The Political Nature of the Judicial Process
Chapter Forty-Eight
Syllabus topic 3, "Judicial Process in India"
Pages 195 to 198 of 356
In one line
To say the judicial process is political is not to say judges are partisan; it is to say that deciding who gets what in a society is a political function however it is done, and courts do it.
In the wording a student can write in an exam: the judicial process is political in three distinct senses, and they must be separated. It is political in the constitutional sense, because a court exercising judicial review allocates power between organs of the State and decides contested questions of public value. It is political in the institutional sense, because the judiciary's composition, jurisdiction and resources are determined through political processes. It is political in the pejorative sense only if judges decide by partisan preference rather than by law, and that is a charge to be proved and not assumed.
Sense one: constitutionally political
Judicial review allocates power. When a court holds that a subject belongs to the States and not to the Union, or that an amendment exceeds Article 368, it is deciding who governs. That is a political question in the classical meaning of the word.
Constitutional adjudication decides contested values. Whether talaq-e-biddat is protected by Article 25 or forbidden by Article 14; whether the exclusion of women from a temple is an essential religious practice; whether privacy is part of liberty. These are questions on which a society is divided, and a court answers them.
The remedies are governmental in effect. Guidelines that regulate every workplace, directions that reorganise an administration, and rules for advance medical directives are governmental acts in substance whatever their form.
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, is the case where the political character is undeniable.
Facts. The Allahabad High Court set aside the election of the Prime Minister on 12 June 1975, holding that she had committed corrupt practice by obtaining the assistance of a gazetted officer, and disqualified her for six years. While her appeal was pending, the Constitution (Thirty-ninth Amendment) Act 1975 inserted Article 329A, clause (4) of which purported to declare that her election could not be called in question in any court and that the pending appeal would abate.
Held. The appeal succeeded on the merits under the amended election law, but clause (4) of Article 329A was struck down as destructive of the basic structure. It did not amend the election law; it decided a particular dispute by constitutional fiat, withdrawing it from every court, and so violated the rule of law, free and fair elections, and the separation of the judicial function from the legislative.
Why it matters here. The subject matter was the tenure of the head of government. No account of the judicial process that treats it as a technical exercise can accommodate a case like this, and the Court's reasoning is itself political in the constitutional sense: it is about how power is held and lost.
The Political Nature of the Judicial Process
Sense two: institutionally political
Appointments. Who becomes a judge is decided by a process that has been contested between the executive and the judiciary for forty years, and the NJAC decision of 16 October 2015 is the latest instalment.
Jurisdiction. Parliament creates tribunals, alters appellate structures, and has attempted to exclude review. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, is the limit on that, but the attempts are political acts.
Resources. Sanctioned strength, vacancies, budgets and infrastructure are determined outside the courts.
Post-retirement office. Treated in [Structural Vulnerability and the Political Executive].
Reversal by amendment. The Twenty-fourth, Twenty-fifth, Thirty-ninth and Forty-second Amendments were all responses to judicial decisions. The relationship between the Court and Parliament in India has been a political relationship, conducted through judgments and amendments.
Sense three: the pejorative sense
Here the claim is that judges decide by preference and dress the result in law. Three things should be said.
It is sometimes true, and the Indian instance is admitted. Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, is generally regarded, including within the judiciary, as a decision in which the Court did not decide as law required.
Facts. During the Emergency proclaimed on 25 June 1975, a Presidential Order under Article 359 suspended the right of detenus to move any court to enforce Articles 14, 21 and 22. Detenus applied to High Courts for habeas corpus and several entertained the petitions. The State appealed, contending that the Order barred the courts from entertaining them at all.
Held. By four to one, in view of the Presidential Order no person had any locus standi to move a writ petition under Article 226 before a High Court for habeas corpus to challenge the legality of a detention order on any ground, including mala fides. Section 16A(9) of the Maintenance of Internal Security Act was constitutionally valid. Khanna J. dissented, holding that the State had no power to deprive a person of life or personal liberty without the authority of law even during an emergency.
Why it matters here. It is the case that makes the pejorative sense arguable rather than merely alleged, and an answer that omits it is not treating the question seriously.
It is usually not proved. A decision one dislikes is not evidence of partisanship, and the ordinary explanation of divergence is that constitutional texts are open-textured and reasonable judges differ, which is [Judicial Reasoning, not Calculation].
The safeguards address it. Reasons published, benches of several judges, dissents recorded and published, appeal, and the recusal rule.
The Political Nature of the Judicial Process
What follows from admitting the first two senses
It does not make the court a legislature. The differences remain: a court is passive, bound to a record, obliged to give reasons, and confined to the case.
It does explain the criticism. If constitutional adjudication decides contested public questions, then disagreement with the result will always be available, and the charge of overreach will always be made.
It makes independence more important, not less. Precisely because the process is political in the first two senses, insulation from the third is what the guarantees exist for.
It explains why appointment is fought over. If the judicial process decides contested public questions, then who becomes a judge matters politically, which is exactly why the NJAC contest happened and why MU pairs the two in its question.
A worked example
A court is asked whether a State may reserve a proportion of private sector jobs for local residents.
Is the question political? In the constitutional sense, plainly: it concerns the distribution of opportunity and the meaning of a common citizenship.
Is the court therefore disqualified? No. Articles 14, 16 and 19(1)(g) supply legal standards, and the question is whether the classification is permissible and the restriction reasonable.
Where would the pejorative sense enter? If the court decided by reference to its own view of what the State should do rather than by those standards, and the reasons would ordinarily show it.
What the example demonstrates. A politically consequential question can still be decided by legal standards, and the two senses of "political" come apart exactly here.
Quick revision
- Three senses: constitutionally political, institutionally political, and pejoratively political.
- Constitutional: review allocates power, adjudication decides contested values, and the remedies are governmental in effect.
- Indira Nehru Gandhi, AIR 1975 SC 2299, is the case where the subject matter was the tenure of the head of government.
- Institutional: appointments, jurisdiction, resources, post-retirement office, and reversal by amendment.
- The amendment history is a political relationship conducted through judgments and amendments.
- Pejorative: sometimes true, ADM Jabalpur being the admitted Indian instance; usually not proved; addressed by published reasons, plural benches, recorded dissents, appeal and recusal.
- Admitting the first two senses makes independence more important and explains why appointment is fought over, which is MU's pairing.
Test yourself
1. Distinguish the three senses in which the judicial process may be called political. Constitutionally political, because judicial review allocates power between organs and constitutional adjudication settles contested questions of public value. Institutionally political, because the judiciary's composition, jurisdiction and resources are determined through political processes. Pejoratively political, meaning that judges decide by partisan preference and clothe the result in legal reasoning, which is a charge that must be proved.
The Political Nature of the Judicial Process
2. Why is Indira Nehru Gandhi the strongest illustration of the first sense? Because the subject matter was the tenure of the head of government. Parliament had inserted clause (4) of Article 329A to place her election beyond challenge in any court, and the Court struck it down as destructive of the rule of law, free and fair elections and the separation of the judicial function from the legislative. No account treating adjudication as a technical exercise can accommodate a decision of that kind.
3. Give the Indian instance that makes the pejorative sense arguable, and say what answers it. ADM Jabalpur, AIR 1976 SC 1207, where the majority held that no detenu had locus standi to seek habeas corpus during the Emergency and Khanna J. dissented. What answers the general charge is the set of safeguards: reasons published and open to criticism, decision by benches of several judges, dissents recorded and published, correction on appeal and by larger benches, and the rule requiring recusal where a judge has an interest.
4. How does the political character of the process explain the NJAC contest? Because if the judicial process settles contested questions of public value, then who becomes a judge has political consequences, and the power to appoint is worth having. That is why the meaning of "consultation" was fought over from 1981 to 1998, why Parliament legislated a commission in 2014, and why the Court struck it down in 2015.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.