Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel [the] invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
― Louis D. Brandeis [Olmstead v. U.S., 277 U.S. 438 (1928) (dissenting)], quoted in Minerva Mills v. Union of India (Y.V. Chandrachud, CJ)
Since the enactment of South Africa’s Constitution in the early 1990s, the term “transformative constitutionalism” has been influential in thinking about constitutionally envisaged socio-economic transformation the world over, especially in postcolonial contexts. Indeed, “transformative constitutionalism” has come to be seen as a normative approach uniquely suited to conceptualize constitutionalism in the global South. Legal theorist Karl Klare, who coined this term, defined it as “large scale social change through nonviolent political processes grounded in law” (Klare Reference Klare1998, 150). The Indian Constitution, adopted in 1950, was one of the first major postcolonial constitutions. It was historically seen as a constitution aimed at social transformation and even as engineering a “social revolution,” but is now increasingly viewed from the transnational lens of “transformative constitutionalism,” including recent judgments by the Indian Supreme Court itself.Footnote 1 In this article, I argue that tensions within the broadly conceived transformative project of the Indian constitution have placed unique pressures on negative liberty and judicial review, which are different from those faced in classic liberal democracies, making the courts gradually abandon their counter-majoritarian role and embrace judicial populism.
The term “judicial populism” has long been used to describe the conduct of the Indian higher judiciary. Since at least 1980, this term has been deployed in academic discourse to characterise the working of the Indian Supreme Court, and not necessarily in a critical manner. (Baxi Reference Baxi1980). But this emergence of “judicial populism” in the 1970s was part of a larger political shift in this period. Thirty years ago, historian Ayesha Jalal wrote of the 1970s as the beginning of the era of populism in South Asia, an era that has arguably never ended in this region (Jalal Reference Jalal1995). Indeed, political theorist Partha Chatterjee has recently surveyed the fifty-year career of populism in India (Chatterjee Reference Chatterjee2020). What is almost universally agreed upon in this literature is that the inexorable rise of populism in India was inaugurated by Mrs Indira Gandhi’s spectacular electoral victory in 1971. This was a classic left-wing populist regime oriented around a cult of personality and marked by anti-elitist rhetoric. But what is of note here is that one of the principal targets of such anti-elitism in this originary upsurge of populism in India was the Indian Supreme Court (Austin Reference Austin1999).
As an archetypal populist, Mrs Gandhi wanted to change the constitution so it was less of a hindrance to her political aggrandisement and defang the judiciary from being able to perform an oppositional role. She proceeded to do just that, getting the Constitution amended on nineteen different occasions over the next six years; many of these amendments were specifically targeted at weakening judicial review. In this long-drawn political campaign against the judiciary, Mrs Gandhi successfully weaponised a unique feature of Indian Constitutional design: a chapter of the constitution called Directive Principles of State Policy. A whole swathe of legislation was sought to be immunized from judicial review in its name and the judges were expected to “concede absolute powers to the government in the name of socialism” (Dhavan Reference Dhavan and Beer1992b, 415).
I have detailed elsewhere how the response of the Indian Supreme Court to this ideological onslaught was to go down the path of judicial populism itself (Bhuwania Reference Bhuwania2017). The most obvious symptom of this new trajectory was the increased invocation of “the people” in judicial discourse by the late 1970s. This accompanied landmark procedural innovations like Public Interest Litigation (PIL) along with improvisations in substantive law like the expansive interpretation of the “right to life” (Robinson Reference Robinson2009; Mate Reference Mate2015). These procedural and substantive departures mimicked Mrs Gandhi’s populist rhetoric and were legitimized in the name of Directive Principles. “Judicial populism” emerged as a strategy in which judicial behavior increasingly had a tenuous relationship with law itself. Judges no longer felt bound by the need to ground their decisions in law and could go to any extent, extrapolating from practices of textual interpretation. While these sins of commission following from the court’s new judicial populism and the flamboyant excesses that resulted have received a great deal of academic attention, there was another crucial sin of omission, too, that flowed from it that has largely gone under the radar.
The court had been badly bruised by its battles with Mrs Gandhi in the 1970s. Its subsequent reinvention required not just an embrace of populist forms like PIL but a pivot from a classic counter-majoritarian role, which seemed to have a limited valence in the political and constitutional context of India. Between 1971-76, Mrs Gandhi had sought to immunize her government from judicial review and amended the constitution repeatedly to weaken it. With its openly politicised appointments during this period, her government famously professed the need for a “committed judiciary,” that is, a court which would no longer see its role as a constitutionalist check on governmental policy, but would rather see it as enabling the government to actualise Directive Principles. The new trajectory of judicial populism essentially enabled the court to go down this same path, but it was articulated in a very different manner in keeping with its new radical avatar. The scope of justiciability was actually expanded rather than reduced in line with the seeming expansion of the court’s powers that followed, where everything was theoretically possible. The rhetorical expansiveness was important as it fed the perception of the Indian Supreme Court as “the most powerful in the world.” This new sense of power was, however, mobilised in a populist vein, not as a check on governmental lawlessness but as an institution that could go to great lengths in pursuing professed constitutional objectives, as enshrined in the Directive Principles. It would, therefore, give greater centrality to the aims of governmental policy, with ritual invocations of Directive Principles, even in its exercise of judicial review. This approach would provide the court ample opportunities for populist rhetoric, mimicking the political language of the times, while no longer being a hindrance in the path of governmental policy. The rise of judicial populism in India was thus accompanied, counter-intuitively, by a decline in classical judicial review. In this article, I try to make sense of this seeming contradiction.
Instead of looking at the emergence of judicial populism in India as largely a result of the conjunctural executive-judiciary conflict of the 1970s as I have done elsewhere, I argue in this paper that the peculiarities of Indian constitutional design and practice, specifically its “Directive Principles of State Policy,” have made the practice of classical judicial review increasingly untenable, and provided the grammar for its judicial populism (Bhuwania Reference Bhuwania2017). My focus here is on the profound normative implications of judicial populism as its normalization in places like India has meant a fundamental departure from its core function as an institution. Even as the Indian Supreme Court acquired seemingly unlimited powers as well as worldwide fame for its activism with populist innovations like PIL and the so-called right to life jurisprudence, good old-fashioned judicial review became increasingly conspicuous by its absence.
In ongoing debates on the crisis of Indian constitutionalism, the original sins of Indian constitutional design itself usually get elided. However, I argue here that if we are to understand the illiberal trajectories of the Indian judiciary or indeed any other constitutional institution, there is an urgent need to stop glossing over the nonliberal departures in the Indian constitutional design itself. Such an enquiry would depart from the nationalist tinge of much of Indian constitutional scholarship, which, as the historian Arvind Elangovan has argued, “tempts one to conclude that the socio-economic and political problems of postcolonial India lie in the nature of politics that has been pursued since independence and not at the moment of constitution making. To read the fall of postcolonial India as a function of politics is thus to completely extricate the framers of the constitution from compulsions of politics” (Elangovan Reference Elangovan2014, 8–9).
India’s Threefold Constitutional Transformations
While the term “transformative constitutionalism” has come into vogue since the enactment of the South African constitution in the early 1990s, the idea of a constitution signaling a fundamental break from the prior political regime is, of course, a much older one. The ur-type of such transformations attempted by a Constitution are the American and the French constitutional changes of the late 18th century. The American constitution marked a fundamental departure from its colonial past, forming a republican government based on popular sovereignty and democratic principles (albeit with rather limited franchise), separation of powers, a federal structure, judicial review, and a bill of rights—constitutional innovations which brought about a profound political transformation, but which made no attempt to consciously address the socio-economic questions of the time. The French revolutionary regime also based itself on republican ideas, popular sovereignty, and a declaration of rights. But the focus of its political energies was on addressing “the social question”—to ameliorate the widespread poverty and inequality in France through a radically redistributive regime. While the American regime was based on the institutionalized distrust of power, the French Revolution invested the state with unprecedented power, unimaginable till then. There was no question of separation of powers, federalism, or judicial review in such a regime. According to Hannah Arendt, such a political regime was destined to lead to a reign of terror, warning that “every attempt to solve the social question with political means leads to terror” (Arendt Reference Arendt1963, 112).Footnote 2
The Indian Constitution tries to enact both kinds of transformations—the American as well as the French. It tries to combine the political innovations introduced by the American constitution and the French revolutionary concern with addressing dire social inequality. While the Indian constitution tries to incorporate the American liberal constitutional principles, it is only able to do so in a highly truncated form. Indian federalism is marked by a very strong centre with states having very limited powers. Its Bill of Rights is heavily diluted, framed “from a police constable’s point of view,” as a Constituent Assembly member famously said (Constituent Assembly Debates, 29 April 1947). Vertical and horizontal separation of powers was never really taken seriously in constitutional design. Indian constitutional design was quite far from James Madison’s concern with institutional checks and balances to prevent concentration of power because “Enlightened statesmen will not always be at the helm” (Hamilton et al. Reference Hamilton, Madison, Jay and Goldman2008, 51). Or to design a constitution to control government abuse of power because “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary” (see Hamilton above, 257). Conversely, Ambedkar tabled the draft constitution, declaring that “if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile” (Constituent Assembly Debates, 4 November 1948). Many of these departures from principles of liberal constitutionalism were justified because the defining theme of the Indian constitution and its raison d’être itself was the need for a social revolution, which required an investment in power rather than a suspicion of it (Austin Reference Austin1966). The liberalism in the Indian constitution could thus only be half-hearted, overlaid with a deeply statist impulse.
The Indian Constitution’s pouring of French wine into an American bottle meant that multiple ideas of constitutional transformation were in tension with each other. The ideal of transformative constitutionalism often overlooks the potential contradictions between the promise of a fundamental political transformation and that of state-led socio-economic transformation. I will instead counterpose competing ideals of transformation embedded within this concept, with divergent political imaginaries and approaches to constitutional form. The transformations promised by the post-independence Indian constitution, I argue, were at least threefold. For heuristic purposes, I would call the first the liberal transformation, the second the democratic transformation, and the third the statist transformation. The tensions among these transformations were to become apparent fairly soon after the constitution came into force in 1950, especially those between the first and the third.
The Liberal Transformation
First, the Indian constitution’s liberal transformation was foregrounded in its most celebrated chapter: the enumeration of a seemingly elaborate list of fundamental rights. It can also be seen as actualized in the detailed federal provisions providing for division of powers between a union and states, along with a judiciary vested with remarkably broad powers of judicial review. While the Bill of Rights was heavily truncated and the federal structure extraordinarily centralised, the Indian Supreme Court was explicitly designed to have “the widest jurisdiction of any superior court in the world” (Austin Reference Austin1966, 173). The reasons given for the centralization of power, as well as for the refusal to accord civil liberties constitutional protection except in a limited form, were twofold. First, the social revolution required a strong state and, therefore, centralization. Second, the faith in popular sovereignty vested in the newly organized state meant for many that the indigenous democratically elected representatives could be trusted to do the right thing.
It will be helpful here to go by Scheppele’s influential formulation of “aversive constitutionalism,” which helps identify the nature of a constitution through “its aversive alternatives, the ones that are so forcefully rejected that they cast their influence over the whole constitution-building effort” and “incorporates a nation-making sense of rejection of a whole constitutional possibility” (Scheppele Reference Scheppele2003, 299–300). If the Indian constitution of 1950 is understood in these terms and the political history of its drafting studied, the obvious alternative constitutional possibility that was forcefully rejected by it was the Cabinet Mission Plan of 1946, which provided for a radically federal, almost confederal, state structure, and the entire history of complex constitutional negotiations from 1928-1946 that culminated in this plan (Bhuwania Reference Bhuwania2024). This option was rejected by the “oligarchy” responsible for drafting the 1950 Constitution, even as the monumental price of this rejection, the Partition of the subcontinent, stared them in their face.Footnote 3 The felt need for a “strong centre” for the new state by Nehru and the Congress leadership trumped this possibility.Footnote 4
The other aversive constitutionalism, which arguably shaped Indian constitutional design, albeit somewhat less strongly than the spectre of a robustly consociational federalism, was that of the Lochner era US Supreme Court. Although this era was decisively over in the USA almost a decade before the Indian Constitutional Assembly convened, US Supreme Court judgments from that era were repeatedly invoked by Indian constitutional assembly leaders to justify a curtailed bill of rights (Austin Reference Austin1966, 87). The right to liberty and the due process clauses were thus severely constrained.Footnote 5 The Lochner monster became a very successful ploy to undermine these key rights provisions. Unsurprisingly, both these instances of aversive constitutionalism in India were in line with the distaste for American-style federalism and judicial review professed by Harold Laski and his brand of Fabian Socialism in the 1930s, a key influence on Nehru and the Indian Constituent Assembly. Laski’s sentiment against the US Constitution, which he felt “inhibits the federal government from exercising the authority inherent in the idea of a democracy,” would indeed go against the fundamentals of liberal constitutionalism itself (Laski Reference Laski, Karmis and Norman2005, 195). This kind of an impulse to ensure a strong centralised government and empower it to make a welfare state possible was at work in the Indian constitutional design as well, though with the language of “social revolution” thrown in.
But the much-celebrated liberal transformation in the Indian constitutional design was, of course, not entirely a camouflage. Accompanying the insistence on relatively undivided and unchecked governmental powers was a remarkable willingness to empower the judiciary. In his description of the Indian Constituent Assembly’s deliberations on the judiciary, Granville Austin even argues that “the Assembly had come close to deifying the Supreme Court and the entire judicial system” (Austin Reference Austin1966, 186). It is curious that the spectre of the Lochner monster led the Indian Constitution makers to place restrictions in fundamental rights provisions themselves while simultaneously expanding powers of judicial review to unprecedented levels. The vesting of writ jurisdiction in the Supreme Court under Article 32 and the High Courts under Article 226 in the 1950 Constitution made judicial remedies against the state easier than ever before, and a new form of accountability of the state towards its citizens became possible. While the power to issue five prerogative writs was incorporated in these two provisions, the power was even wider, not limiting them to the traditional definitions of writ remedies. The British inherited legal system was now expected to contend with the new constitutional standards. This brought about a veritable writ revolution almost immediately after the Constitution came into force, with the courts being mobilized to make the state accountable like never before. George Gadbois and Rohit De provide a vivid account—in contrasting styles—of the new possibilities such judicial review offered during this initial 1950-1967 period in India (Gadbois Reference Gadbois1970; De Reference De2018).
The Democratic Transformation
The second key transformation marked by the Indian constitution was the introduction of a democratic government based on popular sovereignty, marking an avowed departure from India’s colonial history with the introduction of universal adult franchise. A democracy in a society where the vast majority was impoverished and illiterate, with its extreme and entrenched inequalities based on caste, was a wager with hardly any precedent in world history. The caste-based political mobilization that it soon led to, with new forms of political empowerment of hitherto backward castes, especially since the landmark 1967 general elections, is an exhilarating but familiar story that has fascinated political scientists like Lloyd and Susanne Rudolph, Sudipta Kaviraj, and Yogendra Yadav for decades (Rudolph Reference Rudolph and Rudolph1967; Kaviraj Reference Kaviraj and Chatterjee1998; Yadav Reference Yadav, Frankel, Hasan, Bhargava and Arora2000).
However, in the institutional design of this new democracy, there was a wilful refusal to look beyond the British-style First Past the Post (FPTP) system. So far was the Indian constitution from having an aversive view of the British colonial political model that the FPTP system was assumed as somehow natural (Sridharan Reference Sridharan, Hasan, Sridharan and Sudarshan2002). Two of the leading architects of the Indian constitution, BN Rau and Dr Ambedkar, were cognisant of the majoritarian nature of the FPTP system but rejected any attempt to consider alternative models of electoral representation, principally Proportional Representation (PR), during the Constitution framing process.Footnote 6 This was despite Rau’s recognition of a “general agreement even among the critics of proportional representation that the application of the system is a necessity in the case of countries with self-conscious racial or communal minorities” (Rau Reference Rau1960, 301). During the Indian constituent assembly deliberations, when a Muslim member, Kazi Syed Karimuddin, argued that FPTP would lead to “the tyranny of the majority” and mooted PR as an alternative, Ambedkar rejected PR as an option, giving three reasons (Bajpai Reference Bajpai and Bhargava2008). One, PR was considered too complex to be understood by the largely illiterate Indian populace. Two, the PR system supposedly led to unstable governments. Third, reservation based on community quotas in the FPTP system was deemed to work better for minority representation than PR. The last premise, even if correct, proved short-lived, as a few months after Ambedkar’s intervention, reservation quotas for Muslims were deleted from the draft Constitution. As a result, the number of Muslims elected to the Central Parliament has never been commensurate with their population in independent India. And no Indian government has ever come to power at the centre with a majority of the total votes cast. PR is, of course, no magic wand, and comes with its own set of issues, but the problem was the refusal to even consider alternatives, even when the communal implication of FPTP was pointed out in clear terms. Ambedkar himself expressed a more sceptical view of the Indian electoral system after the Constitution was formed and the first general elections had been held (Ambedkar Reference Ambedkar2014).Footnote 7
The Statist Transformation
Despite the glaring imperfections in the liberal and democratic transformations attempted by the 1950 Indian Constitution, in conceptualising these two kinds of transformations, we still have a Tocquevillean narrative of Constitutionalism with an empowered judiciary and a democracy with significant egalitarian potential. However, it is the third transformation, which I call statist, that makes the Indian Constitution a teleological text, a transformative constitution in the French sense that squarely tries to address “the social question” of widespread poverty and inequality. Counterposing the American archetype of Constitutionalism with the Indian variant, Uday Singh Mehta has argued that:
The dominant impulse of [American] constitutionalism was thus to limit political power, to be suspicious of it, and to constrain its reach. In the Indian case, something of the reverse is true. It is the defence of the State as the ultimate backstop against anarchy, strife, crisis, and acute destitution that makes it the guarantor of national purposefulness and supplies the ground for its having a priority in our collective self-understanding” (Mehta Reference Mehta2016, 54).
Sudipta Kaviraj has characterised the Indian modernist elite which assumed power after decolonisation as having “an entirely Jacobin conception of the state,” in its broad understanding that “through the adoption of a new constitution, enforced by the state, modern people could achieve something like a ‘refoundation’ of society, a fundamental overhauling of the basic principles of social co-operation” (Kaviraj Reference Kaviraj2005, 289). The socially revolutionary agenda of the Indian Constitution was incorporated into the Directive Principles of State Policy. Its key provisions prescribe the direction to which the state must aspire. These principles, though nonjusticiable, unlike the Fundamental Rights, were declared to be “fundamental in the governance of the country.” As Granville Austin summarized it, the Directive Principles contain “a mixture of social revolutionary – including classically socialist – and Hindu and Gandhian provisions.” These principles were addressed to the state and implied a modernist state engaged in building a society in its own image (Austin Reference Austin1966). Mehta has argued that the incorporation of such constitutionally prescribed futures meant that “the nation was now conceived as a project.” He explains the teleological nature of part IV thus:
This constitutionally enshrined vision of the future is what has often been seen as implying an activist and capacious state, responsible for the eradication of poverty, undoing the stigmas of casteism, improving public health and education, building large industry, facilitating communication, fostering national unity, and, most broadly, creating conditions for the exercising of freedom (Mehta Reference Mehta2010, 20).
Such a statist project of constitutional transformation was destined to conflict with the more Tocquevillean ideas of transformation embedded in judicial review and electoral democracy. The tension between these three ideas of transformation, particularly the liberal and the statist strands, became the principal juristic battleground after independence.Footnote 8 The political discourse that emerged around it repeatedly characterized judicial review and fundamental rights as obstacles to the realization of the social revolution as enunciated in the directive principles. Indeed, the invocation of Directive Principles became a code for the constitutional empowerment of the government in power.
Rohit De has provided a deeply textured account of multiple examples of these emergent tensions: the writ petitions filed against the new laws on prohibition, the ban on cow slaughter, the regulation of petty trade and moralistic interventions on sex work, were exactly the kind of challenges that the liberal transformation allowed against the democratic/statist kind (De Reference De2018). These statutory measures, however, were not just coincidentally enacted by popularly elected legislatures around the time the new constitution was adopted. Rather, it was precisely the new “people’s constitution,” which exhorted the state through its directive principles to legislate these repressive statutes, against which these petitions needed to be filed. If the constitution enabled these new forms of judicial review, they had to be deployed so often, usually unsuccessfully, precisely because the same constitution enabled the state to become a behemoth like never before in the name of social revolution. Electorally insignificant minorities like Muslim butchers, Marwari small traders, Parsi alcohol-lovers, and sex workers would be joined by an equally unpopular but much more powerful group—agrarian landlords—in their petitions against the majoritarian regime newly legitimized with large electoral victories. The relative success of the latter in being able to stymie land reforms through writ petitions for violating their property rights became the cause célèbre used to tarnish both judicial review and individual rights as elitist in the popular imagination. But petitions against prohibition or the ban on cow slaughter, both mandated as Directive Principles, were constitutionally no different.
There has long been a tendency to view the directive principles on prohibition and cow slaughter as somehow exceptional within the schema of directive principles incorporated in the Indian Constitution (Baxi Reference Baxi1967). But actually, for much of the incumbent Congress party of the early post-independence era, the ability to enact prohibition on alcohol consumption and a ban on cow slaughter by the new regime was precisely the marker of decolonization or swaraj. Thanks to such Congress leadership, most of southern and western India had prohibition by the early 1950s (De Reference De2018, 44). And as many as nine of the then fourteen Indian states had enacted bans on cow slaughter within five years of the constitution coming into force (see above at p.145). The British Raj had long resisted demands for prohibition as well as a ban on cow slaughter, being opposed to both policies culturally as well as pragmatically, as it was to land reforms. Instead of seeing these two directives as aberrations, it may be useful to start seeing them as perhaps the two most electorally popular and legislatively successful, even if profoundly illiberal, directive principles in the Indian constitution.
While Directive Principles soon became embroiled in bruising judicial battles, its primary aim was to frame the legislative agenda for the new elected parliaments. This is, after all, how Ambedkar had explained the envisaged role of Directive Principles while presenting the draft constitution in the Indian constituent assembly: “whoever captures power will not be free to do what he likes with it. In the exercise of it, he will have to respect these instruments of instructions, which are called Directive Principles. He cannot ignore them. He may not have to answer for their breach in a Court of Law. But he will certainly have to answer for them before the electorate at election time” (Constituent Assembly Debates, 4 November 1948). This constitutionally envisaged legislative role has not been without success. Indeed, as Tarunabh Khaitan notes, there have been “at least 131 examples of ordinary primary legislation enacted in India (by federal and state legislatures) since the enactment of its Constitution in 1950 explicitly invoke directive principles generally, or mention specific directives” (Khaitan Reference Khaitan2019, 25). The petitions challenging such socially revolutionary statutes, like those on land reforms, prohibition, cow slaughter ban, autarkic laws, etc., mostly ended in defeat. But even so, it led to quick measures by the postcolonial regime to limit such judicial review. Nehru et al saw their imagination of social transformation (principally the statist kind) threatened by the liberal transformation made possible by judicial review.
Directive Principles and India’s Counter-Majoritarian Difficulty
This is where the old “counter-majoritarian difficulty” with judicial review—the familiar story of liberal constitutionalism and its clash with majoritarian democracy—becomes more complicated in India (Bickel Reference Bickel1986). Elected governments in India could claim not only that they alone had democratic legitimacy, but that the constitution itself invested in them the mandate and the responsibility to carry out radical socio-economic reform. They could claim to be only performing their Constitutional duty under the Directive Principles of State Policy, which could arguably impinge on conventional roles played by other constitutional actors. It could protest that the judiciary was not giving sufficient emphasis to one part of the constitution—Directive Principles—and, instead, was privileging Fundamental Rights. The judiciary and its preoccupation with Fundamental Rights could thus be portrayed as elite concerns coming in the way of social revolution. This line of attack was deployed right from the beginning of India’s constitutional career and could be used most effectively by regimes with large electoral mandates. The tensions between the tripartite transformations attempted by the Indian constitution were thus sought to be definitively resolved in one direction, further strengthening the statist tendency. Within months of the 1950 Constitution coming into force, constitutional amendments were passed to protect the social revolution promised by the constitution from the “elite” fundamental rights incorporated into the constitution. But never was it weaponized more devastatingly than in the immediate aftermath of Mrs Indira Gandhi’s stunning victory in the 1971 general elections. The famous Golak Nath verdict of 1967 lit the fuse, and the resulting constitutional war over the next decade would fundamentally reconstitute the precarious constitutional balance between the three aforesaid transformations.
Right from the beginning of the Indian constitution-making process, there had been diversity of views among political leaders as well as legal scholars about the constitutional status of directive principles relative to fundamental rights. Sir B.N. Rau, who prepared the Indian draft constitution in October 1947, soon thereafter suggested the following amendment: “when a law made by the State in the discharge of one of the fundamental duties imposed upon it by the constitution happens to conflict with one of the fundamental rights guaranteed to the individual, the former should prevail over the latter: in other words, the general welfare should prevail over the individual right” (Rau Reference Rau1960, 302).Footnote 9
Arvind Elangovan has argued that Rau’s suggestions of privileging directive principles over fundamental rights stemmed from his “deep concern with the courts having unlimited power to interpret the provisions of fundamental freedoms. Instead, Rau placed far more faith in the legislature to frame appropriate laws that would guarantee these freedoms better” (Elangovan Reference Elangovan2019, 179). Rau’s view presaged a much later Constitutional Amendment incorporating Article 31C, as we shall see.
Nehru had a similar opinion about the status of directive principles, most famously expressed in his interventions during the debates on the first and the fourth constitutional amendments. Defending the insertion of Article 31-B and the Ninth Schedule into the Constitution, which immunised some of the laws from judicial review, Nehru clearly articulated the tension within the Indian constitutional framework:
Directive Principles of State Policy represent a dynamic move towards a certain objective. The Fundamental Rights represent something static to preserve certain rights which exist. … A dynamic movement towards a certain objective necessarily means certain changes taking place: that is the essence of movement. Now it may be that in the process of dynamic movement certain existing relationships are altered, varied or affected. In fact, they are meant to affect those settled relationships and yet if you come back to the Fundamental Rights they are meant to preserve, not indirectly, certain settled relationships … when the courts of the land have to consider these matters they have to lay stress more on the Fundamental Rights than on the Directive Principles of State Policy. The result is that the whole purpose behind the Constitution, which was meant to be a dynamic Constitution leading to a certain goal step by step, is somewhat hampered and hindered by the static element being emphasized a little more than the dynamic element and we have to find out some way of solving it.
Nehru had hardened his position by 1955, when he revisited the same issue during the debate on the 4th Constitutional Amendment, which further expanded the list of laws in the 9th Schedule:
We stress greatly and argue in courts of law about the fundamental rights. Rightly so, but there is such a thing also as the Directive Principles of the Constitution … there is an inherent contradiction in the Constitution between the fundamental rights and the Directive Principles of State Policy. Therefore, again, it is up to this Parliament to remove that contradiction and make the fundamental rights subserve the Directive Principles of State Policy. (Emphasis mine.)
Legal scholar Rajeev Dhavan has provided an insightful interpretation of Nehru’s views on judicial review as stemming from his belief that India had adopted a political constitutionalist framework.
Nehru’s real conflict with the judiciary was not located around one decision or the other. In fact, it went to the root of the nature of Indian constitutionalism. Nehru accepted that [the] Constitution had certain in-built juridical restraints on the power of Parliament. But, juridical constitutionalism, although important, was not sacrosanct. Nehru believed that in the ultimate analysis, India—for good, democratic and radical reasons—had established a political constitutionalism (Dhavan Reference Dhavan and Paul1992a, lxxiii).
Dhavan argues that Nehru’s belief in political constitutionalism owed a great deal to his Fabian Socialist views and the success of postwar British socialism. There was a distrust of judicial review and the belief “that no structural impediments ought to be placed in Parliament for achieving the changes that it sought to achieve” (Dhavan Reference Dhavan and Paul1992a, 53).
Recent comparative constitutional scholarship has also theorised directive principles as a form of political constitutionalism. Lael Weis has argued that directive principles are an innovative design that inserts an element of political constitutionalism within legal constitutionalism (Weis Reference Weis2017). While this characterisation may well be correct, I would argue from the Indian case study here that the juxtaposition of legal and political constitutionalism in the same constitutional mix may not be entirely innocuous. The tensions between these two traditions of organising political power have made this kind of hybridity unsustainable in the Indian case. For “political constitutionalism” to work, “presupposes a series of conditions,” as its pre-eminent theorists like Richard Bellamy and Jeremy Waldron have clarified (Mac Amhlaigh Reference Amhlaigh2016, 193–194). These historical preconditions do not necessarily obtain in a place like India. While the UK is usually taken as the paradigmatic example of political constitutionalism, another context where this discourse has been increasingly deployed is China (Chen Reference Chen2014, Reference Chen and Law2022). The Indian instance has arguably as much in common with the UK version as with the Chinese version of political constitutionalism.
It may be useful to consider Directive Principles as a form of “Soft Constitutional law” (SCL), which can “subvert liberal constitutionalism as a tool for consolidating state powers and curtailing political freedoms in service of the public interest” (Thio Reference Thio2010, 766). While SCL afflicts multiple south-east Asian countries categorised as nonliberal democracies, the Indian constitutional experience tends not to be seen in the same light, but gets wrongly categorised as a liberal rather than a hybrid model in the Asian comparative frame (Chen Reference Chen2010). I would argue that directive principles have introduced a half-life into Indian legal constitutionalism in general and judicial review in particular, hollowing it out over a period of time.
From the 1st Amendment of 1951 to the 25th Amendment of 1971 to the 42nd Amendment of 1976, the Directive Principles were invoked to amend the constitution and curtail access to judicial review to enforce fundamental rights, thus giving carte blanche to the legislature. The “constitutional black holes” of Articles 31-B and 31-C, which made statutes immune to judicial review in spite of their violating fundamental rights, are legacies of this history (Khosla Reference Khosla, Choudhry, Khosla and Mehta2016). Since the constitution was in any case seen as purely instrumental towards social revolution, if social revolution demanded that judicial recourse to the constitution be radically curtailed, it had to be done.
The first stone was cast by the first Constitutional Amendment itself in 1951, which was passed by the Constituent Assembly itself, then sitting as the Provisional Parliament until the first parliamentary elections were held in 1952. Among other things, this amendment introduced a new list into the constitution—the Ninth Schedule to be read with a new provision, Article 31B, in the Fundamental Rights Chapter. The statutes put in this list would no longer be subject to judicial review for violating fundamental rights. The First Amendment implied, according to an apocryphal statement by a later Chief Justice, that the Indian Constitution became the only one that contained a provision providing for protection against itself (Austin Reference Austin1999).Footnote 10 While initially this list was justified as being meant to contain only land reform statutes to protect them from judicial review on grounds of violating the Right to Property, the idea that the state was invested with a radical mandate of socio-economic transformation, which pesky fundamental rights should not stonewall, underlay it. Since then, the constitution has been amended as many as nine times to add statutes to this list conferring immunity from judicial review. Mrs Indira Gandhi even added the notoriously draconian Maintenance of Internal Security to this list during the Emergency.
As dangerous as Article 31B was, Article 31C, inserted by the 25th Amendment in 1971, went even further in the same direction: a governmental mandate to pursue certain salutary objectives would trump fundamental rights. It restricted judicial review of all laws that “claimed” to implement two key classically socialist directive principles: Articles 39(b) and 39(c). Violation of the fundamental rights of equality, freedom, and property could no longer be the basis for judicial challenge for such statutes, as per this amendment.Footnote 11
Article 31C was further amended during the Emergency. The Emergency regime constituted a committee to review the Constitution, resulting in the 42nd Amendment. With fifty-nine different clauses, this was to be the most thoroughgoing and radical constitutional amendment in Indian history. Its official aim, according to the “Statement of Objects and Reasons,” was “to spell out expressly the high ideals of socialism, secularism and integrity of the nation … and give [the Directive Principles] precedence over those Fundamental Rights that had frustrated the Principles’ implementation.” It declared India a “socialist” and “secular” republic. The amendment expanded Article 31C to provide that all laws “declared” to be implementing any of the directive principles, and not just Articles 39 (b) and (c) as earlier, could no longer be declared invalid even if they violated the fundamental right to equality, freedom, and property. Constitutional scholar H.M. Seervai wrote in exasperation against the underlying belief, “It was an unfounded assumption, based on the battles over the right to property, that the Directive Principles were to secure social justice and the Fundamental Rights were ‘mere selfish individual rights’”(Austin Reference Austin1999, 367). But such an expansion of the scope of Article 31C had its appeal, even among eminent scholars. When the committee report that became the basis of the 42nd Amendment was made public, Professor Upendra Baxi justified the expansion thus: “now all the fundamental rights are to run, according to the Swaran Singh Committee, subservient to all directive principles as far as Article 31 is concerned. This is as it should be in a poor society, with massive maldistribution of property, income and wealth which perpetuates social and economic inequalities” (Baxi Reference Baxi1976, 27).Footnote 12
The 42nd Amendment, which overhauled the constitution, carried the logic of statist transformative constitutionalism to its full extent and was justified explicitly in these terms in its “statement of objects and reasons”:
The question of amending the Constitution for removing the difficulties which have arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity, has been engaging the active attention of Government and the public for some years now. (Emphasis mine.)
While the 42nd Constitutional Amendment has since acquired notoriety because of its association with the Internal Emergency of 1975-77, and its aims are now often regarded as disingenuous at best. Gary Jacobsohn has noted in his reflections on Indian constitutional identity that “in invoking the radical design behind the document, the amendment reflects an accurate rendering of original constitutional aspiration” (Jacobsohn Reference Jacobsohn, Choudhry, Khosla and Mehta2016, 125).
I would argue in a similar vein that it may be useful to think of the 42nd Amendment as a logical culmination of the tensions within the Indian constitutional design itself, rather than as its betrayal. The 42nd Amendment was aimed at decisively undermining any semblance of legal constitutionalism in the Indian constitution with a three-pronged strategy: further weaken federalism, completely defang the powers of judicial review, and unambiguously bestow textual preeminence to Directive Principles of State Policy in the Indian constitution scheme.
In the third edition of his magisterial commentary on the Indian constitution, published a few years after the emergency, Seervai pointedly called for a need to re-examine the place of directive principles in the Indian constitution. He posed a thought experiment, asking two simple questions:
What would have happened if directive principles had not been enacted in our constitution or are struck out? And, what would have happened if fundamental rights had not been enacted or are struck out? I came to the conclusion that if directive principles had not been enacted or were struck out nothing would have happened. But if fundamental rights had not been enacted or are struck out, the result would have been disaster. (Seervai Reference Seervai1997, 1921)
Seervai’s sceptical view of Directive Principles was a maverick one that has become increasingly marginal. This is even as Directive Principles had by the early 1970s come to be deployed not just as general constitutional goals, but effectively as resources to empower the legislature and immunize it from judicial review, an approach that put the judges under considerable pressure. The amendments had been accompanied by Mrs Gandhi’s campaign against the judiciary, in which she would repeatedly characterize it as elitist. Her rallying cry was for a “committed judiciary,” that is, a judiciary committed to directive principles, and therefore to the state tasked to implement them. From being seen as elite judges standing against social transformation, the judiciary had been asked to display their fidelity to the social revolution (Austin Reference Austin1999). While much of the 42nd Amendment was undone after the Emergency, its legacy has endured. The judiciary itself was forced to change its tune entirely this time and recalibrate its commitment to the liberal transformation attempted by the Indian constitution. This became the Indian equivalent of the American “switch in time that saved nine” (Ackerman Reference Ackerman2000). The Supreme Court did respond in a dramatic fashion, but accepted the terms that had already been laid by what I have elsewhere called the “apotheosis” of Directive Principles in the political discourse of the 1970s. Justice P.N. Bhagwati was the architect of this switch in the court’s approach (Bhuwania Reference Bhuwania2017). In the next section of this article, the stakes of this switch will be expanded upon.
Directive Principles and Indian Judicial Populism
The post-emergency apotheosis of Directive Principles, I argue, reconfigured the institution of the higher judiciary in India in two fundamental ways:
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1. Expansion of judicial power through the relaxation of judicial procedure with public interest litigation and reckless improvisation in substantive law. Both these transformations, procedural and substantive, were brought with the avowed aim of advancing directive principles.
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2. State goals, expressed in the language of Directive principles, would henceforth trump rights.
While the first enabled the sins of commission of classic judicial populism characterised by ever-widening horizons of judicial behaviour, the second indicated its sins of omission with the abdication of judicial review it made normatively possible. The literature on the widely noted post-emergency transformation in Indian judicial behaviour largely focuses on the first. In this article, I focus on the second, which I argue is equally revealing of the changed priorities of the judiciary. The radicalism apparent in its unorthodox post-legal activism went hand in hand with its willingness to let the state pursue its goals unhindered, expressed again in the language of Directive Principles. While the first reconfiguration enabled the expansion of judicial power and the second seemingly domesticated it, neither had much patience for old-fashioned judicial review. Though both were expressed with the grandstanding and extravagant judicial prose that came to characterise Indian judicial populism of the post-emergency era. I will briefly outline the familiar contours of the first before focusing on the second here.
1. Expansion of Judicial Power
The new judicial approach was two-pronged: first, the logic of forging a committed judiciary entered judicial phenomena through a celebration of informalism as the answer to the problems of access to India’s judiciary, best illustrated through the rise of Public Interest Litigation. Second, all norms of statutory interpretation would be departed from with rampant improvisation. The classic statement can be found in Justice Bhagwati’s 1984 article on his vision of a socially activist judiciary (Bhagwati Reference Bhagwati1984). In many ways, his highly influential legacy presaged Karl Klare’s suggestion to adopt a post-liberal reading of a transformative constitution over “the legally correct” one (Klare Reference Klare1998). Bhagwati, too, was interested in “the instrumental use of judicial activism.” For Bhagwati, judicial activism could “be evaluated only in terms of its social objective.” He was therefore a votary of the judicial performance of “social activism”—juristic activism for achieving social justice. Judges in India, he wrote, “have to justify their decision-making within the framework of constitutional values” aimed at the “substantivization of social justice.” In this, they were “motivated” by the “Directive Principles of State Policy” of the Indian Constitution, which held out “social justice as the central feature of the new constitutional order.” Directive Principles were deployed repeatedly in this discursive reconfiguration to provide a new normative model of judging where fidelity to substantive law or procedural principles would no longer be of primary concern (Bhuwania Reference Bhuwania2017).
Some famous examples of judicial populism from Justice Bhagwati’s oeuvre include creating the arbitrariness test based on the “right to equality” and reading the “right to life” expansively (Bhuwania Reference Bhuwania2017; Abeyratne Reference Abeyratne and Porat2021). Another instance of careless improvisation is his unnecessary innovation of “absolute liability” as a principle of tort liability in cases of injury caused by inherently hazardous industries. Needlessly trying to remove the few exceptions that the time-honoured principle of strict liability allowed, once again, Justice Bhagwati was set on winning the tournament of competitive radicalism that his vision of judgeship entailed, regardless of institutional costs. All of these may have been legally dubious, but that no longer mattered once Bhagwati’s model became hegemonic.Footnote 13
Rajeev Dhavan has argued that the post-Emergency Supreme Court ended up declaring that the Constitution had “a distinct socioeconomic goal of ameliorating poverty and achieving an egalitarian distributive justice.” It is important to note here that even the new rights discourse of the Supreme Court in the post-Emergency period was more embedded and invested in Directive Principles than Fundamental Rights. According to Dhavan, “[The court] seemed to be arguing that these duties could not be deferred or left to the legislature. [The Directive Principles] had to be dealt with immediately. Of course, they had to be grounded in some guaranteed constitutional or statutory right. But an underlying sense of purpose was derived not from these entitlements, but from the goals of the Constitution” (Dhavan Reference Dhavan and Beer1992b: 416).
Ordinarily, the common law is supposed to operate as per the Latin maxim ubi jus, ibi remedium, “where there is a right, there is a remedy.” These new rights carved out of Directive Principles did not necessarily lead to remedies, but the proliferation of rights under Article 21 exemplifies what legal scholar Clark Cunningham had called “Rights without Remedies” and “Remedies without Rights,” that is, the bare enunciation of unenumerated rights without any chance of enforceability, and its converse, the grant of reliefs like state compensation as largesse without fixing responsibility (Cunningham Reference Cunningham1987). This is now a longstanding practice in Indian courts, having been around for at least four decades. One of the earliest and most well-known such pronouncements was in 1984 when the Supreme Court expansively declared that the “right to life” includes “right to livelihood,” even as it gave the petitioners no substantive relief (Cassels Reference Cassels1989). Even so, while the direct litigants gained little from them, arguably, these declarations had an expressive function at least for the public at large. But the ease with which such rights were declared without much legal consequence flowing from them became a pattern ringing increasingly hollow, and, over time, even this expressive function has shown diminishing returns, except in breeding cynicism. Recent examples of such rights without remedies include the Supreme Court pontificating on freedom of speech without giving any meaningful relief, as it did in its judgments on Internet data restrictions in Kashmir. Conversely, the court continues to intermittently provide remedies and order reliefs, like in the COVID-19-related migrant cases, without grounding it in any violation of rights, making it seem like largesse (Bhuwania Reference Bhuwania2020a). This strange Indian judicial expansiveness is especially striking because throughout this long period, the one right the court was reluctant to read within Article 21 was its literal mandate as a negative right against any deprivation of life or personal liberty by the state in an illegal manner, as I have argued elsewhere (Bhuwania Reference Bhuwania2017). This was a post-legal court, where legal niceties, whether procedural or substantive, no longer mattered.
2. Goals Trump Rights: The Immunization Approach
In 1980, a five-judge bench of the Supreme Court in Minerva Mills v. Union of India struck down the 42nd Amendment to Article 31C as violating judicial review, which was held to be a part of the basic structure of the Constitution.Footnote 14 There was one dissenting opinion, however, which upheld the constitutionality of the amended Article 31C. This opinion was by Justice P.N. Bhagwati, the key figure in the court’s post-emergency judicial populist reconfiguration. Although the amended Article 31C was no longer valid, the logic of his dissent resonated widely and left a big impact on the Indian higher judiciary. His judgment closely followed Mrs Gandhi’s rhetoric. Here’s a sample:
Parliament took the view that the constitutional obligation in regard to Directive Principles should have precedence over the constitutional obligation in regard to the Fundamental Rights in Articles 14 and 19, because Fundamental Rights though precious and valuable for maintaining the democratic way of life, have absolutely no meaning for the poor, down trodden and economically backward classes of people who unfortunately constitute the bulk of the people of India and the only way in which Fundamental Rights can be made meaningful for them is by implementing the Directive Principles, for the Directive Principles are intended to bring about a socio-economic revolution and to create a new socio-economic order where there will be social and economic justice for all and everyone, not only a fortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and development and exercise the Fundamental Rights. Parliament, therefore, amended Article 31C with a view to providing that in case of conflict, Directive Principles shall have precedence over the Fundamental Rights in Articles 14 and 19, and the latter shall yield place to the former. The positive constitutional command to make laws for giving effect to the Directive Principles shall prevail over the negative constitutional obligation not to encroach on the Fundamental Rights embodied in Articles 14 and 19. (Emphases mine.)
Although a minority opinion, Justice Bhagwati’s judgment in Minerva Mills has stood the test of time and has since framed the common sense of not only the judiciary but the entire Indian legal complex. We see from hereon the spectacular rise in teleological reasoning deployed by judges to support legal measures ostensibly aimed at salutary constitutional goals, even at the cost of fundamental rights. I briefly look at two landmark cases below, which illustrate the implications of the change in the constitutional status of directive principles very clearly. The first case has been chosen because it enables an exceptionally clear juxtaposition of how the exact same constitutional question gets decided very differently by the Indian Supreme Court before and after the apotheosis of directive principles. And the court actually expressly says it in these many words, laying out the history of its interpretation of directive principles as at least partially determining its stand on this issue. The second case has been chosen because it clearly shows the implication of reading all kinds of directive principles into the “right to life” as the Indian Supreme Court has done, hollowing out the literal content of this fundamental right under Article 21 against the deprivation of personal liberty.
The Cow Slaughter Case
To understand the stark change in judicial approach with regard to fundamental rights in this era, a particularly striking example would be its position with regard to statutes banning cow slaughter. In 1959, a law banning cow slaughter was challenged in the Indian Supreme Court for violating the fundamental right to “carry on any occupation, trade or business” (Article 19(1)(g)). The state argued that because this law was meant to give effect to a Directive Principle of the constitution (Article 48: “The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle”), no rights based challenge would apply against it. The Court rejected this argument with the following argument: “a harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights” (Mohd. Hanif Quareshi v. State of Bihar).
In 2005, however, the Supreme Court of India changed its view and upheld precisely such a blanket legal ban on cow slaughter in the state of Gujarat. The then Chief Justice, speaking for the majority, provided a detailed history of what it called “the 3-stages of development of the relationship between Directive Principles and Fundamental Rights.” It noted in particular its changed emphasis of Article 37, which defined the role of Directive principles, thus:
Article 37 of the Constitution, which while declaring the Directive Principles to be unenforceable by any Court, goes on to say “that they are nevertheless fundamental in the governance of the country.” Several clauses of Article 37 themselves need to be harmoniously construed, assigning equal weightage to all of them. The end part of Article 37 “It shall be the duty of the State to apply these principles in making laws” is not a pariah but a constitutional mandate.
This was its conclusion on the changed status of Directive Principles since the 1970s in general. The court then went on to examine the specific directive principle on cow slaughter. It begins by noting from its prior discussion that “Article 48 of the Constitution has also been assigned a higher weightage and wider expanse by the Supreme Court post Quareshi-I.” The court also noted that two relevant provisions voicing environmental concerns had been inserted in the Constitution by the 42nd Amendment, the same emergency-era constitutional amendment, which radically overhauled the constitution:
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i) an additional directive principle, 48-A. “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”
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ii) a “fundamental duty” under Article 51-A that “It shall be the duty of every citizen of India (g) to protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures.”
Just like directive principles, “fundamental duties” were also notionally nonenforceable. They were inserted by the amendment in this authoritarian phase precisely to move the focus of Indian constitutional interpretation from rights to duties, with its rationale stemming from both socialistic and indigenist legacies. Just like directive principles, the Indian Supreme Court has relied on these duties to attenuate fundamental rights and guide its constitutional interpretation, multiple examples of which the majority in this case lists out in some detail. The ground for departure from the 1959 precedent is then explained by the Chief Justice as follows:
It is thus clear that faced with the question of testing the constitutional validity of any statutory provision or an executive act, or for testing the reasonableness of any restriction cast by law on the exercise of any fundamental right by way of regulation, control or prohibition, the Directive Principles of State Policy and Fundamental Duties as enshrined in Article 51-A of the Constitution play a significant role. The decision in Quareshi-I in which the relevant provisions of the three impugned legislations was struck down on the singular ground of lack of reasonability, would have decided otherwise if only Article 48 was assigned its full and correct meaning and due weightage was given thereto and Articles 48-A and 51-A(g) were available in the body of the Constitution. (Emphasis added)
The change of constitutional status of directive principles between 1959 and 2005 clearly meant a change in standards of judicial review.
The Aadhaar Case
In July 2017, the Attorney General of India made the following submissions to argue that there should be no judicial recognition of any Right to Privacy in India:
In a developing country, where millions of people are devoid of the basic necessities of life and do not even have shelter, food, clothing or jobs, and are forced to sleep on pavements even in the height of winter and, perhaps, to die, no claim to a right to privacy of the nature claimed in this case, as a fundamental right, would lie. Any such claim would, in the background of what is stated above, be based on an approach which is esoteric and elitist.
This argument remarkably echoed Justice Bhagwati’s reasoning in Minerva. It was ostensibly rejected by the Indian Supreme Court in the Puttaswamy (I) judgment, but precisely such an argument would become the basis for another bench of the same court’s upholding of the constitutionality of Unique Identification Document (UID) project, commonly known as Aadhaar, in Puttaswamy (II) soon after. The petitioners had filed a constitutional challenge to this biometric program on the basis of Right to Privacy in Puttaswamy (II). In response, the Government of India took the stand that there was no such right in the Indian Constitution, and it was, anyway, a right that was inappropriate for Indian conditions. The court had to pronounce its verdict on this question first, which a nine-judge bench did with characteristic panache and verbosity in Puttaswamy (I). The bench unanimously recognised that a fundamental right to privacy could be read into Article 21. It was indeed inconceivable that it could come to a different conclusion, since it is difficult to think of any instance when the Indian Supreme Court had refused to theoretically read a right within this provision since the 1980s.
Yet when it came to the question of applying this right, which it had recently expounded upon so eloquently, to the actual legal question before it, that of the constitutionality of this mammoth biometric project, the court rejected the challenge to nobody’s surprise. The petitioners stood little chance against the state, speaking of its role under directive principles to bring about welfare and poverty alleviation. With the decline of the counter-majoritarian constitutional imagination since the emergency, the votaries of the right to privacy were bound to be seen as elitist. The entire burden of Indian constitutional history went against the petitioners. From BN Rau to Jawaharlal Nehru to Mohan Kumaramangalam to Justice P.N. Bhagwati—all part of the pantheon of Indian constitutional history—have argued that directive principles have to trump fundamental rights in a country with socio-economic conditions like those of India. The court was thus able to argue the following:
It may be highlighted at this stage that the Petitioners are making their claim on the basis of dignity as a facet of right to privacy. On the other hand, Section 7 of the Aadhaar Act is aimed at offering subsidies, benefits or services to the marginalised section of the society for whom such welfare schemes have been formulated from time to time. That also becomes an aspect of social justice, which is the obligation of the State stipulated in Part IV of the Constitution [Directive Principles].
The court goes on to argue that the “right of everyone to adequate food no more remains based on Directive Principles of State Policy (Art 47), though the said principles remain a source of inspiration. This entitlement has turned into a Constitutional fundamental right.” The court frames the issue thus: “There needs to be balancing of two competing fundamental rights, right to privacy on the one hand and right to food, shelter and employment on the other hand. Axiomatically, both [] rights are founded on human dignity. At the same time, in the given context, two facets are in conflict with each other.” Instead of the Article 31C logic of a directive principle trumping a fundamental right directly, the court’s prior expansion of the right to life, reading multiple directive principles into it, meant that the effect was the same, but the conflict could now be framed as a balancing of two competing rights.
Judicial Populism v. Judicial Review
These two case studies illustrate how far the Indian higher judiciary has traversed in its interpretation of directive principles and the price this trajectory has exacted in weakening judicial review. The directive principles-based judicial immunization approach is now longstanding and has become entrenched in constitutional cases, where the court often decides that the goals of a statute can trump fundamental rights. The goals could be varied—from fighting terrorism, controlling population, or the desirability of sanitationFootnote 15 —the judicial logic would be the same. Even while departing from its conventional constitutional duty, the now deeply embedded logic of Article 31C provides the court with an alternative normative constitutional resource to perform a somewhat different normative role: as chief cheerleader of the state agenda, having perfected populist rhetoric over the last few decades. It has reached a stage where the scaffolding of directive principles is almost unnecessary in this judicial manoeuvre, the triumph of the statist transformation over the liberal strand having become axiomatic. The idea behind Article 31C is at the fountainhead of India’s judicial populism, even if it is rarely invoked, its appeal having become deeply intuitive.
Directive principles now get routinely cited in constitutional cases to validate the governmental objectives, even if only as garnish to further strengthen the state’s justifications. This can be seen in two relatively recent constitutional cases. In Vijay Madanlal Choudhary v Union of India, the Supreme Court upheld the draconian Prevention of Money Laundering Act. It noted that the state’s defence of the statute included a reliance on “Articles 38, 39(b), 39(c) and 51(b) & 51(c) of the Constitution to state that the objective of the Act is to fulfil the mandate of the Constitution, enshrined in the Directive Principles of State Policy.” In Vivek Narayan Sharma v. Union of India, the Supreme Court belatedly upheld the demonetization exercise carried out in 2016. The Court chose to rely on a 1981 precedent in the following terms to argue that the hardships suffered by some citizens would not be a constitutionally relevant consideration:
It held that the Act was enacted to implement one of the most important constitutional directives contained in Part IV of the Constitution of India. It further observed that, if in this process, a few individuals suffer severe hardship, that cannot be helped. It further held that individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr.
In recent years, even when the Indian Supreme Court has struck down laws in constitutional litigation in a few high-profile cases, it has felt the need to innovate grand doctrines of rhetorical plenitude, such as “manifest arbitrariness” and “constitutional morality.” These only added more vague but powerful doctrines to its already overflowing arsenal (Bhuwania Reference Bhuwania2020b). Because of the relentless production of such shiny new judicial innovations and the sheer extent of policy areas that Indian judges cover, the Indian Supreme Court is commonly considered one of the most powerful in the world. These exercises in judicial self-aggrandisement should not, however, lead to the inference that judicial review in India is thriving. On the contrary, the relation between such heterodox judicial improvisations since the Emergency and orthodox judicial review may, actually, well be an inverse one.
Conclusion
I have tried to argue here that the rise of India’s judicial populism is strongly linked to the rise in fortune of a part of its constitutional text, the directive principles of state policy, which has enabled a statist imagination of constitutional transformation at the cost of the liberal and democratic strands. The centrality of judicial review and the liberal strand of constitutional transformation it signified has declined since Justice Bhagwati reconstituted the judiciary’s self-perception in India. It has come a long way since beleaguered minorities could access the courts to have their say (De Reference De2018). Old-fashioned ideas of judicial review could no longer be expected from such a court, as a counter-majoritarian role sat uneasily with a populist judiciary.
Populism has long characterised politics in South Asia to the extent that it can, by now, be seen as almost unremarkable. But the normative implications of populism in the judiciary are tricky because it entails a fundamental departure from the core function of the institution. As Pratap Bhanu Mehta has noted, the Indian Supreme Court has long seen itself as a player in the marketplace of Indian democratic politics, in which liberal counter-majoritarianism has limited space. Thus, he argues, “even in the case of Fundamental Rights, the Court has operated with a sense of democratic acceptability: these happen to be areas in which, to put it simplistically, the political culture is more ambivalent than the logic of these rights or that the requirements of human dignity would warrant” (Mehta Reference Mehta, Tushnet and Khosla2015, 247). Therein lies the specificity of judicial review in a transformative constitution: the precise role that a constitutional court is supposed to perform can no longer be expected from it. This, in essence, is the profound normative challenge posed by judicial populism. With it, liberal constitutionalist ideals of judicial functioning revolving around judicial review, its counter-majoritarian role, and the Rawlsian exemplar of public reason no longer hold.
In his classic statement on the constitutional role of the judiciary, Alexander Hamilton had warned us of one specific situation:
… though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive…And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments … (Hamilton et al. Reference Hamilton, Madison, Jay and Goldman2018, 380).
Over time, this precise situation has come to pass in India, as can be gauged from the increasing use of hybrid terms such as an “Executive Court” or a “Legislative Court” to make sense of the current avatar of the Indian Supreme Court. (Khaitan Reference Khaitan2015; Bhatia Reference Bhatia2019)
Such confusion regarding the constitutional role of the Indian judiciary is compounded by the powerful discourse of postcolonial exceptionalism, adopted by the court itself, which makes even the articulation of such normativity difficult. Indeed, perhaps countries that adopt such heterodox departures from the liberal constitutional form, such as “Directive Principles,” have to conceptualize a different normative role for a constitutional court. What such a new normative role could be is unclear, except for the prospect of radical instability inherent to all kinds of populism. The absence of any coherent normative standpoint for Indian political institutions like its judiciary brings to mind the uncertainty evoked in Tocqueville’s famous lament at the cusp of modernity, “As the past has ceased to throw its light upon the future, the mind of man wanders in obscurity.”
Acknowledgments
An early version of this paper was presented as the 35th Annual Ramanathan Memorial Lecture organized by the People’s Union for Democratic Rights (PUDR). Later versions have been presented at the ICAS-MP fellows’ seminar and at Azim Premji University. A more developed version was presented at the Chair seminar in Public Law at Humboldt University, convened by Philipp Dann. I am grateful to all participants in these various fora for their valuable comments, in particular to Arudra Burra, Arun Thiruvengadam and Rohit De for their thoughtful comments on early versions of this paper and to Prathama Banerjee and Campbell MacGillivray for their detailed comments on the final draft. I am especially grateful to the symposium editors, Yasser Kureshi and Lisa Hilbink, who have persevered with this project through the vagaries of the pandemic and the uncertainties thereafter, and for their immensely helpful suggestions at the very final stage.
Funding statement
The research for this article was carried out during a six-month fellowship at the M.S. Merian – R. Tagore International Centre of Advanced Studies: “Metamorphoses of the Political” (ICAS: MP).
