India is often hailed as the world’s largest democracy.1 At the core of that democracy is a thriving, independent judicial system that has been an important engine of social change and development.2
Yet, despite possessing a well-developed system of law inherited from
British colonial rule,3 for the first fifty years following independence
* Milan Dalal is the Executive Note Editor for the Boston College International & Comparative
Law Review.
1 See, e.g., Ramachandra Guha, India After Gandhi: The History of the World’s
Largest Democracy (2004) (discussing history of India and its democratic nature).
2 Justices of the Indian Supreme Court are chosen on the basis of seniority and free of political considerations at the behest of the President with consultation from the Chief
Justice. The Chief Justice is appointed by the President.
3 See Cent. Intelligence Agency, World Fact Book: India, https://www.cia.gov/library/ publications/the-world-factbook/geos/in.html#Govt (last visited May 15, 2008) (noting
India’s legal system is “based on English common law”); see also Rahul Mehrotra & Sharada
Dwivedi, The Bombay High Court: The Story of the Building—1978–2003, at
15 (2004) (“[F]irst official British Court of Justice [of Bombay] was inaugurated . . . on 8
August 1672.”). India has possessed an organized system of appellate review since at least
1861, when British Parliament passed the India High Courts Act, allowing appeal from regional high courts to the Privy Council in London. Id. at 20.
258 Boston College International & Comparative Law Review [Vol. 31:257 from Britain, the nation’s supreme court vacillated in exerting the full checks on the legislative branch requisite in modern democracies.4
Two recent cases involving the power of courts to review Parliament’s legislative and non-legislative functions—the Coelho 5 and Raja Ram
Pal 6 cases—demonstrate the Indian Supreme Court is embarking on a new era of judicial review, asserting itself as a co-equal branch of government and a body dedicated to upholding principles of democratic government.7 Part I of this Note examines the background of India’s Constitution with respect to judicial review, the Ninth Schedule laws, the 1973 ruling of the Indian Supreme Court on which type of laws could be challenged, political corruption, and the power of Parliament to expel members. Part II describes recent jurisprudence of the court, including detailed discussion of the Coelho and Raja Ram Pal cases. Part III critiques these cases in terms of their positive and negative implications.
I. Background
A. Background to Ninth Schedule Leading up to Coelho
India achieved independence from Great Britain in 1947.8 Shortly afterwards, India’s leaders crafted the Constitution of India (constitution), which came into effect on January 26, 1950.9 Authored by Dr.
B.R. Ambedkar, it is the longest written constitution in the world.10 As with most constitutions, all laws passed by the legislative branch must conform to its provisions.11
4 See, e.g., I.C. Golaknath v. State of Punjab, A.I.R. 1967 SC 1643 (India) (holding Parliament lacked power to amend fundamental rights in constitution without a constitutional convention); His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala & another, (1973) 4 S.C.C. 225 (India) (overruling Golaknath).
5 I.R. Coelho (Dead) By Lrs v. State of Tamil Nadu & Others, (2007) 2 S.C.C. 1 [hereinafter
Coelho].
6 Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Others, (2007) 3 S.C.C. 184 (India)
[hereinafter Raja Ram Pal].
7 See Coelho, (2007) 2 S.C.C. 1; Raja Ram Pal, (2007) 3 S.C.C. 184.
8 Cambridge Illustrated History: British Empire 386 (P.J. Marshall ed., 2006).
9 Manas: History and Politics, Constitution of India, http://www.sscnet.ucla.edu/ southasia/History/Independent/indep.html (last visited May 5, 2008).
10 Soli J. Sorabjee, Constitutionalism and Rights: The Influence of the United
States Constitution Abroad 97 (Louis Henkin & Albert Rosenthal eds., 1990).
11 See Supreme Court of India, Constitution of Supreme Court of India, http://supreme courtofindia.nic.in/new_s/constitution.htm (last visited May 5, 2008).
2008] India’s New Constitutionalism 259
Not long after the enactment of the constitution, Parliament found reason to amend it.12 India’s first prime minister, Jawaharlal
Nehru, a self-described “democrat and socialist,”13 had campaigned for decades against British imperialism and, after independence, vowed to free India from the stranglehold of elites.14 Nehru was a staunch supporter of nationalization and expropriation of land from the elite for redistribution to the poor.15 Yet, India’s new constitution had guaranteed a right of property to its citizens, and therefore Nehru’s grand plans for equitable redistribution of zamin (land) were soon confronted by the zamindars (landowners) in the courts.16 Early court rulings held the land reform laws “transgressed the fundamental right to property guaranteed by the constitution.”17
As a result, Prime Minister Nehru introduced the First Amendment to the constitution of India on May 29, 1951, creating a famous scheme known as the “Ninth Schedule.”18 The First Amendment created article
31B,19 which described the Ninth Schedule and was inserted into part
III of the constitution.20 Originally consisting of thirteen laws, the Ninth
Schedule was narrowly crafted to immunize land reform laws from judicial review.21 12 See A.G. Noorani, Ninth Schedule and the Supreme Court, Econ. & Pol. Wkly., March 3,
2007, at 731.
13 Anchor for Asia, Time, Oct. 17, 1949, available at http://www.time.com/ time/magazine/article/0,9171,853939,00.html. 14 Id.
15 Id.
16 See Noorani, supra note 12, at 731.
17 Venkatesh Nayak, The Basic Structure of the Indian Constitution 1 (2006), available at http://www.humanrightsinitiative.org/publications/const/the_basic_structure
_of_the_indian_constitution.pdf.
18 See Constitution (First Amendment) Act, 1951; Noorani, supra note 12, at 731.
19 Article 31B reads: “Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent legislature to repeal or amend it, continue in force.” India Const. art. 31B.
20 See Constitution (First Amendment) Act, 1951.
21 Noorani, supra note 12, at 731. Nehru himself commented on the narrow scope of laws belonging to the Ninth Schedule, stating, “It is not with any great satisfaction or pleasure that we have produced this long schedule. We do not wish to add to it for two reasons. One is that the schedule consists of a particular type of legislation [land reform laws], generally speaking, and another type should not come in. Secondly, every single measure included in this schedule was carefully considered by our president and certified by him.” Id.
260 Boston College International & Comparative Law Review [Vol. 31:257
From the moment of the First Amendment and the introduction of land reform laws under the Ninth Schedule, a long saga ensued in the courts.22 Between 1951 and 1967, property owners challenged the laws and constitutional amendments that placed land reform laws within the Ninth Schedule.23 Initially, the laws were challenged as violations of article 13(2) of the constitution, which provides against derogation of fundamental rights.24 Analogizing the constitutional amendments to laws, plaintiffs creatively argued in Sankari Prasad Singh Deo v.
Union of India 25 and Sajjan Singh v. Rajasthan 26 that the amendments were abridging the fundamental right to property and therefore were invalid under article 13(2).27 Nevertheless, in both decisions, the Indian
Supreme Court rejected the arguments and “upheld the constitutional validity” of article 31B.28
In 1967, however, the supreme court reversed itself and held, by a slim six-to-five majority, that the amendments were “laws” within the meaning of article 13.29 This was a significant decision, for the court ruled for the first time that there were implied limitations on Parliament’s power to amend the constitution.30 The court held that “Parliament would have no power from the date of the decision (February
27, 1967) to amend any of the provisions of part III so as to take away or abridge fundamental rights.”31 The court further noted that, if Parliament wished to amend fundamental rights, it would have to convene a Constituent Assembly (constitutional convention).32
Following this significant decision, the Government continued its
“radical measures” on the social front, destined once again to clash with the courts.33 One goal of the new prime minister, Indira Gandhi,
Jawaharlal Nehru’s daughter, was to eliminate payments the Government was required to make to princes.34 In consideration for the