The Supreme Court Versus the Constitution: A Challenge to Federalism

The right to amend the Constitution in India lies with Parliament, when ‘meeting in the exercise of its constituent power.’ In the last quarter of a century, however, and in an atmosphere of judicial activism in the face of a faltering Parliamentary and administration, the Supreme Court has gone beyond its role as interpreter of the constitution to become its arbiter. There is thus a possibility in India’s federal structure of an impasse between the Supreme Court and Parliament which cannot be resolved by referring to the constitution and which poses a serious risk if not resolved. Pran Chopra defines the problem and presents an overarching analysis. He argues that a great deal is at stake in this situation, including the dynamics of federalism, which makes India possible; the role of the constitution in holding the polity together; and the future of parliamentary democracy in India. Written against this background, the essays in this volume–contributed by some of India’s best-known parliamentarians, jurists, constitutional experts, scholars, administrators and journalists-present a many-sided discussion of this crucial issue. The topics discussed include: The doctrine of ‘basic structure’, and the complex responses to and consequences of this doctrine. Judicial review in India, in relation to the superiority of parliament in the UK and the virtually unlimited scope of judicial review enjoyed by the US Supreme Court. The ‘due process of law’ and its applicability in India. The electoral system and the threat of majoritarianism. The Supreme Court’s creativity in interpreting the constitution but the continuing absence of clear constitutional principles despite this recent trend. The court’s role as the protector of fundamental rights. Presented in the form of a debate to which each contributor brings his own particular expertise and point of view–and offers possible solutions–this very readable book constitutes the first full-length discussion of a major issue in contemporary India. It will attract the attention of anyone interested in government, constitutional issues, law and politics in India.