The author(s) of this post are Priyansh Agarwal & Komal Agrawal , student of Law at JGLS, Sonipat and LLM Graduate from Gujarat National Law University respectively.
To begin with, we need to determine and understand the meaning of the term “Judicialization of Mega-Politics”. As Ran Hirschl (p. 98) pointed out, the term means the involvement of courts and judges in the core prerogatives of the executives or scrutiny of such prerogatives of the executives in the matters related to foreign affairs, national security and public policy, or the oversight of judges and courts of the electoral process, or the part role of state’s judiciary in changing the regime. The Korean Constitutional Court’s (p. 101) intervention in the government’s decision with respect to the deployment of Korean troops in Iraq is one of the instances of the judiciary having the involvement in the core prerogatives of the executive affairs. The court had to, and it did uphold the decision of the government before the troops could be deployed in Iraq. In another case, the Korean Constitutional Court controlled and dictated the change of regime in South Korea by reinstating President Roh Moo-hyun who was impeached by South Korea’s National Assembly (Park, 2008, pp. 67-72).
India Judiciary has shown similar attributes and challenged and set aside the executive decisions numerous times asserting its significance in the core areas of such executives (Safiullah, 2017, p. 168). The intervention of the Supreme Court, in 2011, with respect to the appointment of P J Thomas for the post of Chief Vigilance Officer (hereinafter referred to as “CVC”) is an instance of increasing judicialization of mega-politics in India. (Venkatesan, 2011). A high-powered committee, led by Ex-Prime Minister “Dr Manmohan Singh” recommended the appointment of P J Thomas as CVC, and thereby President elected the latter. Due to the irregularities found with the appointment, the Supreme Court of India quashed the appointment of P J Thomas for the post and set aside the decision of the high-powered committee. (Shankar, 2011).
Concerning judicial oversight of the electoral process and judicial scrutiny of the pre-electoral process too, i.e., another area of the judicialization of mega-politics, Indian Judiciary has proven its role. In a recent judgment, wherein the bench was led by Justice F. Nariman, the Supreme Court ordered political parties to produce detailed information (including entire criminal history) of the candidates running for Assembly and Lok Sabha Elections in local and national newspapers (Rajagopal, 2020). Besides, the Supreme Court, in 2020, has agreed to examine a proposition, made by the Election Commission, wherein the politicals parties cannot give tickets to the candidates with criminal antecedents. In 2018, the Supreme Court reflected the view on the contrary saying that it cannot ban people with criminal cases from entering into politics. (Sinha, 2018). However, the acceptance of a proposal for consideration, by the Supreme Court, wherein it can disqualify people with criminal antecedents and would prevent the political parties from giving tickets to a candidate with a criminal history, implies that India Judidicary is getting stronger and hardening its grip into the matters of politics vis-à-vis judicial scrutiny of electoral and pre-electoral processes.
As noted above, the Indian Judiciary has most certainly attained the power of review and scrutiny in matters of politics. Such powers of judicial review form a part of the basic structure doctrine of the Indian Constitution and such powers cannot be taken by the Parliament as the basic structure of the constitution cannot be amended, and thereby giving the power of judicial review to the Indian courts that is perennial in nature. This power, however, did not come overnight to the Indian courts and judges. There is a lot of history and a long-drawn battle between the politicians and judiciary attached to it (Randhawa, 2011, pp. 4-35). Earlier, as illustrated in Shankari Prasad v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965), the Parliament had the power to amend any part of the constitution and there was no basic structure doctrine. Until Kesavananda Bharti v. State of Kerala (1973), the basic structure doctrine was not known, and it was this case that introduced the doctrine. The Supreme Court stated that any provision of the constitution can be amended but not the basic structure of the constitution. However, the court did not give a clear definition of the basic structure, but a list wherein judicial review did not have any explicit mention in that list. “Supremacy of the Constitution”, “Republican and Democratic form of government”, “Secular and Federal Character of the Constitution”, “Separation of Power”, “Unity and Sovereignty of India” and “Individual Freedom” were the only basic features of the constitutions that had explicit mention in the list. It was in Minerva Mills v. Union of India (1980) that added “Judicial Review” to the basic features along with “Balance between Fundamental Rights and Directive Principles”.
Hence, Judicialization of Mega-Politics is the involvement of judges and courts in assessing the prerogatives and performance of executives, judicial scrutiny over the electoral and pre-electoral process, and the part role of judges and courts in regime change. In India, the courts have not played an active role in changing the regime; however, they have shown active involvement in other matters such as keeping an eye on the electoral process and pre-electoral process including banning of political parties and preventing criminals from getting tickets from the political parties. Besides, the Indian Judiciary has helped in keeping a check on the Executives. The quashing of the appointment of P J Thomas as CVC, wherein the appointment was made by a high-powered committee led by Ex-Prime Minister “Manmohan Singh”, due to irregularities in the appointment. Though the Indian Judiciary gained the power of judicial review after a long period owing to the tussle between politicians and courts, the active interference of courts and judges in keeping the electoral process pristine and their rising involvement in it proves that the Indian Judiciary’s grip is getting stronger in the matters concerned with regulation of political controversies and public policy questions, and thereby showcasing the rising Judicialization of Mega Politics in India.
Preferred Citation: Priyansh Agarwal & Komal Agrawal , Is India moving towards the path of Judicialization of Mega-Politics?, The Criminal and Constitutional Law Blog, Published on 10th July 2021