INDIA: Judicially Independent

Eric Linge, Pitt Law '09, files from Mumbai:

While Pakistani Prime Minister Musharraf sacks Chief Justices who disagree with him, and while Bangladesh continues under emergency military rule, India's judiciary remains steadfastly independent. So steadfastly, in fact, the Indian Supreme Court has a history of making the Indian government very mad. Through India's 60 year history, the government has often found its agenda frustrated by the court's decisions, and almost just as often Parliament has amended the Constitution to overturn these decisions. There is no separation of powers doctrine in India.

The fundamental right to property was unsurprisingly the impetus for much of the back and forth. The Indian Constitution as originally implemented in 1949 guaranteed Indians the fundamental right to own and dispose of property, and the Constitution is vested with original jurisdiction to enforce the fundamental rights. In 1950 the government sought to abolish a type of landlord system accidentally implemented by the British in 1793. As payment to these landlords, the government promised deferred compensation out of future profits. The landlords argued this wasn't just compensation. The high courts in multiple states agreed, and they ruled the government was infringing the landlords' right to property. The government responded by adding a list, called the Ninth Schedule, to the Constitution containing certain land reform laws that would not be reviewable by the courts. The Supreme Court, in turn, held that Parliament could amend the Constitution like this, so long as it had a two-thirds majority.

Parliament continued adding amendments with provisions forbidding judicial review, and the Supreme Court interpreted them narrowly. Other battles between the courts and government similarly ensued regarding affirmative action and nationalization projects. The landlords were back in 1967, arguing, inter alia, that it was unconstitutional for Parliament to create amendments that were beyond judicial review. The Court held, in Golak Nath v. State of Punjab, that from here on out no amendments could render fundamental rights unenforceable. This means no more could Parliament put land reform acts into schedules beyond judicial review. That is, until Parliament overruled the Golak Nath doctrine with a new amendment.

Finally in 1973 today's prevailing doctrine was created. In Kesavananda Barathi v. State of Kerala, the Court held that Parliament had passed laws contravening the "basic structure" of the Constitution by seeking to remove the judiciary as the guardian of fundamental rights. Structural changes to the Constitution would from henceforth require a new constitutional assembly. Parliament responded by virtually writing the judiciary out of the Constitution with the 42nd Amendment. A new Parliament passed the 44th Amendment, which repealed the 42nd.

The Basic Structure Doctrine prevails today because Parliament has been unable to amend it. It also helps, I'm sure, that the 44th Amendment demoted the fundamental right to property to an ordinary right, meaning the Supreme Court no longer has original jurisdiction in cases where the right is infringed.

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