1985 THIRD WORLD LEGAL STUD. 107, 128-
29 (arguing that the Indian Supreme Court was strategic in asserting public interest litigation
in challenging government in sub-national cases).
151. See Maneka, (1978) 2 SCR at 673-75 (recognizing broad scope of the right to life
and liberty under a substantive due process conception of Article 21); see also Consumer
Educ. & Research Ctr. v. Union of India, (1995) 3 SCC 42 (right to health); M.C. Mehta v.
Union of India, (1987) 1 SCC 395 (right to clean air); Tellis v. Bombay Mun. Corp., (1985) 3
SCC 545 (right to shelter); Mullin v. Union Territory of Delhi, (1981) 1 SCC 608, 618
(recognizing the right to life); Sunil Batra v. Delhi Admin., (1979) 1 SCR 392 (1978) (right to
personal liberty includes right to be free of torture); Hussainara Khantoon v. State of Bihar,
(1979) 3 SCR 760.
152. See Maneka, (1978) 2 SCR at 629 (articulating a new standard of non-
arbitrariness review based on the right to equality in Article 14); M.P. Jain, The Supreme
Court and Fundamental Rights, in FIFTY YEARS OF THE SUPREME COURT OF INDIA: ITS GRASP
AND REACH 1, 23-26 (S.K. Verma & K. Kusum eds., 2000).

Minerva Mills, the Court adjudicated a constitutional challenge to the

Sick Textiles Nationalization Act of 1974.153 The law had been added
to the Ninth Schedule of the Constitution through the Thirty-Ninth
Amendment, thus immunizing the law from judicial review.154
However, the advocates in Minerva Mills were able to reframe the
case as a challenge to the Forty-Second Amendment enacted during
the Emergency. The Janata government was able to repeal most of the
Emergency regime amendments, however it was unable to completely
repeal the Forty-Second Amendment.155
Applying the basic structure doctrine, the majority in Minerva
Mills invalidated sections 4 and 55 of the Forty-Second Amendment
as violative of the basic structure.156 Section 4 amended Article 368
so as to subordinate the fundamental rights in Articles 14 and 19 to
the directive principles. And section 55 amended Article 31C to
provide that no law enacted to advance the directive principles could
be challenged in court as violative of the fundamental rights in
Articles 14, 19, or 31.157 In his lead opinion for the majority, Chief
Justice Chandrachud reaffirmed the basic structure doctrine and held
both sections 4 and 55 unconstitutional, ruling that these provisions
sought to expand Parliament’s amending power to enable the
government to abrogate the Constitution or destroy its basic features,
given that “a limited amending power is one of the basic features of
[our] Constitution.”158
In addition to identifying a limited amending power as one of the
basic features of the Indian Constitution, Justice Chandrachud built on
the Election Case and proceeded to articulate which rights and
provisions were basic features included in the basic structure doctrine.
Justice Chandrachud further held that the fundamental rights
protections in Articles 14 (equality), 19, and 21 (due process, life and
liberty) formed a “golden triangle” that was basic to the Indian
Constitution, along with the Directive Principles of State Policy
153. Minerva Mills v. Union of India, (1981) 1 SCR 206; Sick Textile Undertakings
(Nationalisation) Act, 1974, No. 57, Acts of Parliament, 1974.
154. Minerva Mills, (1981) 1 SCR at 267. It should be noted that the previously
divisive issue of land reform and property rights was effectively neutralized by the Janata
government’s removal of the right to property as a fundamental right in the constitution
(Article 31) in the Forty-Fourth Amendment.
155. See Mate, Priests in the Temple of Justice, supra note 95, at 136.
156. This represented a creative and bold move on the part of the Court, as the
petitioner had not originally challenged the validity of the Forty-Second Amendment in its
pleadings. T.R. ANDHYARUJINA, JUDICIAL ACTIVISM AND CONSTITUTIONAL DEMOCRACY IN
INDIA 22 (1992).
157. SATHE, supra note 111, at 87.
158. Minerva Mills, (1981) 1 SCR at 240.

decision in Minerva Mills.159 While observing that this golden

triangle of fundamental rights was a core part of the basic structure,
Justice Chandrachud’s decision also carefully struck a delicate balance
between the Directive Principles and the fundamental rights
provisions of the Constitution.160 Thus, Justice Chandrachud held that
the harmony “between fundamental rights and directive principles is
an essential feature of the basic structure of the Constitution.”161
In Waman Rao v. Union of India, the Court reaffirmed the basic
structure doctrine and ruled that amendments enacted after the
Kesavananda decision of April 24, 1973, including all legislation
added to the Ninth Schedule, could be reviewed for validity under the
basic structure doctrine.162 Applying the basic structure doctrine, the
majority upheld Articles 31A and 31C, added by the First and Fourth
Amendments, on the grounds that these amendments were enacted to
effectuate the Directive Principles of State Policy contained in Article
39 clauses (b) and (c).163 The Court also upheld the unamended
version of Article 31C (the amended version had been struck down in
Minerva Mills) as consistent with the basic structure doctrine, ruling
that “laws passed truly and bona fide for giving effect to directive
principles contained in clause (b) and (c) of Article 39 will fortify that
structure.”164
4. Federalism and the Basic Structure Doctrine

As referenced earlier, beginning with Kesavananda, the Court’s
basic structure decisions effectively transformed the Court into a
constitutional guardian charged with protecting core features of the
constitutional framework against changes by political regimes. The
159. Id. at 213. The Directive Principles of State Policy in Part IV of the Indian
Constitution are a set of non-justiciable aspirational principles meant to guide the government
and the judiciary. They include principles aimed at social-egalitarian reform and ameliorating
social, economic, and political inequality.
160. See UPENDRA BAXI, COURAGE, CRAFT AND CONTENTION: THE INDIAN SUPREME
COURT IN THE EIGHTIES (1985).
161. Minerva Mills, (1981) 1 SCR at 255.
162. Waman Rao v. Union of India, (1981) 2 SCR 1 (1980).
163. Id. at 40; Ramachandran, supra note 107, at 121. Sections (b) and (c) of Article
39 (Directive Principles) provide as follows:
The State shall, in particular, direct its policy towards securing . . . (b) that the
ownership and control of the material resources of the community are so
distributed as best to subserve the common good; (c) that the operation of the
economic system does not result in the concentration of wealth and means of
production to the common detriment[.]
INDIA CONST. art. 39.
164. Waman Rao, (1981) 2 SCR at 7.

Court built on this decision in the Election Case in articulating a

framework for identifying basic features.165 Following the end of the
Emergency and the election of the Janata party government in 1977,
the Court in Minerva Mills effectively consolidated and expanded the
basic structure.166
In S.R. Bommai v. Union of India, the Court asserted its role as a
constitutional guardian in entrenching secularism and the rule of law
in the context of Indian federalism.167 In order to understand this
case, a brief understanding of the relevant constitutional provisions
and earlier precedents is necessary. Article 356 of the Indian
Constitution authorizes the power of the president to declare
“president’s rule” in dissolving and temporarily asserting control over
state governments.168 According to this article, in situations in which
the president is satisfied that a state government is not functioning “in
accordance with the provisions of this Constitution,” the president can
issue a proclamation to:
(a) assume to himself all or any of the functions of the Government of
the State and all or any of the powers vested in or exercisable by the
Governor or any body or authority in the State other than the
Legislature of the State; [and] (b) declare that the powers of the
Legislature of the State shall be exercisable by or under the authority of
Parliament.169
However, Article 356 also stipulates that the president is not
authorized “to assume to himself any of the powers vested in or
exercisable by a High Court, or to suspend in whole or in part the
operation of any provision of this Constitution relating to High
Courts.”170
In State of Rajasthan v. Union of India, the Court adjudicated a
challenge to the Janata government’s dismissal of nine state
governments and the dissolution of their state assemblies pursuant to
Article 356 based on the fact that all of these governments were under
the control of the Congress Party, which had lost the 1977 national
165. Ramachandran, supra note 107, at 116-17.

166. Id. at 118.
167. See S.R. Bommai v. Union of India, (1994) 3 SCC 1; Ramachandran, supra note
107, at 125.
168. INDIA CONST. art. 356.
169. Id. § 1, cls. a, b.
170. Id. § 1. Article 356 also requires that a proclamation of president’s rule must be
submitted to Parliament and ceases to be in effect after two months if it does not gain
approval by both houses of Parliament, at which point the proclamation remains valid for six
months from the date of issuance. The provision also provides for extensions of six months
with approval from both houses of Parliament. However, the Article also provides that
president’s rule cannot exceed more than three years in total.

Lok Sabha elections. In State of Rajasthan, the Court adjudicated a

challenge to the Janata government’s exercise of president’s rule in
these states.171 Ultimately, the Court upheld the legality of the Janata
Party’s actions in ruling that the exercise of president’s rule was not
ultra vires nor mala fide.172 Furthermore, the Court opened up the
possibility of future judicial intervention by holding that the case did
not present a political question and was therefore justiciable.
However, the Court suggested that the scope of judicial review would
be limited to examination of whether the president’s actions were ultra
vires or mala fide.173
However, the Court adopted a new approach toward judicial
review of president’s rule in the landmark Bommai v. Union of India
decision in 1994.174 The Bommai decision is noteworthy on several
fronts. First, the basic structure doctrine was invoked not to invalidate
an amendment but rather to justify and uphold actions by the
president and executive. Second, the decision also marked the first
time that the Court exercised judicial review to invalidate executive
action under Article 356. Communal violence provided the backdrop
for the Bommai case. In 1992, a coalition of Hindu right forces
launched a campaign that resulted in the demolition of the Babri
Masjid, a mosque alleged to have been built on the site of an ancient
Hindu temple, with acquiescence and support of the Bharatiya Janata
Party (BJP) government in Uttar Pradesh, triggering communal
violence nationwide.175 Pursuant to Article 356, the president
dismissed state governments and dissolved legislative assemblies in
six states.176
The Court ultimately upheld the dismissals of three state
governments under Article 356 of the Constitution on the grounds that
the president’s actions were necessary to save the basic structure of the
Constitution. Since the three state governments dismissed were not
functioning in accordance with secularism, which the Court ruled to
be part of the basic structure of the Constitution, the Court held that
the president acted within his authority.177 At the same time, some of
171. Rajasthan v. Union of India, (1978) 1 SCR 1 (1977).

172. Id.
173. Id.
174. S.R. Bommai v. Union of India, (1994) 3 SCC 1.
175. See id.; see also GARY JEFFREY JACOBSOHN, THE WHEEL OF LAW: INDIA’S
SECULARISM IN COMPARATIVE CONSTITUTIONAL CONTEXT (2003) (analyzing Bommai and the
Hindutva Cases in comparative context).
176. KRISHNASWAMY, supra note 114, at 50.
177. See SATHE, supra note 111, at 96-98; JACOBSOHN, supra note 175, at 130-41, 146-
56.

the judges held that both democracy and federalism were basic
features of the Constitution.178 The various justices split on the
applicable judicial review, but overall, the opinions suggested a higher
level of scrutiny than that set forth in State of Rajasthan.179 While at
least three justices held that the scope of judicial review of president’s
rule under Article 356 was limited in line with the Court’s earlier
ruling in State of Rajasthan, another three justices argued for a more
deferential standard of review.180 However, the remaining bloc of
three justices, composed of Justices P.B. Sawant, Kuldip Singh, and
Justice Pandian, all argued for a higher degree of scrutiny of the
materials and advice the president relied on in making a decision to
dismiss a state government. They further suggested that the materials
should be scrutinized for illegality, irrationality, and mala fides.181 As
a result, the Court in Bommai arguably ratcheted up the level of
scrutiny to be applied to future exercises of president’s rule and
decisions by state governors to dissolve state legislative assemblies,
including reviewing the internal machinations and political processes
entailed in the formation of state legislative majorities.182
The Bommai decision was unique in that it justified and upheld
the exercise of governmental power, rather than by invalidating an
amendment, under the basic structure doctrine. The Court thus
expanded its power to include the review and scrutiny of political
decisions relating to state elections and politics.183 According to S.P.
Sathe, Bommai was “the most important and politically significant
decision of the Court since Kesavananda Bharati” because the Court
extended the doctrine of review under the basic structure doctrine to
“the exercise of power by the President under article 356 of the
Constitution.”184 As a result of the Court’s decision, the Supreme
178. See SATHE, supra note 111, at 96-98.

179. See id. at 153-57.
180. Id. at 155.
181. Id. at 153.
182. KRISHNASWAMY, supra note 114, at 50-55.
183. SATHE, supra note 111, at 152. The Court in Bommai examined the manifesto
and political ideology of the BJP in determining that the BJP governments would not act in
accordance with “the principle of secularism.” Id. at 176; S.R. Bommai v. Union of India,
(1994) 3 SCC 1, 137-38, 147, 151-53, 172-75, 290-93. But see id. at 85-87 (Justice Verma’s
opinion asserting that there are no “judicially manageable standards” for scrutinizing
presidential actions under Article 356, and that such controversies “cannot be justiciable”).
184. See SATHE, supra note 111, at 152.

Court has asserted an active role in challenging the exercise of

president’s rule and in regulating state legislative politics.185
5. Expanding the Basic Structure: Recent Cases

In the late 1980s and 1990s, the Court built on and expanded the
basic structure doctrine in a series of cases involving administrative
tribunals. Through the enactment of the Thirty-Second and Forty-
Second Amendments, the central government had created a system of
administrative tribunals with jurisdiction to adjudicate disputes
involving the service of government employees and over matters
involving government policies.186 In Sambamurthy v. Andhra
Pradesh, the Court invalidated clause 5 of Article 371(D) that had
been added through the enactment of the Thirty-Second
Amendment.187 The provision allowed state governments to overturn
decisions and orders issued by administrative tribunals. The Court
invalidated the provision under the basic structure doctrine as
violative of the rule of law and the principle of judicial
independence.188 In L. Chandra Kumar v. Union of India, the Court
held that Article 323(A) violated the basic structure because it
effectively excluded the appellate jurisdiction of high courts to hear
appeals from administrative tribunals, only allowing direct appeals to
the Supreme Court. As a result, the Court held that these tribunals
effectively were empowered to exercise jurisdiction in substitute of the
high courts and that this violated the principle of judicial
independence.189
Even in cases in which the Court has not directly invalidated
constitutional amendments, the Supreme Court issued decisions
aimed at strengthening its power of review under the basic structure
doctrine. Moreover, recent decisions within the past decade suggest
that the Court has significant power to elevate rights and principles
previously recognized by the court in earlier decisions to the level of
basic features that are part of the basic structure doctrine. In 2007, a
nine-judge bench of the Court in I.R. Coelho v. State of Tamil Nadu
reaffirmed the basic structure doctrine. The majority in this decision
185. See, e.g., Rameshwar Prasad v. Union of India, (2006) 2 SCC 1 (reversing the
governor’s dissolution of the state assembly based on close scrutiny of the actions and stating
reasons and justifications of the president, governor, and other constitutional functionaries).
186. See Manoj Mate, Two Paths to Judicial Power: The Basic Structure Doctrine
and Public Interest Litigation in Comparative Perspective, 12 SAN DIEGO INT’L L.J. 175, 188
(2010).
187. Sambamurthy v. Andhra Pradesh, (1987) 1 SCR 879 (1986).
188. Id.
189. Kumar v. Union of India, (1997) 2 SCR 1186.

held that all laws, including those added to the Ninth Schedule after
April 4, 1973 (the cutoff date based on the date of the Kesavananda
decision), infringing upon the fundamental rights provisions that
contravened the basic structure must be held invalid.190 In its
decision, the Court suggested that the government had improperly
used the Ninth Schedule to protect a wide array of laws unrelated to
agrarian reform.191 Additionally, the Court in Coelho reaffirmed its
decision in Minerva Mills, holding that the “golden triangle” of
Articles 14, 19, and 21 was part of basic structure.192 As illustrated in
the next subpart, the Court’s NJAC decision represents the height of
the Court’s assertiveness in its basic structure doctrine decisions, as
the Court effectively entrenched its own court-created institutional
appointment processes into the constitution as a “basic feature.”193
B. Judicial Appointments: Institutional Guardianship

The Indian Supreme Court asserted an important role as an
institutional guardian in response to challenges to judicial
independence posed by Indira Gandhi’s Congress government in the
1970s and 1980s. Over the course of the 1980s and 1990s, the Indian
Court was forced to adjudicate and interpret key provisions governing
the appointment of Supreme Court and high court judges. While the
Court largely acquiesced to the pressure of Gandhi’s government in
upholding executive primacy in the early 1980s, the Court in the
1990s reasserted itself as an institutional guardian by asserting
judicial primacy in appointments in the Second Judges’ Case in
1993.194 During the first three decades of the Indian republic, the
appointment process for the Supreme Court of India was a
consultative and collaborative one in which the prime minister and
council of ministers would closely consult with the chief justice of
India and other functionaries in selecting new justices for the Court.195
190. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.

191. Id.
192. Id.
194. See Supreme Court Advocates-on-Record Ass’n v. Union of India (Second
Judges’ Case), (1993) 4 SCC 441.
195. See S.P. Gupta v. Union of India (First Judges’ Case), (1981) Supp. SCC 87;
ABHINAV CHANDRACHUD, THE INFORMAL CONSTITUTION: UNWRITTEN CRITERIA IN SELECTING
JUDGES FOR THE SUPREME COURT OF INDIA (2014) (discussing how justices were not
appointed to the Court primarily on the basis of their political or constitutional ideology, but
rather by other criteria including the perceived merit of the judge based on their career
accomplishments, geography or region, religion, caste, and other factors).

In practice, all appointments were made with the consent of the chief
justice of India.196
The provisions governing judicial appointments in the Indian
Constitution are set forth in Articles 124, 217, and 222.197 Article 124
establishes the Supreme Court of India. These provisions delineate a
consultative process in which the president and executive (in reality,
the prime minister and Council of Ministers) were to consult with the
chief justice and other constitutional functionaries in the appointment
process. During the first two decades of the Indian republic, the
Court’s appointments process was a consultative one that stressed
non-political criteria, one in which the government accorded a high
degree of deference to the chief justice of India in making
appointments and also followed the informal norm of seniority in
elevating justices to become chief justice of India.198
However, following Kesavananda, Indira Gandhi’s Congress
regime broke from the seniority norm in superseding three justices to
select Justice A.N. Ray as chief justice.199 Following the resignation
of the three senior justices, the Gandhi regime began to “pack” the
Court with justices perceived to share the social-egalitarian and
populist philosophy of Gandhi’s regime, including Justices P.N.
Bhagwati, V.R. Krishna Iyer, and Y.V Chandrachud.200 In the wake of
a pending court case challenging her election to office and growing
national strife and strikes led by opposition parties and groups,
Gandhi declared emergency rule in 1975.201 However, two years later,
Gandhi called for elections in 1977 and was defeated by the Janata
Party coalition, which had campaigned on ending and reversing the
196. See GEORGE H. GADBOIS JR., JUDGES OF THE SUPREME COURT OF INDIA: 1950-
1989 (2011); CHANDRACHUD, supra note 195.
197. INDIA CONST. arts. 124, 217, 222. Articles 124 through 147 set forth the
provisions governing the establishment and operation of the Union judiciary. See id. arts.
124-47.
198. See generally CHANDRACHUD, supra note 195 (tracing the norms and procedures
in judicial appointments and the evolution of these norms through the decisions in the
Judges’ Cases); GADBOIS, supra note 196 (analyzing the attributes of judicial nominees
appointed to the Supreme Court of India through a quantitative and qualitative assessment of
appointment procedures and judicial biographies). The government deviated from this
seniority norm in three periods—following the Court’s decision in Kesavananda, the Gandhi
Congress government superseded three justices in selecting A.N. Ray as chief justice, leading
these justices to all resign in protest.
199. GADBOIS, supra note 196, at 190-93. As Gadbois notes, Justice Ray was selected
because he voted against the basic structure as a dissenting vote in Kesavananda.
200. Id.
201. See LIMAYE, supra note 148, at 152-78.

draconian emergency decrees and amendments and restoring

fundamental rights, democracy, and constitutionalism.202
In a precursor to the Judges’ Cases, the Supreme Court in Union
of India v. Sheth adjudicated a challenge by a high court judge to his
transfer, without consent, to another high court during the
Emergency.203 Although the Janata government reversed the transfer
and Sheth ultimately withdrew his petition, the Court proceeded to
rule on the case.204 The Court’s decision in Sheth was thus arguably
issued in the form of a quasi-advisory opinion.205 Although the Court
ultimately ruled that the president could transfer high court judges
without their consent, the Court interpreted the consultation
requirement in Article 222 of the Constitution as not requiring the
concurrence of the chief justice of India in transfers.206 The Court
thus held that while consultation was a mandatory requirement, the
executive was not required to abide by the recommendation of the
chief justice of India.207
1. The First Judges’ Case (1981)

Upon her return to power following the Janata interlude,208
Gandhi’s government began to assert significant political pressure on
the judiciary.209 As part of a broader effort to appoint new and loyal
judges aligned with Gandhi’s ideology, the government adopted a new
202. See id.; AUSTIN, supra note 103.

203. Union of India v. Sheth, (1978) 1 SCR 423, 448 (1977).
204. See id.
205. In some ways, this marks an important trend in the Court’s decisions during the
Janata years. The Court’s decisions in Maneka Gandhi v. Union of India, (1978) 1 SCC 248;
In re the Special Courts Bill, 1978, (1979) 1 SCC 380 (1978); and Sheth, (1978) 1 SCR 423,
all had the character of advisory opinions, although only the In re the Special Courts Bill case
was formally presented to the court as a presidential reference in its advisory jurisdiction.
See BAXI, supra note 142, at 213-21.
206. Sheth, (1978) 1 SCR at 455.
207. Id. at 448.
208. The Janata Party government, a multi-party coalition that was initially organized
around opposition to Gandhi’s Emergency, ultimately proved to be an unstable government.
Prime Minister Morarji Desai was forced to resign in 1979 when Deputy Prime Minister
Charan Singh withdrew his support for the government. Charan Singh then became prime
minister with the backing and support of Indira Gandhi’s Congress Party. When Gandhi
pulled her support in 1979, Singh’s government fell, forcing the president to call for new
elections. In the 1980 elections, Gandhi and the Congress Party defeated the Janata Party and
returned back to power.
209. In fact, Gandhi proposed the adoption of a presidential system in which the
judiciary would be “stripped of its constitutional power to review legislation” and
subordinated to a political council of some type. Bhagwan D. Dua, A Study in Executive-
Judicial Conflict: The Indian Case, 23 ASIAN SURV. 463, 474 (1983) (discussing the Gandhi
regime’s efforts to assert control over Indian judicial appointments and the effect of political
pressures on court decisions in this era).

appointments and transfer policy in 1981.210 As part of this new

policy, the government stated that each state high court “should have
one-third of its judges and its chief justice from outside the State and
that such a task should be accomplished by transferring judges from
one High Court to another.”211 Law Minister Shiv Shankar issued a
circular to state chief ministers noting that the policy would be used to
help “further national integration and to combat narrow parochial
tendencies bred by caste, kinship and other local links and
affiliations.”212 During debates on the transfer policy in early 1981,
the government broke with earlier conventions213 in confirming
additional judges but only providing them with “last-minute short-
term extensions” or refusing to reappoint them altogether.214 Although
he initially resisted, Chief Justice Y.V. Chandrachud ultimately went
along with the proposed transfers in the face of significant pressure
from the government.215
In S.P. Gupta v. Union of India (the First Judges’ Case),216 a
seven-judge bench of the Supreme Court led by Justice Bhagwati
heard a group of petitions by advocates challenging the transfer of
high court judges by the government. Overall, the Court was highly
deferential to the regime on the specific claims at issue and
deferential to the broader exercise of executive power in upholding the
transfer of high court judges. Doctrinally, the Court expanded the
scope of the executive’s power in judicial appointments in ruling that
the executive had primacy and final authority in judicial appointments
and transfers.217 The Court based its holding on the constitutional
text, original intent, and the debates of the Constituent Assembly to
support the reading of “consultation” as not signifying “concurrence”
with the opinion of the chief justice.218 The Court’s deferential
holding was arguably motivated by the justices’ concerns about
210. Id. at 474-78.

211. Id. at 475.
212. Union Law Minister Shiv Shankar’s Circular to Chief Ministers (Mar. 18, 1981),
in BAXI, supra note 160, app. A. The circular also asked all additional judges to provide an
undertaking stipulating that they consented to being transferred.
213. Prior to the Emergency period, under well-established conventions, the
government generally would extend the term of additional judges per the workload
requirement of the Court or confirm them as permanent judges to fill vacancies in the high
courts. Dua, supra note 209, at 476.
214. Id. (discussing the proposed circular by Shiv Shankar delineating the
government’s judicial transfer policies).
215. Id. at 476-79.
216. First Judges’ Case, (1981) Supp. SCC 87.
217. Id. at 223.
218. Id. at 223-24.

institutional preservation (which included a fear of potential backlash

and attack from the government).219
Significantly, the Court expanded standing for third-party public
interest litigation claims.220 The Court rejected the government’s
arguments in ruling that the advocates in the case did have standing to
bring claims, as the advocates had an interest in the judicial
appointments process and its broader implications for judicial
independence within the system.221 In expanding standing doctrine,
the Court helped lay the doctrinal foundations for Public Interest
Litigation (PIL) in India, which would help transform the Court’s role
in governance.222 Beyond these holdings, the Court’s decision in
the First Judges’ Case was noteworthy for entrenching judicial
independence as a norm. Significantly, Justice Bhagwati’s opinion
held that judicial independence was part of the basic structure of the
Constitution.223 However, the definition of judicial independence
embraced by the Court was not necessarily independence from the
political regime and government.224 Instead, Justice Bhagwati’s lead
opinion suggested an alternative conception in noting:
[I]t is necessary to remind ourselves that the concept of independence
of the judiciary is not limited only to independence from executive
pressure or influence but it is a much wider concept which takes within
its sweep independence from many other pressures and prejudices. It
has many dimensions, namely, fearlessness of other power centres,
economic or political, and freedom from prejudices acquired and
nourished by the class to which the Judges belong.225
This conception of judicial independence was consistent with
Justice Bhagwati and the other justices’ desire to appoint judges to the
court who shared a commitment to using law to advance social justice
and equality. As Justice Bhagwati observed: “We need Judges who
are alive to the socio-economic realities of Indian life, who are
anxious to wipe every tear from every eye . . . .”226 In addition, Justice
219. See Baxi, supra note 150, at 127-29; see Manoj Mate, Public Interest Litigation
and the Transformation of the Supreme Court of India, in CONSEQUENTIAL COURTS, supra
note 62, at 262, 280-84 (describing motives that drove judicial activism in public interest
litigation).
220. First Judges’ Case, (1981) Supp. SCC at 90.
221. Id. at 90-91.
222. Id.; see Mate, supra note 219, at 284-86 (discussing the impact of public interest
litigation on the Court’s expanded role in Indian governance). For further discussion, see
infra Part III.C.
223. First Judges’ Case, (1981) Supp. SCC at 218-19.
224. Id.
225. Id. at 223.
226. Id.

Bhagwati observed that the “judiciary has . . . a socio-economic

destination” given that the Constitution is “not a non-aligned national
charter.”227 It is worth noting here that Justice Bhagwati also
suggested the idea of a collegium for judicial appointments in his
opinion. In addition, Justice D.A. Desai suggested additional criteria
for appointing justices to the Court.228
The Court’s endorsement of and deference to the central
government’s transfer policies in the First Judges’ Case suggests that
institutional preservation concerns can often override the assertion of
other goals or values, such as advancing judicial independence. The
justices of the Supreme Court were unable to assert independence in
this case because of fears of political override and backlash. Gandhi’s
executive was unified in its support for her judicial appointments and
transfer policies. Additionally, the Congress Party controlled 351 out
of the 545 seats in the Lok Sabha, and Gandhi’s allied parties
controlled an additional 23 seats, suggesting that the government had
sufficient power to override decisions that challenged government
policies.229
2. The Second Judges’ Case: Asserting Judicial Primacy

Following Indira Gandhi’s assassination in 1984, the Congress
Party selected her son Rajiv Gandhi to be its new leader. Rajiv
Gandhi became prime minister following the Congress Party’s victory
in elections that year. However, conflict between the executive and
judiciary persisted well into the late 1980s under Rajiv Gandhi’s
regime. After Chief Justice Y.V. Chandrachud retired in 1984, P.N.
Bhagwati became chief justice. During the mid-1980s, Justice
Bhagwati’s tenure as chief justice (from 1985-1986) was marked by
controversy and clashes with Law Minister A.K. Sen.230 While Justice
Bhagwati was able to secure the appointment of a few justices who
shared his pro-PIL, pro-poor, and social-egalitarian activist outlook,
227. Id. at 221 (emphasis added); see also Dua, supra note 209, at 478; S. Sahay, A
Close Look: People’s Judges, Milords?, STATESMAN WKLY., Jan. 16, 1982, at 12 (discussing
Justice Bhagwati’s opinion in the First Judges’ Case). Justice Desai also defended the virtues
of value-packing in his opinion and after the decision suggested that “the three organs [of the
government] created by the Constitution . . . must march in step. All must be imbued with the
same values. Judges must be ‘value-packed.’” Dua, supra note 209, at 478 (alterations
added) (quoting S. Sahay, supra, at 12). Finally, Justice Venkataramiah suggested the virtues
of “‘people’s judges’ who alone could ‘fit into the scheme of popular democracy.’” Id.
(quoting First Judges’ Case, (1981) Supp. SCC at 794 (Venkataramiah, J.)).
228. Dua, supra note 209, at 478.
229. See Mate, supra note 186.
230. See GADBOIS, supra note 196, at 295-309.

Sen was able to initially block another pro-PIL judge, Judge Sawant,
by delaying the appointment long enough to prevent Sawant from
being appointed in line to become chief justice.231
After Justice Bhagwati’s retirement, R.S. Pathak became chief
justice of India. During this period, the government did effectively
veto certain appointments recommended by Pathak by simply not
accepting certain recommendations and asking Pathak for additional
names.232 In addition, justices on the Court complained of long delays
on the part of the government in filling appointments.233 The Court’s
frustration with the executive continued into the 1990s. During the
tenure of Chief Justice Ranganath Misra, the Court sought to counter
executive failure to redress key deficiencies in appointments and in
the lower judiciary. In All India Judges’ Ass’n v. Union of India, the
Court recommended a detailed set of proposals for improving
working conditions in the lower judiciary and ordering the
establishment of an All India Judges’ Association.234
In the 1990s, in response to perceptions among Supreme Court
judges of excessive interference by the executive in judicial
appointments, excessive delay in filling appointments in a timely
fashion, and appointment of non-meritorious justices, the Court
became more aggressive in asserting control over judicial
appointments and transfers and asserting judicial independence. In
1990, the Court in Subhash Sharma v. Union of India heard a PIL
brought by several advocates seeking a mandamus to the Union of
India to fill vacancies in the judiciary. In its decision, the Court
questioned the merits of the First Judges’ Case, noting that there was
a strong basis for criticism of the “arbitrariness on the part of the
Executive” and that “the modality adopted following S.P. Gupta ratio
has led to delay in the making of appointments.”235 The Court in
Sharma thus ruled that “correctness of the majority view in S.P.
Gupta case should be considered by a larger bench.”236
In 1993, the Supreme Court instituted a nine-judge bench to
adjudicate these issues in Supreme Court Advocates-on-Record Ass’n
v. Union of India237 (the Second Judges’ Case).238 Petitioners argued
231. Id.
232. Id.
233. Id.
234. All India Judges’ Ass’n v. Union of India, AIR 1992 SC 165; see Robert S. Moog,
Elite-Court Relations in India: An Unsatisfactory Arrangement, 38 ASIAN SURV. 410, 413-14
(1998).
235. Subhash Sharma v. Union of India, (1991) Supp. (1) SCC 574, 588 (1990).
236. Id. at 599 (italics omitted).
237. Second Judges’ Case, (1993) 4 SCC 441.

that the holding in the First Judges’ Case—that the issue of judge-
strength was not justiciable—was incorrect and should be overturned
because the appointment of judges “is not a matter of discretion
resting with the executive” but rather a constitutional obligation under
Article 216 that is enforceable in a court of law.239 Second, petitioners
also argued that the requirement of “consultation” with the judiciary
in matters of appointment in Articles 124, 217, 222, and 233 was
included by the framers of the Indian Constitution in order to
safeguard judicial independence.240 Because “[n]either Article 124(2)
nor Article 217 of the Constitution of India indicates that any of the
constitutional authorities named therein has primacy in the process of
making appointments,” the issue of primacy must be decided
independently of the text of these provisions and “in conformity with
the principle that all appointments to the superior judiciary shall be
free from executive influence.”241 Consequently, the chief justice and
senior justices must have primacy in appointments in order to advance
the cause of judicial independence, “ensure the timely filling up of
vacancies,” and “ensure effective consultation with the executive.”242
In a 7-2 decision, the Court overturned the First Judges’ Case in
holding the chief justice of India, not the executive, had primacy (and
the final say) in judicial appointments and transfers.243 Justice J.S.
Verma, in his majority opinion, interpreted the applicable
constitutional provisions as not mandating executive primacy in
judicial appointments.244 Drawing on analysis of original intent of the
framers of the Indian Constitution from the Constituent Assembly
debates, Justice Verma held that the Constituent Assembly had
actually sought to create a “participatory consultative” process in
which the executive must confer with the chief justice of India in
making appointments to the judiciary in a collaborative process.
Justice Verma held that the Assembly had rejected a model based on
executive primacy and instead had chosen a “middle of the road”
approach based on executive-judicial consultation.245
238. The Court instituted the bench following its earlier decision in the Subhash
Sharma case, in which a five-judge bench decided that the validity of the First Judges’ Case
should be considered by a larger bench. Sharma, (1991) Supp. (1) SCC at 582.
239. Second Judges’ Case, (1993) 4 SCC at 497-98.
240. Id.
241. Id. at 497.
242. Id.
243. Id. at 691-92, 709.
244. Id. at 689.
245. Id.

In directly overturning its holding in the First Judges’ Case,

Justice Verma held that where the executive and chief justice were in
disagreement, the chief justice’s opinion must be given primacy unless
the executive disclosed reasons and evidence to the chief justice that a
particular appointment was unsatisfactory.246 In holding that the chief
justice should have primacy, Justice Verma held that the chief justice
of India was in the best position and best equipped to assess and judge
candidates for appointment and that a consultative process based on
judicial primacy would safeguard judicial independence.247 The
decision was noteworthy in that the Court effectively created a new
appointments process based on a collegium of justices in which the
chief justice would be required to consult with two senior justices in
making recommendations.248
Significantly, the majority held that judicial independence was
part of the basic structure of the Constitution.249 Additionally, in his
majority opinion, Justice Verma held that preserving judicial
independence was essential for protecting the rule of law and good
governance and that judicial primacy in appointments would help in
achieving these goals.250 The Court in the Second Judges’ Case thus
recognized an important shift in its institutional function in securing
accountability in governance matters, including the administration of
the judiciary itself and the bar’s important role as a vigilant
“constituency” of the Court.251 Justice Pandian in his separate opinion
held that an independent judiciary and professionalized appointment
system would mitigate judicial favoritism and nepotism.252 Writing in
dissent, Justice Ahmadi argued, however, that given the text of the
Constitution and the original intent of the framers, conferring primacy
on the chief justice in appointments and transfers would require the
enactment of a new constitutional amendment.253
246. Id. at 692-93.

247. Id. at 692. Interestingly, Justice Verma identified several key attributes of “able,
independent and fearless judge[s],” including “[l]egal expertise, ability to handle cases, proper
personal conduct and ethical behaviour, firmness and fearlessness.” Id. at 696.
248. Id. at 702.
249. Id. at 680.
250. Id. at 693.
251. See id. In In re Special Reference No. 1 of 1998, (1998) 7 SCC 739 (the Third
Judges’ Case), the Court revisited its decision in the Second Judges’ Case and ruled that the
chief justice must consult with a collegium of the four (instead of two) senior-most justices
on the Court. See Ashok H. Desai & S. Muralidhar, Public Interest Litigation: Potential and
Problems, in SUPREME BUT NOT INFALLIBLE, supra note 107, at 159, 188, n.81.
252. Second Judges’ Case, (1993) 4 SCC at 574-75, 584-85 (Pandian, J.).
253. Id. at 626-29 (Ahmadi, J.).

The Court in the Second Judges’ Case arguably sought to

advance institutional values and goals, including reforming the
processes of judicial appointment. The Court’s decision was
motivated by the justices’ concerns regarding continued interference
and politicization of the process by the government in the decade
following the Court’s decision in the First Judges’ Case and the
adverse impact of that politicized process on judicial independence,
the integrity of judges, and the functional efficiency of high courts.254
In contrast to the responses of the Gandhi Congress regimes, the
Congress Government of Prime Minister P.V. Narasimha Rao did not
retaliate against the Court and acquiesced to the Court’s decision. In
December of 1993, Prime Minister Rao chaired a meeting of the state
chief justices and the chief justice of India “which decided that one-
sixth of high court chief justices and one-third of judges be from out
of state.”255 In line with the Second Judges’ Case, Chief Justice M.N.
Venkatachaliah established a peer committee of two Supreme Court
judges, two high court chief justices, and the chief justice of the high
court from which judges were transferred in order “to finalize norms”
for transfers.256 In April 1994, President S.D. Sharma announced that
the government was transferring fifty judges at the high court level.257
In addition, efforts on the part of subsequent regimes to counter
or overturn the Court’s decision were ultimately unsuccessful. After
the Congress Party was defeated in 1996 and the United Front (Janata
Dal) coalition came to power, the United Front Government
considered proposals to counter the Court’s decision. In March 1997,
Prime Minister Deve Gowda’s Law Ministry (under Law Minister R.
Khalap) drafted the Eighty-Second Constitution Amendment Bill,
which would have overridden the Court’s decision by taking the power
to appoint justices away from the chief justice. The proposed bill
provided in its statement of objects: “It is felt that the majority view of
the Supreme Court does not seem to be in consonance with the letter
and spirit of the language and scheme of the Constitution.”258
Although this effort was initially supported by the BJP, the BJP
changed its position “at the eleventh hour and the bill had to be
254. See AUSTIN, supra note 103, at 531-32.

255. Id. at 532-33.
256. Id. at 533.
257. Id.
258. Sumit Mitra & Sayantan Chakravarty, Judiciary vs Executive: Locking Horns,
INDIA TODAY (July 28, 1997, 2:59 PM), http://indiatoday.intoday.in/story/government-fails-
to-curb-pil-wants-to-regain-its-say-in-judicial-appointments/1/274566.html (citing Eighty-
Second Constitution Amendment Bill).

withdrawn.”259 United Front Prime Minister I.K. Gujral (who took

over in April 1997 after Deve Gowda lost a no confidence motion)
suggested that the bill had been put on the backburner because the
BJP was divided. In fact, BJP President L.K. Advani observed that
“everyone is dissatisfied with the 1993 judgment” and the solution
involved charging a National Judicial Commission (NJC) with the job
of judicial appointments.260
However, internal divisions within the government enhanced the
power and influence of PIL lawyers and senior advocates, who pushed
back against reform proposals aimed at eliminating judicial primacy
in appointments. This is evidenced by the central government’s
inability to reach a consensus on a proposal for a National Judicial
Commission that would be charged with final authority in judicial
appointments. In fact, an article in India Today magazine in July
1997 noted: “There isn’t the remotest possibility of a consensus on the
commission’s composition emerging soon—given the tough stands
taken by pro-PIL lawyers on one hand and the executive on the
other.”261
3. The Third Judges’ Case: Expanding the Collegium

The battle over judicial appointments did not completely subside
following the Second Judges’ Case. Although the government was
unable to overturn the Second Judges’ Case, it sought to challenge the
chief justice’s primacy in judicial appointments by attempting to limit
the discretion of the chief justice in appointments and transfers. This
resulted in clashes between the BJP Government in power and Chief
Justice M.M. Punchhi. The government opposed several of Chief
Justice Punchhi’s appointments, and the government’s law ministry
alleged that during the eight months of Chief Justice Punchhi’s
tenure,262 the chief justice had not properly consulted with two senior
justices as required under the collegium standards of the Second
Judges’ Case.263 However, in correspondence between the chief
justice and law ministry, Justice Punchhi denied this assertion and
suggested that the law ministry could not inquire into consultations of
the chief justice.264 In response, the BJP Government brought a
presidential reference to the Court, asking for clarification on the
259. Id.
260. Id. (quoting BJP President L.K. Advani).
261. Id.
262. Justice Punchhi replaced Chief Justice Verma as chief justice in January 1998.
263. ANDHYARUJINA, supra note 156, at 12.
264. Id.

procedures for appointment. In a tacit acknowledgement of the

Court’s supremacy, the government in its pleadings stated that it “is
not seeking a review or reconsideration of the judgment in the Second
Judges’ case, and that (2) the Union of India shall accept and treat as
binding the answers of the Supreme Court to the questions set out in
the Reference.”265 However, in oral arguments, the government
argued that the chief justice should be required to consult with a larger
collegium of four judges to check the discretion of the chief justice.266
In the Third Judges’ Case, the Court ruled that the chief justice
must consult with a collegium of the four (instead of two) senior-most
justices on the Court, reducing the discretion of the chief justice but
preserving judicial primacy in appointments and transfers.267 In
addition, the Court also laid out detailed guidelines for the chief
justice and collegium to follow in making appointments and transfer
decisions. Although the Court ultimately endorsed the government’s
position in this case in limiting the discretion of the chief justice, the
BJP Government acknowledged the primacy of the judiciary in
appointments.268 However, in the 1999 elections, each of the major
parties—the BJP, the Congress (I), and the Left parties—included a
call for the creation of a National Judicial Commission that would be
charged with final authority in making judicial appointments the
Supreme Court and high court and with decisions to transfer of high
court judges.269 The BJP won the most seats in the 1999 elections,
and formed a coalition government—the National Democratic
Alliance.270
Pursuant to the recommendations of the National Commission to
Review the Working of the Constitution (NCRWC), in 2003, the BJP
Government introduced the Constitution (Ninety-Eighth Amendment)
Bill that would establish a National Judicial Commission, consisting
of the chief justice as chair, two judges of the Supreme Court next to
the CJI in seniority, the law minister, and one eminent citizen to be
nominated by the president in consultation with the prime minister
who will hold office for a period of three years.271 However, due to
divisions and disagreement between the executive and Parliament and
265. Third Judges’ Case, (1998) 7 SCC 739, 740-41 (internal citations omitted).
266. Id. at 764-70, 772.
267. Id. at 764.
268. See id. at 747-48.
269. V. Venkatesan, A Flawed Mechanism, FRONTLINE (June 6, 2003), http://www.
frontline.in/navigation/?type=static&page=archiveSearch&aid=20030606003604000&ais=1
1&avol=20.
270. Id.
271. Id.

opposition to the bill from the bar, the CJA, and other lawyers’ groups
such as the PUCL, the amendment and bill failed to gain approval.272
Some critics, including the People’s Union for Civil Liberties and
former Justice V.R. Krishna Iyer, opposed the legislation on the
grounds that it did not allow for members of opposition parties to sit
on the NJC.273 Other groups including the Committee on Judicial
Accountability, consisting of leading PIL lawyers and leading senior
advocates, criticized the bill for including the executive and current
judges and suggested appointing a panel consisting of retired judges,
top senior advocates, and legal experts.274 Despite multiple calls for a
National Judicial Commission, BJP and Congress regimes were
initially unable to overturn the system of judicial appointments
established in the Court’s decisions in the Second and Third Judges’
Cases. However, following the BJP’s landslide victory in the 2014
parliamentary elections, the new government was finally able to enact
the Ninety-Ninth Constitutional Amendment and NJAC Act creating
the new National Judicial Appointments Commission (NJAC).275
4. The NJAC Decision (2015): The Triumph of Judicial Supremacy

The Court’s recent NJAC decision invalidating the Ninety-Ninth
Constitutional Amendment signals a new phase of the Court’s
assertiveness as an institution and a consolidation of its institutional
autonomy.276 The NJAC Act, together with the Ninety-Ninth
Amendment, created a new National Judicial Appointments
Commission to replace the existing collegium system. Enacted by
large majorities by the recently elected BJP-NDA national
government and ratified by the states, the NJAC replaced the existing
“collegium” system of judicial appointments under which the chief
justice and senior justices had primacy and the final say in
appointments as part of a consultative process between the executive
and judiciary and other constitutional functionaries.277
The Ninety-Ninth Amendment inserted Article 124 into the
Constitution established by the NJAC.278 The Amendment sought to
override the existing collegium system of appointments by deleting
the existing language concerning executive “consultation” from
272. See id.

273. Id.
274. Id.
276. See id.
277. See id.; National Judicial Appointments Commission Act, No. 96 of 2014.

Articles 124(2), 222, and 217(1) of the Constitution and replacing it

with language providing for executive appointment of judges based on
the recommendation of the NJAC.279
The NJAC was to be composed of the chief justice of India, the
two senior-most Supreme Court judges, the law minister, and two
“eminent people” who would be selected by a panel composed of the
chief justice of India, the prime minister, and the leader of the
opposition.280 Under the proposed NJAC, each of the members would
have a vote, and two members could veto appointments to the Court.
In addition, the NJAC would have had the power to issue regulations
governing criteria for appointment of judges.281 In a remarkable
decision, the Court invalidated both the Ninety-Ninth Amendment
and the NJAC on the grounds that the amendment and act violated the
basic structure of the Indian Constitution.282 The NJAC case built on
decisions in two earlier cases—the Second and Third Judges’ Cases—
in which the Court interpreted applicable constitutional provisions
governing appointments and created the “collegium” appointment
process that has now been locked-in to the Constitution by the NJAC
decision.283
Justices in the majority each argued that evidence of original and
historical intent, including documents and debates surrounding the
Constituent Assembly’s drafting of the provisions on judicial
appointments, confirmed that a primary goal of the framers of the
Constitution was to provide for judicial independence.284 In addition,
the justices in the majority held that the text of the provisions, original
and historical intent, as well as historical practices all confirmed that
judicial primacy was essential to guaranteeing judicial independence
and was also a basic feature and part of the basic structure of the
Constitution.285 Significantly, several justices’ opinions directly
observed that the Court’s recent history of judicial activism in
challenging governmental corruption and malgovernance was made
possible by the institutional and decisional independence of the
Court.286
279. See INDIA CONST. art. 124, amended by The Constitution (Ninety-Ninth
Amendment) Act, 2014.
280. Id.
281. Supreme Court Advocates-on-Record Ass’n v. Union of India, (2016) 5 SCC 1,
690-692 (2015) (Lokur, J.).
282. Id. at 737.
283. Second Judges’ Case, (1993) 4 SCC 441; Third Judges’ Case, (1998) 7 SCC 739.
284. See Advocates-on-Record, (2016) 5 SCC at 479-500 (Lokur, J.).
285. Id. at 460-74 (Kehar, J.), 650-70, 680-82 (Lokur, J.).
286. Id. at 708-15, 718-20 (Goel, J.).

The Court reasoned that the structure and composition of the

NJAC would have expanded executive and political control over the
appointments process through the provision for veto power by the
commission and through appointing or controlling the two eminent
persons appointed to the Commission. Therefore, the Court held, the
Ninety-Ninth Amendment and the NJAC Act violated judicial
primacy and the basic structure of the Constitution, and the Act also
violated Article 14’s non-arbitrariness requirement. The Court held
both invalid.287 The NJAC case effectively took the norm of judicial
primacy represented by the collegium system and entrenched that
norm as a basic feature in the Constitution. While the previous
Judges’ Cases represented exercises of activist judicial review and
arguably a form of judicial lawmaking, the NJAC case went one step
further in actually altering and entrenching a constitutional norm into
the structure of the Constitution itself.
C. Public Interest Litigation: Governance Optimization

A significant facet of the Indian Supreme Court’s power today is
based on its role as a “governance optimizer.” The Court laid the
foundations for this unique and expanded role in governance in the
early 1980s by expanding standing doctrine for PIL, building on the
expanding rights jurisprudence of the Court in this era. In these cases,
not only did the Court widen standing and liberalize pleading
requirements, but the Court also created a new form of non-
adversarial litigation in which it asserted new remedial powers. One
noteworthy innovation was the development of “continuing
mandamus,” through which the Court indefinitely retains jurisdiction
over PIL matters by issuing interim orders and directives and without
issuing final dispositive judgments that would effectively end the
Court’s role in cases.288 In the early years of PIL, the Court
adjudicated challenges to government policies, governance failures in
the areas of environmental protection, prisons and labor conditions,
cases involving the rights of the poor and marginalized, and cases
involving violations of human rights. The Court generally avoided
direct confrontation with Parliament and the executive in the 1980s.289
However, the Court dramatically expanded its role in governance
beginning in the late 1980s and early 1990s, shifting to a higher level
of assertiveness in challenging the power and authority of the central
287. Id.
288. See Mate, supra note 219, at 274.
289. Id. at 273-74.

government. In particular, the Court asserted interstitial legislative

functions in key areas including sexual harassment and gender
rights,290 police reform,291 environmental policy-making,292 and
electoral disclosure rules for legislative elections.293 The Court also
created a new body of environmental jurisprudence in PIL,
articulating a set of key principles including the right to a healthy
environment, the sustainable development principle, the precautionary
principle, the polluter pays principle, and the public trust doctrine.294
In one noteworthy case, the Court in In re Networking of Rivers
ordered the completion of a nationwide project to interlink India’s
major rivers.295 In addition, the Court also greatly expanded its role in
governance cases involving the implementation of social rights. For
example, in PUCL v. Union of India (2001-present), the Court
recognized that the right to food was part of the right to life in Article
21 and therefore justiciable and that the government had a positive
duty to help prevent malnutrition and starvation.296 The Court has
also been active in taking on the cause of police custodial violence
and police reform.297
290. Id. at 279.

291. Id.
292. In the Taj Mahal Pollution case, the Court ordered that 292 industries either
switch to natural gas as an industrial fuel or relocate from the Taj Mahal “Trapezium” area.
M.C. Mehta v. Union of India, (1996) 4 SCC 351. In the Delhi Vehicular Pollution cases, the
Court ordered that autorickshaws, buses, and other vehicles convert to Clean Natural Gas to
help reduce pollution in Delhi. M.C. Mehta v. Union of India, (1996) 4 SCC 750.
293. See People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399;
Union of India v. Ass’n for Democratic Reforms, (2002) 5 SCC 294; Manoj Mate, India’s
Participatory Model: The Right to Information in Election Law, 48 GEO. WASH. INT’L L.
REV. 377 (2016).
294. See Shyam Divan, Public Interest Litigation, in THE OXFORD HANDBOOK OF THE
INDIAN CONSTITUTION 662, 676-77 (Sujit Choudhry et al. eds., 2016).
295. See In re Networking of Rivers, (2012) 4 SCC 51.
296. Since 2001, the Court has issued a series of orders directing state governments to
implement a series of central government welfare programs, including national grain
subsidies for the poor, a mid-day meal program in schools, and the Integrated Childhood
Development Services plan (ICDS). The Court appointed commissioners to help oversee
these orders and recently ordered that the Indian government pay 1.4 million rupees to help
combat starvation and malnutrition through implementation of the ICDS. See People’s Union
for Civil Liberties v. Union of India, (2007) 1 SCC 728 (2001) (ordering state governments
and union territories to implement the Integrated Child Development Scheme).
297. In response to PILs documenting widespread cases of custodial violence and
killing by police, the Court in the D.K. Basu cases (1997-2003) established a set of national
guidelines governing how police take suspects into custody and interrogate suspects. The
Court then issued orders to state governments to implement these guidelines. See D.K. Basu
v. State of W.B., (1997) 1 SCC 416 (1996). In the Prakash Singh case (2007), the Court
issued guidelines for national police reform and ordered the creation of a National Police
Commission to oversee implementation of these guidelines. Prakash Singh v. Union of India,
(2006) 8 SCC 1 (2007).

In addition, the Court increasingly expanded its assertiveness in

challenging the central government in key domains, including judicial
appointments, corruption, and environmental governance.298 While
not always successful, the Court has arguably had seismic effects on
the political landscape as a result of its governance interventions. In
this subpart, I analyze how the Court has influenced and shaped the
broader regulatory and governance landscape in two key areas:
investigation and prosecution of government corruption, and forest
policy.299
1. Vineet Narain: The Court as an Anti-Corruption Institution

In the post-1990 era, India’s political system was overwhelmed
by a series of corruption scandals that undermined and weakened
public support and confidence in the central government. In October
1993, former Home Secretary N.N. Vohra submitted a report to the
government that warned about increasing levels of criminality and
corruption in Indian government and highlighted “[t]he nexus
between the criminal gangs, police, bureaucracy and politicians” in
various regions of India.300 During this period, the Supreme Court
asserted an expanded role in monitoring and policing investigations
into corruption cases in response to several PILs.
In the Vineet Narain case, the Court asserted a new and
aggressive role in monitoring government investigations into high-
level corruption, intervening in the investigation of the Jain Hawala
scandal.301 The Court’s intervention in this case marked a new phase
in the Court’s activism and assertiveness, and the Court asserted
expanded equitable and remedial powers in a high-salience matter
involving government corruption. Vineet Narain was filed in October
1993 by investigative journalist Vineet Narain, along with two PIL
lawyers seeking action against the Central Bureau of Investigation
(CBI) for its failure to investigate the Jain Hawala scandal. The
scandal involved illegal payments made by the Jain brothers to several
high-level politicians in exchange for the award of government
contracts.302 The politicians involved had been named in the “Jain
298. Baxi, supra note 150, at 128; Mate, supra note 94, at 186-96.
299. This subpart draws on Manoj Mate, The Variable Power of Courts: The
Expansion of the Power of the Supreme Court of India in Fundamental Rights and
Governance Decisions (Fall 2010) (unpublished Ph.D. dissertation, U.C. Berkeley)
[hereinafter Mate, The Variable Power of Courts], and Mate, supra note 94.
300. MINISTRY OF HOME AFFAIRS, VOHRA COMMITTEE REPORT § 3.3 (1993).
301. Vineet Narain v. Union of India, (1998) 1 SCC 226 (1997); Mate, supra note 94,
at 172.
302. See Desai & Muralidhar, supra note 251, at 173.

diaries,” discovered in a raid in an investigation into illegal financing

of terrorist groups through a series of illicit transactions in a scandal
that involved politicians and corrupt bureaucrats.303
Led by Chief Justice J.S. Verma, the Court adopted an aggressive
and zealous approach in the case and immediately ordered the director
of the CBI to attend the next hearing of the Court; the Court harshly
criticized the director for the lack of progress in the investigation and
issued its first order on December 5, 1994, requiring the director to
personally supervise the investigation and submit reports periodically
to the Court in the form of secret in-camera meetings with the
bench.304 The Verma bench thus continued to monitor the case
between 1994 and December 1997, when it issued its judgment in the
case.
The Court issued a series of directives and rulings that were
novel in terms of the scope of the Court’s assertiveness. First, the
Court noted that it had effectively began taking over monitoring and
control of the CBI’s investigation since 1994, noting that “[t]he
continuing inertia of the agencies to even commence a proper
investigation could not be tolerated any longer.”305 In addition, the
Court asserted the power of “continuing mandamus” to rein in and
check the inertia and resistance of the HCBI’s bureaucracy. Justice
Verma held that since “[m]erely issuance of a mandamus directing the
agencies to perform their task would be futile,” the Court would
issue directions from time to time and keep the matter pending
requiring the agencies to report the progress of [the] investigation . . . .
[sic] so that the court retained seisin of the matter till the investigation
was completed and the charge-sheets were filed in the competent court
for being dealt with, thereafter, in accordance with law.306
Second, the Court replaced the petitioners who brought the PIL
in Vineet Narain and a related case, Anukul Chandra Pradhan v.
Union of India, with a senior advocate appointed as amicus curie to
assist the Court in the matter.307 As a result of the Court’s intervention
above, the CBI filed thrity-four chargesheets against fifty-four
individuals in early 1996, many of whom were prominent politicians
or government officials. The Court’s aggressive actions drove the CBI
303. Id.; see Mate, supra note 94.

304. Oliver Mendelsohn, The Supreme Court as the Most Trusted Public Institution in
India, 23 S. ASIA (SPECIAL ISSUE) 103, 114 (2000); Desai & Muralidhar, supra note 251, at
167.
305. Vineet Narain, (1998) 1 SCC at 237.
306. Id.
307. Anukul Chandra Pradhan v. Union of India, (1996) 6 SCC 354.

to be equally zealous in its prosecution of the Vineet Narain

scandal.308 As Muralidhar suggests, the intense pressure placed by the
Court on the CBI may have resulted in the filing of chargesheets
“irrespective of the nature of the evidence gathered.”309 Thus, another
bench of the Supreme Court ultimately upheld a decision of the Delhi
High Court discharging some of the accused in the case.310
Third, the Court took steps to delink the CBI from political
interference from the executive by directing “that the CBI would not
take any instructions from, report to, or furnish any particulars thereof
to any authority personally interested in or likely to be affected by the
outcome of the investigations into any accusation.”311 Pursuant to the
recommendation of the Independent Review Committee (IRC), the
Court ordered that the Central Vigilance Commission (CVC) be
conferred with independent statutory status. The Court ordered that
the government reorganize the CBI and Enforcement Directorate,
which were both under the control of the Indian Police Service, by
placing them under the supervision of the Central Vigilance
Commission, an arm of the Indian Administrative Service (IAS)
(India’s civil service bureaucracy).312 In addition, the Court issued
directives changing the rules and procedures for the appointment and
transfer of the Central Vigilance Commissioner, the director and
officers up to the rank of joint director of the CBI and the director of
the Enforcement Directorate. The Court also charged a committee
consisting of the prime minister, home minister, and the leader of
opposition with the task of selecting the head of the CVC, in an
attempt to prevent the ruling party from politicizing the investigative
processes of the CBI and ED.313
Finally, the Court invalidated the “single directive” law that had
been promulgated by the central government in 1988.314 The single
directive had been enacted to provide high-level political officials and
civil servants with immunity from prosecution. The single directive
required that the CBI receive prior authorization from the ministry or
department concerned prior to beginning an inquiry. In addition, the
308. Desai & Muralidhar, supra note 251, at 167.

309. S. Muralidhar, Public Interest Litigation, 33-34 ANN. SURV. INDIAN L. 525, 539
(1997-98).
310. Id. at 538.
311. Vineet Narain v. Union of India, (1997) 4 SCC 778, 779.
312. Sumit Mitra, Reining in the Raiders, INDIA TODAY (Dec. 29, 1997, 10:46 AM),
http://indiatoday.intoday.in/story/sc-sets-down-new-rules-for-cbi-ed-to-break-criminal-
bureaucrat-politician-nexus/1/276570.html.
313. Vineet Narain v. Union of India, (1998) 1 SCC 226, 269.
314. Id. at 264.

single directive provided that in order to initiate an investigation

against a cabinet secretary, the CBI was required to secure the prior
authorization of the prime minister’s office. The attorney general
defended the single directive on the grounds that it helped ensure that
the CBI functioned “according to the mandate of the Central
Government” and that “officers at the decision-making level need this
protection against malicious or vexatious investigations in respect of
honest decisions taken by them.”315 The government argued that the
single directive was valid because the government had control and
authority over the CBI pursuant to section three of the Police Act, and
sections three and four of the Delhi Special Police Establishment
Act.316
The Court rejected these arguments and ruled that the term
“superintendence” in section four of the Prevention of Corruption Act
did not extend to control over CBI investigations.317 Anil Divan, the
Court appointed amicus in the case argued that the government’s IRC
report was flawed in that it largely was supportive of the status quo,
given that it sought to defend the single directive requirement.
According to Divan’s own written submission before the Court, the
IRC report was a “special pleading for the Government’s case on the
Single Directive. It is a report to perpetuate the existing control of the
politicians and the top bureaucrats on the investigative agencies.”318
315. Id. at 247.

316. Section 3 of the Police Act, 1861 provides as follows:
3. Superintendence in the State Government:- The superintendence of
the police throughout a general police-district shall vest in and shall be exercised
by the State Government to which such district is subordinate, and except as
authorized under the provisions of this Act, no person, officer of Court shall be
empowered by the State Government to supersede or control any police
functionary.
The Police Act (Act No. 5/1861). Sections 3 and 4 of the Delhi Special Police
Establishment Act, 1946, stipulate as follows:
3. Offences to be investigated by special police establishment.—The Central
Government may, by notification in the official Gazette, specify the offences or
classes of offences which are to be investigated by the Delhi Special Police
Establishment.
4. Superintendence and administration of special police establishment.—
(1) The superintendence of the Delhi Special Police Establishment shall vest in the
Central Government.
The Delhi Special Police Establishment Act (Act No. 25/1946).
317. Vineet Narain, (1998) 1 SCC at 262.
318. Sumit Mitra, Elusive Autonomy, INDIA TODAY (Dec. 22, 1997, 1:28 PM),
http://indiatoday.intoday.in/story/instead-of-giving-investigative-agencies-a-free-hand-govt-
increases-bureaucratic-control/1/275397.html (internal quotation marks omitted).

The Court’s intervention in Vineet Narain occurred in the midst

of tumultuous change in the political environment at the national
level. The spate of corruption scandals in this period ultimately led to
the Congress Party’s worst electoral defeat in history, and Prime
Minister Rao was forced to resign from the leadership of the Congress
Party because of corruption charges.319
The Court’s assertiveness in Vineet Narain thus helped
dramatically alter the political context and terrain of national politics.
The Court’s decisions in Vineet Narain helped to focus elite and
national attention on the Jain Hawala scandal. The CBI’s filing of
chargesheets in the Jain Hawala case and the media’s coverage of the
activity of the Court and the CBI helped undermine support for Rao’s
Congress Government, which was defeated in the May 1996
elections. In the May 1996 Lok Sabha elections, the Hindu-right BJP
party won a plurality of seats (161 out of 545) but was unable to form
a coalition government. As a result, the Janata Dal-led coalition of
opposition parties formed the “United Front” government, with the
external support of the Congress Party. In 1997, the Congress Party
withdrew its support of the United Front coalition government, which
led to the fall of the government and new elections. In 1998, the BJP
won the national elections and formed a coalition government with
the support of the AIADMK (a southern regional party). The
AIADMK, however, withdrew its support of the BJP, forcing new
elections in 1999. The BJP won the most seats again in 1999 and was
able to form a new coalition government under the “National
Democratic Alliance” banner. It held power until 2004, when the
NDA was defeated by the Congress-led United Progressive
Alliance.320
The Court has built on its expanded powers and role asserted in
Vineet Narain and expanded the scope of its review to take on issues
of electoral transparency and corruption. In Ass’n for Democratic
Reforms v. Union of India and People’s Union for Civil Liberties v.
Union of India (the Right to Information cases), the Court addressed
the lack of government transparency in legislative elections in
recognizing that voters had a fundamental right to information. The
Court ordered Parliament and state legislatures to comply with a new
disclosure regime in which candidates were required to disclose
information including financial assets, educational background, and
319. Mate, The Variable Power of Courts, supra note 299, at 184.
320. Id.

criminal records.321 More recently, the Court has asserted an

expanded role in directly investigating and challenging alleged
government corruption and mala fides involving government auctions
of public resources, including in Subramanian Swamy v. A. Raja (the
2G Telecom case) and in Manohar Lal Sharma v. Principal Secretary
(the CoalGate case).322 In these cases, the Court has scrutinized the
auction processes for allocation of both the telecom spectrum and
coal blocks to private entities based on Article 14 arbitrariness review,
while at the same time also playing an active role in investigating
allegations of corruption in both cases.323 These cases illustrate that
despite the narrow and limited scope of judicial review articulated by
the Court for economic policies, the Court continues to play an active
role in policing corruption in privatization and liberalization policies.
2. Godavarman: The Forest Case

The Indian Supreme Court’s role in T.N. Godavarman
Thirumulkpad v. Union of India represents perhaps the most far-
reaching example of judicial intervention in both restructuring and
constituting new structures of governance. Building on its earlier
public interest litigation jurisprudence and interventions in other areas
of environmental policy, the Court has been assertive in
recommending and indeed creating new governance structures and
bodies in Godavarman.324 In Godavarman, the Court established
High-Powered Committees, appointed amicus curiae who have
functioned much like government ministers, and closely monitored
state and national government compliance with the Forest Act and the
Court’s own judgments and orders. Although the Court has received
significant praise for its activism and assertiveness in seeking to
protect and conserve India’s forests in line with the Forest Act and
constitutional mandates for environmental protection, some of the
321. See People’s Union for Civil Liberties v. Union of India, AIR 2003 SC 2363;
Union of India v. Ass’n for Democratic Reforms (2002) 5 SCC 294.
322. See Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 516 (cancelling
Coal Block mining licenses); Subramanian Swamy v. A. Raja, (2012) 11 SCR 873 (quashing
allocation of telecom licenses).
323. See Sharma, (2014) 9 SCC 516; Swamy, (2012) 11 SCR 873.
324. See T.N. Godavarman Thirumulkpad v. Union of India, (1997) 3 SCC 312; T.N.
Godavarman Thirumulkpad v. Union of India, (1997) 2 SCC 267 (1996); Manoj Mate,
Globalization, Rights, and Judicial Review in the Supreme Court of India, 25 WASH. INT’L
L.J. 643 (2016).

Court’s orders undermined the fundamental rights of tribes and

villagers in India.325
The origins of the Godavarman bench can be traced to the mid-
1990s and the filing of a writ petition by T.N. Godavarman
Thirumulpad aimed at curbing deforestation of forests. The Court in
this initial case adopted an expansive definition of the term forest in
interpreting the Forest Conservation Act. Subsequently, by issuing a
series of orders and directives aimed at curbing activities causing
deforestation, the Court essentially asserted judicial control over the
management and governance of India’s forests.326 This is illustrated in
the series of guidelines issued by the Court and its committees as part
of the complex afforestation management regime created in the
Godavarman case. As part of this regime and in response to the
Ministry of Environment and Forests’ (MoEF) own failures to
implement Court orders, the Court, with the support of its own
Central Empowered Committee, issued a series of guidelines
requiring that state governments pay the “net present value” (NPV) of
forest land that was allocated for public sector mining and private
development projects.327 When some state governments were found
to have diverted NPV funds to non-afforestation purposes, the Court
ordered the MoEF to create the Compensatory Afforestation
Management and Planning Agency (CAMPA) in order to manage the
funds collected.328 As a result the new CAMPA agency was
empowered to bypass state governments and to use the funds collected
to directly fund afforestation activities by conservation
organizations.329 The scope of the Godavarman Forest Bench’s
jurisdiction dramatically expanded over the last two decades,
including cases involving development in the forest, tribal rights, and
protection of endangered species.330
325. For example, in a series of orders in 2001 and 2002, in response to

recommendations from amicus curiae Harish Salve, the Court ordered a series of eviction
drives that resulted in mass displacement of the rural poor and tribal populations that inhabit
and utilize forest land. See Anuradha Kumar, A Controversial Eviction Drive, FRONTLINE
(July-Aug. 2002), http://www.frontline.in/static/html/fl1915/19150460.htm.
326. See generally Rosencranz et al., supra note 84.
327. Id. at 10,033.
328. Id.
329. Id.
330. Id.; see Kumar, supra note 325.

IV. THE INSTITUTIONAL CONCEPTION OF SUPREMACY IN

COMPARATIVE CONSTITUTIONAL LAW
India’s expansive model of judicial supremacy suggests the need
to expand our understanding of judicial supremacy beyond
conceptions based on interpretive and decisional supremacy.
Understanding how the institutional conception of judicial supremacy
operates in different systems has important implications for how
expansive judicial roles can alter the nature and scope of
constitutionalism across different constitutional systems. An
exploration of the roles played by courts in other polities reveal that
the Indian Supreme Court is not alone in playing a wide range of
institutional roles in constitutional governance. In this Part, this
Article explores the institutional conception of judicial supremacy by
analyzing how constitutional courts in other polities have asserted
constitutional guardianship, institutional guardianship, and
governance optimization functions in order to illustrate how the
institutional conception of judicial supremacy operates in different
contexts.
A. Courts as Constitutional Guardians

The U.S. model of judicial supremacy reflects a particular
conception of “interpretive supremacy.”331 As noted in Part II, the
U.S. Supreme Court’s decisions in Cooper and Boerne arguably
suggest two conceptions of the Court’s role as a constitutional
guardian in upholding interpretive and federal supremacy. In Cooper,
the Court upheld the federal judiciary’s supremacy as a guarantor of
the Fourteenth Amendment Equal Protection Clause’s promise of
equality vis-à-vis states.332 Following the resistance of Southern states
and jurisdictions to Brown I and II and lower court decisions that
followed, the Court’s decision in Cooper was significant in that the
Court itself reasserted judicial supremacy and a strong federal judicial
role in vindicating equality and rights.333
However, other constitutional systems, including India, feature
constitutional courts that not only assert interpretive supremacy but
also play a much more expansive role in judicial review of
constitutional amendments and play key roles in entrenching
331. See supra Part II.A.

332. See Cooper v. Aaron, 358 U.S. 1, 18-19 (1958).
333. See id.; TUSHNET, supra note 34.

constitutional norms and principles.334 Here, India can be situated

along a continuum of courts exercising strong-form judicial review
but varying in the degree and extent to which they engage in basic
structure review and constitutional entrenchment. The Supreme Court
of India has not only developed and asserted its power of judicial
review as a constitutional guardian under the basic structure doctrine.
In addition, it has also expanded the scope of its power in
constitutional entrenchment. By constitutional entrenchment, I refer
to the Court’s power to define which principles, norms, or provisions
are part of the basic structure doctrine.335 Through the basic structure
doctrine cases, the Court gradually expanded the scope of the basic
features. However, the Court’s NJAC decision suggests that the
Court’s powers may be even broader than previously thought. The
Court’s recent NJAC decision represents an expansion of this power.
In that case, the Indian Court effectively entrenched judicial primacy
and the collegium system of appointments as a basic feature or
norm—an unprecedented decision among constitutional courts
worldwide.336 The basic structure cases illustrate that the Court can
initially recognize doctrinal principles in earlier decisions and then
entrench those principles as basic features in later decisions.
Indeed, the Indian Supreme Court’s assertion of a constitutional
guardian role represents just one example of the broader roles courts
play as institutions of constitutional entrenchment globally.
Constitutional courts in other polities have asserted distinct roles as
guardians and as institutions of entrenchment. Germany is often cited
along with the United States as an exemplar of a system with a strong
constitutional court and strong-form judicial review.337 However, one
crucial difference between the German system and the U.S. system is
that the German Constitution or Basic Law contains fundamental and
nonamendable principles that entrench certain principles and rights
against constitutional amendment, and it authorizes the Constitutional
Court to invalidate amendments on the basis of these provisions.338
334. While the U.S. Supreme Court does not have the power to invalidate
amendments, it has arguably restricted the scope of constitutional amendments through
narrow interpretations in certain cases, including the Slaughterhouse Cases, 83 U.S. (16
Wall.) 36 (1873), and City of Boerne v. Flores, 521 U.S. 507 (1997). See Mate, supra note
186, at 188 (arguing that the Indian Supreme Court asserted a constitutional guardianship
role in asserting the basic structure doctrine).
335. See Young, supra note 65.
336. See supra Part III.B.4.
337. See TUSHNET, supra note 34, at 15, 71.
338. DONALD P. KOMMERS & RUSSELL A. MILLER, THE CONSTITUTIONAL
JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 48-55, 58-60 (3d ed. 2012)
(analyzing German Constitutional Court’s constitutional entrenchment doctrine).

Article Twenty of the Basic Law codifies these nonamendable

principles, and both Articles Twenty and Twenty-Eight set forth
foundational principles that have now been entrenched in
constitutional law, including the constitutional state, the social state,
federalism, and the principle of representative democracy.339
Building on this framework of entrenched constitutional
principles, the Federal Constitutional Court (FCC), pursuant to Article
79(3), has asserted the power to engage in substantive review of
constitutional amendments that violate these immutable principles in
the Basic Law. Such principles include the principle of human
dignity in Article 1(1), the structural principles of the constitutional
state, the social state, federalism, and the principle of representative
democracy.340 In the Southwest State case, the FCC recognized the
concept of implied limitations on the amending power outside of the
scope of the principles set forth in Article 79(3).341 Later in the
Article 117 case, the FCC also appeared to suggest the existence of
implied limitations on the amending power.342 Despite the Court’s
assertion of the power to review amendments in the Southwest State
case, the German Federal Constitutional Court has not actually
invalidated a constitutional amendment to date.343
In the Lüth case,344 the German Court also engaged in a form of
constitutional entrenchment in articulating the doctrine of “an
objective order of values” and simultaneously clarifying the
relationship between fundamental rights and the domain of private
law.345 The Court in Lüth invalidated an order of a regional court that
enjoined Eric Lüth’s call for a boycott of a film produced by a film
director who had ties to the previous Nazi regime.346 In entrenching
the right to freedom of opinion within the objective order of values,
the Court held that the basic right to freedom of opinion “is absolutely
339. Id. at 48.

340. Id. at 59.
341. Id. at 56-57 (citing Bundesverfassungsgericht [BVerfG] [Federal Constitutional
Court] Oct. 23, 1951, Südweststaat [Southwest State], 1 Entscheidungen des
Bundesverfassungsgerichts [BVERFGE] 14, 1951 (Ger.)); see KEMAL GÖZLER, JUDICIAL
REVIEW OF CONSTITUTIONAL AMENDMENTS: A COMPARATIVE STUDY 84-87 (2008)
(comparing basic structure doctrines in different polities).
342. See GÖZLER, supra note 341, at 86-87 (citing BVerfG Dec. 18, 1953,
Gleichberechtigung [Equal Rights], 3 BVERFGE 225, 1953 (Ger.)).
343. See KOMMERS & MILLER, supra note 338, at 59 n.67 (discussing the Court’s
review of substance of amendments alleged to infringe rights of privacy, asylum, and
suspension of property rights).
344. BVerfG Jan. 15, 1958, Lüth, 7 BVERFGE 198, 1958 (Ger.).
345. KOMMERS & MILLER, supra note 338, at 442-44.
346. See Lüth, 7 BVerfGE 198; KOMMERS & MILLER, supra note 338, at 442-43.

basic to a liberal-democratic constitutional order.”347 However, as

Kommers and Miller note, in the Lisbon Treaty case, the Court
appeared to invoke a “constitutional identity” argument based on
Article 79(3), and while upholding the act ratifying the treaty, the
Court held that the accompanying law was unconstitutional on the
grounds that it effectively “reduc[ed] the roles of the Bundestag and
Bundesrat in EU affairs.”348 The Court thus asserted the power to
review the validity of European sovereign laws and decisions of the
European Court of Justice.349
Like Germany, Turkey’s present constitutional framework also
entrenches core principles in its Constitution.350 Unlike the German
FCC, which has yet to invalidate an amendment, the Turkish
Constitutional Court in 2008 invalidated constitutional amendments
enacted by Parliament that sought to eliminate the ban on wearing the
headscarf in universities.351 The Turkish Court invalidated the
amendments on the grounds that they violated the principle of a
secular state, a basic and inviolable principle codified in the Turkish
Constitution.352
Another example of constitutional guardianship is illustrated by
the Colombian Constitutional Court’s assertion of the “substitution of
the constitution” or “constitutional replacement” doctrine.353 This
doctrine has remarkable similarities to India’s basic structure doctrine
in that the Colombian Court has invoked it to not only identify what
are “essential elements” of the Colombian Constitution but has gone
further in actually invalidating constitutional amendments that violate
347. KOMMERS & MILLER, supra note 338, at 445.

348. See BVerfG Feb. 11, 2009, Lissabon, 123 BVERFGE 267, 2009; KOMMERS &
MILLER, supra note 338, at 59.
349. See KOMMERS & MILLER, supra note 338, at 345-49.
350. See Yaniv Roznai & Serkan Yolcu, Comment, An Unconstitutional Constitutional
Amendment—The Turkish Perspective: A Comment on the Turkish Constitutional Court’s
Headscarf Decision, 10 INT’L J. CONST. L. 175, 195 (2012).
351. Id. at 176, 181-83.
352. See Seval Yildirim, The Search for Shared Idioms: Contesting Views of Laiklik
Before the Turkish Constitutional Court, in MUSLIM SOCIETIES AND THE CHALLENGE OF
SECULARISM: AN INTERDISCIPLINARY APPROACH 235, 245 (Gabriele Marranci ed., 2010)
(arguing that the Court’s upholding of Kemalist principles was detrimental to the
development of Turkish secularism as a constitutional norm); Asli Ü. Bâli, The Perils of
Judicial Independence: Constitutional Transition and the Turkish Example, 52 VA. J. INT’L L.
235 (2012); Roznai & Yolcu, supra note at 350, at 185-87; Seval Yildirim, Global Tangles:
Laws, Headcoverings and Religious Identity, 10 SANTA CLARA J. INT’L L. 45 (2012)
(critiquing the Turkish Court’s rigidity in defining secularism).
353. See Carlos Bernal, Unconstitutional Constitutional Amendments in the Case
Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional
Replacement Doctrine, 11 INT’L J. CONST. L. 339, 343-51 (2013).

those essential elements.354 The Court invalidated a constitutional

amendment that sought to override presidential term limits in the
Constitution as violative of the principles of checks and balances,
alternated exercise of political power, equality among presidential
candidates, and the principle of generality of law.355 Second, the
Court invalidated an amendment that would have altered the
requirements of the existing professionalized system of civil service
appointments so as to allow civil servants to gain tenure without
passing a previously required merit exam as violative of the principles
of merit and principles of equality.356 Third, the Court also invalidated
an amendment that conferred on the Council of State (Colombia’s
highest administrative court) the power to enact regulations
guaranteeing equal rights to all electoral candidates should the
Congress fail to enact a law guaranteeing electoral equality. The
Court invalidated this amendment on the grounds that it violated
separation of powers.357 A review of other constitutional systems
reveals that other courts have asserted comparable roles as
constitutional guardians in seeking to entrench core constitutional
norms or features as part of major constitutional or political
transitions.358
The German, Colombian, and Indian high courts have all
developed variants of constitutional entrenchment approaches. The
German Court has articulated an “objective order of values” whereby
the Court has effectively recognized a hierarchy of constitutional
values in the Basic Law. This objective order of values has served as
354. Id. at 344-45.

355. Id. at 345-46.
356. Id. at 345.
357. Id. at 343-46 (discussing Corte Constitucional [C.C.] [Constitutional Court], 9
diciembre 2003, Sentencia C-1200/2003 (Colom.)). It is worth contrasting this judgment
from the Indian Supreme Court’s Right to Information decisions in which the Indian Court
has itself ordered the enactment of electoral reform regulations aimed at combating
corruption and criminality through new transparency and disclosure requirements for
candidates. See supra Part III.C.1.
358. Two other examples of constitutional guardianship are illustrated by the decisions
of the Israeli and South African Supreme Courts. In CA 6821/93 United Mizrahi Bank Ltd. v.
Migdal Coop. Village [1995] IsrLR 1, the Israeli Supreme Court held that the Basic Law:
Human Dignity and Liberty and Basic Law: Freedom of Occupation had the status of
constitutional norms or principles, and that the Court had the power to engage in judicial
review of legislation violative of the Basic Laws. See Amnon Reichman, Judicial
Constitution Making in a Divided Society: The Israeli Case, in CONSEQUENTIAL COURTS,
supra note 62, at 233, 244-47. The South African Constitutional Court asserted another
variant of constitutional entrenchment in invalidating parts of South Africa’s first constitution
as violative of core principles. See Heinz Klug, Constitutional Authority and Judicial
Pragmatism: Politics and Law in the Evolution of South Africa’s Constitutional Court, in
CONSEQUENTIAL COURTS, supra note 62, at 93, 103-04.

the basis for recognition of entrenched rights, positive state

obligations, as well as the recognition of a doctrine of horizontal effect
whereby the Court has applied these values to private law.359 High
courts in India and Colombia have arguably gone much further than
the German High Court in developing and entrenching basic structure
doctrines and asserting the power to review and invalidate
constitutional amendments. In the process, both the Indian Supreme
Court and the Colombian Constitutional Court have also identified
the norms and principles that are part of the basic features of the
Indian Constitution and invalidated amendments and laws violative of
the basic structure.360 The Indian Supreme Court has gone further
than its Colombian counterpart in identifying new basic features that
are not in the text of the Constitution and in the process has redefined
the scope and meaning of the Indian Constitution through
constitutional entrenchment.361
The Indian Supreme Court’s decision in Bommai also illustrates
another aspect of constitutional guardianship—the role courts play in
entrenching constitutional norms in the context of federalism and
political regulation. Indeed, the Bommai decision goes much further
than the U.S. Supreme Court’s decisions in Cooper and Boerne in
entrenching constitutional norms in the context of federalism. While
the U.S. Supreme Court in Cooper asserted a broad understanding of
federal supremacy in constitutional interpretation of the scope and
meaning of the equal protection clause, the Court in Bommai went
further in actually entrenching secularism as a basic and unamendable
feature of the Indian Constitution.362 Constitutional courts in other
polities, including Germany and Turkey, have also played a significant
role in regulating political processes so as to guard against the
emergence of authoritarian and anti-democratic parties, going so far
as to even ban political parties entirely.363 As Samuel Issacharoff
359. KOMMERS & MILLER, supra note 338, at 171-72.

360. Germany’s Federal Constitutional Court has arguably engaged in a variant of
entrenchment in constructing hierarchies of norms through its recognition of an objective
order of values. However, this can be distinguished from the Indian model in that the German
Court’s decisions have interpreted the Basic Law’s existing entrenched provisions, while the
Indian Court has actually developed and “constructed” a doctrine of entrenched basic features
that were not explicitly entrenched in the Indian Constitution itself.
361. See supra Part III.B.
362. See S.R. Bommai v. Union of India, (1994) 3 SCC 1; Mate, supra note 186, at
188; supra Part III.A.4.
363. See SAMUEL ISSACHAROFF, FRAGILE DEMOCRACIES: CONTESTED POWER IN THE
ERA OF CONSTITUTIONAL COURTS 36 (2015) (analyzing the role played by constitutional
courts in Germany, Turkey, South Africa, India and other polities in policing and regulating
electoral processes).

notes, constitutional courts have asserted significantly greater roles in

policing electoral politics in systems dealing with a legacy of an
authoritarian past, as well as systems struggling to grapple with the
challenges of pluralism in religion and ethnicity.364
B. Courts as Institutional Guardians

Following the Indian Supreme Court’s NJAC decision, India
remains the only constitutional system in the world in which the chief
justice of India (and the collegium of justices) enjoy primacy in
judicial appointments. Despite the political strength of the BJP
government elected by a landslide victory in 2014, the Supreme Court
of India invalidated the Ninety-Ninth Amendment, which would have
created a Judicial Appointments Commission with significant
executive representation and control over judicial appointments.365
The Court’s NJAC decision built on its earlier decisions in the Second
and Third Judges’ Cases. These earlier cases overturned the earlier
decision in the First Judges’ Case, replacing a consultative system
with executive primacy with a new collegium-based system that
located primacy in the judiciary itself.366
1. Court-Centered vs. Council-Centered Independence

The Indian Supreme Court’s robust interventions in defense of
its own independence are unique among global constitutional courts
and suggest a court-centered conception of institutional guardianship
without parallel in the world. The Indian model of judicial
independence can thus be situated along a continuum of systems
ranging from judicial primacy in appointments, to judicial
appointments commissions/councils, to hybrid systems that combine
executive and/or legislative primacy with judicial consultation
requirements, to strong executive control of appointments without
consultation (in which judges are appointed based on constitutional
and political ideology that is in alignment with governing elites).
India’s court-centered conception of institutional guardianship
can be contrasted from a rival model that exists in other countries—
what I refer to here as a council-centered model of institutional
guardianship. In its written submissions and oral arguments, the
Indian government argued in favor of the NJAC by citing to a global
364. See generally id. (analyzing the role played by constitutional courts in Germany,
Turkey, South Africa, India and other polities in policing and regulating electoral processes).
365. See discussion supra Part III.B.4 (discussing the NJAC decision).
366. See supra Part III.B.

trend toward the adoption of Judicial Appointments Councils.367

However, in his NJAC opinion invalidating the NJAC, Justice Goel
argued that this global trend toward the adoption of Judicial
Appointments Councils was actually part of a broader historical
reaction and response to political and executive dominance of and
interference with judicial appointments.368 Justice Goel’s opinion
referenced an article by Nuno Garoupa and Tom Ginsburg on judicial
councils. In their study, Garoupa and Ginsburg trace the global trend
toward the adoption of judicial councils based on the French-Italian
model as part of broader movement toward reducing political control
over judicial selection globally.369 Indeed, Justice Goel argued in his
opinion in the NJAC case that this global trend has been motivated by
a broader desire for greater decisional independence in courts.370
As Garoupa and Ginsburg note, France created a judicial council
for appointments in 1946, but this council was not completely
insulated from political control.371 Italy had originally adopted a
judicial council for judicial appointments (the Consiglio Superiore
della Magistratura) in 1958. The Italian judicial council completely
insulated judicial appointments from political control by vesting
primacy in appointments within the judiciary itself. This conferred
significant independence on the Italian courts to aggressively
challenge and prosecute high-level corruption and criminality in
politics.372 India’s enactment of the Ninety-Ninth Amendment and
NJAC Act in some ways arguably mirror efforts by other polities to
restore political accountability to judicial appointments in the wake of
increases in judicial activism in governance. The Supreme Court’s
successful invalidation of the NJAC is noteworthy in this respect and
provides further evidence of the Court’s supremacy in Indian
politics.373
367. See Written Submissions on Behalf of the Union of India: Part II at 53-54,
Supreme Court Advocates-on-Record Ass’n v. Union of India, (2016) 5 SCC 1 (2015) (No.
13 of 2015) (on file with author).
368. Advocates-on-Record, (2016) 5 SCC at 710-13 (Goel, J.).
369. See Garoupa & Ginsburg, supra note 77, at 5 (analyzing the global trend toward
the adoption of judicial councils).
371. See Garoupa & Ginsburg, supra note 77, at 5 (discussing the creation of judicial
councils in France and Italy).
372. See id. at 7-9; Carlo Guarnieri, Courts Enforcing Political Accountability: The
Role of Criminal Justice in Italy, in CONSEQUENTIAL COURTS, supra note 62, at 163, 163-80
(analyzing the expanding role of prosecutors and magistrates in political corruption cases in
Italy).
373. Institutional guardianship can take the form of direct assertions of independence,
as illustrated by the Indian Supreme Court’s NJAC case, or by indirect assertions of power,
including the assertion and expansion of court jurisdiction over fundamental rights and

2. Political Independence vs. Institutional Independence

In the NJAC decision, the majority delineated different aspects of
judicial independence in ruling that the NJAC violated judicial
primacy, which the Court held was a basic feature of the Indian
Constitution. For example, in his opinion, Justice Goel thus argued
that judicial independence consisted not only of formal institutional
independence, which consists of the formal institutional protections
for judges including fixed tenure and pay and the norm of seniority-
based promotion, but also of decisional independence, which refers to
the ability of a judge to make decisions independent of external or
internal pressures.374
In entrenching decisional independence, the NJAC decision’s
entrenchment of India’s collegium system of appointments actually
represents a form of complete political independence—independence
from control and selection of appointments by the political regime on
the basis of political and constitutional ideology. This conception of
political independence can be contrasted from the U.S. model of
judicial independence. Because federal judges in the United States
enjoy lifetime tenure without a mandatory retirement age as well as
higher levels of monetary compensation and benefits than India, the
U.S. model arguably embodies a higher degree of institutional
independence than India’s judicial system. India’s judiciary arguably
has a lower degree of institutional independence than the United
States, as Indian justices have shorter terms because of a mandatory
retirement age of sixty-five and Parliament has consistently failed to
provide adequate financial resources for the judiciary, including lower
courts.375
However, because judges on the Indian Court are today not
selected primarily on the basis of their political ideology, the Court
does not operate in ways that regime politics models would expect.
This allows and enables the Court to exert a degree of assertiveness in
challenging the political regime in high salience domains, as
illustrated by the Court’s early assertiveness in the basic structure
governance claims through public interest litigation in India and the tutela in Colombia. See
generally David Evan Landau, Beyond Judicial Independence: The Construction of Judicial
Power in Colombia (Oct. 2014) (unpublished Ph.D. dissertation, Harvard University)
(discussing efforts by external allies of the Colombian Constitutional Court to oppose and
resist efforts to restrict or limit the use of the tutela).
375. See Mate, The Variable Power of Courts, supra note 299; see generally Nick
Robinson, Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme
Courts, 61 AM. J. COMP. L. 173 (2013) (comparing the structure of the Indian and U.S.
Supreme Courts).

doctrine cases and its later assertiveness in the judicial independence

and in high salience PIL cases such as Vineet Narain and the cases
that have been adjudicated by the Godavarman Forest Bench.376
The Indian case thus highlights the importance of a historical
and contextual understanding of judicial independence within
different systems. As Pratap Bhanu Mehta argues, the Court’s
assertion of judicial independence in the Second Judges’ Case was a
watershed moment for the Court.377 However, Mehta does not trace
the mechanisms or dynamics by which that particular “locking in” of
this conception of independence was instrumental in setting the Court
on the path toward judicial supremacy. The locking in of judicial
independence in the Second Judges’ Case not only provided the Court
with independence vis-à-vis the elected branches but also solidified
and reinforced the elite institutional nature of the Court’s orientation,
which increasingly became influenced not only on institutional
imperatives of judicial independence and strength but also on the
alignment of and linkages between judicial worldviews with the
broader ethos of political, professional, and intellectual elite
opinion.378
In contrast from the social-egalitarian conception of judicial
independence advanced by Justice Bhagwati in the First Judges’
Case, which stressed the justices’ commitment to the social-
egalitarian values espoused in the Constitution (and in political and
civil society), the Court’s declaration of judicial independence in the
Second Judges’ Case was one of political independence. The Second
Judges’ Case thus represented an act of judicial fiat whereby the
Court’s orientation, based on judicial worldviews, would not primarily
be influenced by the social-egalitarian ethos of the Court’s PIL
jurisprudence of the 1980s but by the broader elite ethos of reform
that animated discourse and advocacy among political, legal,
professional, and intellectual elites. As Justice Goel notes in his
opinion in the NJAC case, the Indian Supreme Court’s establishment
of the collegium system of appointments in the Second and Third
Judges’ Cases entrenched a high level of independence.379 According
to Justice Goel, this system functionally enabled the Court to assert an
376. See supra Parts III.A, C.

377. See Mehta, supra note 35, at 73-74.
378. See Mate, The Variable Power of Courts, supra note 299.
379. See Advocates-on-Record, (2016) 5 SCC at 719-20 (Goel, J.).

important role in checking and challenging government corruption,

and in correcting governance failures.380
Examining both political and institutional independence and the
role of courts as institutional guardians can provide a fuller and more
nuanced portrait of the political context in which courts operate and
can inform a fuller assessment of the nature of judicial supremacy in
different polities.
C. Courts as Governance Optimizers

In contrast to the U.S. Supreme Court and other constitutional
courts, the Indian Supreme Court plays an unusually assertive role in
governance, including restructuring and reshaping existing regulatory
and governance structures in the Vineet Narain case and displacing
and creating entirely new structures of governance as illustrated by the
Godavarman forest case.381 The Court’s expansive role and powers in
governance can be traced to the early development of PIL in the
1980s—the Court’s expansion of standing doctrine for public interest
litigation, its liberalization of pleading requirements, and the
expansion of its remedial powers help lay the foundation for an
expanded governance role.382 These changes in justiciability and
jurisdiction had profound consequences for the expansion of the
Court’s governance role.
The Court’s decisions and orders in Vineet Narain and
Godavarman were noteworthy in that they fundamentally shifted how
the Court asserts regulatory oversight and management functions vis-
à-vis the executive branches, administrative agencies, and state
governments. The Court in Vineet Narain developed new innovative
remedial powers and procedural devices to exert a more active and
involved role in managing governance through the development of the
mechanism of “continuing mandamus.” The Court and also ordered
the restructuring of the Central Vigilance Commission.383 And in
Godavarman, the Court effectively created an entirely new parallel
bureaucracy and structures of governance—including amicus curiae,
who effectively functioned like government ministers,384 and
380. One critique of the Indian Court is that it often decides important cases in smaller
benches of two to three judges instead of larger constitutional benches of at least five justices.
See, e.g., Robinson, supra note 375, at 176, 180.
381. See supra Part III.C.
383. See Vineet Narain v. Union of India, (1998) 1 SCC 226, 237.
384. Indeed, in some respects the Indian Supreme Court asserts powers and functions
that federal district courts play in the U.S. system in governance. See MALCOLM M. FEELEY
& EDWARD L. RUBIN, JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS

committees like the Central Empowered Committee, which arguably

supplanted the Ministry of Environment and Forest’s administrative
and regulatory functions.385 The Indian Supreme Court has thus
asserted a unique role in restructuring existing governance and
regulatory regimes and creating new governance regimes and
structures.386
The Indian Supreme Court’s role in governance can also be
situated along a continuum of the roles constitutional courts assert in
different polities. In other polities, including South Africa and
Colombia, constitutional courts have asserted important but varied
governance roles in cases involving effectuation of social rights,
applying different forms of review ranging from a version of weak-
form of review in South Africa to what David Landau refers to as
“super-strong” remedies like structural injunctions in Colombia in
cases involving pensions and health claims.387 In Government of
Republic of South Africa v. Grootboom, the landmark Grootboom
case,388 the South African Constitutional Court held that the
government’s failure to develop a housing policy aimed at providing
housing for the poor constituted a violation of the South African
Constitution.389 However, the South African Court’s actual response
was weak and highly deferential—the Court did not order
individualized relief or construct a generalized remedial plan. It
simply held that the government was obligated under the Constitution
to develop a program in which a “reasonable” amount of the housing
budget must be allocated for individuals in immediate need of
housing accommodation.390 Although this exercise of “weak-form”
judicial review has been touted as an ideal approach for courts by
REFORMED AMERICA’S PRISONS (1998); ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE

AMERICAN WAY OF LAW 3-5 (2001).
385. It is worth noting that the Court has asserted a variety of roles and functions
across the various domains of governance.
386. See, e.g., Arun K. Thiruvengadam & Piyush Joshi, Judiciaries as Crucial Actors
in Southern Regulatory Systems: A Case Study of Indian Telecom Regulation, 6 REG. &
GOVERNANCE 327 (2012) (tracing how the Indian Supreme Court altered and shaped existing
regulatory regimes and helped drive the creation of new structures in telecom regulation).
387. See Gov’t of the Republic of S. Afr. v. Grootboom 2000 (1) SA 46 (CC) (S. Afr.)
(challenging the government’s failure to formulate housing policies for the poor); TUSHNET,
supra note 34, at 242-47 (analyzing the South African Constitutional Court’s use of weak
form review in social rights cases); David Landau, The Reality of Social Rights Enforcement,
53 HARV. INT’L. L.J. 189, 190, 192 (2012) (comparing the use of super-strong remedies
including forms of “structural injunctions” in Colombia to weak-form review in South
Africa).
388. See Grootboom, 2000 (1) SA at paras. 93-96.
389. See Landau, supra note 387, at 189-99.
390. Id.

public law scholars, other scholars and advocates have been highly
critical of the decision and the lack of effective outcomes that result
from weak-form court interventions.391
India and Colombia thus stand out as examples of constitutional
systems in which constitutional courts have emerged as key actors in
the realm of governance. Indeed, Landau suggests that the Indian
Supreme Court’s intervention in the Right to Food litigation was a
form of super-strong structural injunction relief in ordering the
government to address systemic issues involving famine, food
scarcity, and malnutrition.392 However, Vineet Narain and
Godavarman capture a form of judicial intervention that is arguably
distinct from what Landau describes as super-strong form judicial
review in that the Indian Court went beyond changing and altering
government actions and policies to fundamentally reconstituting
governance structure entirely, and in the Godavarman case, to
effectively creating a new Court-led bureaucracy.393 The Indian
Supreme Court’s role is thus arguably without parallel among the
spectrum of constitutional courts globally.
V. CONCLUSION: CONTEXTUAL JUDICIAL SUPREMACY AND ITS

IMPLICATIONS
Reconceptualizing judicial supremacy based on courts’
institutional roles has significant implications for the comparative
study of courts and normative implications in terms of understanding
the role courts can play in protecting and stabilizing constitutionalism.
First, this Article’s articulation of the institutional conception of
judicial supremacy highlights the need for more scholarly inquiry into
how the particular constitutional, socio-political, and historical
context of different systems affects the nature and scope of the
institutional roles played by courts. As Ran Hirschl has persuasively
argued, it is impossible to compare the constitutional jurisprudence
and roles of courts in different polities without fully understanding the
actual context in which those courts operate.394 By tracing the
development of judicial supremacy in India, this Article suggests that
it is necessary to understand judicial supremacy in polities as part of a
broader contextual and dynamic model of judicial empowerment.
391. Id. at 199.

392. See Landau, supra note 387, at 236; see also supra note 296 and accompanying
text (discussing the Right to Food Case in India).
393. See supra Part III.C.
394. See HIRSCHL, supra note 4, at 150.

While other constitutional courts play one or more institutional

roles as constitutional guardians, institutional guardians, and
governance optimizers, few have come close to the Indian Court’s
high level of assertiveness in all three areas. Based on analysis of the
institutional roles of the Indian Supreme Court, I argue that the Indian
model of constitutionalism represents an example of a model of what
I refer to as expansive judicial supremacy, in which the Indian Court
plays a major role in constitutional entrenchment, exerts a strong role
as an institutional guardian in judicial appointments, and plays a
significantly greater role in intervening in and structuring governance
than courts in other polities.395 India’s expansive model of judicial
supremacy thus poses challenges for existing theories that posit that
judicial review is politically constructed by dominant political elites
and suggests that independent judiciaries can and do act
independently in asserting judicial review in defense of
constitutionalism and fundamental rights.396 In contrast to
Whittington’s account of the empowerment of the U.S. Supreme
Court, the supremacy of the Indian Supreme Court is not purely a
product of the assertion of political power by political regimes who
construct judicial review to advance political or partisan agendas and
goals.397
The Indian model, then, must be understood in terms of the
historical context of constitutional development in India, as well as the
socio-economic and political conditions that post-colonial and new
democracies must confront. In India, Gandhi’s move to limit and
restrict judicial power and alter the Constitution during the
Emergency arguably necessitated judicial intervention in the form of
the basic structure doctrine to preserve core aspects of India’s original
constitutional framework. Similarly, the Court’s entrenchment of the
rule of law and secularism as constitutional principles in the Bommai
decision also highlights how courts can play an important role in
protecting and stabilizing constitutionalism in pluralistic democracies
against movements that threaten to erode and undermine the unity and
395. See, e.g., Landau, supra note 373 (analyzing activism of the Colombian
Constitutional Court).
396. See, e.g., Thomas M. Keck, Party Politics or Judicial Independence? The Regime
Politics Literature Hits the Law Schools, 32 LAW & SOC. INQUIRY 511, 513, 518 (2007).
397. See KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY:
THE PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN U.S. HISTORY
72-73 (2007).

stability of systems based on divisive communal and religious

politics.398
Indeed, the Court’s recent NJAC decision reflected the Court’s
embrace of a particularist approach to constitutional interpretation in
light of the experience of other constitutional systems.399 The
majority in the NJAC decision rejected comparisons to other systems
in which the executive and legislative branches have primacy in
judicial appointments, noting India’s unique historical context.400 The
expansive judicial supremacy in India and other polities poses an
important challenge to existing “regime politics” conceptions of
judicial empowerment.401 However, the emergence of an alternative
conception of judicial supremacy in India and other polities suggests
that judges and courts act independently in asserting constitutional
and institutional guardian functions, as well as governance optimizing
roles.402 Faced with high levels of systemic corruption and
malgovernance, courts in these systems have emerged as powerful
forces for protecting constitutionalism and optimizing governance.403
The institutional conception of judicial supremacy also has
important normative implications for the study of constitutionalism
and judicial governance globally. Normative critiques of judicial
supremacy have focused on the antidemocratic nature of interpretive
supremacy and its negative implications in terms of democratic
accountability. Indeed, scholars including Tushnet and Gardbaum
have suggested that weak-form judicial review can in part alleviate
these democratic legitimacy concerns by allowing for a more
dialogical form of interaction between courts and the elected political
branches of government.404 However, the typical concerns about
maintaining strict boundaries in terms of separation of powers that
inform jurisprudential debates in the United States and Western
398. See JACOBSOHN, supra note 175 (providing a theoretical account of the Indian
Supreme Court’s secularism decisions in comparative context).
399. See generally Gary Jeffrey Jacobsohn, The Permeability of Constitutional
Borders, 82 TEX. L. REV. 1763 (2004) (contrasting universalist and particularist approaches to
interpretation in comparative constitutional law).
400. See supra Part II.B.4.
401. See HIRSCHL, supra note 4 (advancing the hegemonic preservation theory of
judicial empowerment). See generally GINSBURG, supra note 14 (analyzing the development
of judicial review in Asian polities).
402. See Mate, supra note 186, at 190-91 (arguing that the Indian Supreme Court
asserted a key role as a bulwark against political regimes seeking to undermine
constitutionalism in India).
403. See id.
404. See GARDBAUM, supra note 2, at 710 (discussing how weak-form judicial review
promotes dialogue between courts and elected political branches of government); TUSHNET,
supra note 34 (critiquing strong-form judicial review).

polities cannot translate neatly to India and other polities because of

key contextual differences in these countries’ political histories.
Consequently, the expansive model of judicial supremacy may
represent a more pragmatic model of judicial supremacy for newer
constitutional democracies across the globe that face the same
challenges that India confronts today. Indeed, other nations in South
Asia, including Pakistan and Bangladesh, have followed India in
adopting variants of the basic structure doctrine and public interest
litigation to respond to specific threats to constitutionalism,
governance, and the rule of law.405
405. See Nick Robinson & Nawreen Sattar, When Corruption Is an Emergency: “Good
Governance” Coups and Bangladesh, 35 FORDHAM INT’L L.J. 737 (2012); Richard Albert,
Indo-Pakistani Constitutional Convergence?, I·CONNECT: BLOG INT’L J. CONST. L. (Jan. 4,
2010), http://www.iconnectblog.com/2010/01/indo-pakistani-constitutional-convergence/.

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Judicial Supremacy in Comparative

This Article challenges the prevailing conception of judicial supremacy in comparative

Electronic copy available at: https://ssrn.com/abstract=2955300

A.The Basic Structure Doctrine: Constitutional

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“There’s no such thing as judicial supremacy. What the judges did,

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This Article reconceptualizes judicial supremacy in terms of the

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part of the basic structure of the constitution.10 This follows decisions

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Scholars have identified the U.S. constitutional system and model of

DEMOCRACY: LAW, GLOBALISM AND SOUTH AFRICA’S POLITICAL RECONSTRUCTION (2000)

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administration. Third, the Indian Court plays a significant role as a

II. CONCEPTUALIZING JUDICIAL SUPREMACY

18. See LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM

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judicial review and an entrenched constitution and rights.19 In this

A. Judicial Supremacy and Constitutional Interpretation

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This model of interpretive supremacy as a theory is informed by

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inconsistent and incompatible with notions of democratic

B. Judicial Supremacy as a Global Model of Constitutionalism

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parliamentary or legislative supremacy. Legal constitutionalist

38. Id. at 12.

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legislatures and courts.43 Tushnet describes examples of these weak-

C. Toward an Institutional Conception of Judicial Supremacy

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of constitutional courts’ actual roles and institutional features in the

Figure 1. Judicial Supremacy and Types of Constitutionalism

United Kingdom United States Germany

However, this focus on the interpretive and decisional aspects of

49. Gardbaum suggests that judicial power corresponds to a facet of judicial

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institutional roles that courts play globally. In a recent article,

53. See Gardbaum, supra note 39.

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secure compliance with their decisions and the impact of those

Figure 2. U.S. and Comparative Conceptions of Judicial Supremacy

Instead, I argue for an institutional conception of judicial

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Figure 3. Constitutionalist and Institutionalist

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constitutional guardianship.66 Tushnet argues that the Court’s decision

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model of judicial supremacy is arguably based on a conception of the

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has asserted and entrenched institutional independence from the

3. Courts as Governance Optimizers

79. See infra Part III.B.

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over environmental governance, including the virtual judicial takeover

III. CONSTRUCTING JUDICIAL SUPREMACY IN INDIA

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consolidation of power illustrates two concepts: first, how interactions

88. See AUSTIN, supra note 86, at 13-18.

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constitutional amendments under the basic structure doctrine and the

A. The Basic Structure Doctrine: Constitutional Guardianship95