Indian J. Const. L.

Published by
The Registrar
NALSAR University of Law
3-4-761, Barkatpura
Hyderabad – 500 027, India

This Journal is NOT FOR SA LE

Cite this V olume as:

1 INDIAN J. CONST. L. <PAGE NO .> (2007)
 Contents

Vice-Chancellor’s Message i
Editorial iii
In Retrospect
Amita Dhanda
Powering Responsibility, Conscience
Keeping in Public Law: The Scholarship of S. P. Sathe 1

Soli J. Sorabjee
From Gopalan to Golaknath and Beyond:
A Tribute to M. K. Nambyar 19

A rticles and Essays

Laurence H. Tribe
The Unbearable Wrongness of Bush v. Gore 24

Randal N. M. Graham
Politics and Prices: Judicial Utility Maximization
and Constitutional Construction 57

Arvind P. Datar
Our Constitution and its Self Inflicted Wounds 92

Alexander N. Domrin
Russian Law on Emergency Powers
and States of Emergency 113

Suri Ratnapala
Reason and Reach of the Objection to
Ex Post Facto Law 140

Rick Lawson
A ‘Constitution’ in Search of its Limits:
The Gradually Expanding Reach of the
European Convention of Human Rights 169
 Indian J. Const. L.

Notes and Comments

Han Dayuan
Protection of the Right of Private Property in the
Constitution of the People’s Republic of China 187

Martin Buzinger
Positive Action Declared Unconstitutional 198

Muteti Mutisya Mwamisi

Curative Actions by the Supreme Court 202

Namit Oberoi
The Right to Privacy : Tracing the Judicial
Approach Following the Kharak Singh Case 216

Sandeep Challa
The Fundamental Right to Privacy:
A Case by Case Development sans Stare Decisis 224

Book Review

Upendra Baxi
Understanding Constitutional Secularism in
‘Faraway Places’: Some Remarks on
Gary Jacobsohn’s The Wheel of Law 231

Notes to Contributors xv
 NA LSA R UNIVERSITY OF LA W HYDERA BA D

Prof . ( Dr.) Ranbir Singh

Vice-Chancellor

V ice Chancellor’s Message

It gives me great pleasure to present the inaugural issue of the Indian
Journal of Constitutional Law (IJCL), a publication that has been conceived
by the Constitutional Law Society, Nalsar, which was started in September
2004. The Society is an initiative of students of Nalsar, with the goal of
promoting interest in the field of Constitutional law through varied activities
that include lectures by eminent scholars, discussions and competitions.
Hoping to make a more lasting contribution, the Society has decided to
launch the IJCL with the aim of remedying the lack of authoritative academic
writing devoted to the analysis of Constitutional law. The scope of this
exercise is not limited to exploring issues related to the Indian Constitution
alone, but also to undertake a keen examination of various other constitutions,
keeping in mind the continual evolution of constitutional doctrines in the
face of the various imperatives faced by democracies around the world.
This first issue of the Indian Journal of Constitutional Law, we hope,
will be a trendsetter; both in terms of its significance to the field of study as
well as the direction it provides for future initiatives. The Journal will
undoubtedly increase and encourage scholarship, especially amongst
students, and I sincerely believe it will prove invaluable to academics and
practitioners alike. I wish the Journal and the Editorial Board success in all
their endeavours and hope that they will keep up their good work. On behalf
of the students and faculty of NALSAR, I wish to express my gratitude to
Mr. K.K. Venugopal, Senior Advocate, Supreme Court of India and the
M.K. Namb yar SAARCLAW Charitab le Trust for wholehearted ly
supporting this student initiative.
Indian J. Const. L.
 E DITORIA L

Constitutionalists today are increasingly becoming comparativists.

In this era of rapid globalisation, Constitutional borders need to be, and
have indeed become more permeable than ever. A substantial presence of
private players in fundamental issues relating to governance has resulted in
a transformative approach towards the Constitution, Constitutional law and
Constitutionalism. Amplified judicial activism, human rights abuses,
secessionist movements, Constitutional b reakd owns, governmental
lawlessness and minority rights are concerns that Constitutional lawyers and
academicians agitate across the globe. Debates on the traditional doctrines
of rule of law, sovereignty, separation of powers, secularism, etc. are being
revived with new vigour. It then becomes imperative that we create avenues
where such interests can be raised and debated. This, along with the absence
of a dedicated Constitutional law journal in India prompted us to
conceptualise and bring out the Indian Journal of Constitutional Law.
This editorial is divided into three sections. The first part summarises
some key constitutional developments that took place in India during 2006-
07. The second, briefly introduces the contributions to this issue of the Journal,
and the third section contains our expressions of gratitude to everyone who
helped us in this endeavour.
Constitutional Developments – 2006-07
Speaking at a seminar on Constitutional politics in 2002, Prof. Ran
Hirschl, a Canadian scholar, coined the term ‘juristocracy’ to describe the
significant role that the Judiciary, equipped with unprecedented power in
many Constitutional democracies, has come to play in the governance of
those polities. This transformation in Constitutionalism, he argued, has led
to the displacement of the exclusive prerogative that the Legislature and the
Executive enjoyed to determine a range of matters.
The Supreme Court of India is an institution that has come to fit this
account perfectly, utilising its good sense in issues ranging from town planning,
forest management, rent control, multipurpose dams, and special economic
zones to defections, parliamentary privileges, reservations and review over
Constitutional amendments. That being so, India has witnessed institutional
struggles over the custody of the Constitution. The period 2006-07 has been
no exception.
The year began with the passing of the 93rd Amendment to the
Constitution by the Parliament in January, introducing Article 15(5) to undo
the effects of the Apex Court’s judicial structural adjustment programme (to
iv Indian J. Const. L.

borrow Prof. Upendra Baxi’s terminology) in P.A. Inamdar v. State of

Maharashtra1 . The amendment enabled the State to subject private unaided
educational institutions to its reservation policies exempting the minority
run institutions from the same. The Supreme Court in Inamdar had failed to
come to terms with the fact that there was a steep decline in Governmental
spending in higher education and an increase in private presence in the
sector. Consequently, it failed to appreciate the ramifications of relieving
the private players of this important Constitutional commitment and was
driven by the World Bank perspective of higher education as a private ‘good’
and not a social ‘good’. It remains to be seen whether this amendment will
eventually be tested against the ‘doctrine of basic features’.
The Government’s decision to extend reservations in favour of Other
Backward Classes (OBCs) in institutes of higher education maintained out of
Central Government funds (including premier institution like the IITs, IIMs
etc), sparked massive public demonstrations both from the anti and pro-
reservation quarters. Noteworthy was the role of the media in projecting
and characterising these demonstrations as largely anti reservations ones.
The Court, while hearing a set of petitions challenging the Government’s
policies in this regard, asked the Additional Solicitor General to place before
it the Report of the Parliamentary standing Committee on the Draft Bill.
Was it exercising powers of review before the Bill became law? The Supreme
Court went on to stay the implementation of the O BC Q uota in these
institutions and the matter has now been referred to a Constitutional Bench
for final hearing
In the context of reservations in public employment, the Supreme
Court in M. Nagaraj v. Union of India2 was called upon to review the validity
of a set of amendments to Article 16 and Article 335 of the Constitution,
which nullified some parts of the Court’s decision in Indra Sawhney v. Union
of India3 . Though a comprehensive review of this pronouncement is out of
the scope of this editorial, we would like to highlight a few points dealing
with the judgement. First, the characterisation of Articles 16(4), 16(4A) and
16(4B) as merely enabling provisions implies that reservation programmes
in India would be dependent on political largesse instead of constituting a
part of the Right to Equality, which is slightly discomfiting, to say the least.
It might be pertinent to recall the Dworkinian distinction made between the
right to equal treatment and the right to treatment as an equal in terms of
viewing the right to equality. To compound the problem, the judgment also
spoke about the need to bring in the concept of a ‘creamy layer’ in relation
1 (2005) 6 SCC 537.
2 (2006) 8 SCC 212.
3 (1992) Supp (3) SCC 217.
Editorial v

to the Scheduled Castes and Tribes, a concept hitherto used only in the
context of the OBCs. This ignited another set of political protests until the
Attorney General clarified that it was merely another obiter dictum!
The institutional struggle between the Legislature and Judiciary is
far from over as indicated by I. R. Coelho v. State of Tamil Nadu4 , in which
the Supreme Court was called upon to decide its powers of review vis-à-vis
the laws placed in the Ninth Schedule (which as per Article 31-B are exempted
from judicial review). In a loquacious and repetitive opinion, the Court
reaffirmed its powers of judicial review over constitutional amendments,
and held that amendments to the Ninth Schedule would be tested on the
touchstone of the ‘doctrine of basic features’. The judgment, often portrayed
as a ‘judicial’ ‘activism’ v. ‘progressive’ ‘legislation’ debate, is a response to
the misuse of Article 31B and the Ninth Schedule by the Parliament. However,
it must be understood that it is one thing to say that the Ninth Schedule has
been misused and quite another to say that it has outlived its utility. In its
conclusion, the Court seems to indicate that only Articles 14, 19 and 21 and
the principles underlying these form part of the Constitution’s basic features
in Part III. Does that mean that minority rights, right to conscience and
religion, and other fundamental rights are not basic features? The Court
ought to have been more cautious, given that fact that the constitution of
smaller benches to interpret and translate such lengthy opinions is not
unknown in India. Moreover, according to the Court legislation in the Ninth
Schedule could be indirectly tested for violation of basic features, a measure
which will definitely raise a few eyebrows for those who believe in a strict
hierarchy of norms.
Another area which has preoccupied the Court over the years has
been the use of Article 356 to impose President’s Rule in the States. The
Supreme Court in Rameshwar Prasad v. Union of India5 , while striking down
the notification dissolving the Bihar State Legislative Assembly as
unconstitutional, justified its stand based on constitutional guarantees and
principles of democracy. Rameshwar Prasad draws extensively from the verdict
in the Bommai case 6 in order to determine the extent of judicial review
permissible with respect to a notification under Article 356. Since the House
in this case was dissolved before its formation(!), the ratio of Bommai that
declared a floor test to be the exclusive test to determine majority support
enjoyed by a party within the House had limited or no application here.
The Court did not hold that the Governor’s report in all circumstances would
be insufficient to direct the dissolution of the House, but that in the event of
4 (2007) 2 SCC 1.
5 AIR 2006 SC 980.
6. SR Bommai v. Union of India, AIR 1994 SC 1918.
vi Indian J. Const. L.

such a Report lacking credibility due to the lack of adequate supporting

records, it could not form the sole basis for the satisfaction of the President.
The decision once again raises questions of whether such issues are beyond
judicially determinable standards, and as to the effectiveness or otherwise of
political processes to act as checks on arbitrary use of power. Even though,
the Court in Rameshwar Prasad was steered towards its stand by the mandate
of constitutional democracy, the order was rendered otiose by the fact that it
came after the Election Commission had notified the elections in Bihar.
If the Court in Rameshwar Prasad, found it necessary to preserve
values of constitutional democracy, it acted to the contrary in Kuldip Nayar
v. Union of India7 , where it decided to turn a blind eye towards gross misuse
of domicile requirements by political parties, in getting their party candidates
elected to the Upper House of Parliament. An amendment to the
Representation of Peoples Act 1951 removed domicile in a particular State
as a requirement to get elected to the Rajya Sabha from that State. Though
it was contended that this would violate the principle of federalism, this
argument found no favour with the Court. The distinction drawn between a
constitutional requirement under Article 80 (4) and a prescribed qualif ication
under Article 84 forms the crux of this decision. Since domicile does not fall
into the former category, the Legislature is given the power to determine the
same as per the latter provision. The Court further clarified that the
applicability of the basic features standard in testing the validity of legislations,
affirming that this particular test could be used only against constitutional
amendments.
As for holding that the right to secret ballot of an elected
representative is not hamstrung by disclosing the manner of exercise of
franchise to the authorized party agent, the Court seems to have the larger
public interest in consideration. At the same time, the adverse impact this
approach could have on the candidate’s freedom of expression guaranteed
to her under Article 19(1)(a) and privileges under the Constitution cannot be
overlooked.
The remaining two issues which captured constitutional imagination
were ones related to the integrity of the elected representatives. Both the
‘office of profit’ issue and ‘the cash for query’ scam were indicative of the
degenerative state of Indian politics.
Article 103, which gives the President the authority to decide upon
the disqualification of Parliamentarians, emerged as a contentious issue when
the President returned the Parliament (Prevention of Disqualification)

7 (2006) 7 SCC 1.
Editorial vii

Amendment Bill 2006 for reconsideration by the Houses. One of the key
objections raised by the President with respect to the bill was its retrospective
character. Certain offices of profit that had been declared as Offices of Profit
by the President have been removed from this category by the Bill. The
reconsidered Bill, which received the President’s assent, was assailed as being
in conflict with Articles 14, 102 and 103 of the Constitution, as no specific
criterion had been followed while identifying the 40-odd exempted offices.
The Union Government sought to defend this Law by calling it past precedence
and denied its arbitrariness. This case is now pending before the Supreme
Court of India.
The Supreme Court’s intervention was also sought after the expulsion
of some Members of Parliament who were found guilty of taking bribes to
pose questions during the Question Hour in the Parliament. The judgment
in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha8 entails a thorough analysis of
the contours of the immunity granted to the members of a House under
Article 105 of the Constitution. By holding that the power to expel a member
can be validly granted to the House as a power outside that of Articles 101
and 102, and by further restricting the extent of judicial review on the exercise
of this power, the Court has endorsed the freedom of the House to regulate
its own proceedings. The distinction that the Apex Court has drawn between
penalising on one hand and ensuring unobstructed proceedings within the
House at the other could go a long way in curbing unethical practices within
the house and furthering the true notion of democracy.
The Court could have gone either way while deciding the power of
the House to expel a member, but the decision has welcome undertones of
the Court’s endeavour to shield the rights of the electorate.
Institutional conflicts have been a defining feature of the Indian
Constitutional polity. One way of viewing this experience would be, that both
the judiciary and the legislature seem to be performing what they think are their
constitutionally ordained roles, showing very little deference to each other. If the
Court must take an active stand in the governance of the country, and if it chooses
to qualify the tension between the various organs of the State as a necessary
element of a constitutional polity, then, it must definitely exhibit a reasonable
depth of judicial accountability, failing which the exercise of power will always
remain circumspect. Given that the sphere of appointments to the higher judiciary
have been hijacked by the Supreme Court, fresh thought will have to then be
devoted towards working out a new model of judicial accountablity.
8 Writ Petition (Civil) No. 1 of 2006, Transferred Case Nos. 82 to 90 of 2006 and Writ Petition
(C) No. 129 of 2006
viii Indian J. Const. L.

The Contributions
With contributions from four continents and half a dozen countries,
the first issue of the Indian Journal of Constitutional Law best depicts our
objective to bring together writings from varied constitutional cultures on a
single platform. These have been divided into four categories.
For purists, the varied styles of referencing in this issue of the Journal
may be discomforting, but as this issue contains contributions from different
legal cultures, we thought it was necessary to maintain diversity in styles as
well as the originality of the contributions. However, all efforts have been
taken to give complete details of references made.
In Retrospect
What better way to begin than by acknowledging the contributions
of two stalwarts in the field of Indian constitutional law?
In the first tribute, Prof. Amita Dhanda celebrates “the best in Indian
legal scholarship” by reviewing the works of the Late Prof. S. P. Sathe, an
astute constitutional scholar, a fascinating teacher and a great humanist. Prof.
Sathe was well known not only for his analytical and critical approach towards
administrative law, judicial activism and the right to information, which is
evident from his writings, but also for translating thought into practice by
actively campaigning against corruption and for the rights of the dis-
advantaged. His ability to write in a simple, yet effective and convincing
manner, earned the respect of practioners and academics alike. His demise,
a year ago, is truly a great loss to the Indian legal fraternity. While tracing
his scholastic evolution, Prof. Amita Dhanda highlights his ability to see
both sides of an issue and rightly points out that his scholastic integrity lay in
not only taking positions but also in changing them when required. Writing
in a lucid style, Prof. Dhanda is indeed at ease while tackling issues on
constitutional and administrative law.
Mr. Soli Sorabjee then succinctly recounts the contribution of the
Late Mr. M. K. Nambyar, one of India’s finest constitutional lawyers and
legal luminaries. Mr. Nambyar’s interpretation of Article 21 of the Indian
Constitution in A.K. Gopalan v. State of Madras9 , the first ever constitutional
case heard by the Supreme Court of India, was to be accepted as law only in
1978 and later went on to galvanise Fundamental Rights litigation in the
country. Perhaps his most memorable contribution would be the introduction
of the basic feature doctrine 10 as a ground for reviewing the validity of
Constitutional amendments in India in I. C. Golak Nath v. State of Punjab11,

9 AIR 1950 SC 27.

Editorial ix

an achievement that students of constitutional law seldom recognise.

A rticles and Essays
The first article titled ‘The Unbearable Wrongness of Bush v. Gore’
by Prof. Laurence Tribe forms a part of a series of comments on the infamous
case exchanged between Prof. Tribe and Prof. Nelson Lund.12 We chose to
include this previously published article in the first issue of the Journal for a
variety of reasons. Firstly, the case itself characterises the (over)active role
played by the Judiciary, a phenomenon that an increasing number of
constitutional democracies across the world have to grapple with. Secondly,
pointing to the misuse of the equal protection doctrine, Prof. Tribe successfully
exposes the nakedly biased approach of the American Supreme Court. His
pungent criticism of the Court for practicing Constitutional elitism and its
inability to engage the people in a conversation about the Constitution’s
commands, its aspirations, and its shortcomings is particularly noteworthy.
More importantly, we hope that his approach to constitutional politics will
inspire students of Indian Constitutional Law to abandon pedantic approaches
to this wonderful discipline.
Prof. Randal Graham’s essay on ‘Price Theory and Constitutional
Adjudication’ raises very significant and thought provoking questions. This
is perhaps the first time that a work on Price Theory and Constitutional
interpretation has been introduced to the Indian legal fraternity and Prof.
Graham deserves due credit for this. As he builds up a novel theory of
Constitutional adjudication, he explodes the myth that existing theories of
Interpretation like the Originalist, Dynamic, Realist & Postmodernist offer
sufficient explanation for the manner in which judges come to their decision.
Writing in an effective style, he elucidates on two of the many costs judges
may incur while adjudicating: reputation and time, constraints which may
not only influence the decisions but also the justification for the decisions.
Conceding that the Crits and the economists use different languages to
describe judicial behaviour, he nevertheless concludes that both of them tell
the same story: of constrained judicial preferences, and finally urges them to
work together.
Mr. Arvind Datar has written his article on various amendments
that have been made to the Constitution of India. Datar, a practitioner in
the Madras High Court and the Supreme Court of India, outlines the
10 See Granville Austin, WORKING A DEMOCRATIC CONSTITUTION: A H ISTORY OF INDIAN EXPERIENCE 199, 201
(1999, O XFORD UNIVERSITY PRESS, NEW DELHI).
11 AIR 1967 SC 1669.
12 See Laurence Tribe, ERO G V. HSUB AND ITS DISGUISES: FREEING BUSH V. G ORE FROM ITS HALL OF MIRRORS,
115 H ARV. L. REV. 170(2001) and Nelson Lund, “EQUAL PROTECTION MY ASS!”? BUSH V. G ORE AND
LAURENCE T RIBE’S H ALL OF MIRRORS, 19 C ONSTITUTION. C OMMENT 543(2003).
x Indian J. Const. L.

amendments that he calls, borrowing from Chief Justice Hughes of the United
States Supreme Court, ‘self-inflicted wounds.’ The Constitution of India has
been amended more than 90 times ever since it was adopted in 1950. He
descriptively takes us through a number of Constitutional Amendments,
and attacks them as being primarily unfaithful to the original Constitution.
He notes how through the years, Constitutional amendments have been
affected for the sole purpose of overturning judgments of the Supreme Court
and points out that the purported reasons for Constitutional amendments
have been largely farcical and driven by motives, in his view, that are
primarily political and populist. In conclusion, he laments that it is not the
Constitution of India that has failed its people of India but the elected
representatives who have failed the Constitution. Through the eyes of a
legal practitioner, the article provides us with an interesting perspective on
how the Indian Constitution has survived 56 years of its operation despite
repeated amendments.
The violence perpetrated by the law during times of Emergency has
always been a contentious issue, especially from the point of view of the
negotiation between rights and power. Prof. Alexander N. Domrin explores
the ‘limits of Russian Democratisation’ by capturing the evolution of
emergency laws in Russia in his essay. The essay also gives us comparative
perspectives on the nature and working of the norms of ‘constitutional
dictatorship’. Written in a refreshing pattern, the essay traces how emergency
laws were structured and implemented in post 1991 Russia struggling amongst
the Duma, the Party and the Constitutional Court. Further, Prof. Domrin
finds the 1993 Constitution to be a step backward from earlier Soviet
emergency laws and advocates thorough reforms.
R eason and R each..., is an introspective work where Prof. Suri
Ratnapala measures the reach of the ex post f acto objection and examines
the reasons behind it. Prof. Ratnapala ruminates over two decisions of the
High Court of Australia in Fardon and Baker that exposes the tenuous nature
of the protection enjoyed by the Australian public from ex post f acto law.
This expansive work aims to arrive the determination of a doctrinal means
to be employed by lawyers in a constitutional system to restrain the enactment
of ex post f acto laws. In order to arrive at this end, Prof. Ratnapala considers
historically significant theoretical and judicial objections to ex post f acto laws.
At the core of Prof. Ratnapala’s work lies the attempt to defeat ‘novel devices’
that may, in the future be generated by legislators to undermine the Rule of
Law and Separation of Powers, two cardinal principles of constitutional law,
to which this piece is a tribute.
Aptly christened ‘A Constitution in Search of its Limits’, the essay by
Editorial xi

Prof. Rick Lawson explores the development of a European Constitutional

order in relation to the reach of the European Convention on Human Rights.
He traces the development of the law relating to extra-territorial reach of the
ECHR and concludes that Court has distanced itself from its decision in
Bankovic. As students of Constitutional law, this shift is significant in terms of
its effects on the war against terror and is perhaps a good starting point to
rethink traditional notions as to the nature and content of constitutionalism.
The study of a transnational instrument in inspiring and enforcing
Constitutional values is indeed a welcome development.
Notes and Comments
The Right to Private Property as embodied in the Chinese
Constitution has been subject to amendments a fair number of times which
has resulted in increasingly broadening its scope. This move is perhaps a
measure to fortify China’s metamorphosis from a socialist polity into a free
market economy. The protection of the right over private property is perceived
as a prerequisite to encourage investment and wealth creation which are the
driving forces of a free market economy. A discord between Constitutional
principles and economic policy is averted through bringing the former in
tune with the latter. In his note, Professor Han Dayuan has enumerated the
Constitutional take on the ‘Right to Private Property’ highlighting the recent
amendment to the same in the year 2004. He has then examined the causes
that spurred this shift in determining the sphere of the right to private property
in China. Socialism exists as a preambular goal in the Indian Constitution
as well. It is also one of the reasons that justified the repeal of the Fundamental
Right to Property from the Indian Constitution. Also, the Indian economic
policy has undergone a similar transformation in the recent past thus enabling
a comparison between the Indian and the Chinese situations.
The comment by Dr. Martin Buzinger is a critique of a recent decision
of the Constitutional Court of the Slovak Republic that declares affirmative
action policies to be inherently at variance with the Constitutional mandates
of Rule of Law, Equality and Non-discrimination. The author tests the
rationale of this interpretation against the principles of Equality and
Corrective justice within Slovak Constitutional Law as well as within a range
of related international instruments. It is pertinent to contrast the assertion
of the Court with the Indian experience where the State is empowered to
initiate affirmative action policies under the Constitutional scheme. Though
the text of Article 12 of the Slovak Constitution is analogous to Article 15(1)
of the Indian Constitution, Article 15(4) of the latter, which carves out
affirmative action as an exception to the first clause, finds no parallel provision
in the former. This leads to a divergence in the approach that Prof. Buzinger
has traced from the decision of the Court along with the ratio and the
xii Indian J. Const. L.

ramifications of the same, in a style that is concise and articulate.

In the comment on curative petitions, the decision of the Supreme
Court of India in Rupa Ashok Hurra v. Ashok Hurra and Anr13 is examined in
detail. In this case, the Supreme Court of India allowed ‘curative petitions,’
which the author argues, are very similar to ‘second review petitions.’ He
has attempted to locate the jurisprudence behind ‘curative petitions’ and
argues that the ex debito justitiae obligation invoked by the Court in earlier
cases was unduly whittled down by the Court in Rupa Ashok Hurra. Comparing
the present decision with the one in A.R. Antulay v. R.S. Nayak14 , the author
points out how the Court misconstrued the ex debito justitiae obligation as
understood in A.R. Antulay. Further, the author also points at the practical
difficulties with complying with the guidelines laid down by the Supreme
Court with respect to curative petitions.
The last two case comments are centered on the Right to Privacy
under the Indian Constitution and seek to explore the subtle fallacy behind
the fairly consistent approach the Courts have chosen to adopt in relation to
this particular right. The first piece is a comment on the decision of the
15
Apex Court in the case of Kharak Singh v. State of Uttar Pradesh , wherein
the author looks at the current status of this right, the existence of which
within the ambit of Article 21 was expressly denied in the aforementioned
case. The second is a comment on a recent decision of the Supreme Court
on the Right to Privacy where the Court has recognized this right as a
component of Article 21. The implication of this and certain other
pronouncements on the same issue has been tested against the doctrine of
stare decisis which is spelt out in Article 141 of the Indian Constitution.
Though both of the aforementioned pieces are comments on cases
that delved deep into the conception of the Right to Privacy, the tenor of each
is sufficiently distinct from the other. The comment on Kharak Singh probes
into the tenability of reading the Right to Privacy, an unnamed right, into the
expressly enumerated Right to Personal Liberty. The second critique draws
upon a whole range of Supreme Court decisions germane to the present
discourse in order to demonstrate the non-adherence of the Court to the doctrine
of stare decisis while holding Right to Privacy to be part of Article 21.
Book Review
The final write up in the first issue, is a book review of Gary Jacobsohn’s
Wheel of Law: India’s Secularism in Comparative Constitutional Context.
Writing in his inimitable style, Prof. Upendra Baxi problematises comparative
13 (2002) 4 SCC 388.
14 (1988) 2 SCC 602.
15 AIR 1963 SC 1295.
Editorial xiii

constitutional studies (COCOS). Observing that the moderation of hegemonic

intent in fashioning comparative narratives is never an easy task, he
commends Jacobsohn for developing an alternate vision to CO CO S in
comparison to the Euro-American model. Prof. Baxi provides interesting
comments on Jacobsohn’s use of Constitutional iconography in studying
secularism and reminds us of the fact that secular teachings may not just
subvert hierarchies but also reinforce it. Lauding the author’s efforts in bringing
fresh perspectives into analysing Indian secularism, Prof. Baxi makes a
distinction between governance oriented secularism and rights oriented
secularism. He remarks that the book “constitutes a remarkable COCOS
genre” and concludes by highlighting novel pedagogical tools that Jacobsohn
has introduced in his work.
A cknowledgments
It is for the first time in India that an effort of this scale is being
undertaken and we have been helped in our endeavour by many enthusiasts.
Firstly, we profess our sincere thanks to Prof. Ranbir Singh, Vice-
Chancellor, NALSAR University of Law and Prof. Ghanshyam Singh,
Registrar for their untiring support and encouragement in bringing out the
Journal. The generosity of Mr. K. K. Venugopal and the M. K. Nambyar
SAARCLAW Charitable Trust has been instrumental in supporting this
initiative. The Advisory Board of the Journal has been a source of inspiration
as well as a constant guiding light; our gratitude is due to them also. We
wish to thank Constitutional Commentary, University of Minnesota,
Minneapolis, United States for giving us the relevant permissions to reprint
Prof. Tribe’s article.
The Faculty at NALSAR has always lent us a helping hand. We
express our sincere gratitude to Prof. Kalpana Kannabiran for having actively
encouraged and supported this initiative. Our special thanks to Ms. M.
Maithreyi and Mr. Gopal Sankaranarayanan for their support and imaginative
ideas. We would also need to thank the administrative staff for assistance
they have rendered. Finally, we express our gratitude to all those students
and alumni of NALSAR University of Law, especially Mr. R.V. Yashas and
Mr. Pritam Baruah, for having wholeheartedly supported our efforts.
The first issue of the Indian Journal of Constitutional Law is dedicated
to all the defenders of constitutional values in India.

Board of Editors
J une ‘07
Indian J. Const. L.
The Scholarships of S P Sathe 1

POW ERING R ESPONSIBILITY , C ONSCIENCE

K EEPING IN P UBLIC L A W : THE
S CHOLA RSHIP OF S. P. S A THE
Amita Dhanda*

§ Introduction
Good wine, one is told, ripens with age. Similar claims are not always
made about ageing scholars who are often described as burnt out or repetitive.
Prof. Sathe was one of those who falsified this opinion, as in him, youthful
exuberance combined with the glowing confidence of wisdom and maturity.
It was this joie de vivre, which makes his sudden departure so difficult to
take, though one cannot but notice that even the final exit bore his
characteristic trademark of unassuming grace.
I am not a formal student of Prof. Sathe but have learnt from him in
collegial conviviality. As ours was a work mediated relationship, this piece
in tribute and remembrance is being written by reviewing his writings. In
revisiting his books and articles I hope to highlight the major concerns of his
scholarship, and learn from his scholastic evolution. Prof. Sathe was a prolific
writer and it is not possible within the space of one article to do justice to his
prodigious scholarship. In fact his colleagues at ILS Pune are hard put to
compile a comprehensive list of his writings1 . In this article therefore I have
primarily limited my attention to five of his major books2 in the realm of
public law. The overarching theme of each of these books is the relationship
between power and accountability. This concern is constant, irrespective of
which of the power wielders he studies. Where he alters, is in devising different
mechanisms of accountability, for different occupants of the seat of power.
§ Document to A nalyse: The Tribunal System in India
As a scholar of public law Prof. Sathe had a natural interest in
institutions of adjudication and conflict resolution. This interest was kindled
and fuelled by the large scale employment of tribunals to perform dispute
resolution functions. There are, he informed “ 95 tribunals set up under 88

* Professor of Law, NALSAR University of Law Hyderabad India.

1 Remembering S.P. Sathe 79-81 (ILS Law College Pune 2006).
2 These are Constitutional Amendments 1950-1988 Law and Politics (Tripathi Bombay 1989); The
Tribunal System in India (Tripathi Bombay 1996); Judicial Activism in India: Transgressing Borders and
Enf orcing Limits (Oxford University Press New Delhi 2002); Administrative Law (Seventh Edition
Lexis Nexis Butterworths New Delhi 2004) and Right to Inf ormation (Lexis Nexis Butterworths New
Delhi 2005).
2 INDIAN J. C ONST. L.

central statutes3 ”. Such widespread use was not accompanied with reasoned
literature informing the general public on the need to employ these
adjudicatory institutions. Thus, whilst “(t)he tribunals have grown up
sporadically4 ” through ad hoc legislations there is “ no official document
regarding the general principles applicable to the tribunals5 ”. It is this
informational vacuum which caused him to take up the study on Tribunals
“to find out the common principles and policies that appear in the central
statutes under which tribunals are set up”6 . This exercise he contended was
necessary to undertake if tribunals were to be inducted as a deliberated
component of legislative design.
In order to appreciate the situations which are better managed through
tribunals it was necessary to define a tribunal. He defines a tribunal for the
purpose of the study as those institutions which are set up under statutes for
discharging the judicial function and are structurally independent of the
government7 . Insofar as tribunals along with courts and special courts are
“formally structured adjudicative bodies with judicial function”8 Sathe found
it necessary to ponder on those conceptual distinctions which differentiate
special courts and tribunals. A special court, he informed, was set up to deal
with a specific subject matter, however, except for some minor variations to
promote speedy disposal it followed the same procedures as the courts. Special
courts are not “expected to possess any expertise or policy commitment9 ”.
Instead the judges are required to be neutral and independent. The speciality
thus lies in the particular subject matter or the special procedure10 .
In order to lay the foundational base required for the study Sathe
elaborates on the test of “trappings of a court” devised by the Supreme
Court to identify tribunals in the context of Articles 227 and 136. A body he
pointed out had trappings of a court if it had certain powers of a court such
as summoning of witnesses, taking evidence on oath, compulsory production
of documents11 . Insofar as such powers were conferred on several quasi-
judicial bodies these bodies could not be viewed as tribunals but “are mere
investigating commissions which can either recommend or report or initiate
some action in court”12 . Consequently the Supreme Court has also made it

3 The Tribunal System in India at 1.

4 Ibid.
5 Ibid.
6 Ibid.
7 Id at 2.
8 Ibid.
9 Ibid.
10 Id at 3.
11 Id at 8.
12 Id at 9.
The Scholarship of S.P. Sathe 3

clear that in order to be a tribunal for the purposes of judicial review “the
body must in addition to having trappings of a court, be vested with judicial
power of the State”13. Since a quasi-judicial authority could fulfil this
requirement, hence for the purposes of this study Sathe clarifies, along with
these two requirements a body would be termed a tribunal if it is conferred
with judicial powers only, which it can exercise independent of the
Department or Government.14 Each of these aforementioned requirements
Sathe demonstrates have to be cumulatively present for a body to be termed
a tribunal. Thus the Election Commission was independent of the government
but not a tribunal and as a Lokayukta was not conferred only with judicial
power it was not a tribunal but a quasi-judicial body15.

The reason why I have dwelled on these distinctions introduced by

Sathe in such detail is to show the integral connection between the conceptual
categories and the objective of the study. If the purpose of the study is to
unearth common policies and principles prompting the creation of Tribunals
then it is necessary that there should neither be incorrect inclusion nor
wrongful exclusion. If Sathe has not included a body merely because it was
described as a tribunal; he has also not excluded an institution solely because
it was not so named16. And if the substance and not the form was to dictate
the collation of facts on various kinds of adjudicatory bodies, it was essential
that the process of definition should be a rigorous one.

Sub sequent to this elab orate d efinitional exercise Sathe has

comprehensively described various kinds of tribunals set up under central
statutes. O n the evidence collected from this examination he provides
information on: the appointment process, qualifications, and service
conditions, tenure of appointment, powers and procedures17. The study finds
that there is wide but unnecessary variations in the legislative designs on
tribunals. On the strength of this evidence he recommends the enactment of
“a common law on tribunals prescribing the procedures, powers, mode of
appointment, qualifications of members and provisions for appeal or
review”18. And “if special provisions are required for any tribunal they alone
could be provided in the statute of incorporation”19.

13 Ibid.
14 Ibid.
15 Id at 12.
16 See for example chapter 11 from 205-14 where he has treated arbitrators appointed under various
statutes as tribunals.
17 See chapter 12 of the study.
18 Id at 221.
19 Ibid.
4 INDIAN J. C ONST. L.

Sathe had undertaken the exercise in the belief that there are situations
and circumstances in which tribunals are the appropriate decision-making
body. Therefore he wanted that their establishment as adjudicatory bodies
should be a considered and not a mechanical exercise. As he did not think
that Tribunals per se endangered the independence of the judiciary he
questioned the decision of the Delhi High Court20 whereby they found the
Debts Recovery Tribunal as well as the Debt Recovery (Appellate) Tribunal
to be ultra vires the Constitution. In fact as he believed that tribunals could
be useful alternatives to courts, and could facilitate access to justice, he
expresses the hope that the decision of the Delhi High Court be overruled
by the Supreme Court21. And “Parliament should legislate on tribunals with
a view to establishing them as an alternative system of justice on sound
principles of openness, fairness and independence22 ”
Indian legal scholars have often been criticised for the fact that their
writings are heavy on collation of information but weak on analysis. A possible
reason could be that the exercise of collation is carried out without sufficient
thought being devoted on the objective of the collection. The Tribunal System
in India provides useful insights on how to collate and document information
without compromising analysis. Or rather the study shows what kind of
inquiry necessarily requires extensive documentation and how such
documentation should be undertaken.
§ Law in Context: Constitutional A mendments 1950-1988
Another charge which is often levelled against Indian legal scholars is
of undertaking the study of law divorced from the socio-political context. In
failing to appreciate the connection between law and society they propagate
superficial and acontextual legal understanding. Prof Sathe’s treatise on
constitutional amendments belies this popular charge. In fact his study
successfully shows how it would be impossible to understand the legal process
of constitutional amendments divorced from the political process. It is the
necessity of appreciating this connection, which explains why “law and
politics” is the second title of the book.
Sathe has undertaken a detailed narration of all amendments to the
Constitution from 1950-198823. In undertaking this narration, he has shown

20 Delhi High Court Bar Association v. Union of India AIR 1995 Del 323.
21 The Supreme Court in Union of India v. Delhi High Court Bar Association, Case Appeal (civil 4679)
of 1995 decided on 14.3.2002 has fulfilled this wish but not perhaps in consonance with the
reasoning proffered by Sathe as the court has been greatly influenced by the amendments introduced
in the impugned law.
22 Supra note 3 at 221.
23 Incidentally this book was published nearly seven years before the Tribunal study. Thus the
research technique of creating an information base before voicing opinion or undertaking analysis
The Scholarship of S.P. Sathe 5

how a number of the early amendments24 were prompted by the need to

overturn certain judicial decisions. Thus the first amendment was introduced,
according to the objects and reasons, because “ the citizen’s right to freedom
of speech and expression guaranteed by Article 19(1)(a) has been held by
some courts … to be so comprehensive as not to render a person culpable
even if he advocates murder and other crimes of violence”25. And the Fourth
and the Seventeenth amendments were introduced “to remove roadblocks
to social and economic reconstruction”. To exemplify this contention, Sathe
points out how whilst by the fourth amendment new categories of laws were
accorded the immunity of Article 31A, this immunity unlike the original
article,26 protected these laws only from any challenge under articles 14, 19
and 31. This shows, he opines that “(t)he Constitution makers were not against
the right to property. They were against unequal distribution of property”27.
He finds further confirmation for this opinion, by the second proviso of
Article 31-A introduced by the Seventeenth amendment, which required
that full compensation was to be paid for land held within the ceiling limit28 .
By referring to the circumstances surrounding the textual changes, Sathe
demonstrates, how this round of amendments was prompted by ideological
differences between the legislature and the judiciary.
In order to ensure a political understanding of the process of
amendment he distinguishes between the Nehruvian amendments and those
mooted during the governance of Indira Gandhi. And here too he makes a
distinction between the amendments which were introduced before 29 and
after her unseating by the Allahabad High Court. The Constitution (thirty
eighth) Amendment was the first amendment made during the emergency
and it “started the trend towards authoritarianism”30 as it amended Article
123 to provide that the President’s satisfaction on the necessity of promulgating
an Ordinance shall not be questioned in any court. This trend was carried
further by the thirty-ninth amendment which he describes as “a very

seems to be an integral part of Sathe’s writing style. This finding is confirmed by his other books.
Thus for example in his treatise on Administrative Law he voices his opinion with regard to the
different writs after outlining how the jurisdiction has been exercised by the High Courts and the
Supreme Court. And the monograph on Right to Information carries a comprehensive description
of the various state statutes legislating upon information rights before analyzing the central statute.
24 See especially the descriptions surrounding the First, Fourth and Seventeenth amendment of
Constitutional Amendments, supra note 2 from pp.7-16.
25 Id at 15.
26 The original article made the included laws immune from the challenge of all fundamental rights.
Constitutional Amendments at p.15.
27 Ibid.
28 Id at 16.
29 He describes the amendments introduced by the 31st to the 37th Constitutional Amendment Act
from 1973 to 1975 id at pp.24-25 to show their routine nature.
30 Id at 25.
6 INDIAN J. C ONST. L.

personalised amendment ”31. Again in true Sathean style he informs that the
amendment added inter alia the Representation of Peoples Act 1951 with
the 1974 amendments; the Maintenance of Internal Security Act 1971; the
Foreign Exchange Regulation Act 1973. And then explains that “we are
mentioning the names of these Acts because they were totally alien to the
culture and pattern of the IX Schedule as it had emerged since 1951”32.
These inclusions showed that “(o)riginal thematic loyalty as well as discretion
to include minimum number of laws seemed to have deserted the decision-
makers”33.
Sathe was a great believer in institutional integrity 34. He was of the
opinion that every institutional entity was suited to perform a particular
function, and responsible public functioning required that no public entity
should trench into the role of another. Thus whilst he did not believe that
the power of constitutional amendment was uncontrolled, he believed that
the control should be exercised by the political instead of the judicial process35 .
It was due to this belief that he took issue with the basic structure doctrine.
However he had little hesitation in reconsidering his views when he found
the political process providing what he called a command performance. It
was as he said not the substance but the speed with which the 39th
Constitutional Amendment barring prime-ministerial elections from being
challenged in Court was passed,36 which caused him to question, whether
the political process should be viewed as the sole guarantor of the responsible
exercise of constituent power.
It is scholastic integrity which causes him to view an amendment shorn
of its populist perception. Thus whilst evaluating the 52nd Amendment, he
acknowledges that the anti-defection legislation was welcomed because the
country was so fed up with defections. This popular endorsement does not

31 Id at 28.
32 Ibid.
33 Id at 29. In tune with this contention of original thematic loyalty he continually presses for the
Supreme Court to weed out those laws, which have been included in the 9th schedule after
Kesavananda Bharti if they have no connection with articles 31-B and 31-C. Id at 83-84. The ruling
of the Supreme Court in I R Coelho v. State of Tamil Nadu Civil Appeal 1344-45 of 1976 decided on
11.1.2007 seems to be a step in this direction.
34 The above discussion on tribunals shows that he took issue with requiring any one kind of body
to perform the function of another. And to that end it was necessary for him to continually probe
into the core functions of each institution of governance.
35. On the implied limitation on the constituent power of amendment see S.P. Sathe, Fundamental
Rights and Amendment of the Indian Constitution (1968) as cited in Constitutional Amendments
id at 72.
36 The 39th Amendment was introduced and passed in the Lok Sabha on 7th August. The Rajya
Sabha passed it on 8th August. It was ratified by the requisite number of State legislatures on 9th
August and received the assent of the President on 10th August. And Mrs. Gandhi’s appeal against
Allahabad High Court was to come up for hearing on the 11th of August.
The Scholarship of S.P. Sathe 7

prevent Sathe from pointing to the severe restrictions on freedom of speech

and expression imposed by the anti-defection legislation. It could prevent a
member from voting in accordance with his conscience, as the cost of such
voting could be that he loses his membership of the house. This anomalous
situation causes him to comment that “(d)efections have to be banned but
that should be achieved without sacrificing an individual’s freedom to vote.
Otherwise the anti-defection legislation instead of liberating democracy would
make it more crippled”37. The fact that the proposal to appoint jurists to the
High Court was proposed in the infamous 42nd Amendment did not prevent
Sathe from applauding the proposal as “well conceived 38 ” however he
simultaneously conceded that “such was the low stock of the government
with the people that it was misunderstood. It was felt that it was meant to
facilitate politically motivated appointments”39.
The ability to see both sides of an issue was an integral feature of
Sathe’s scholarship. It was this ability which caused him to both interrogate
and accept the basic structure doctrine which he said was a mechanism to
save democracy from democracy. However this endorsement was not absolute
and uncritical. Thus whilst holding that “(t)he basic structure doctrine if used
with farsight and judiciousness could lend stability to the Constitution without
robbing it of its dynamism”40. He took care not to give the judiciary a free
hand in discerning these basic features and consequently opined:
“What is basic structure will depend upon what is vital to Indian
democracy and that cannot be determined except with ref erence to history,
politics, economy and social milieu in which the constitution f unctions.
The Court cannot impose on society anything it considers basic. What
judges consider to be basic structure must meet the requirement of
national consciousness about the basic structure.”41
With this formulation, Sathe whilst recognising the need for judicial
intervention and activism, introduced a caveat against its indisciplined use.
Thus the people and their will were put forth as the check to balance the
power of the Court. This theme of who shall judge the judges he pursued in
greater detail in his book entitled “Judicial Activism in India”. And perhaps
to foreground his concern with questions of institutional integrity the second
title of the book is “Transgressing Borders and Enforcing Limits”.

37 Id at 56.
38 Id at 35.
39 Ibid.
40 Id at 75.
41 Id at 94.
8 INDIAN J. C ONST. L.

§ Responsive and Responsible Exercise of Power: J udicial

A ctivism in India
In this book, which in many a way can be termed Sathe’s magnum
opus, one encounters all the various features of Sathe’s scholarship, albeit in
a more evolved form. Thus as in Constitutional Amendments, he undertakes
his discussion of judicial activism, by firstly putting in place the conceptual
building blocks. Since the monograph is about the role of judicial review in
a democracy, he begins his exegesis of judicial activism by defining judicial
review, and then showing how in the constitutional construction of judicial
review lie the seeds of judicial activism.
Sathe defines judicial review to mean “overseeing by the judiciary of
the exercise of power by other coordinate organs of government with a view
to ensure that they remain confined to the limits drawn upon their powers
by the Constitution42.”
This power of oversight he next informs differs from jurisdiction to
jurisdiction. As in England, Parliament has been accorded absolute
supremacy; the English courts have no power to review legislation enacted
by the Parliament. Thus the power of review is limited to ensuring that the
executive acts in accordance with the dictates of the legislation. This tenet of
parliamentary supremacy was not extended to the British colonies, and courts
here were given the power to both review legislative and executive acts in
the light of the Constituent Acts, enacted by the British Parliament. However
because these Constituent Acts had no bill of rights, the power of review was
limited. The courts in countries ruled by Britain, had imbibed the mother
country’s culture of legislative deference and maximum restraint.
However once a country adopts a written constitution with a Bill of
Rights, it is difficult to confine judicial review within these narrow contours.
Judicial Review under such a constitution cannot remain technocratic, because
a number of expressions in the bill of rights are open- textured, which change
meaning as the society grows and develops. “A constitutional court therefore
cannot remain a technocratic court forever”43. And a court “giving new
meaning to a provision so as to suit the changing social or economic
conditions or expanding the horizons of the rights of the individual is said to
be an activist court”44.
The above delineation is an effort to show how Sathe proceeds brick
by brick to pave the connection between judicial review and judicial activism.

42 S.P. Sathe, Judicial Activism in India (Oxford University Press 2002) at p.1.
43 Id at 4.
44 Id at 5.
The Scholarship of S.P. Sathe 9

This basic building blocks method continues through the study as Sathe
introduces the distinction between negative 45 and positive activism 46 and
then between judicial activism, populism 47, excessivism48 and adventurism.
With these categorisations, which he only illustratively explains, Sathe does
not enter into the dichotomous dialogue of activism and restraint, but plots
the interventions of the Court on a more complex matrix.
It is possible to appreciate this nuanced analysis, if we recognise that
for Sathe the responsible exercise of power was more important than, which
body had assumed the responsibility. Thus he was no fetishist who viewed
separation of powers as good for its own sake. He wanted the separation to
be observed to the extent possible, provided the body on which the power
has been conferred exercises it responsibly. He was agreeable to assumption
of power by another organ, if circumstances so warranted, provided the
intervention was reflexive and not a reflex exercise. He was thus neither an
ardent votary of judicial activism nor a compulsive critic. This finding is
confirmed again and again, as Sathe painstakingly evaluates judicial decisions
from 1950 to 2002, to assess whether the choices of the Court strengthened
the democratic polity49 or assisted the disadvantaged 50.
As already mentioned Sathe did not seek the due observance of
technical rules for their own sake. In Basheshwar Nath v. Commissioner of

45 Negative activism results when the court uses its ingenuity to maintain the status quo. Id at 5.
46 In positive activism the court is engaged in altering the power relations to make them more
equitable. Ibid.
47 He refers to the Unnikrishnan decision (1993) 1 SCC 645 as an example of judicial populism, as it
merely amounted to conversion of a non enforceable directive principle into a non enforceable
fundamental right. For a discussion on judicial populism see id at 118-120. Also see pp 143-44.
48 In All India Judges Association v. Union of India AIR 1992 SC 165 the Supreme Court issued
directions to the Government to create an all India judicial service. The Court, says Sathe, “clearly
exceeded its authority”. Id at 127.
49 Thus he applauds Sakal Newspapers Private Ltd v. Union of India, AIR 1962 SC 305 as the first
instance of judicial activism by the Supreme Court because it held that “certain fundamental rights
the existence of which was prerequisite to the operation of the democratic process needed to be
given greater judicial protection”. Id at 54-55. Dwells on the relative merit of Kesavananda AIR 1973
SC 1461 and Golaknath AIR 1967 SC 1643 to opine “the basic structure doctrine is an improvement
over the Golaknath doctrine insofar as it is not located in any specific provision such as Article
13(2). Therefore it becomes difficult for Parliament to override it through another constitutional
amendment”. Id at 78. And is unequivocal in stating that the majority decision in P.V. Narasimha
Rao v. State (1998) 4 SCC 626 is wrong. This is because “freedom is given to a member of the
legislature in his capacity as a representative of the people. He can neither barter it away for a bribe
nor be deterred from exercising it due to fear of expulsion from the party. Prosecution for taking
bribe does not restrict his freedom on the contrary it enhances it.” Id at 91. In Bommai, AIR 1994
SC 1918 he adopts a more complex position where whilst conceding that the court could be
criticised for acting politically he is quick to point out “that the courts politics has helped the
politics of governance become more principled and democratic.” Id at 158.
50 Herein of interest is the chapter on public interest litigation (ch 6) where Sathe shows how the
Supreme Court made a “subtle shift from a neutralist adversarial judicial role to an inquisitorial
affirmative” one. Id at 210.
10 INDIAN J. C ONST. L.

Income Tax,51 the Court ruled that fundamental rights could not be waived.
The point of dispute in the case could have been decided without going into
this question of waiver. Sathe unlike Seervai52 does not disapprove, because
the court in making this pronouncement was protecting the people against
themselves.53 He is impatient with judicial inability to utilise technical rules,
where reliance on them, could result in a more socially just or politically
astute decision. For example in State of Rajasthan v. Union of India,54 he was
of the opinion that the Court could have refused to intervene on the reasoning
that the President’s action was not justiciable. “But after saying that the matter
was justiciable, its endorsement of the action which was palpably the worst
possible abuse of article 356 was indefensible.”55
At several points in the book, Sathe does desire that the Court should
not be trigger happy with the basic structure doctrine, but use it with the
utmost restraint. At the same time he also commends the doctrine as a
counter-majoritarian check on temporary legislative majorities. He thus neither
wants the court to be overly activist nor needlessly passive. Whilst pronouncing
upon the Constitution (Fifty Second Amendment) Act, the Supreme Court
used the doctrine of severability to save the Anti Defection law, whilst striking
down paragraph 7. Sathe points out that when a law is not enacted in
accordance with the prescribed procedure, it must fall as a whole. Thus the
doctrine of severability did not apply. In tune with his line of matching cure
to illness, he forcefully opines “that this was the most deserving case for
using the basic structure and the judicial restraint was misplaced”.56
Sathe evidently believed that to create a political culture of intellectual
rigour and honesty, it was necessary that scholars practised what they
preached. A standard which he himself did not compromise. Thus he has
no hesitation in admitting that in condemning the adoption of the basic
structure doctrine he had not understood how the controls exercised by
political power needed to be supplemented with judicial power. And whilst
analysing the Mohd Hanif Qureshi v. State of Bihar57 decision he firstly
demonstrates how a politically charged issue was converted into a legal issue
by the court. The Court tried to satisfy the majority’s religious sentiment by
upholding the ban on cow slaughter, at the same time, it ruled that the
slaughter of cattle other than cows should not be banned, if they are neither
51 AIR 1959 SC 149.
52 H.M. Seervai Constitutional Law of India 2nd ed Vol 1, p 94 (1976) as cited in supra note at 198 refers
to Basheshar Nath “as an example of extreme undesirability of a Court pronouncing on large
constitutional questions which do not arise”
53 Supra note at 198.
54 AIR 1977 SC 1361.
55 Id at 150.
56 Id at 93.
57 AIR 1958 SC 731.
The Scholarship of S.P. Sathe 11

capable of yielding milk nor useful for insemination. Sathe had in a piece
he wrote in the sixties58 criticised the decision as a compromise with the
concept of the secular state. Commenting on the decision nearly 40 years
later, he most disarmingly opines “today I look at that decision as an act of
statesmanship. Judicial decisions cannot be doctrinaire. A court is always
negotiating between reality and idealism”.59 Sathe who at another point in
the book, bemoans that legal education in India seldom looks to law as a
process,60 shows that scholastic integrity is not in just taking positions but in
changing them if events so require you to do.
Even whilst he sees merit in judicial activism, as in his study on
Constitutional Amendments, Sathe is anxious about the huge power that
the judiciary has acquired. His anxiety is exacerbated by the fact that the
Supreme Court through a process of interpretation has also usurped the
power of judicial appointments to itself. It is this situation, which causes
Sathe to exasperatedly exclaim, “I do not know of any democratic country
in which the power of appointing the judges vests in the judiciary itself”. 61 By
this act, he holds, the Court has under the guise of interpretation changed
the basic structure of the Constitution. The basic structure consists of division
of powers between the legislature, executive and the judiciary.62
However despite this anxiety Sathe cannot see an escape from judicial
activism. In fact he unequivocally states that even if the political establishment
were to perform its job with due efficiency, judicial activism would be required,
to give voice to the most marginalised of communities.63 Having conceded
the need for activist intervention by the Court, he then finds it necessary, to
devise suitable mechanisms of accountability. Here again, as in the
monograph on Constitutional Amendments, he sees the power in the will of
the people. It is the faith of the people, he holds, that constitutes the legitimacy
of the court and judicial activism. By the will of the people, Sathe does not
mean that the court should bow down to populist pressures, but he does
require the court to have the pulse of popular expectations. And for the
court to forge a healthy and vibrant relationship with the polity, he asks it to
be less sensitive and more inviting of criticism.64 “Criticism of judicial
decisions” he asserts “serves as feedback to the judges”65. And to allow for

58 S.P. Sathe, “Cow Slaughter: the Legal Aspect” in A.B. Shah (ed), Cow Slaughter Horns of a Dilemma,
69 (Lalvani Bombay 1967) as cited in supra note at 271.
59 Id at 271.
60 Id at 173.
61 Id at 126.
62 Id at 126-27.
63 Id at 279.
64 Id a 286.
65 Id at 290.
12 INDIAN J. C ONST. L.

this criticism to be available without fear he seeks amendments to the law of

contempt.66
§ Pe o p l e s Po w e r an d A c c o u n t abil it y : Th e R ig h t t o
Inf ormation 67
The descriptive analysis made above, shows the importance Sathe
accorded to the citizen in obtaining accountability from the governors of
power and authority. In this book, he turns his attention to the means and
mechanisms by which, the citizens can perform these vigilance duties. Sathe
had, in an earlier publication, whilst elaborating on how the Indian Supreme
Court had read the right to know in the right to freedom of speech and
expression, and asserted, that the right to education should predate the right
to information.68 As without education, people would be hard put to exercise
the right to information. Subsequent to those lectures, the right to education
has been inducted as a fundamental right, in the Constitution. He notes this
enhanced importance accorded to the right to education, but points to the
equivocation in the constitutional provisions, and hence alerts that
“considerable amount of social pressure will be needed to make education
for all children below 14 years free and compulsory”. Sathe continues to lay
stress, on the connection between education and information, which he had
made in the earlier study, but also informs that the crusade for the right to
information has been spearheaded, by workers and peasants who lacked
formal education but had acquired grass roots consciousness of their
entitlements as citizens.69 This reality again brings home the fact that literacy
should be only viewed as one of the components of the right to education.
In characteristic style, Sathe begins his study, by distinguishing between
a freedom and a right. And how whilst a guaranteed freedom only required
the State not to impede the flow of information; a guaranteed right placed a
more positive obligation of making information available to the people.70
In line with his belief of the need to understand law as process, he
extensively details in the second chapter of the study, how the law has moved
from secrecy to transparency; the circumstances in which there was a duty to
inform and when information can be withheld, in the relationship between
two individuals, between the individual and the state.
In order to appreciate the altered regime that could be ushered in by
the new statute, he has recapitulated, the case law relating to one kind of
66 Id at 286-87.
67 S.P Sathe, The Right to Inf ormation (Lexis Nexis Butterworths 2005).
68 S.P. Sathe,The Right to Know (1991) as cited in supra note 64 at 9.
69 Supra note 64 at 21-22.
70 Id at 15, 27-28.
The Scholarship of S.P. Sathe 13

documents for which the government can claim privilege; the secrecy
surrounding the advice of cabinet ministers and the requirements of the
Official Secrets Act. Of special interest here, is his re-examination of the
decision of the Supreme Court,71 rejecting the constitutional challenge to
section 18 of the Atomic Energy Act 1962. The Court had upheld the non
disclosure safeguards employed in nuclear plants, on grounds of security of
state. Sathe contends that the safeguards should be disclosed to the people,
to save them from future hazards. And the Court should reconsider its ruling,
in the light of the transparency regime, ushered in by the new statute. He
recognises that security of state is a ground to refuse information even in the
Right to Information Act 2005, but insists that such refusal can only be on
reasonable grounds, even though the word reasonable has not been included
in the new law. The word reasonable, he contends, will have to be read into
the new Act, as right to information has been found to be a right concomitant
with the right to freedom of speech72 .
The above discussion shows that Sathe wants transparency to be
practised for all manner of information. He is not saying that there may not
be circumstances in which security of state may prevail. Instead what he is
challenging is the manner in which, the justification of “security of state” is
being employed, to halt public scrutiny. In the same spirit, of not creating
any holy cows, he has questioned the decision of the Supreme Court in
Indira Jaisingh v. Registrar General Supreme Court of India73 where the petitioner
sought access to the report of a Karnataka High Court Committee,
investigating into the conduct of some judges of the High Court. The Supreme
Court ruled that it had no power over the High Court, and could not ask for
the publication of the report. The best course would be for the petitioner to
approach the High Court. Questioning the decision of the Supreme Court,
Sathe asks, “did the court not shirk its responsibility…? Is a High Court not
within its jurisdiction so far as fundamental rights are concerned? Since the
Court has held that the right to information is included within the right to
freedom of speech and expression, could it not have issued a writ of
mandamus against the High Court asking it to release the report?74” And
then most evocatively, “why should the conduct of the judges be shrouded
in secrecy?75 ” Curiously, Sathe does not subject the regimes of copyrights
and patents to a similar scrutiny instead he views them as striking the correct
balance between the right to privacy and public access to knowledge76. It is

71 People’s Union f or Civil Liberties v Union of India AIR 2004 SC 1442.

72 Supra note 64 at pp 52-53.
73 (2003) 5 SCC 494.
74 Id at 54.
75 Ibid.
76 Id at 54-55.
14 INDIAN J. C ONST. L.

worth speculating, as to whether he would have continued to hold this

opinion, upon encountering the arguments of the copyleft and open source
movements77 .
This monograph, like all his other publications, has provided
comprehensive documentation of all relevant materials be it : the
constitutional recognition of the right to know;78 or a comprehensive analysis
of all state legislations;79 and the central act80 . Possibly because the book is
dealing with a legal development, which would empower the people, and
hence strengthen democracy, there is a noticeable optimism in its tone and
tenor. He sees immense possibilities for people enforced accountability, and
believes that “an informed citizenry is a condition precedent to democracy”81 .
In awareness of the distrust of our times, he points out, “despotism and
oppression thrive on secrecy and lack of information. Terrorism thrives on
secrecy and hate. Both need to be combated through information”82 .
§ The Evolving Scholar of A dministrative Law
In the last segment of this piece, I am elaborating on Prof Sathe’s
commentary on Administrative Law, which has run into its seventh edition 83 .
This book was primarily planned as a study aid for the teachers and students
of administrative law. The challenge here was how to balance the demands
of information and analysis, because if the book was exclusively analytical,
then it lost the fresh initiate into the subject. And if an overly descriptive
approach was adopted, then the duty to develop critical understanding got
sacrificed. This is how Sathe responded to the challenge.
He firstly laid out, the basic building blocks of every key concept in
administrative law and then moved on to discuss, how this issue has been
dealt with by the legislature and the courts. Thus for example: he would
describe the difficulties of classifying an administrative function as quasi-
judicial and yet why is it necessary to do so.84 What is a jurisdictional
question?85 And what are the main features of a tribunal;86 special features of
the writ jurisdiction under the Indian Constitution;87 the difference between

77 For a sample of these arguments see the sarai reader on public domain http://www.sarai.net/
journal/reader1.html ( last visited 4.2.2007).
78 Supra note 64 at pp 61-90.
79 Id at pp 91-130.
80 Id at pp 131-160.
81 Id at 2.
82 Id at 4.
83 S.P. Sathe, Administrative Law ( Lexis Nexis Butterworths 7th edn 2004).
84 Id at 142-43.
85 Id at 269.
86 Id at 300.
87 Id at 460-63.
The Scholarship of S.P. Sathe 15

legitimate expectation and promissory estoppel;88 or how the doctrine of

proportionality has expanded judicial review89 before embarking on more
detailed discussion of the area.
Baxi, in his introduction to Massey’s Administrative Law, 90 has
bemoaned that Indian textbooks in Administrative Law, often deal with
their subject in an acontexual manner. In Sathe’s book, however, the legal
formulae of administrative law are referred to, after explaining the reason
for their adoption and how they are operating in practice. Thus, when he
deals with parliamentary control of delegated legislation, he informs, how
pre-enactment control is exercised by requiring legislations providing for
delegated legislation to “be accompanied by a memorandum explaining
such proposals, drawing attention to their scope, and also stating whether
they are of exceptional or normal character”91. This rule, he further informs,
does not mean much as “the memorandum is usually scrappy and inadequate
and fails to give adequate information”92. He next informs that the Committee
on Subordinate Legislation has taken note of this deficiency and asked for
its rectification. However, “inspite of this suggestion the quality of the
memorandum annexed to the Bills has not improved much in the matter of
giving information”.93 Thus Sathe assesses parliamentary control of delegated
legislation, not just by referring to the normative efforts, but by also
examining the ground level operation of the norms.
One of the major difficulties, in attempting a contextual analysis of
administrative law, is the wide terrain of the subject. Sathe has crossed this
hurdle by introducing sub-classification. Thus for example, in the introductory
chapter itself, he alerts the reader to the patterns of administrative law
questions which, arise in different kind of legislations.94 In the chapter on
tribunals, commissions and regulatory authorities, he has distinguished not
lumped, by providing dedicated space to the various kinds of tribunals,
commissions and regulatory authorities95 .
And whilst looking at administrative review of administrative discretion,
while his main headings refer to the principles evolved by courts to review
discretionary powers, his sub-headings inform us of the operation of these

88 Id at 184-86.
89 Id at 276-78.
th
90 Upendra Baxi “Introduction” to I.P. Massey, Administrative Law at xvi (Eastern Book Company 6
Ed 2005).
91 Id at 73.
92 Ibid.
93 Ibid.
94 Id at 14-16.
95 Id at 289-383.
16 INDIAN J. C ONST. L.

principles, in specific contexts.96

As administrative law is almost entirely judge made law in India, one
of the difficulties a textbook writer has to reckon with, is the volatility and
inconsistency of judicial law making. Often textbook writers undertake their
task, seemingly oblivious, to these contradictions. Sathe has continually
referred to the contradictions whether with97 or without comment98 .
It needs to be appreciated that Sathe grew with every edition of his
book, and whilst the informative thrust of the book remained, there was
both a subliminal and explicit growth, of the critical content. However as he
did not wish to alter the primary thrust of the publication, the critical content,
primarily came in the shape of thought-pregnant one-liners99. This generous
use of the one-liner, for a pithy articulation of complex ideas, was an integral
part of the Sathean writing style 100 which held him in good stead to continue
providing basic information, even as he personally was increasingly more
attracted, to analyse what was happening.101
§ In Conclusion
I have already admitted in the introduction that a single piece cannot
do justice to the scholarship of Prof Sathe. This task is further complicated
by the fact, that Prof Sathe had a penchant for continually stretching himself.
Hence whilst constitutional and administrative law were his primary areas of
interest, he did not undertake an acontexual and black letter study of these
96 See for example his treatment of non-application of mind at 418-422 or non examination of
relevant considerations from 422-430.
97 In the chapter on judicial review, whilst dealing with the various tests devised by courts to deal with
error apparent on the face of the record ,Sathe refers to Justice Chagla’s ruling in Batuk Vyas v Surat
Borough Municipality, AIR 1953 Bom 153 that an error was apparent if it obvious and self evident,
and not become apparent by a process of examination or argument. Sathe concedes that this test
should hold good for a majority of cases. However even that test could not handle inconsistency
“because an error which may be considered by one judge to be self –evident may not be considered
by another”. Id at 273.
98 Thus see for example his pointing out how the Supreme Court upheld a provision providing for
repeal in A.V. Nachane v Union of India, (1982) 1 SCC 205 after opining in In Re Delhi Laws Act, AIR
1951 SC 332 that the power of repeal could not be delegated. Id at 47.
99 See for example : “The excessive delegation argument remains the only bulwark against government
authoritarianism” id at 55; “It may be worthwhile to consider whether Press Council could be
provided greater teeth to deal with recalcitrant journalism” id at 329; “Appointments of judges
should not depend upon the veto of a few judges. If they should not be at the mercy of the
government they should not be at the mercy of the judges” id at 535; “PIL must be constrained by
considerations of feasibility as well as propriety” id at 546.
100 See for example “Transparency in administration was therefore perceived to be a lethal weapon
against corruption and abuse of power” supra note 67 at 22 “When populism prevails over legal
requisites, the rule of law suffers and in the long run adversely affects the legal culture” supra note
42 at 144.
101 Prof. Sathe, while visiting NASLAR Hyderabad in August 2004, for a series of lectures at the
University, admitted in a private conversation that the commentary no longer excited him, and
wondered whether he would do another edition.
The Scholarship of S.P. Sathe 17

areas. How principles of administrative and constitutional law impact on

excluded and marginal populations, was a constant concern.102 Amongst his
last completed pieces, was an article exploring the freedom of sexuality for
women and persons with different sexual orientation.103 The piece, uses
principles such as prospective overruling, to expose the limitations of the
Supreme Court ruling in Sakshi vs Union of India104 . Prof Sathe was no
orthodox but neither was he a compulsive radical. He saw moderation as an
integral component of scholarship, and it is this ability to see both sides of
an issue, which makes his argument for the freed om of sexuality
constitutionally compelling.
I have already referred to his ability to raise complex questions through
pithy one- liners. However what needs to be even more particularly noted is
the simplicity of his writing style. His style is testimony to the fact that deep
scholarship neither requires jargon nor is dependent on ponderous language.
Or more appropriately as he knew his mind and spoke it, he used language
to communicate and not to camouflage. He continually shows himself as
firm of conviction but open to reason. Further the manner in which he
critiqued his own positions, shows that he believed that wrongness was in
sticking to an incorrect position, rather than in making an error of judgement.
Our scholastic growth often depends upon the company we keep be it
of teachers, colleagues or friends. This intellectual and emotional debt often
goes unacknowledged. Herein again Prof Sathe blazed his own trail. Three
of the five books I have reviewed in this article have been dedicated to
professional colleagues.105 In his book on Right to Information he most
generously acknowledges his colleague Ms Sathya Narayan to go so far as to
say that “she actually wrote out the full text of chapter 4”.
Prof Sathe saw legal academics as the conscience keepers of the legal
system, which is why he bemoaned the absence of a juristic culture of criticising
judicial decisions.106 In critiquing judicial decisions, he believed, academics
provided judges the much required feedback on their work. He adopted the
voice of reason backed with evidence, to present his standpoint, and thus
kept the dialogue going. The inherent danger of a polarised position is that
its opponents find it easy to label and dismiss. However those who show that
they are listening as they are speaking, stand a better chance of being able to
102 Administrative Law for the Poor in U. Baxi (ed), Law and Poverty Critical Essays; Amita Dhanda
and Archana Parashar (ed), Engendering Law Essays in Honour of Lotika Sarkar.
103 Archana Parashar and Amita Dhanda (eds) Redef ining Family Law (Routledge Forthcoming).
104 (2004) 5 SCC 518.
105 Thus Constitutional Amendments was dedicated to Prof A.B. Shah; The Tribunal System in
India to his extended ILS family and Judicial Activism in India to Justice V.M. Tarkhunde with
the byline “from whom I learnt humanism and human rights”.
106 Supra note 42 at 229.
18 INDIAN J. C ONST. L.

persuade the opposition to also provide a hearing. Prof Sathe’s genre of

legal writing, gently prodded his readers to distinguish between right and
wrong, by helping appreciate the distinctions between the legally permissible
and the legally desirable. The fact that no technical legal wrong has been
committed is no reason to believe that the act done or the decision taken
was fair and just. In bringing out this distinction between the ethical and the
legal, he convincingly shows, why there is need to continually interrogate
the legal. He tirelessly carried on this work in his writings and lectures and
taught not just his students but so many of us by just being. In saluting his
efforts, I on behalf of Indian academia, celebrate the best in Indian legal
scholarship.
 19

F ROM G OPA LA N TO G OLA KNA TH , A ND BEYOND:

A TRIBUTE TO MR . M K N A MBYA R
Soli J. Sorabjee*

The buzz word today is Incredible India. Be that as it may, it is indeed

incredible that a district lawyer practicing in a district court in Mangalore
would ultimately occupy centre stage in the Supreme Court and make an
invaluab le contrib ution to the evolution and d evelopment of our
constitutional law. But that is precisely what Meloth Krishnan Nambyar
achieved. After practicing in Mangalore for about 10 years during which
time he was the Public Prosecutor and Government pleader, he shifted to
Madras. He commanded a large and lucrative practice in the Madras High
Court for several years especially in cases relating to nationalisation of road
transport.
Before he began practicing in the Madras High Court he appeared in
1933 in the Privy Council, instructing Senior Counsel Subba Rao and
appeared along with him in the case. The judgment in which his appearance
is noted is reported in AIR 1933 PC 167.
Nambyar made his mark as a constitutional lawyer by his appearance
and arguments in the case of A.K. Gopalan v. State of Madras1 . This case
arose out of the detention of a well-known Indian communist A.K. Gopalan.
It is a curious coincidence that the full name of his client was Ayilliath Kuttieri
Gopalan Nambiar.
Gopalan’s case was the first case of seminal significance regarding the
interpretation of fundamental rights and their interplay. One of Nambyar’s
arguments was that the expression “except according to procedure established
by law” in Article 21 should not be read literally in the sense that the Court
only has to ascertain whether there is a procedure and it is established by
law but procedural due process and the principles of natural justice should
be read into it. The majority of the Supreme Court in Gopalan did not accept
Nambyar’s argument. In its first historic judgment delivered on 19th May
1950 the Supreme Court placed an unduly narrow and restrictive
interpretation upon Article 21 and held that “procedure established by a
law” means procedure established by law made by the State; that is to say,
the Union Parliament or the legislatures of the State, and refused to infuse
the procedure with the principles of natural justice.

* Former Attorney General of India and Senior Advocate, Supreme Court of India.
1 AIR 1950 SC 27.
20 INDIAN J. C ONST. L.

Another argument advanced by Nambyar that, preventive detention

law could be challenged on the anvil of the fundamental rights guaranteed
by Article 19, was also rejected because of the doctrine of mutual exclusivity
of fundamental rights evolved by the Supreme Court. The Court’s startling
conclusion was that Article 21 excluded enjoyment of the basic freedoms
guaranteed under Article 19 because Article 19 postulates legal capacity to
exercise the rights guaranteed by it and if a citizen loses his freedom by
detention he cannot claim the rights under clauses (a) to (e) and (g) of Article
19. Consequently, a law of detention could not be challenged on the
touchstone of Article 19.
This unsound doctrine which held the field for a long time was
ultimately overruled in 1970 in the Bank nationalization case, R.C.Cooper v.
Union of India2. In Maneka Gandhi’s case decided on 25th January 1978, Justice
Chandrachud stated that
“...the assumption in A.K. Gopalan that certain Articles of the
Constitution exclusively deal with specif ic matters cannot be accepted
as correct. Though the Bank Nationalisation case was concerned with
the inter-relationship of Articles 31 and 19 and not of Articles 21
and 19, the basic approach adopted therein as regards the construction
of f undamental rights guaranteed in the dif f erent provisions of the
Constitution categorically discarded the major premise of the majority
judgment in A.K. Gopalan as incorrect. That is how a seven-Judge
Bench in Shambhu Nath Sarkar v. State of West Bengal3 assessed
the true impact of the ratio of the Bank Nationalisation case on the
decision in A.K. Gopalan. In Shambhu Nath Sarkar it was accordingly
held that a law of preventive detention has to meet the challenge not
only of Articles 21 and 22 but also of Article 19(1)(d). Later, a
f ive-Judge Bench in Haradhan Saha v. State of West Bengal4 adopted
the same approach and considered the question whether the Maintenance
of Internal Security Act, 1971 violated the right guaranteed by Article
19(1)(d)”.
It is ironical that in a property case relating to the nationalization of a
bank the restrictive interpretation placed by the Supreme Court in a case
involving personal liberty in Gopalan’s case was over-turned.
Again, it was after 28 years, that the Supreme Court differed from
Gopalan as to its interpretation of Article 21 and ruled in Maneka Gandhi’s
case, that the expression in Article 21 “except according to procedure

2 (1970) 2 SCC 298.

3 (1973) 1 SCC 856.
4 (1975) 3 SCC 198.
A Tribute to M. K. Nambyar 21

established by law” means a procedure which is just fair and reasonable.

Nambyar’s farsighted arguments which if accepted by the Supreme Court in
Gopalan would have led to a healthy development of constitutional law
ultimately secured judicial acceptance by the Apex Court, and Nambyar’s
submissions and stand were fully vindicated.
It needs to be noticed that on account of Nambyar’s persuasive
advocacy, section 14 of the Preventive Detention Act was struck down as
unconstitutional on the ground that it contravened the provisions of Article
22(5) of the Constitution “in so far as it prohibits a person detained from
disclosing to the Court the grounds on which a detention order has been
made or the representation made by him against the order of detention, and
is to that extent ultra vires and void”.
Kania C.J. in his judgment in Gopalan paid a well deserved tribute to
Nambyar in these words: “The Court is indebted to the learned counsel for
the applicant [that is Nambyar] and the Attorney-General for their assistance
in interpreting the true meaning of the relevant clauses of the Constitution”.
In W est Ramnad Electric Distribution Co. Ltd. v. State of Madras5
Nambyar argued with great force that “where the contravention of
fundamental rights is concerned, the legislature cannot pass a law
retrospectively validating actions taken under a law which was void because
it contravened fundamental rights”. Unfortunately the Supreme Court did
not accept that argument. In view of certain observations of the Supreme
Court in the eleven-Judge Bench judgment in I.R. Coelho v. State of Tamil
Nadu6 it is arguable that Nambyar’s stand about the incapacity of the
legislature to retrospectively validate a law which has been declared void
because of violation of fundamental rights has now become acceptable.
In the case of Deep Chand v. State of Uttar Pradesh 7 important
constitutional issues were involved. One of the issues was whether the doctrine
of eclipse as propounded by the Supreme Court in Bhikaji Narain Dhakras
v. The State of Madhya Pradesh8 could also apply to a post-Constitution law
that infringed a fundamental right conferred on citizens. Nambyar was a
leading counsel in the case and successfully argued that the doctrine of eclipse
cannot apply to any post-constitutional law that infringed fundamental rights
conferred on citizens alone. The Supreme Court accepted Nambyar’s
argument that a post constitutional law contravening the provisions of Part
III of the Constitution “was a nullity from its inception to the extent of such

5 AIR 1962 SC 1760.

6 (2007) 2 SCC 1.
7 AIR 1959 SC 648.
8 AIR 1955 SC 781.
22 INDIAN J. C ONST. L.

contravention”. The prohibition [imposed by Article 13] “went to the root

and limited the State’s power of legislation and law made in spite of it was a
still-born one”. The arguments advanced by Nambyar in that case manifest
his deep research and study.
Nambyar’s most significant contribution in the field of constitutional
law and fundamental rights was his argument in the case of Golaknath9 that
the amending power under Article 368 of the Constitution is not absolute
but is subject to certain implied limitations. It was urged that the power of
amendment was that by exercise of the power of amendment of the
Constitution its essential features cannot be destroyed and thereby the
Constitution cannot be damaged. The stand adopted by Nambyar and his
arguments apart from reflecting his deep research, study and erudition are
evidence of his farsightedness. It can be said that he had an almost prophetic
vision of the Supreme Court judgment in 1973 in Kesavananda Bharati10
where the doctrine of implied limitation was accepted. The Court in its path
breaking judgment held by majority that the power to amend the Constitution
cannot be so exercised as to damage its basic structure. It is a pity that on
account of his indifferent health Nambyar could not appear in the
Kesavananda Bharati case.
It is remarkable that the very arguments advanced by Nambyar in
Gopalan’s case in 1950 as well as in Golaknath’s case in 1967 regarding implied
limitations were subsequently accepted by the Apex Court. Nambyar’s
sensitivity to fundamental rights and the need for their protection is evident
in his submissions and approach to the interpretation of fundamental rights..
Justice Krishna Iyer has paid an apt tribute to Nambyar in these words:
“There was a commitment about him in the garb of fundamental rights. He
fought the case not for the ideology of his client who was a Communist but
for the ideology of human rights which found expression in Part III … his
complete commitment to the human cause”.
Nambyar passed away on 18th December 1975, a few months after the
spurious June 1975 emergency was foisted on the country. I was informed
by his son K.K. Venugopal, who is a thorough gentleman and a great lawyer
in his own right having argued many important constitutional law cases in
the Supreme Court, that his father was disturbed by the imposition of
emergency and the mala fide detention of reputable political leaders and
other persons. On account of his weak health he could not lead an active
campaign against the emergency.

9 I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643.

10 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
A Tribute to M. K. Nambyar 23

I had occasion to be briefed with him in a matter in the Bombay High

Court in the case of Century Mills. The legislation was challenged on the
ground that it was confiscatory because of some of its provisions. He was
courteous, appreciative of whatever little assistance I could give him and
generous in his praise. The matter went on for about four days. Justice N.A.
Mody who was the presiding judge in the Bombay High Court which was
hearing the case requested Nambyar after the case was over to meet him for
tea in his chamber. Justice Mody was warm in his appreciation of Nambyar’s
arguments and his approach.
Subsequently when Nambyar was appearing in the Bombay High
Court on behalf of certain persons detained under CO FEPO SA, I had
occasion to oppose him appearing for the government. Obviously there
could be no question of grant of interim relief by way of suspension of the
detention orders. Therefore Nambyar forcefully urged that the cases be heard
most expeditiously and the government should not be given more than ten
days for filing its counter affidavit. He was agreeably surprised when I
informed the Court that the government would file its counter affidavit within
a week and the matter could proceed to hearing promptly thereafter. I will
never forget what he told me after we both left the Court: “Why did you
oppose me? You should have been my junior in this matter”. To which I
replied, “unfortunately the Government of India had briefed me before your
solicitors Gagrat & Co. sent me the brief”.
There have been many great Indian lawyers. However there can be
no doubt that MK Nambyar was one of our greatest constitutional lawyers.
On account of the farsightedness and the vision involved in his arguments
regarding the interpretation of constitutional provisions, especially
fundamental rights, he paved the way for and stimulated, constructive juristic
thinking. There could be no better tribute to Nambyar’s invaluable
contribution to the development of our constitutional law than the fact that
his arguments, his stand, his approach towards fundamental rights were
ultimately accepted by our Apex Court.
24 INDIAN J. C ONST. L.

THE U NBEA RA BLE W RONGNESS OF BUSH V . G ORE

Laurence H. Tribe*
INTRODU CTION
Again? Another article about Bush v. Gore?1 Is there anything of
substance left to say that has not already been said? I think there has to be—
as long as there remain serious observers who react to the Supreme Court’s
announced equal protection rationale for its stop-the-counting ruling with
anything but head-scratching incredulity, and as long as trying to figure out
how they convince themselves that the Court’s rationale made sense reveals
something of interest and importance about constitutional law. How one
reacts to the Court’s equal protection rationale is, of course, affected to some
degree by one’s disposition toward the results it produced—although Nelson
Lund, for his part, seems far too focused on rationalizing his desired result
to see that law professor-non-litigants are no less susceptible to “acquired
conviction syndrome”2 than are law professor-litigants.

* Tyler Professor of Constitutional Law, Harvard Law School. For his extraordinarily able assistance
in the preparation of this comment, I am indebted to Michael J. Gottlieb, who will receive his J.D.
degree from Harvard Law School in June 2003. A remarkable student, research assistant, and
teaching fellow, Mr. Gottlieb deserves much credit for whatever is right about this essay. For her
splendid editorial assistance, I owe my thanks also to Rebecca Onie, another remarkable student
and research assistant who will receive her J.D. in June 2003. For whatever remains wrong with this
essay, the blame rests squarely with me. The essay’s title was inspired by Nelson Lund, The
Unbearable Rightness of Bush v. Gore, 23 Cardozo L. Rev. 1219 (2002). I must leave to the reader
whether any part of this exchange deserves to be linked even nominally with Milan Kundera’s
luminous Unbearable Lightness of Being.
1 531 U.S. 98 (2000).
2 Professor Lund accuses me of suffering from this syndrome—apparently the result of my role as
counsel to Vice President Gore during both the federal and state litigation surrounding the Florida
election dispute. See Nelson Lund, “EQ UAL PRO TECTIO N, MY ASS!”?, Bush v. Gore and
Laurence Trib e’s Hall of Mirrors, 19 Const. Comm. 543, 543 (2003) (“Lund , EQ UAL
PROTECTION”). Nowhere in my Harvard Law Review comment did I ever claim to be a disinterested
observer. Quite to the contrary, I disclosed my professional and emotional involvement in the
dispute, see Laurence H. Tribe, eroG .v hsuB and its Disguises: Freeing Bush v. Gore from its Hall
of Mirrors, 115 Harv. L. Rev. 170, 178-79 (2001), and left to the reader the task of determining
whether I had succeeded in offering a persuasive account of the Court’s decision.
Professor Lund admits that he wanted to see then-Governor Bush become President, yet seems to
believe he is immune from acquired conviction syndrome. See Lund, EQUAL PROTECTION at
545 (describing his analysis as “disinterested”). Notably, Professor Lund was a Bush-campaign
cheerleader from the first days of the dispute; as the controversy evolved he launched a series of
acerbic attacks on the Florida Supreme Court, the Gore campaign, and any observer who expressed
sympathy for either. See, e.g., Nelson Lund, Travesty in Tallahassee, Wkly. Std. 17 (Dec. 18, 2000).
Although Lund argued in his capacity as campaign observer that the “only sane approach is to
count the votes according to the laws in place on November 7, and accept that result” id, his
hindsight-informed conclusion was that the federal judiciary should step in to halt the counting of
votes according to those laws if the state’s highest court construes that state’s laws as authorizing
“‘any method or means’ of weighting votes differently depending on where the voters reside.”
Lund, EQUAL PROTECTION at 551-52.
Unbearable Wrongness of Bush v. Gore 25

For Professor Lund, an attempt to write a “disinterested” response to

an “unexceptional” article of “d aunting volume” and “genuinely
indefensible” conclusions3 has produced what is undoubtedly the single most
partisan and unself-critical defense of the per curiam opinion in Bush v. Gore—
a defense that is, to borrow what foreign affairs columnist Tom Friedman
once aptly said of Benjamin Netanyahu, “deeply, deeply shallow.” While
most defenders of the decision have at least struggled with the difficult
questions it poses—whether the Equal Protection Clause mandates precisely
drawn and completely uniform standards for recounting electoral ballots;
whether Article II imposes substantive constraints on a state court’s power to
interpret its own state election laws; when federal judicial resolution of state
ballot-counting disputes intrudes too far into the responsibilities of the
coordinate political branches; when the interests of finality and stability
instead justify such federal judicial intrusion and might even justify
abandoning some voters’ rights to have their ballots counted—Professor Lund
seems to find all these problems easy. Bush v. Gore’s critics have not agreed
on just where the Court went wrong, and even most of the decision’s
defenders, after noting the uniquely hurried and thus arguably extenuating
circumstances in which the Court acted, have found something significant to
criticize in what the Court did and in what it said. But not Professor Lund.
For him, Bush v. Gore was “simply not a close case.”4 Lund’s loyalty to each
argument, idea, and even word used by the Court is, to my knowledge,
unmatched in the academic community.5 Methinks the Professor doth protest
too little.
In writing this comment, I have resisted the temptation to provide yet
another version of the events leading up to the Supreme Court’s now
famous—or infamous—decision of December 12, 2000. I have already

3 These are all direct quotations from Lund’s characterization of my Harvard Law Review comment.
See Lund, EQUAL PROTECTION at 543-45 (cited in note 2).
4 Nelson Lund, The Unbearable Rightness of Bush v. Gore, 23 Cardozo L. Rev. 1219, 1249 (2002)
(“Lund, Unbearable Rightness”).
5 For examples of more balanced contributions to this debate, see generally Richard A. Posner,
Bush v. Gore as Pragmatic Adjudication, in Ronald Dworkin ed., A Badly Flawed Election
(Debating) Bush v. Gore, the Supreme Court, and American Democracy 187-213 (New Press, 2002)
(defending the decision on crisis-avoidance grounds); Richard A. Posner, Breaking the Deadlock:
The 2000 Election, The Constitution, and the Courts (Princeton U. Press, 2001) (defending Bush
v. Gore both on Article II and crisis-avoidance grounds); Michael W. McConnell, Two-and-a-Half
Cheers for Bush v. Gore, 68 U. Chi. L. Rev. 657 (2001) (defending most of the decision but
critiquing the remedy imposed by the Court); Richard H. Pildes, Democracy and Disorder, 68 U.
Chi. L. Rev. 695 (2001) (arguing that Bush v. Gore followed naturally from the Court’s vision of
democracy); John C. Yoo, In Defense of the Court’s Legitimacy, 68 U. Chi. L. Rev. 775 (2001)
(defending the Court against critiques made against its legitimacy but criticizing it for its equal
protection rationale and remedy).
26 INDIAN J. C ONST. L.

provided a more detailed account than space here will permit,6 and many
other thoughtful histories exist.7 As a result, this comment jumps straight
into the deep end of the proverbial pool, assuming all the while that the
reader has at least a modest degree of familiarity with the Election 2000
controversy. In Part I, I defend my belief that the Court’s per curiam opinion
cannot be grounded in any previously recognized form of the Equal
Protection Clause. I first respond to Professor Lund’s suggestion that Bush v.
Gore was nothing more than a logical extension of “one-person, one-vote”
voting rights jurisprudence. I then argue that the Court’s failure to grapple
with the underlying equal protection issues, and its particularly inexplicable
failure to grasp the inconsistency between its own equal protection holding
and the remedy on which it settled, evince the almost embarrassing
bankruptcy of the rationale the Court’s majority adopted.
In Part II, I argue that Bush v. Gore presented a political question that
most likely never should have been decided—and, at a minimum, provided
an answer that never should have been given—by a federal court. In the
course of making that argument, I confess both the error of my insufficient
attention to the political question problem during the heat of the litigation
itself, and the error of my overly mechanical formulation of the “political
question” question in my first scholarly analysis of the dispute—published a
year later in the Harvard Law Review. And I offer a considerably more
nuanced formulation that rejects both Professor Lund’s position that the
question before the Court was manifestly a justiciable one and my own
Harvard Law Review position that the question was categorically non-
justiciable, advancing instead a “political process” doctrine according to which
political nonjusticiability, in an important class of instances, is akin to
nonjusticiability for want of ripeness—rather like a species of failure to exhaust
available remedies.
I. TH E U N S U R PR IS IN G L Y S H OCK IN G E QU A L
PROTECTION RA TIONA LE
To say that the equal protection holding adopted by the per curiam
opinion in Bush v. Gore was shocking is simply to describe a psychological
and cultural reality: as even Professor Lund concedes, most non-specialists
viewed the decision as “quite startling, and transparently dishonest.”8 Scores

6 See Tribe, 115 Harv. L. Rev. at 179-84 (cited in note 2).

7 See generally Abner Greene, Understanding the 2000 Election: A Guide to the Legal Battles That
Decided the Presidency (New York U. Press, 2001); E.J. Dionne Jr & William Kristol eds., Bush v.
Gore: The Court Cases and the Commentary (Brookings Institute Press, 2001); Larry J. Sabato ed.,
Overtime! The Election 2000 Thriller (Longman, 2002).
8 Lund, EQUAL PROTECTION at 548 (cited in note 2).
Unbearable Wrongness of Bush v. Gore 27

of academics agreed.9 I think the technical term for the standard reaction at
the time would have to be the one Keanu Reeves voiced in The Matrix:
“Whoa!”
What are we to make of that reality? If we regard the Constitution as
an arcane repository of rules whose meaning is accessible only to a specialized
elite, then we might respond with a shrug and reason that, if all but a handful
of constitutional lawyers fail to see why the Court’s analysis was correct, all
that follows is that most Americans, including most law professors, would be
unlikely to earn high grades in an exam on equal protection law. But if
instead we share the vision that the task of expounding the Constitution10 as
our nation’s fundamental law entails communicating its contents to the people
at large and engaging them in a conversation about its commands, its
aspirations, and its shortcomings,11 then so dramatic a disconnect between
what the Court says and what people find credible ought to be disconcerting.
Although by December 2000 the Court’s stock of political and moral
capital sufficed to enable it in essence to dictate the succession to the
presidency, through the agency of the electoral college, of the candidate
with half a million fewer popular votes nationally than his opponent—and
to do so with a 5-4 decision announced in an opinion that the overwhelming
majority of informed observers found incoherent—the brute fact that the
opinion and the ruling it rationalized seemed to come out of nowhere and
failed to make the slightest sense to those who were told the vote-counting
had to stop12 itself therefore counts heavily, although not decisively, against
the Court’s action, even before we consider on their merits the legal arguments
offered in its support.
The battle cry that the Florida Supreme Court had been guilty of
changing the state legislature’s definition of a lawfully cast vote or of the
applicable deadlines, perhaps for partisan reasons, after the polls had closed
and thus violating due process or Article II of the Constitution13 —the principal
claim that had been used to make a federal case out of it from the outset—

9 See Law Professors for the Rule of Law at <http://www.the-rule-of-law.com/archive/supreme/> (last

visited December 29, 2002) (noting support of 673 law professors in denunciation of the Bush v.
Gore ruling).
10 See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) ( “we must never forget, that it is a
constitution we are expounding”).
11 See id. (emphasizing importance of public understanding of the Constitution and the resulting
necessity that it not “partake of the prolixity of a legal code”). As Justice Hugo Black is said to have
told Walter Dellinger when Dellinger served as his law clerk in 1968-69, “Write it so your Mamma
can understand it.” Joseph Goldstein, The Intelligible Constitution: The Supreme Court’s Obligation
to Maintain the Constitution as Something We The People Can Understand 112 & n.9, 190 (1992).
12 See note 76-78.
13 U.S. Const., Art. II (“The President of the Senate shall, in the presence of the Senate and House
of Representatives, open all the Certificates and the votes shall then be counted.”).
28 INDIAN J. C ONST. L.

had, in the end, proven too weak to persuade more than three of the Court’s
nine Justices.14 All that remained was the claim, perplexing on the face of it,
that equal protection of the laws required giving no protection of the laws to
the thousands of still uncounted ballots. Because ballots that looked the
same might get counted differently under the Florida Supreme Court’s
approach depending on when and where they were counted, much larger
differences among precincts using dramatically different ballots or counting
methods, and between the ballots that were counted and those that were
not, had to be ignored—and that in the name of equal protection of the laws!
Professor Lund’s effort to enlist the support of two of the four dissenting
justices for that equal protection holding, the better to fend off the charge
that the holding was not just incorrect but utterly bizarre, rests on a transparent
exaggeration of what Justice Breyer wrote on the subject15 coupled with an
obvious fallacy: Lund equates the view that equal protection might have
required some improvements in the counting method put in place by the
Florida Supreme Court with the view that freezing the status quo in mid-
count might somehow represent the equal protection of the laws.16
Against that backdrop, I make no apology for expressing my solidarity
with the public outrage and frustration that was concisely if crudely expressed
in the logo, “Equal Protection My Ass!”, whose appearance on buttons worn
by Gore-Lieberman supporters within hours of the Court’s decision bespoke
not contempt for the Court but disdain for its stated rationale. 17 Such disdain
made sense, of course, only if one began with the premise, expressed with

14 Only Justices Scalia and Thomas joined the Chief Justice’s concurring opinion relying on Article
II. Bush v. Gore, 531 U.S. 98, 111 (2000) (Rehnquist, C.J., concurring).
15 See Bush, 531 U.S. at 145-46 (Breyer, J., dissenting) (agreeing only that the Florida recount scheme
“implicate[d] principles of fairness” that, given the “very special circumstances,” may well have
“counseled the adoption of a uniform standard to address the problem”). As I have made clear
before (and will do again later), the claim that seven Justices “adopted” the Court’s equal protection
holding is inaccurate. See text at notes 132-136; Tribe, 115 Harv. L. Rev. at 258 n.361 (cited in note 2).
16 To dismiss that as “just” a debate about remedies is like asking: “Apart from that, Mrs. Lincoln,
how did you like the play?”
17 I’m frankly baffled that Professor Lund would choose that vulgar slogan for his title and for the
centerpiece of his reply—or, for that matter, would use the phrase more than half a dozen times in
his text. In eroG .v hsuB, I mentioned the slogan twice: once to introduce it, and once to underline
my conclusion that a careful examination of each possible rationale that might be used to defend
the per curiam opinion revealed how justified was the utter frustration expressed by the wearers of
those buttons. See Tribe, 115 Harv. L. Rev. at 221, 247 (cited in note 2). Yet, like a child irrepressibly
fixated on an adult’s use of a dirty word, Professor Lund has chosen to make the slogan on that
button—admittedly a tasteless and imperfect expression of emotions ranging from disbelief to
rage—central in his critique. In so doing, he has made a regrettable rhetorical move, reframing my
dissection of Bush v. Gore as a juvenile and disrespectful assault on the Supreme Court. But of
course it was nothing of the sort, as any reasonable reading of my painstaking 135-page comment
would reveal. Of particular interest in that regard should be the section in which I attempted to
explain how Bush v. Gore fits into a now familiar pattern of political process cases decided by the
Rehnquist Court. Id. at 247-54, 287-90.
Unbearable Wrongness of Bush v. Gore 29

some frequency by the Court itself, that the “Court must take care to speak
and act in ways that allow people to accept its decisions on the terms the
Court claims for them, as grounded truly in principle, not as compromises
with social and political pressures having, as such, no bearing on the principled
choices that the Court is obliged to make.”18
( A ) “One- Ballot, One-V ote” Doctrine?
Professor Lund believes that the disdain, while widely felt, was
misguided, and that a careful reading of the cases cited in Bush v. Gore, of
which there were only a small handful,19 reveals a doctrinal principle so
plain that no disinterested and properly informed observer could find fault
with the Court’s application of that principle to overturn the Florida Supreme
Court’s December 8 order. Putting to one side the discomforting elitism
implicit in his claims, the main thrust of Professor Lund’s doctrinal argument
is that the critics of Bush v. Gore, myself in particular, like poorly trained
students who slept through the basic course in the subject, have simply
confused two distinct categories of equal protection cases: those involving
suspect classifications, and those involving fundamental rights. Once one
wakes up, separates the two categories, and recalls that voting rights cases of
course belong on the fundamental rights branch of the equal protection
tree, says Lund, it becomes clear that any differential treatment of voters is
sub ject to strict jud icial scrutiny and is therefore presumptively
unconstitutional regardless of the presence or absence of discriminatory
intent. Any state scheme that treats voter A differently from voter B has at
least two strikes against it, constitutionally speaking. Aha! Now it’s all clear!
How did so many of us manage to forget anything so elementary?
I’ll say this much: Professor Lund’s approach has the appeal of simplicity
going for it. The tougher question is what else there is to be said for it.
Consistency with precedent certainly isn’t among its virtues. Take the principal
case invoked by Professor Lund for the conclusion that the attack on the
Florida Supreme Court’s December 8 recount order was properly justiciable
rather than political: McPherson v. Blacker.20 There, the Michigan Legislature
in 1891 had chosen to exercise its Article II responsibility of directing a
method of selecting the state’s presidential electors for the national election
of 1892 through a statewide popular election in which individual voters were
18 Planned Parenthood of S.E. Pa. v. Casey, 505 US 833, 865-66 (1992) (plurality opinion of Justice
O’Connor, Kennedy, and Souter). See generally Joseph Goldstein, The Intelligible Constitution
(cited in note 11).
19 See Bush, 531 U.S. at 105-07 (per curiam). The fact that the Court could come up with only three
cases to support its equal protection holding is not, by itself, proof that the decision didn’t arise
from a firm foundation of constitutional doctrine but does add to the burden of anyone who claims
that it did.
20 146 U.S. 1 (1892).
30 INDIAN J. C ONST. L.

divided into separate geographical districts and, as a result, treated differently

based upon where they lived (in the sense that demographic and political
differences among districts might work either to magnify or to dilute the
influence of voters of any given persuasion who find themselves concentrated
into relatively few districts rather than dispersed among many). Yet rather
than requiring that voters be treated identically without regard to a factor
like local residence, the way they are in a system where a single statewide
electoral slate is chosen at-large under a winner-take-all system, the McPherson
Court unanimously and brusquely rejected the Equal Protection Claim21 —a
holding which the Bush v. Gore Court would have reaffirmed in a heartbeat,22
plainly repudiating the simplistic thesis Lund adopts.
In its place there must stand a far richer and more complex (even if
rarely articulated) set of assumptions about presumptively acceptable vs.
presumptively invalid structures for aggregating the political preferences of
individual voters—for assuming some mix of fair treatment of all “groups,”
variously identified; effective representation of voters generally; openness
to political challenge and change; and treatment of all persons as entitled to
equal dignity and respect.23 As Justice Thomas noted in a widely cited 1994
opinion, even deciding “to rely on single-member geographic districts as a
mechanism for conducting elections is merely a political choice,”24 not a
neutral fact of nature—just as deciding to use winner-take-all electoral college
system, the decision made by all but two states in the 2000 presidential
election,25 is a political choice, one with its own mix of consequences for
how individual and group preferences are aggregated to yield electoral
outcomes and for how various groups, and even the polity as a whole, might
in one respect or another be “injured” over time by the resulting structure of
political representation.
Of course the McPherson Court was not presented with a sophisticated
challenge to the particular method of drawing district boundaries—either in
terms of alleged population disparities, intentional or accidental, or in terms
of deliberate dilution of the influence wielded by voters of a given race or
political party by techniques of packing or of dispersal.26 If it had been, the
21 Id. at 40-42.
22 See Bush, 531 U.S. at 104 (per curiam); id. at 113 (Rehnquist, C.J., concurring).
23 See Heather K. Gerken, The Costs and Causes of Minimalism in Voting Cases: Baker v. Carr and
its Progeny, 80 N.C. L. Rev. 1411, 1419-27, 1448-55 (2002).
24 Holder v. Hall, 512 U.S. 874, 909 (1994) (Thomas, J., concurring in judgment). See also Gerken, 80
N.C. L. Rev. at 1454 n.172 (cited in note 23).
25 Maine and Nebraska were the only two states to use modified systems. See Note, Rethinking the
Electoral College Debate: the Framers, Federalism, and One-Person, One-Vote, 114 Harv. L. Rev.
2526, 2530 & n.28 (2001).
26 For a description of “packing” and “dispersal” (also known as “cracking”), see generally Bernard
Grofman, Criteria for Districting: a Social Science Perspective, 33 UCLA L. Rev. 77 (1985).
Unbearable Wrongness of Bush v. Gore 31

challenge would have been dismissed as nonjusticiable from the early 1900s,27
until Baker v. Carr28 in 1962. After Baker, various subspecies of voting rights
challenges would have been entertained, either under the “no-exclusion”
rubric of Harper29 and its progeny; or under the first-generation “no-dilution”
framework of Reynolds v. Sims30 and its descendants; or under the second-
generation “no dilution” rubric elaborated in cases like Thornburg v.
Gingles.31 In all three categories, the Court’s rhetoric and its imagery have
gravitated toward notions of individualistic harm; indeed, such notions have
been central both to the Court’s acceptance of the challenges as justiciable
and to the gradual accommodation of conservative commentators to this
entire body of jurisprudence.32 But, as a number of astute observers—most
perceptive among them in this respect, perhaps, being Professor Heather
Gerken—have shown, the overarching maxim of “one-person, one-vote,”
which Professor Lund seems to think can bear the weight of the Bush v.
Gore decision, cannot in fact be “designed to vindicate a purely individualistic
definition of equality”33 even in its most straightforward application to an
equipopulous territorially based scheme of legislative representation, but
must “necessarily incorporate[]a structural theory regarding the way votes
should be aggregated.”34
It follows that, even if the Florida Supreme Court’s December 8
decision could be said to have launched a scheme under which the “weight”
of some individual votes cast in Florida would in some sense be less than the
“weight” of other individual votes cast in Florida, that would not by itself
even begin to state a prima facie equal protection claim under Reynolds or
any other line of authority.35 One would need to ask: which groups or
categories of votes were being systematically underweighted or undervalued,
and to what end? To ask this question does not, as Professor Lund asserts,
confuse suspect classification cases with fundamental rights cases. Rather, it
recognizes a development in voting rights cases to which Professor Lund

27 See Giles v. Harris, 189 U.S. 475 (1903). See also Gerken, 80 N.C. L. Rev. at 1464 & n.211 (cited in
note 23).
28 369 U.S. 186 (1962).
29 Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).
30 377 U.S. 533 (1964).
31 478 U.S. 30 (1986); see also Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and
the Theory of Black Electoral Success, 89 Mich. L. Rev. 1077, 1093-94 (1991).
32 See Gerken, 80 N.C. L. Rev. at 1464 (cited in note 23).
33 Id. at 1453.
34 Id. at 1453.
35 Cf. Oregon v. Mitchell, 400 U.S. 112, 127 (1970) (noting that “it cannot be successfully argued that
the Fourteenth Amendment was intended to strip the States of their power, carefully preserved in
the original Constitution, to govern themselves. The Fourteenth Amendment was surely not
intended to make every discrimination between groups of people a constitutional denial of equal
protection”).
32 INDIAN J. C ONST. L.

seems altogether blind: as the Court has increasingly turned towards the
“fairness” of challenged state election laws, it has become increasingly tolerant
of laws that classify voters with politics in mind.36
To illustrate, in Gaffney v. Cummings,37 the Court approved of a
gerrymandering scheme explicitly designed to produce safe districts for
incumbents.38 The Court did not ask whether the state scheme, by placing
Democratic voters in predominantly Republican counties (or vice versa),
treated voters “unequally” on the basis of geography or party affiliation.
Rather, the Court found this “bipartisan gerrymandering” scheme permissible
so long as it was not deliberately designed to harm the political strength of
any identifiable group. “The reality is that districting inevitably has and is
intended to have substantial political consequences.”39 The Court took this
reasoning a step further in Davis v. Bandemer,40 insisting that a mere
demonstration of dilution of a particular group’s voting strength was no
longer enough. “Rather, unconstitutional discrimination occurs only when
the electoral system is arranged in a manner that will consistently degrade a
voter’s or a group of voters’ influence on the political process as a whole.”41
The relevant test after Davis is thus whether the challenged election practice
denies a particular group “its chance to effectively influence the political
process.”42

36 See, e.g., Gerken, 80 N.C. L. Rev. at 1417-18, 1438-40 (cited in note 23).
37 412 U.S. 735 (1973).
38 Id. at 753.
39 Id.
40 478 U.S. 109 (1986).
41 Id. at 132 (emphasis added).
42 Id.at 132-33. Professor Lund attempts to dismiss the importance of Davis on the ground that it was
merely a plurality opinion. Apparently, the reader is supposed to believe that, because Davis
commanded no clear majority, the case is not good law. I trust Professor Lund is kidding. First of
all, he cites no case to the contrary. Nor could he, for the holding of the Davis plurality has been
treated as authoritative: despite the fact that political gerrymandering has been held “justiciable,”
courts have generally upheld gerrymandering schemes when enacted and defended on the basis of
political considerations. See, e.g., Hunt v. Cromartie, 526 U.S. 541, 552 & n.7 (1999) (noting that
political gerrymandering has been held constitutional despite the lack of clear standards by which
to adjudicate such claims). O f course, a strong argument can be made that this has been an
unsound doctrinal development. See generally John Hart Ely, Confounded by Cromartie: Are
Racial Stereotypes Now Acceptable Across the Board or Only When Used in Support of Partisan
Gerrymanders? 56 U. Miami L. Rev. 489 (2002); Samuel Issacharoff, Gerrymandering and Political
Cartels, 116 Harv. L. Rev. 593 (2002). But see Nathaniel Persily, In Defense of Foxes Guarding
Henhouses: The Case For Judicial Acquiescence to Incumbent-Protecting Gerrymanders, 116
Harv. L. Rev. 649 (2002). But Professor Lund does not make that argument. And what’s more, one
could agree completely with Professors Ely and Issacharoff and say that the Court ought to play a
rule in supervising incumbent protecting schemes that block the channels of political change
without believing that there should be little or no judicial tolerance for the consideration of
politics in the design of systems for recounting ballots. See text at notes 45-67.
Second, as I will discuss later, Justice O ’Connor’s concurrence, joined by then-Chief Justice
Berger and current-Chief Justice Rehnquist, would have gone even farther than the plurality and
held that political gerrymandering claims present nonjusticiable political questions. See text at
Unbearable Wrongness of Bush v. Gore 33

Thus, it should have been obvious that merely pointing to hypothetical

differences in the “weight” given to the voters of different counties did not
describe the sort of deviation that would suffice to invalidate—either
conclusively or presumptively—a scheme designed to ensure the legality and
completeness of the total vote count. In that regard, it plainly should have
mattered that the manual recounts were neither alleged nor shown to
discriminate against any discernable group of voters. Professor Lund seems
to recognize as much implicitly when he asserts that the differential treatment
present in Bush v. Gore was not random. He accuses the Florida Supreme
Court of accepting “one litigant’s self-serving requests in a particular election
. . . at a time when any recount could help only that particular candidate.”43
This formulation is wrong for a number of reasons. First, it is simply not true
that the recount could only have helped Gore. Even though Katherine Harris
had certified Bush the winner, the election was not yet legally final.44 Given
the fact that the recount might actually have increased the margin of Bush’s
lead, it could have solidified the legitimacy of his claim to office rather than
offering any comfort to Gore.45 Second, to the extent that the Florida Supreme
Court regarded the state’s election laws as requiring an effort to discern and
effectuate the intent of the countless voters whose ballots had been discarded,
it had no choice but to accept (in a formal sense) the “self-serving” requests
of a particular candidate. Why? Because then-Governor Bush refused to
request manual recounts, with the result that the only requests before the
court were requests to recount the ballots in Gore-leaning counties. Thus,
even if the Florida Supreme Court had insisted that any recount be limited
to the four Gore-selected counties, which it plainly didn’t do, it would not
have been judicial activism, but judicial restraint, that guided its decision.
But the link between Bush v. Gore and the voting rights cases, especially
Reynolds v. Sims, is even more attenuated than that, for at least two reasons.
First, Bush v. Gore did not involve a problem of valuing or weighing
some votes more than others, much less deliberately packing or diluting
groups of voters, but instead involved the obviously distinct problem of
differentially treating ballots as evidence of votes. This is far from an irrelevant
notes 137-139. Thus, a clear majority of the Davis Court was of the view that the political
gerrymandering claim at issue did not offend the Equal Protection Clause.
43 Lund, EQUAL PROTECTION at 552 (cited in note 2).
44 See Roudebush v. Hartke, 405 U.S. 15, 25 (1972) (finding that, “[d]espite the fact that a certificate of
election may be issued to the leading candidate within 30 days after the election, the results are not
final if a candidate’s option to compel a recount is exercised” and that a recount is “an integral part
of the... electoral process... within the ambit of the broad powers delegated to the States by” the
Constitution) (emphasis added); see generally Louise Weinberg, When Courts Decide Elections:
The Constitutionality of Bush v. Gore, 82 Boston U. L. Rev. 609 (2002) (arguing that elections are
not legally final until all challenges have been resolved).
45 See note 85.
34 INDIAN J. C ONST. L.

factual distinction.46 It is a distinction of crucial doctrinal significance.

The Florida Supreme Court’s remedy did nothing to alter the manner
in which legally cast votes were weighed in the overall state scheme to choose
presidential electors. At most, the scheme created the possibility that different
standards would be used for determining what constituted a legal vote. In
the eyes of the Bush v. Gore majority, the equal protection violation evidently
arose when the recount employed standards that, as applied to the
circumstances in Florida as of December 8, unacceptably increased the
probability that certain voters would have their ballots counted while leaving
the probability unchanged for other voters.47 But the much maligned “intent
of the voter” standard, on its face, treated all voters equally, just as a
“reasonable doubt” standard in criminal law treats all defendants equally. It
was only in the application of that standard that equal protection violations
could have arisen—and even those violations were correctable under the
supervision of a single, impartial state judge, about whose role in the process
the per curiam opinion said nothing.48
The laws challenged in the three cases cited in Bush v. Gore involved
injuries of an entirely different genus, let alone species. Reynolds v. Sims
considered a legislative apportionment scheme with population deviations
of up to 41 to 1 in certain districts.49 A voter in the state’s most populous
Senate district knew ex ante that, in order to elect a single representative,
she would have to aggregate her vote with 41 times as many voters as would
a voter in the state’s least populous district. Unlike Bush v. Gore, the state
had in place no mechanism capable of correcting the deviation by weighing
disparately counted votes equally ex post. Similarly, Gray v. Sanders50
involved a challenge to Georgia’s county-unit voting system as a basis for
counting votes in the presidential primary. The Court found that Georgia’s
system had the effect of systematically giving more weight to the votes of
rural voters at the expense of urban voters.51 And in Moore v. Ogilvie,52 the
Court reviewed a ballot-access law that required all nominating petitions for

46 Lund labels my attempt to distinguish cases like Reynolds on their facts as illegitimate. See Lund,
EQUAL PROTECTION at 550-51 (cited in note 2).
47 See Bush v. Gore, 531 U.S. 98, 106 (2000) (noting that “the standards for accepting or rejecting
contested ballots might vary not only from county to county but indeed within a single county
from one recount team to another”).
48 See id. at 126 (Stevens, J., dissenting) (noting that the concerns of differing substandards “are
alleviated—if not eliminated—by the fact that a single impartial magistrate will ultimately adjudicate
all objections arising from the recount process”).
49 377 U.S. 533, 545 (1964).
50 372 U.S. 368 (1963).
51 Id. at 379 (finding that the system “in end result weights the rural vote more heavily than the urban
vote and weights some small rural counties heavier than other larger rural counties”).
52 394 U.S. 814 (1969).
Unbearable Wrongness of Bush v. Gore 35

presidential electors to obtain their requisite 25,000 signatures from at least

200 qualified voters in at least 50 counties. According to the Court, the law
imposed a “rigid, arbitrary formula to sparsely settled counties and populous
counties alike.”53 Even the Court’s use of the word “arbitrary” is a bit
misleading, for the Court’s holding unquestionably relied upon the fact that
the law made “classifications of voters which favor residents of some counties
over residents of other counties.”54
When one compares the Florida recount scheme with the laws in
Reynolds, Gray, and Moore, it becomes clear that the two groups of cases
involve dramatically different sorts of injuries. No individual voter—and no
group of voters identifiable ex ante by any characteristic like place of residence,
party affiliation, or, to take the worst case scenario, identity of the candidate
for whom the voter appears to have intended to cast his or her ballot—could
claim to be harmed by a substandardless “intent of the voter” standard.55
Had the statewide recount been allowed to proceed under the supervision
of a single judge, no county, for example, could reasonably claim that its
votes were being systematically undervalued as compared to those of another
county.56
What of the exclusion of overvotes in the Florida Supreme Court’s
recount scheme?57 Didn’t that treat distinct groups of voters differently? Not
at all: there is no discernable class of “overvoters,” and there is nothing in
Reynolds or any other case preceding or following it to suggest that a state
cannot be selective in deciding which types of ballot errors it deems worth
recounting, subject only to a requirement of rationality. What’s more, the
entire objection to the Florida Supreme Court’s failure to mandate a statewide
recount of overvotes while it mandated a statewide recount of undervotes
overlooks the crucial fact that thirty-four of Florida’s sixty-seven counties
examined overvotes for mistakes in the original machine recount and thus
submitted, to the final tally on which the Harris certification of November
26 was based, counts that included “classes of voters” that were not similarly
counted in other counties.58

53 Id. at 818.
54 Id. at 817; see also id. at 819 (stressing that the law “granted greater voting strength” to one group
over another, thus discriminating “against the residents of the populous counties of the State in
favor of rural sections”).
55 By “substandardless,” I mean that the “intent of the voter” standard contained no derivative rule-
like criteria to direct local election officials in the task of determining what counted as evidence of
a voter’s intent.
56 In earlier cases, the Supreme Court had granted considerable deference to state courts in resolving
these sorts of equal protection problems. See text at notes 104-110.
57 Overvotes make up the group of ballots that machines originally reject because they are “read” as
containing more than one vote for President.
58 See McConnell, 68 U. Chi. L. Rev. at 658 n.8 (cited in note 5).
36 INDIAN J. C ONST. L.

Despite the fact that Bush v. Gore therefore involved no allegation of

an injury or wrong at all analogous to those considered in the traditional
one-person, one-vote cases, or indeed in any line of voting rights precedents,
Professor Lund defends an extension of Reynolds’s “broader principle”: the
Constitution forbids the weighting of “votes of citizens differently, by any
method or means.”59 Now, I am no critic of broad principles as such. Nor do
I think that Reynolds was wrongly decided.60 Still, Professor Lund makes
Reynolds so broad that it becomes impossible to take seriously.
Each state delegates to counties and its local officials substantial
discretion in the conduct of elections. This delegation creates a virtually
unlimited source of equal protection problems under the “broader principle”
Professor Lund would extract from Reynolds. The presence of more poll
workers in County A might make voting assistance more readily available,
thereby “devaluing” the votes of citizens in County B. Meanwhile, County B
might use an Accuvote optical scanning device, while County C uses an
older punch card system, thus giving greater weight to a vote cast in B than
one cast in C.61 But if County C allowed its voters to cast provisional ballots,
and County A did not, the voters of C might be more likely to cast a
meaningful vote than voters in A.
Confused? It gets worse. Consider that the Gray Court held that states
may protect the right to have one’s vote counted from the diluting effect of
illegal ballots.62 How, precisely, do states go about ensuring that individual
votes are not diluted by fraud? Quite simply, they provide mechanisms for
protesting and contesting fraudulent counts on a county-by-county, or precinct-
by-precinct basis. Imagine an election in the State of Texas in which several
voters in one precinct in Dallas have alleged counting fraud. If Professor
Lund’s equal protection argument is to be taken seriously, the Constitution
would prohibit any process that included any adjustment to that precinct’s
count unless the adjustment were the result of applying a uniform, statewide
substandard. If not, the voters of the other precincts in Dallas, the voters of
Houston, and the rest of the voters in Texas would have had their votes
systematically devalued.

59 See Lund, EQUAL PROTECTION at 551 (cited in note 2) (quoting Reynolds v. Sims, 377 U.S. 533,
555, 563 (1964)).
60 See id. at 558.
61 See Pamela S. Karlan, Nothing Personal: The Evolution of the Newest Equal Protection From
Shaw v. Reno to Bush v. Gore, 79 N.C. L. Rev. 1345, 1364-65 (2001) (“By any reckoning, the
machine variability in undervotes and overvotes exceeds the variability due to different standards
by factors of ten to twenty. Far more mischief, it seems, can be created by poor methods of
recording and tabulating votes than by manual recounts.”).
62 Gray v. Sanders, 372 U.S. 368, 380 (1963).
Unbearable Wrongness of Bush v. Gore 37

It is precisely the impossibility of taking the “broad principle” of

Reynolds as literally as the Lund argument would take it and applying it to
the full range of cases it would address that has led the Court to narrow the
decision’s reach considerably. Reynolds itself recognized that attention must
be given “to the character as well as the degree of deviations from a strict
population basis.”63 Even with respect to the degree of deviation, the Court
has moved away from a rigid rule requiring near-perfect equality, albeit in
limited circumstances.64 And with respect to the “character” of deviations,
the Court has increasingly permitted deviations so long as the challenged
practice does not engage in “discriminatory” treatment of any group of voters.
When a legislature’s plan “may reasonably be said to advance [a] rational
state policy” (or, when the deviation is “supported by substantial and
legitimate state concerns”), the inquiry must then take account of whether
the state population variations “are entirely the result of the consistent and
nondiscriminatory application of a legitimate state policy.”65
Thus, Professor Lund is left with nothing to fall back upon but an
argument that the recount’s eyeball-based treatment of ballots was
impermissible per se. I have already explained why this argument is really
just a poor attempt to justify invalidating the recount on substantive due
process ground s. 66 But perhaps more importantly, any claim that the
Constitution requires that all ballots be treated identically is indefensible on
its face. Indeed, it would make no sense even to insist upon a uniform
substandard for all ballots when different types of ballots inevitably will not
only bear wildly divergent indicia of intent but will differ in ways that are
not random with respect to the locale in which the ballots were cast in the
first instance. Would it be arbitrary or unreasonable for a state to create a
presumption against recounting undervotes in counties with fancy error-averse
systems, but to maintain a presumption in favor of recounting undervotes in

63 Reynolds, 377 U.S. at 581. See also Brown v. Thomson, 462 U.S. 835, 848 (1983) (O’Connor, J.,
concurring) (“[E]qual representation is not simply a matter of numbers. There must be flexibility
in assessing the size of the deviation against the importance, consistency, and neutrality of the state
policies alleged to require the population disparities.”).
64 Thus, in Brown v. Thomson, the Court affirmed an apportionment scheme with an average
deviation of 13% and a maximum deviation of 66%. The Court cited Reynolds for the proposition
that, so long as states “make an honest and good faith effort to construct districts... as nearly of
equal population as is practicable,” the inevitable deviations that result will be permitted in order
to allow states to pursue other “legitimate objectives.” Id. (citing Reynolds, 377 U.S. at 577-78). For
other examples of large deviations tolerated by the Court, see Bd. of Estimate v. Morris, 489 U.S.
688 (1989); White v. Regester, 412 U.S. 755 (1973); Mahan v. Howell, 410 U.S. 315 (1973).
65 Brown, 462 U.S. at 843-44. Professor Lund is right to note that this standard departs from the
traditional form of strict scrutiny that one might find in other Fourteenth Amendment contexts.
See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Yet neither is such a
standard pure rational basis review, for the Court must examine the fit between the deviation from
perfect equality and the policy said to advance the state’s legitimate interests.
66 See Tribe, 115 Harv. L. Rev. at 237-47 (cited in note 2).
38 INDIAN J. C ONST. L.

counties with antiquated error-prone systems? Certainly not. Yet the Court’s
equal protection rationale, as Professor Lund defends it, seems to rule out
just such a system. And even within the subset of punchcard ballots, “a dimple
next to two punched- through holes may not mean the same thing as a
dimple next to [ ] two merely dimpled chads.”67
It is in this sense that Bush v. Gore appears to put states in a Catch-22:
the failure to specify a uniform statewide substandard for recounting may
risk invalidation under the “arbitrariness” principle, while the decision to
specify such a substandard may inadvertently treat ballots unequally. And
this dilemma in turn exposes the absurdity of the Court’s freshly-minted
“one-ballot, one-vote” principle. Need one actually say it? A ballot is not a
person; it is a piece of paper. Often, in order to effectuate the intent of the
person behind the ballot, individual pieces of paper must be subjected to
case-by-case review.68 In its obsessive desire to ensure uniform treatment of
ballots, the Court lost focus of the fact that the purpose of the Fourteenth
Amendment has always been to protect persons.
The second reason Bush v. Gore seems to be such an odd extrapolation
from traditional Fourteenth Amendment jurisprudence is that, even if there
were some equal protection objection to be made to Florida’s scheme if it
were allocating independently fundamental rights, the Bush Court was at
pains to state that the franchise being allocated in that case was one extended
by the grace of the state legislature performing its federal Article II role.69
This was so, the Court’s per curiam opinion noted, because the Constitution
grants the people no fundamental right to vote in a presidential election.70
The Court added that the state legislature could indeed take back what it
had given, even after the election had been held.71 The right the Court
protected was therefore a right to distribution, in accord with a Court-imposed
norm, of a privilege that the state was free to withhold altogether. In essence,
the Court was telling Florida that it could choose either to grant a perfectly

67 Id. at 236-37.
68 See Tribe, 115 Harv. L. Rev. at 238-39 (cited in note 2).
69 Bush, 531 U.S. at 104 (per curiam); id. at 112-13 (Rehnquist, C.J., concurring).
70 Bush, 531 U.S. at 104 (per curiam) (“The individual citizen has no federal constitutional right to
vote for electors for the President of the United States unless and until the state legislature chooses
a statewide election as the means to implement its power to appoint members of the electoral
college.”). Contrast, for example, the rights granted to the people in elections for members of the
U.S. House of Representatives, see U.S. Const., Art. I, § 2, or of the U.S. Senate, see U.S. Const.,
Amend. XVII.
71 Bush, 531 U.S. at 104 (per curiam) (noting that the State “can take back the power to appoint
electors... at any time”) (citing McPherson v. Blacker, 146 U.S. 1, 35 (1892)). Some scholars have
voiced doubt that this is actually correct. See email from Sanford V. Levinson, Garwood Chair in
Law, University of Texas School of Law (Jan. 18, 2003) (on file with author) (arguing that “the 17th
Amendment, read in its full import, would make it unconstitutional for a state legislature to
deprive the people of the right to elect their own electors”).
Unbearable Wrongness of Bush v. Gore 39

uniform—as defined ex post in Bush v. Gore —” right” to vote for president

or not grant any such right at all.
In this sense, the “right” ostensibly protected by the majority in Bush
v. Gore seems characteristic of a class of entitlements that has received only
reluctant federal protection from the Rehnquist Court. At least some in the
majority—Chief Justice Rehnquist for one 72 —in nearly every other
circumstance have stated unambiguously that the holder of any such state-
tethered entitlement must take the bitter with the sweet.73 And even when
the Rehnquist Court has rejected this position, it has done so only when the
state has either denied the individual entitlement-holder a fair hearing, as in
Cleveland Board of Education v. Loudermill,74 or employed an invidious
or otherwise impermissible criterion of distribution.
Professor Lund’s creative deployment of the phrase “EQ UAL
PROTECTION MY ASS” should not distract the reader from the real slogan
at play in his comment: “one-ballot, one vote.” It should now be quite clear
that Professor Lund has taken that doctrinal title, extracted it from its roots,
severed it from its theory in the one-person, one-vote jurisprudence, and
extrapolated it mindlessly to processes of recounting to correct errors. Far
removed from a “disinterested” analysis, this is the essence of jurisprudence
by slogan.
( B) Of Underlying Inequalities and Inexplicable Remedies
Even if one were convinced that the one-ballot, one-vote principle
required judicial intervention in Bush v. Gore, it would remain difficult (if
not impossible) to justify the Court’s decision to halt the entire political and
legal process set in motion75 and declare by fiat an end to the presidential
election.76
I have already described at length the woeful inadequacy of the Court’s
explanation for shutting down the recount rather than remanding the case
to the Florida Supreme Court.77 I am not alone in this aspect of my critique;
the Court’s remedy has been criticized by nearly every commentator to

72 See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 559 (1985) (Rehnquist, J., dissenting).
73 For a more detailed discussion of this point, see Tribe, 115 Harv. L. Rev. at 234-37 (cited in note 2).
74 470 U.S. 532 (1985).
75 See Bush, 531 U.S. at 110-11.
76 See, e.g., Weinberg, 82 Boston U. L. Rev. at 629 (cited in note 44) (arguing that Bush’s successful
equal protection claim made him a judgment winner on a claim unrelated to the merits of Vice
President’s Gore challenge to the election—a challenge that demonstrated without doubt that the
originally certified count illegally (under Florida law) excluded ballots—but was not sufficient to
justify ending a contest process that by law had to be complete before the election result became
“official”). See also Roudebush v. Hartke, 405 U.S. 15, 25 (1972).
77 See Tribe, 115 Harv. L. Rev. at 263-68 (cited in note 2).
40 INDIAN J. C ONST. L.

consider the issue, and perhaps this is why Professor Lund’s most recent
work studiously avoids any mention of the issue.78 Yet ignoring the issue
does not make it go away. And even Professor Lund must admit that he is in
a bit of a bind. Assume that the Florida Supreme Court did in fact interpret
Florida law, in conjunction with 3 U.S.C. § 5, to impose a mandatory
December 12 conclusion to any and all recounts. Also assume that Professor
Lund is correct in his reading of Reynolds v. Sims: strict scrutiny must be
applied to any state judicial decision that in any way burdens or distributes
unequally the fundamental right to have one’s vote counted. Given the near-
universal recognition that countless votes remained uncounted, and given
that the underlying count certified by Katherine Harris included a dizzying
array of arbitrary inequalities, deferring to the Florida Supreme Court’s
December 12 deadline would plainly violate the Fourteenth Amendment.79
Under Lund’s one-person, one-vote theory, the only constitutionally
permissible remedy was a remand.80
The closest Professor Lund comes to a response is his argument that
the Supreme Court had no reason to consider the inequalities of the
underlying count because no one ever “proved any such thing in court.
Indeed, Gore never alleged any such thing.”81 This argument defies common

78 In an earlier article, Professor Lund claimed that the Court did not forbid the Florida Supreme
Court from conducting a statewide recount under uniform standards. Lund, Unbearable Rightness,
supra note 4, at 1276 (cited in note 4). Au contraire:
December 12... is upon us, and there is no recount procedure in place... that comports with
minimal constitutional standards. Because it is evident that any recount seeking to meet the
December 12 date will be unconstitutional... we reverse the judgment of the Supreme Court of
Florida ordering a recount to proceed.... Justice Breyer’s proposed remedy—remanding to the
Florida Supreme Court for its ordering of a constitutionally proper contest until December 18—
contemplates action in violation of the Florida election code, and hence could not be part of an
“appropriate” order authorized by Fla. Stat. § 102.168(8) (2000).
Bush, 531 U.S. at 110-11.
79 See United States v. Mosley, 238 U.S. 383, 386 (1915) (noting that “the right to have one’s vote
counted is as open to protection” as the right to cast a ballot); see also South v. Peters, 339 U.S. 273,
279 (Douglas, J., dissenting) (arguing that the “right to vote includes the right to have the ballot
counted”). It is simply not true, as Professor Lund suggests, that the Court had no reason to
consider the underlying inequalities. See, e.g., Brief Amicus Curiae of the National Bar Association
in Support of Respondents at 6-10, Bush v. Gore, 531 U.S. 98 (2000) (arguing that numerous legal
votes remained uncounted and that the Fourteenth Amendment forbids disregarding legally cast
votes in the name of finality).
80 Professor Lund claims that such a remedy would order “the Florida court to violate Florida law as
construed by the Florida Supreme Court.” Lund, Unbearable Rightness at 1275 (cited in note 4).
So what? The Equal Protection Clause trumps state law, and forcing the Florida court to violate
its own law is precisely what the Court did when it reversed the Florida Supreme Court’s manual
recount order—an order that Florida’s highest court had determined was required by Florida
statute—and “remanded for further proceedings not inconsistent with this opinion.” Bush, 531
U.S. at 111.
81 Lund, EQUAL PROTECTION at 559 (cited in note 2).
Unbearable Wrongness of Bush v. Gore 41

sense. First, precedent counseled in favor of resolving any existing inequalities

via inclusion rather than ignoring them through exclusion.82 At a minimum,
the Court should have justified its departure from this constitutional norm.
Second, examples of such inequalities abound from even a cursory reading
of the Gore v. Harris opinion.83 And even if one were capable of missing
those examples, it is madness to think that the inequalities of the underlying
count were somehow peripheral side-notes in Bush v. Gore. To the contrary,
it was the existence of thousands of uncounted votes, many of which were
tossed aside by disparate counting standards, that formed the very basis of
the remedy the Court overturned! The right to have one’s vote counted was
the core of Vice President Gore’s state suit from the very start. Finally, Professor
Lund cannot simultaneously argue that the Florida Supreme Court acted
improperly by “selectively” choosing the remedy suggested by the parties
while praising the U.S. Supreme Court for acting with restraint by resisting
the temptation to eliminate “all inequalities in a state’s election process[].”84
The remedy was and remains indefensible. There is thus no doubt
that much of the outrage directed at the Bush v. Gore majority has its genesis
in the perception that the Court simply handed the presidency to its favored
candidate, or at least to the candidate whose rapid and assured victory it
preferred to a period of prolonged uncertainty and a potentially untidy
presidential transition. Given the likelihood that Bush would have won a
statewide recount anyway,85 the Court could have minimized the perception
that it was engaging in pure politics had it simply allowed the political process
to take shape. The Court insisted on just such an approach when it considered

82 See Karlan, 79 N.C. L. Rev. at 1363 (cited in note 61).

83 772 So. 2d 1243, 1258-61 (Fla. 2000).
84 Lund, EQUAL PROTECTION at 559 (cited in note 2).
85 In part III of his essay, Professor Lund attacks me for arguing “that Bush would almost certainly
have become President even if the Court had not decided this case in his favor, and that this would
have been apparent to the Justices when they decided Bush v. Gore.’’ Lund, EQUAL PROTECTION
at 567 (cited in note 2). Lund drops one shoe by using my hindsight-driven reflection to engage in
a bit of pop-psychoanalysis—I fabricated this prediction, he suggests, in order to demonstrate my
ability to stay above the fray of gross partisanship—and then drops the other shoe by citing
supposedly contradictory testimony from my co-counsel, Ron Klain. Id. at 568.
With all due respect, Professor Lund’s “argument” is silly. First, after-the-fact studies have now
confirmed what many people suspected: even under the recount specifically ordered by the
Florida Supreme Court, it is likely that Bush would have “won” by almost 500 votes. See Ford
Fessenden and John M. Broder, Study of Disputed Florida Ballots Finds Justices Did Not Cast the
Deciding Vote, N.Y. Times A1 (Nov. 12, 2001). But see Martin Merzer, The Miami Herald Report:
Democracy Held Hostage 9-11 (2001) (arguing that Gore would have won a statewide recount under
the Florida Supreme Court’s “intent of the voter” standard but that Bush would have won under
more detailed substandards).
Second, Professor Lund inexplicably equates my best guess about what the majority “could
readily have calculated,” with my own personal prediction, made in the midst of a whirlwind of
litigation, of what was likely to happen. Of course I believed at that point that a Gore victory was
still possible. Yet by December 8, I had begun to have doubts whether Gore could win under any
42 INDIAN J. C ONST. L.

the closest Senate election in Indiana history. In Roudebush v. Hartke,86 the

Supreme Court forbade a federal district court from shutting down a state
manual recount process (on federal constitutional grounds) once a challenger
had properly invoked state laws to contest the certification of his opponent.87
Recognizing that a contested election certification was but a midpoint in an
ongoing electoral process, the Court chose to allow that process to run its
course: “A recount is an integral part of the . . . electoral process and is
within the ambit of the broad powers delegated to the States.” As we shall
soon see, the existence of an ongoing political process should have dictated
much more than the question of what remedy to impose.
II. DEF EN DIN G TH E “S PE CTA CU L A R L Y
IN DE F E N S IBL E ”—TH E POL ITICA L PR OCE S S
DOCTRINE
Professor Lund devotes the second section of his comment to attacking
my belief—indeed, labeling it “spectacularly indefensible”88 —that Bush v.
Gore presented a nonjusticiable political question. In essence, my argument
conceivable scenario. And even while I retained hope, it still seems plain to me in retrospect that
the members of the Court who voted to grant certiorari and joined the per curiam opinion would
have assumed as of December 9 that, given the structural resolution dictated by the Constitution
and the political composition of both the Florida legislature and the U.S. Congress, a Bush victory
was exceedingly likely even without the Court’s action to prevent a resumption of the recount
process. The main questions were how long that victory would take and how messy it would be.
Third, Lund’s attack seems completely baseless when one realizes that he made almost exactly the
same observation in an earlier article: “the passing of the December 12 ‘safe harbor’ deadline
would virtually have assured intervention by the Florida legislature.... The legislature was already
gearing up to appoint a slate of electors directly. Given the makeup of the Florida legislature, and
the fact that Bush was the certified winner of the election, it is safe to assume that a slate of electors
pledged to Bush would have been selected.” Lund, Unbearable Rightness, at 1272 (cited in note 4).
One might doubt the power of the Florida legislature to make such a move, but the Bush v. Gore
majority clearly did not. See Bush, 531 U.S. at 104 (per curiam) (noting that Florida could “take
back the power to appoint electors... at any time”). If that slate had been selected, the matter would
have proceeded (if at all) to the U.S. Congress, where no one predicted a victory for Vice President
Gore.
86 405 U.S. 15, 25 (1972).
87 Id.
88 Lund, EQUAL PROTECTION at 562 (cited in note 2). It is interesting to note that Professor
Lund’s first reaction to the political question doctrine argument was significantly more measured.
See Nelson Lund, An Act of Courage: Under Rehnquist’s Leadership, the Court did the Right
Thing, Wkly. Std. 19 (Dec. 25, 2000) (describing as a “plausible interpretation of the Constitution”
the belief that the “Twelfth Amendment assigns Congress (rather than the federal courts) the
responsibility for correcting such problems”).
Professor Lund’s more recent contention that the political question doctrine is plainly inapplicable
dismisses out-of-hand numerous contributions made by many commentators of diverse political
stripes. Although I have long believed that the Constitution grants Congress the primary
responsibility for resolving presidential election disputes, see Laurence H. Tribe and Thomas M.
Rollins, Deadlock: What Happens if Nobody Wins, Atlantic Monthly 49, 61 (Oct. 1980), I was not
the first, nor the last, person to raise such an objection to Bush v. Gore. See, e.g., Steven G.
Calabresi, A Political Question, in Bruce Ackerman, ed., Bush v. Gore: A Question of Legitimacy
129-41 (Yale U. Press, 2002); Jeff Polet, The Imperiousness of Bush v. Gore, in David K. Ryden, ed.,
Unbearable Wrongness of Bush v. Gore 43

was that the Twelfth Amendment,89 supported by the 1887 Electoral Count
Act, textually committed to Congress the power to resolve electoral disputes
in presidential elections, thereby precluding the heavy-handed judicial
resolution imposed by the Court when it reversed the Florida Supreme Court’s
order to conduct a manual recount.90 Indeed, I argued that the Court never
should have stayed the recount, nor should it have granted certiorari in
either of the cases it eventually heard. The Twelfth Amendment’s delegation
to Congress of the power to resolve disputes over the legitimacy of electoral
votes constituted the grand finale of the Constitution’s deliberately
contemplated political process that, rather than being derailed and taken
over by the Supreme Court at the first sign of potential defect, should instead
have been allowed to run its course in order to express the “respect due
coordinate branches of government.”91
Professor Lund is right to criticize some of the language I used in my
first formulation of this argument. Indeed, with the benefit of hindsight, it
seems obvious to me that I approached this question too mechanically the
first time around. Justiciability is “not a legal concept with a fixed content”92
of a rule-like character. Rather, it is a richly-textured doctrine whose proper
application is inextricably linked both with the institutional context in which
judicial intervention is sought (including the remedial character such
intervention would have to take) and with the substantive principles of
constitutional law that lie at the foundations of the allegedly “political”
question at issue. In Bush v. Gore, a case that moved at dizzying speed and
involved an unprecedented interplay of institutions in a confusing maze of
legal challenges, it seems implausible that any resolution of the ultimate
legal battle over the propriety of the Court’s intervention in the face of the
political question doctrine could be described as plainly right or as plainly
wrong. It should not come as a shock, therefore, if “[t]he matter [would] not
appear to me now as it appears to have appeared to me then.”93

The U.S. Supreme Court and the Electoral Process 278-79 (2d ed. 2002); Jeffrey Rosen, Political
Questions and the Hazards of Pragmatism, in Bruce Ackerman, ed., Bush v. Gore: A Question of
Legitimacy at 145-62; Erwin Chemerinsky, Bush v. Gore Was Not Justiciable, 76 Notre Dame L.
Rev. 1093, 1105-09 (2001); Samuel Issacharoff, Political Judgments, 68 U. Chi. L. Rev. 637, 639-
41(2001).
89 U.S. Const., Amend. XII (“The President of the Senate shall, in the presence of the Senate and
House of Representatives, open all the certificates and the votes shall then be counted....”).
90 For a fuller version of this argument, see Tribe, 115 Harv. L. Rev. at 276-87 (cited in note 2). See
generally Laurence H. Tribe, 1 American Constitutional Law § 3-13 (Foundation Press, 3d ed.
2000).
91 Baker v. Carr, 369 U.S. 186, 217 (1962).
92 Poe v. Ullman, 367 U.S. 497, 508 (1961). Contra Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170
(1803) (noting that “[q]uestions in their nature political... can never be made in this court”)
(emphasis added).
93 Andrews v. Styrap, 26 L. T. R. (N. S.) 704, 406 (Baron Bramwell).
44 INDIAN J. C ONST. L.

There are obviously times when even the presence of an inherently

“political question” does not foreclose the need for and propriety of judicial
review. In McPherson v. Blacker, for instance, the Supreme Court held
justiciable claims relating to the constitutionality of a district-based scheme
for choosing presidential electors.94 The suit in Blacker was filed on May 2,
1891, one day after the legislature passed the challenged state statute and
several months before the start of the presidential election that the law was
designed to regulate. The Supreme Court of Michigan had already affirmed
the constitutionality of the state law in question. There was no process by
which petitioners could seek review other than through the Supreme Court.
Nor was there a coordinate political branch or process that judicial action
could be said to usurp. Congress was assigned no role by the Constitution in
reviewing state legislative exercises of Article II responsibility. With no
judicially irresolvable question, and no parallel congressional process in place,
review and remedy in the Supreme Court were entirely appropriate.
Moreover, it’s quite easy in hindsight to think of different facts under
which no “political question” argument could be persuasively marshaled
against the Court’s intervention in Bush v. Gore. Had the Florida Supreme
Court put in place a statewide recount system that said “count the undervotes
in precincts where the percentage of non-whites registered to vote was less
than 10%,” waiting for the political process to correct the error would have
been both unnecessary and wrong. Or, if the Florida court had said: “it is
clear that the electoral process that our state legislature put in place prior to
the election has resulted in a victory for an electoral slate committed to
Governor Bush, but we think he’d make a bad president, so we will declare
the Gore slate to have been duly selected on November 7,” it would be
obvious that the court’s decision would have violated Article II of the
Constitution. The reason that Bush v. Gore is not analogous is that the Florida
court’s decisions in those outlandish hypotheticals are so far outside of the
range of constitutionally plausible actions that none of the traditional concerns
presented by the political question doctrine would justify tolerating the
undeniable offense to the Constitution created in each instance.95
It follows that the question posed b y Bush v. Gore was not
unambiguously “political” in the sense that no possible set of facts could
have rendered the controversy justiciable—something one can say of only a
tiny subset of genuinely “political questions.” Yet to admit seeing ambiguities
is not to concede defeat. There are limited sets of constitutional matters that
must be resolved by the political branches without judicial review. A Senator’s
vote against a bill, or a President’s veto of a bill, on the ground that it violates
94 146 U.S. 1, 23-24 (1892).
95 See Baker, 369 U.S. at 217; see also text at note 96.
Unbearable Wrongness of Bush v. Gore 45

the Constitution obviously cannot be reviewed by the Supreme Court. The

“questions” resolved by such votes involve, among other things, textually
demonstrable commitments to the political branches, a lack of manageable
standards by which to resolve potential challenges, and the potential of
embarrassment “from multifarious pronouncements by various departments
on one question.”96
But those familiar Baker v. Carr standards do not tell us enough.
Consider the case of Nixon v. United States,97 in which the Court pronounced
that it had no authority to construe the meaning of the word “trial” in the
context of a judicial impeachment. The majority in Nixon spoke as if the
interpretation of what constitutes a “trial” would never be judicially
reviewable. It seems plain to me, however, that what the Court must have
meant was that the Senate had not gone outside the broad range of
interpretations that could be considered acceptable, given the Constitution’s
textual commitment to the Senate of the sole power to try impeachments
and given the functional considerations that the Court adduced in discussing
the way in which a role for the Court in closely or routinely overseeing the
impeachment of federal judges could undermine the legitimacy of the Court
itself.98 Extracting this meaning from Nixon’s holding isn’t as difficult as
reading tealeaves. Any first year law student could readily dream up
hypothetical impeachment proceedings that the Court would probably feel
compelled to review: an impeachment decided by a coin flip, a decision
delegated solely to the two Senators who represent the state in which the
accused judge resides, or an impeachment justified solely on the basis of a
judge’s religion would all plainly be justiciable despite the existence of a
textual commitment. The majority’s arguable mistake in Nixon was its
decision to express the political question holding in absolute terms.99 But if
it was a mistake, it was a typical one. Generally speaking, calling something
a political question has served merely as shorthand for saying that the branch
initially entrusted with making a decision—or, to put it another way, the
institution to which the Constitution has granted the power to resolve such
disputes—did so within the outer boundaries of its constitutional authority as
policed by the Court.100

96 See Baker, 369 U.S. at 217.

97 506 U.S. 224 (1993).
98 Nixon, 506 U.S. at 229-38 (1993). See id. at 253-54 (Souter, J., concurring in the judgment) (“If the
Senate were to act in a manner seriously threatening the integrity of its results, convicting, say,
upon a coin toss, or upon a summary determination that an officer of the United States was simply
‘a bad guy,’ judicial interference might well be appropriate.”) (internal citation omitted).
99 Justices White, Blackmun, and Souter argued for a more contextual, case-by-case review. See id.
at 239-40 (White, J., concurring); id. at 252 (Souter, J., concurring).
100 See, e.g., Nixon, 506 U.S. at 229-38; Goldwater v. Carter, 444 U.S. 996 (1979) (plurality opinion)
(finding nonjusticiable the question whether the President has the power to terminate treaties
46 INDIAN J. C ONST. L.

Perhaps, then, the real difficulty is that the political question doctrine
really isn’t about “political questions.” Rather, the doctrine suffers from a
“truth in advertising” problem—a problem to which I referred in my Harvard
Law Review comment—that is hardly unique to the Court’s decision in Bush
v. Gore.101 Simply put, the political question doctrine is misleadingly named;
it really ought to be called the political process doctrine.
To illustrate how this political process doctrine has operated in practice
even if not in name, it is important to consider not only cases like Nixon,
where the Court found institutional comfort in describing as a “political
question” ruling an adjudication that rested on an implicit determination
that a coordinate branch of government had not in fact unacceptably
exceeded its own constitutionally delegated powers, but also cases where
the Court could not plausibly rely on this sort of implicit oversight of the
political process to operate as a check on constitutional violations.
Recall that it was not until Baker v. Carr that the Court treated as
reviewable the question whether the ground rules under which an election
was about to take place satisfied equal protection norms. The pre-Baker
Court wrongly treated all apportionment disputes as nonjusticiable, despite
the absence of at least some of the traditional reasons for staying the judicial
hand and the presence of truly egregious d isenfranchisement or
gerrymandering problems that the political branches simply refused to or
could not realistically be expected to address. In many cases, these
apportionment questions were considered “political” simply because they
concerned politics.102 The Baker Court thus acted appropriately when it found
such apportionment schemes subject to judicial review under the Fourteenth
Amendment.

without approval of the Senate); but cf. id. at 1007 (Brennan, J., dissenting) (arguing that the
political question doctrine, properly understood, “does not pertain when a court is faced with the
antecedent question whether a particular branch has been constitutionally designated as the
repository of political decisionmaking power” and explaining why “[t]he issue of decisionmaking
authority must be resolved as a matter of constitutional law, not political discretion” and thus “falls
within the competence of the courts”).
101 Professor Lund irresponsibly suggests that my “truth in advertising” critique of the political
question doctrine was actually a critique of the Bush v. Gore Court. See Lund, EQ UAL
PROTECTION at 567 (cited in note 2) (“Or, adopting the language that Professor Tribe uses to
attack the Supreme Court, one might say that his assertion does ‘not fare too well in the truth in
advertising department.”’) (emphasis added) (internal quotation marks omitted). This entirely
misunderstands my argument. See Tribe, 115 Harv. L. Rev. at 282 (cited in note 2).
102 See, e.g., Giles v. Harris, 189 U.S. 475, 487 (1903) (opinion by Holmes, J.) (holding that the Court
could provide no remedy for Black plaintiffs who had demonstrated that they had been denied the
right to vote explicitly on account of their race on the grounds that “equity cannot undertake now,
any more than it has in the past, to enforce political rights”). The legal community owes a debt of
gratitude to Professor Richard H. Pildes for bringing this nearly-forgotten abomination to widespread
attention in Democracy, Anti-Democracy, and the Canon, 17 Const. Comm. 295 (2000).
Unbearable Wrongness of Bush v. Gore 47

In later cases, the Court extended Baker’s reasoning to cover the

ground rules for a primary election, racial gerrymandering, and political
gerrymandering.103 In these cases, two factors were usually present: first, the
challenged state actor seems plainly to have violated some aspect of the
Constitution; and second, there was no ongoing political process—recognized
in the Constitution’s institutional design—to review and resolve disputes of
the sort presented so as to vindicate the constitutional values at stake. When
the constitutional violation has been less clear, and especially when there
has been a process in place fully capable of resolving the dispute in question
and vindicating the right at stake, the political process doctrine has operated
to deny, or at least postpone, judicial review.
Take, for example, the Court’s unanimous decision in Growe v.
Emison.104 In Growe, two challenges to the reapportionment of the Minnesota
state legislative and federal congressional districts were proceeding
simultaneously in state and in federal court. Redistricting plans emerged
from both the federal and state suits, and the federal district court sought to
enjoin enforcement of the state-initiated plan. The Court, through Justice
Scalia, found that the abstention doctrine required the federal court to “stay
its hands” until the state process had run its course.105 The Court’s reasoning
provides support for deference to the political process in cases like Bush v.
Gore: “In the reapportionment context, the Court has required federal judges
to defer consideration of disputes involving redistricting where the State,
through its legislative or judicial branch, has begun to address that highly
political task itself.”106 Justice Scalia, along with all of his colleagues, concluded
that, “[a]bsent evidence that these state branches will fail timely to perform
[their] duty, a federal court must neither affirmatively obstruct state
reapportionment nor permit federal litigation to be used to impede it.”107 It
is difficult to believe that the concurring opinion explaining the Bush v.
Gore Court’s grant of a stay on December 9, 2000, could have been written
by the same hand: “Count first, and rule upon legality afterwards, is not a
recipe for producing election results that have the public acceptance
103 See Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (exercising judicial review over an Ohio
statute regulating the presidential primary process); Gaffney v. Cummings, 412 U.S. 735, 751 (1973)
(finding justiciable equal protection claims based on “purely political” gerrymandering allegations
but holding that “bipartisan” gerrymandering did not run afoul of the Fourteenth Amendment);
Fortson v. Dorsey, 379 U.S. 433, 439 (1965) (finding that redistricting that harms the voting strength
of racial groups presented a justiciable question). Despite actively policing the use of race in
districting plans, the Court has refused to invalidate districting plans designed to enhance the
power of incumbents. Compare Shaw v. Reno, 509 U.S. 630, 651 (1993), with Davis v. Bandemer,
478 U.S. 109, 131-33, 143 (1986), and Gaffney, 412 U.S. at 752-54.
104 507 U.S. 25 (1993).
105 Id. at 32 (citing Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 501 n.1 (1941)).
106 Id. at 33.
107 Id. at 34.
48 INDIAN J. C ONST. L.

democratic stability requires.”108

Indeed, the reasoning in Growe applies perfectly to a dispute over
which ballots to count in the midst of a presidential election. Once the election
machinery has begun to grind away—a particular moment in time which
depends entirely on the content of a state’s election code—a process has
been set in motion that does not conclude until the requirements of state
and federal law have been exhausted.109 Once the political switch has been
flipped to the “on” position, it is normally the political machinery to which
micromanaging the process in accord with constitutional standards is and
should be entrusted. Unless it is demonstrable that the process itself is
structured in such a way that the political branches cannot be trusted to
abide by constitutional norms, so that some impermissible form of exclusion
or dilution in an identifiable individual’s or group’s rights of political
participation might take place without adequate opportunity for timely
correction within the process itself, the case for the deus ex machina of a
judicial swat team leaping into the fray, halting the ongoing political process,
and attempting to impose its own resolution, is pathetically weak in terms of
our constitutional tradition.110
No doubt, there are times when the existence of a later process, capable
of reviewing and correcting the alleged constitutional injury, does not by
itself operate to render a judicially-imposed remedy improper. When the
constitutional right in question is a right to engage in a particular course of
conduct free of any state chill or restraint, the state’s deliberate interposition
of an obstacle to that course of conduct may be void regardless of any process
the state may have put in place to provide after-the-fact compensation. Thus,
providing for ex post money damages, or pointing to the availability of
redress through an open legislative process, would not prevent the judiciary
108 Bush v. Gore, 531 U.S. 1046, 1046-47 (2000) (Scalia, J., concurring). It is even more surprising that
Chief Justice Rehnquist was willing to agree to this type of ex ante invalidation when a single state
court judge stood by to provide ex post review of individual ballot determinations. Cf. Ward v.
Village of Monroeville, 409 U.S. 57, 62 (1972) (White, J., dissenting, joined by Rehnquist, J.) (“To
justify striking down the Ohio system [—allowing mayors to sit as judges to resolve certain ordinance
violations or traffic offenses—] on its face, the Court must assume either that every mayor-judge in
every case will disregard his oath and administer justice contrary to constitutional commands or
that this will happen often enough to warrant the prophylactic, per se rule urged by petitioner. I
can make neither assumption.... I would leave the due process matter to be decided on a case-by-
case basis....”).
109 See Weinberg, 82 Boston U. L. Rev. at 627-35 (cited in note 44).
110 This tradition dates back to Luther v. Borden, 48 U.S. (7 How.) 1 (1849) (holding that a federal court
could not adjudicate a dispute over which of two competing governments was Rhode Island’s real
government and finding that Congress, under the guaranty clause, had the exclusive power to
resolve the dispute); see also Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 142 (1912)
(holding nonjusticiable the question whether a state government is “republican” under the guaranty
clause); cf. O’Brien v. Brown, 409 U.S. 1, 4 (1972) (noting that “[j]udicial intervention into [inherently
political processes] traditionally has been approached with great caution and restraint”); Taylor &
Unbearable Wrongness of Bush v. Gore 49

from invalidating unconstitutional legislative restrictions on a woman’s right

to terminate a pregnancy. Even so, there are plainly other times when a
state action temporarily imposes a burden or disadvantage on an individual
or group in the course of an ongoing process of adjusting and adjudicating
the costs and benefits of life in a complex society. In such cases, the
constitutional harm is not considered complete or ripe for judicial review
before that process has had an opportunity to engage in the self-correction
anticipated by its design. Thus, the Takings Clause may not be deemed to
have been violated when a constitutionally adequate avenue for just
compensation remains open.111 It is in these contexts that the Rehnquist
Court has routinely held that “postdeprivation remedies made available by
the State can satisfy” the Fourteenth Amendment.112
The Bush v. Gore per curiam opinion’s decision to halt the recount
and freeze the result as certified by Katherine Harris is defensible only if
whatever constitutional injury is said to have been done was complete and
incapable of being averted or satisfactorily undone by whatever processes
lay ahead. Plainly, no “injury” to candidate Bush could conceivably be so
described—unless the very existence of some further political commotion on
his way to the White House, or the possible discovery that someone else
should be there in his stead, can be described as a constitutionally cognizable
injury. Nor has anyone suggested any plausible “injury” to any identifiable
set of voters in Florida that the recount, with all that lay ahead by way of
corrective mechanisms, was bound to inflict and that a halt in the recount
would prevent or remedy. Instead, the nature of the equal protection injury
in Bush v. Gore most closely resembled that in the second category of cases
described above.113 For the structure of the Florida Supreme Court’s recount
order of December 8, including the role it assigned to the state court judge
in addressing alleged inequalities, left open numerous avenues for correcting
procedural inequities in ballot counting. And the alleged inequities were so

Marshall v. Beckham, 178 U.S. 548, 580 (1900) (“In the eye of the Constitution, the legislative,
executive, and judicial departments of the State are peacefully operating by the orderly and settled
methods prescribed by its fundamental law, notwithstanding there may be difficulties and
disturbances arising from the pendency and determination of these contests.”); see generally
Tribe, 1 American Constitutional Law §3-13 (cited in note 90).
111 See Williamson County Reg. Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172,
194 (1985) (holding that, when “the government has provided an adequate process for obtaining
compensation, and if resort to that process [yields] just compensation, then the property owner
has no claim against the Government for a taking”) (internal quotation marks omitted).
112 Parratt v. Taylor, 451 U.S. 527, 538 (1981). Chief Justice Rehnquist authored the Parratt majority
opinion. He there concluded that “either the necessity of quick action by the State or the impracticality
of providing any meaningful predeprivation process, when coupled with the availability of some
meaningful means by which to assess the propriety of the State’s action at some time after the
initial taking, can satisfy the requirements of procedural due process.” Id. at 539.
113 See text at note 108.
50 INDIAN J. C ONST. L.

complicated and so attenuated that to argue that the Court had before it on
December 8 a completed constitutional harm notwithstanding what the
Florida courts and legislature, followed by Congress, might have done seems
completely bizarre.
That is why nearly everyone—and I mean that literally—was stunned
to see the Supreme Court leap in to adjudicate the deadline extension issue
in Bush v. Palm Beach County.114 Numerous political processes had already
been put in place when the Court handed down its dispute-ending decree.
First, although it was difficult (if not impossible) to discern any group of
voters whose members were being denied the equal protection of Florida’s
laws, the Florida Supreme Court had set in motion a process designed to
lead to a statewide recount to be supervised under a single, impartial
magistrate.115 Second, the political branches of Florida’s government, assisted
by two extraordinarily capable Harvard Law Professors, stood by ready to
act “on all the key questions.”116 And third, the Court had no reason to
believe that the Congress would not act in a constitutional manner to resolve
any dispute over what constituted the legitimate slate of Florida’s electors
had the issue come to the nation’s capital.
Rather than let it come, the Court yanked the dispute from the Florida
courts, canvassing boards, and legislature, only to decide it under the roof of
a building never contemplated as a forum for presidential selection by Florida
law or by the Constitution. At least three separate processes were underway.
The very process halted by the Court in Bush v. Gore, the manual recount,
was itself but a corrective step in an ongoing election designed to ensure that
individual ballots were fully and fairly translated into votes. The last of the
three processes—a combination of Article II, the Twelfth Amendment, and
the Electoral Count Act—was designed to ensure the fair representation of
each state in the electoral college. Yet the Court carved up complex, multi-
step processes into baloney-thin slices—fixing its gaze upon the slice
represented by the Florida Supreme Court’s December 8 order—as though

114 Bush v. Palm Beach County Canvassing Bd., 531 U.S. 1004, 1005 (2000) (granting certiorari and
asking “[w]hat would be the consequences of this Court’s finding that the decision of the Supreme
Court of Florida does not comply with 3 U.S.C. Sec. 5?”).
115 Professor Lund’s claim that the Florida Supreme Court ordered a selective recount is, quite
simply, a selective reading of the Gore v. Harris opinion. See Gore v. Harris, 772 So. 2d 1243, 1258-
61 (Fla. 2000).
116 See Calabresi, A Political Question at 141 (cited in note 88). Indeed, it was those very Professors
(Charles Fried and Einer Elhauge) who filed a brief in the first round of litigation claiming that
challenge before the Florida Supreme Court, and later before the U.S. Supreme Court, presented
a nonjusticiable political question. See Brief of the Florida Senate and House of Representatives
as Amici Curiae in Support of Neither Party at 7, Bush v. Palm Beach County Canvassing Bd., 531
U.S. 70 (2000).
Unbearable Wrongness of Bush v. Gore 51

each were just one still shot in a sequence too complex to view in motion.117
And when the Court lifted just one single slice out of that rich national
process in a way that disregarded the inequities the process was attempting
to correct (however imperfectly) and the inequities its remedy left in place,118
it upset the integrity of the very electoral college process which ensured that
Bush defeated Gore despite the Vice President’s capture of the popular vote.
There is thus a strong connection between the veritable culture shock set off
by the Supreme Court’s intervention in the presidential election of 2000 and
the proper characterization of the Court’s action as a violation of the implicit
“political process” doctrine that has governed our national life without much
interruption from the outset.
The shock brought about by the Court’s intervention should have
been less jarring in 2000 than it would have been a decade ago. As I have
explained elsewhere, the Court’s mistrust of the political branches—along
with its “self-confidence in matters constitutional”—reached an all time high
at the turn of the millennium.119 Meanwhile, the Court’s tolerance for the
rough and tumble of politics had reached an all time low.120 Most recently,
in Republican Party of Minnesota v. White,121 the Court took the position,
very much in tension with a strong belief in state sovereignty in structuring
each state’s processes of self-governance, that states had to make yet another

117 See, e.g., Bush v. Gore, 531 U.S. 98, 109 (2000) (per curiam) (“Our consideration is limited to the
present circumstances, for the problem of equal protection in election processes generally presents
many complexities.”).
118 At the time Bush v. Gore was decided, at least sixteen states besides Florida authorized manual
recounts “without specifying a standard for counting ballots.” Greene, Understanding the 2000
Election at 34-35 (cited in note 7). Additionally, as Justice Stevens’s dissent pointed out, the
majority of states employed either an “intent of the voter” standard or an “impossible to determine
the elector’s choice” standard in ballot recounts of various forms without specifying more specific
substandards. See Bush, 531 U.S. at 124 n.2 (Stevens, J., dissenting). The absence of any successful
constitutional challenge to these state laws helps explain why the rationale adopted by the per
curiam opinion seemed all-too-convenient to so many observers. And the fact that no voters or
political parties had challenged the constitutionality of such laws ex ante—unlike the Florida
elections laws invoked by Vice President Gore, which had (in earlier forms) been used by previous
candidates— should have signaled the Court that the ex post requests to invalidate the Florida
Supreme Court’s interpretation of those laws were self-serving political requests, not colorable
claims for federal relief.
119 Tribe, 115 Harv. L. Rev. at 288 (cited in note 2); cf. Rachel E. Barkow, More Supreme Than Court?
The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 Colum. L.
Rev. 237, 242-43 (2002) (arguing that the Court should have applied the political question doctrine
to the Article II question in both Bush v. Palm Beach County Canvassing Board and Bush v. Gore;
that the Justices’ failure even to address the political question problem in the case is evidence that
the doctrine no longer operates as an effective check on judicial supremacy; and suggesting that a
casual assumption of judicial supremacy also manifests itself in the Court’s lack of respect for
congressional exercises of power under Article I and Section 5 of the Fourteenth Amendment).
120 Id. See also Richard H. Pildes, Constitutionalizing Democratic Politics, in Ronald Dworkin, ed.,
A Badly Flawed Election: Debating Bush v. Gore, the Supreme Court, and American Democracy
176-86 (2002).
121 122 S. Ct. 2528 (2002).
52 INDIAN J. C ONST. L.

all-or-nothing choice. According to White, states that have granted voters

the right to participate in the selection of judges must choose either to abandon
judicial elections altogether or to leave those elections free of any restraints
in the course of a judicial campaign on what judges may announce about
what view they take on issues likely to come before them if they are elected.122
In essence, states must purchase fairness and integrity and the appearance of
both, and thus judicial legitimacy, at the price of excluding the public from
direct participation in the process of selecting judges. Who were the five
Justices in the majority? The same Justices that made up the Bush v. Gore
five.123
Even if the Court had invoked the political question doctrine only to
rule out remedies that prematurely short-circuited the political process, and
had remanded the case to the Florida Supreme Court to conduct a manual
recount with uniform standards, it would at least have remained somewhat
faithful to our constitutional tradition. Thus, in Gilligan v. Morgan,124 the
Court found nonjusticiable the question whether the training of the Ohio
National Guard complied with the Fourteenth Amendment. The Gilligan
Court did find that the training and control of military personnel pose
quintessentially legislative and executive questions. Yet it cannot be doubted
that, had the Gilligan petitioners proffered evidence that Ohio had trained
its guardsmen explicitly to shoot at black students, and never to shoot at
white students, the violation of the Fourteenth Amendment would have
been so plain as to present a judiciable question despite the difficulties
inherent in the judicial management of traditional military functions. Recall,
though, that the plaintiffs in Gilligan asked the federal courts to create new
standards to govern the training of the Ohio National Guard.125 It was thus
not the subject matter of National Guard training itself that led the Court to
invoke the political question doctrine; it was the particular type of judicial
remedy—a heavy-handed form of judicial supervision over traditionally
political functions—that the Court found precluded by the political question
doctrine. The Court concluded that “[i]t would be difficult to think of a
clearer example of the type of governmental action that was intended by the
Constitution to be left to the political branches directly responsible—as the

122 Id. at 2541-42.

123 Id. at 2531.
124 413 U.S. 1 (1973).
125 See id. at 6 (noting that the respondents “further demand, and the Court of Appeals’ remand
would require, that the District Court establish standards for the training, kind of weapons and
scope and kind of orders to control the actions of the National Guard” and that, if respondents
prevailed, the District Court would be forced to “assume and exercise a continuing judicial
surveillance over the Guard to assure compliance with whatever training and operations procedures
may be approved by that court”).
Unbearable Wrongness of Bush v. Gore 53

Judicial Branch is not—to the electoral process.”126 Bush v. Gore answered

the Court’s challenge.
Was this “political process” doctrine relevant to the Bush v. Gore Court,
or does this part of my comment represent only the fringe views of a
disgruntled law professor? Professor Lund clearly believes the latter, arguing
that neither I nor any Supreme Court Justice relied upon the political question
doctrine when Bush v. Gore was litigated and ultimately decided.127 Lund is
wrong, at least with respect to the Justices.
Contrary to Lund’s utterly bizarre assertion, Justices Breyer and Souter
plainly invoked the political question doctrine. Justice Souter argued that
the Court “should not have reviewed” either of the two cases it eventually
heard.128 “If this Court had allowed the State to follow the course indicated
by the opinions of its own Supreme Court, it is entirely possible that there
would ultimately have been no issue requiring our review, and political
tension could have worked itself out in the Congress following the procedure
provided in 3 U.S.C. § 15.”129 Armed with a more textured understanding
of the political question doctrine, we can see how Justice Souter’s argument
invokes both the traditional doctrine and what I have called its political
process variant. Second, like the Gilligan Court, Justice Souter invoked the
political process doctrine with respect to the per curiam opinion’s remedy:
“[t]he case being before us, however, its resolution by the majority is another
erroneous decision.”130 Justice Souter would have remanded the case to the
Florida Supreme Court to adopt uniform standards for counting disputed
ballots, finding “no justification for denying the State the opportunity to try
to count all disputed ballots now.”131
Like Justice Souter, Justice Breyer plainly believed that the appropriate
remedy was to remand the case to the Florida Supreme Court to develop a
“single-uniform substandard.”132 And like Justice Souter, Justice Breyer
believed that “no preeminent legal concern, or practical concern related to
legal questions, required this Court to hear this case, let alone to issue a stay
that stopped Florida’s recount process in its tracks.”133 Justice Breyer mapped
out a more elaborate argument than Justice Souter, though. He noted that

126 Id. at 10.

127 See Lund, EQUAL PROTECTION at 562-567 (cited in note 2).
128 Bush, 531 U.S. at 129 (Souter, J., dissenting).
129 Id. (emphasis added). See also id. at 130 (arguing that even a dispute over whether Florida
intended to comply with the “safe harbor” statute “is to be made, if made anywhere, in the
Congress”).
130 Id. at 129.
131 Id. at 135.
132 Bush, 531 U.S. at 146 (Breyer, J., dissenting).
133 Id. at 152.
54 INDIAN J. C ONST. L.

the Constitution, federal statutes, and Florida law all combined to “set forth
a road map of how to resolve disputes about electors” that “nowhere provides
for involvement by the United States Supreme Court.”134 Justice Breyer then
used the precise language of Baker v. Carr, arguing that the Twelfth
Amendment “commits to Congress the authority and responsibility to count
electoral votes.”135 Justice Breyer’s warning of a loss of public confidence in
the Court, which Professor Lund has inexplicably decided is the only relevant
part of the Breyer opinion, is ancillary to Breyer’s central conclusion: “[T]here
is no reason to believe that federal law either foresees or requires resolution
of such a political issue by this Court. . . . I think it not only legally wrong,
but also most unfortunate, for the Court simply to have terminated the Florida
recount. Those who caution judicial restraint in resolving political disputes
have described the [characteristics of the] quintessential case . . . [t]hose
characteristics mark this case.”136
The responsibility for raising the political question argument should
not have fallen solely upon Justices Breyer and Souter. The other seven
Justices had a duty to discharge their constitutional responsibility as well.
Justice Scalia, for instance, might have recalled the principles he elaborated
in his Growe v. Emison opinion. Likewise, Justice O’Connor and Chief
Justice Rehnquist ought to have been particularly sensitive to the argument.
Justice O’Connor, joined by then-Justice Rehnquist, had penned a powerful
concurring opinion in Davis v. Bandemer 137 that should have counseled
deference to the political process in Bush v. Gore. In that opinion, Justice
O’Connor and Chief Justice Rehnquist agreed that an apportionment scheme
that intentionally placed individual voters into different political districts in
order to maximize one party’s political strength was both nonjusticiable and,
even if justiciable, insufficient to state a claim under the Fourteenth
Amendment. The combination of the plurality opinion and Justice
O’Connor’s concurrence meant that at least one group of plaintiffs, black
voters from center-city Indianapolis who “found themselves placed in
multimemb er, pred ominantly Repub lican d istricts,” suffered an
unquestionable and arbitrary dilution of their voting power in order to
preserve one party’s hold on power.138 This fact did not sway Justice O’Connor
or Chief Justice Rehnquist: The legislative business of apportionment is
134 Id. at 153.
135 Id. (emphasis added). Justice Breyer also cited the Electoral Count Act of 1887, 24 Stat. 373, 3
U.S.C. §§ 5, 6, and 15, and its legislative history, to make the claim that congressional legislation,
as well as the Constitution, evinced an existing political process to which the Court should have
deferred. Id. at 154.
136 Id. at 155, 157 (emphasis added).
137 478 U.S. 109, 144-61 (1986) (O’Connor, J., concurring).
138 See Samuel Issacharoff, Pamela S. Karlan, & Richard H. Pildes, The Law of Democracy: Legal
Structure of the Political Process 883 (Foundation Press, 2d ed. 2001).
Unbearable Wrongness of Bush v. Gore 55

fundamentally a political affair, and challenges to the manner in which an

apportionment has been carried out . . . present a political question in the
truest sense of the term. To turn these matters over to the federal judiciary is
to inject the courts into the most heated partisan issues. . . . [T]he Framers of
the Constitution [did not intend] the judicial power to encompass the making
of such fundamental choices about how this Nation is to be governed. . . .
There is no proof before us that political gerrymandering is an evil that
cannot be checked or cured by the people or by the parties themselves.139 If
a pre-election scheme intentionally designed to entrench one political party
at the expense of a discernable group of voters was nonjusticiable then, it is
difficult to understand how a during-election court order designed to count
ballots cast by voters of unidentifiable parties140 under the supervision of a
single-magistrate could be justiciable now.141
Professor Lund has at least one thing right: “Tribe the litigator” did
not advance on behalf of Vice President Gore what now appears to me to be
the correct formulation of the political process doctrine. I could try saying
that I thought something like that formulation was inherent in my client’s
pleas for judicial restraint and deference to the legal and political processes
set in motion under Florida’s election code, and that I was content to leave
explicit invocation of the political question doctrine to counsel for the Florida
Legislature.142 Or I could try saying that I knew my client would veto the
political process argument if I were to advance it.143 But I would be lying.
The truth is that, in the whirlwind of that moment, I assumed that the Article
II and Equal Protection Clause challenges to what the Florida Supreme
Court had done on Vice President Gore’s behalf on December 8 in ordering
a statewide recount under the rules that the court put in place were justiciable,
taking the simplistic, binary view of the matter that Professor Lund sets forth
in his reply. In my Harvard Law Review comment, I leaned too far in the
direction of nonjusticiability, in essence overcompensating for my earlier
assumption of justiciability. With the benefit of hindsight, I have tried to

139 Davis, 478 U.S. at 145-52.

140 Any arguments that assumed the party-identification of the voters in the Gore-selected counties
were just that: assumptions.
141 I have not conveniently latched onto Justice O ’Connor’s opinion to support my argument. I
praised Justice O’Connor’s Davis opinion for presenting “shrewd analysis” shortly after the decision.
See Laurence H. Tribe, American Constitutional Law §3-13, at 105 (2d ed. 1988). Still, I continue
to have reservations about a complete retreat from judicial review of political gerrymandering. See
note 42.
142 See Brief of the Florida Senate and House of Representatives as Amici Curiae in Support of
Neither Party at 7, Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000).
143 Vice President Gore made a similar decision when he refused to challenge irregularities in
numerous military ballots from overseas. See Ronald A. Klain and Jeremy B. Bash, The Labor of
Sisyphus: The Gore Recount Perspective, in Overtime! The Election 2000 Thriller 157 (Longman,
Larry J. Sabato, ed. 2001).
56 INDIAN J. C ONST. L.

articulate a more nuanced understanding of how to assess whether the Court

should have intervened in Bush v. Gore, or, at a minimum, how to decide
what remedy was proper, than either the one I acted on in December 2000
or the one I articulated in November 2001. “If there are other ways of
gracefully and good-naturedly surrendering former views to a better
considered position, I invoke them all.”144
CONCLU SION
My journey has led me back to where I first began: Bush v. Gore was wrongly
decided. It is no more right today than it was on December 12, 2000, although
my reasons for that conclusion have evolved since that time. I am grateful to
Professor Lund for making the wrongness of the decision even clearer than
it was before he undertook to defend it as clearly right. I believe I understand
the constitutional problems that Bush v. Gore surfaced more deeply now
than I did two years ago, one year ago, even one month ago. Yet familiarity
brings little comfort. Rather, after studying the case for over two years, and
after reflecting on a career spent studying, observing, and making arguments
in the Supreme Court, Bush v. Gore—unlike a wrong decision whose eventual
overruling one can seek to achieve and can anticipate with a degree of
comfort145 —seems not just wrong, but unbearably so.

144 McGrath v. Kristensen, 340 U.S. 162, 178 (1950) (Jackson, J., concurring).
145 An example is Lawrence v. State, 41 S.W.3d 349 (Tex. App. 2002), cert. granted, Lawrence v.
Texas, 123 S. Ct. 661 (2002), which I anticipate will overrule Bowers v. Hardwick, 478 U.S. 186
(1986), if it does not render an equally bold if ostensibly narrower equal protection holding.
 57

POLITICS A ND P RICES :
J UDICIA L U TILITY MA XIMIZA TION A ND
CONSTITU TIONA L C ONSTRU CTION
Randal N.M. Graham*

1. Introduction
Constitutional interpretation is hard work. Post-modern theorists have
correctly (and relentlessly) observed that all language is indeterminate and
that texts are innately vulnerable to the unsettling play of deconstructive
forces.1 This raises an obvious question – one that is typically ignored by the
lion’s share of deconstructive theorists. If language is unstable and
indeterminate, why does it work so well?2 Why is language so effective in
conveying information? As Canada’s leading constitutional scholar once
asked, why is it that, despite the indeterminacy of language, people successfully
“keep dental appointments and stop at stop signs”?3 My own view is that the
degree of communicative success and interpretive consistency we observe in
the real world does not imply that language is more determinate than post-
modernists let on. Instead, it suggests that there is something apart from
language that constrains the “f ree play” of deconstructive interpretation;
something that restrains the post-modern impulse to destabilize the meaning
of texts (including constitutional texts) through deconstructive acts. This
“something else”, in my opinion, is self-interest.4 At its most basic level,
interpretation is a form of decision-making whereby interpreters must choose

* Associate Professor, University of Western Ontario, Faculty of Law, Canada. I would like to thank
my colleagues Norman Siebrasse, Rande Kostal, Adam Parachin, Tom Telfer, Jamie Cameron,
Darryl Robinson, Adam Till and Peter Hogg for their comments on the argument advanced
throughout this paper. The able research assistance of Jeremy Shaw (LLB 2006) and Hanna Oh
(LLB 2007) is gratefully acknowledged.
1 A good introduction to Post-Modern theory can be found in Christopher Norris, Deconstruction:
Theory and Practice, rev. ed. (London: Routledge, 1991). Another is found in James Boyle, Critical
Legal Studies (New York: New York University Press, 1994). My own take on the inherent
indeterminacy of language can be found in chapter 2 of R Graham, Statutory Interpretation: Theory
and Practice (Toronto: Emond Montgomery, 2001).
2 While this question has been ignored by a majority of language scholars, there are noteworthy
exceptions. Stanley Fish, in particular, has done some excellent work in this area. See, for
example, S. Fish, Is There a Text in This Class? The Authority of Interpretive Communities (Cambridge:
Harvard University Press, 1980) and S. Fish, Doing What Comes Naturally: Change, Rhetoric, and the
Practice of Theory in Literary and Legal Studies (Durham: Duke University Press, 1989).
3 Peter W. Hogg in Foreword to R. Graham, supra n.1 at vii.
4 Throughout this paper the phrase “self-interest” is used in the microeconomic sense of “self-
interested utility maximization”. In this context, it is important to bear in mind that “self interest”
does not imply immoral, amoral, or mercenary behavior: someone whose over-riding personal
preference is to do good deeds in the community, for example, can still be regarded as
58 INDIAN J. C ONST. L.

between competing, alternative meanings. Like all decisions, interpretive

choices are constrained by the self-interest of the decision-maker in question.
This is equally true of the choices made by judges when they interpret
legislation (and Constitutions, in particular). All people, including judges,
interpret texts in whatever way they think will benefit them the most.5 This
universal pursuit of self-interest has the effect of constraining the types of
interpretive choices that an interpreter will make.
The interpreter’s self-interested assessment of the costs associated with
specific interpretative outcomes is a powerful determinant of interpretive
decisions. This should come as no surprise. Indeed, all choices are guided
by the decision-maker’s assessment of competing costs and benefits. Ronald
Coase explained the impact of costs and benefits upon the decision-making
process in these terms:
“Whatever makes men choose as they do, we must be content
with the knowledge that f or groups of human beings, in almost all
circumstances, a higher (relative) price f or anything will lead to a
reduction in the amount demanded. This does not only ref er to a money
price but to price in its widest sense. Whether men are rational or not
in deciding to walk across a dangerous thoroughf are to reach a certain
restaurant, we can be sure that f ewer will do so the more dangerous it
becomes. And we need not doubt that the availability of a less dangerous
alternative, say, a pedestrian bridge, will normally reduce the number
of those crossing the thoroughf are, nor that, as what is gained by
crossing becomes more attractive, the number of people crossing will
increase. The generalization of such knowledge constitutes price theory
… Why a man will take a risk of being killed in order to obtain a

a “self-interested” actor when carrying out these good works. As a result, a highly “moral” judge,
whose preference set includes a number of altruistic goals, can nevertheless be regarded as “self-
interested”. For a more thorough discussion of the intersection of self-interest and altruistic behavior,
see R Graham, Legal Ethics (Toronto: Emond Montgomery Publications, 2004), chapter 1.
5 The role of self-interest in constraining interpretive choices can be demonstrated through everyday
examples. Recall Hogg’s observations concerning dental appointments and stop signs. Even post-
modern theorists manage to make it to the dentist despite their ability to deconstruct, destabilize,
reinterpret and unravel any text that they encounter (including their own appointment books).
They also stop at stop signs. The reason is that post-modern scholars (like the rest of us) have an
interest in dental hygiene and in avoiding car crashes. While they could choose to undertake a
convincing deconstructive romp through their appointment books, or deploy post-modern tools
to reveal the layers of meaning embedded in a stop sign, they typically choose not to do so: their
commitment to deconstructing the relevant text is overborne by their desire to achieve a particular
outcome (clean teeth or safe driving in these examples). They do their best to interpret appointment
books and stop signs in a conventional way because the cost of doing otherwise is too high. The
cost associated with counter-intuitive interpretations of appointment books (namely, an increased
risk of missed appointments) and the cost associated with unusual interpretations of stop signs
(namely, an increased risk of a car accident) are so great that most people avoid deconstructing
such texts.
Politics and Prices 59

sandwich is hidden f rom us even though we known that, if the risk is

increased suf f iciently, he will f orego seeking that pleasure.”6
Of course, the explanatory power of price theory is not limited to the
context of humankind’s quest for sandwiches. As Coase explains, every
decision made by every thinking being (including non-human animals)7 can
be explained by models rooted in price theory. The decisions made by
judges are no exception. According to Coase:
“If the theories which have been developed in economics (or at any rate
in micro-economics) constitute f or the most part a way of analysing the
determinants of choice (and I think this is true), it is easy to see that
they should be applicable to other human choices such as those that are
made in law or politics.”8
It should therefore come as no surprise that price theory – the basic
notion that a higher relative cost for a given choice will reduce the frequency
with which that choice is selected – has the capacity to explain the interpretive
choices judges make.
The goal of this essay is to apply price theory to statutory construction,
with particular emphasis on the interpretation of constitutional texts. To
that end, this essay begins with a discussion of “the Realist Vision” of statutory
construction, a vision which holds that the judicial interpretation of legislation
as well as of Constitutions involve the manipulation of text in furtherance of
the judicial interpreter’s preferences. Accepting the Realist Vision as correct,9
I move on (in section 3) to examine the forces constraining the judiciary’s
ideological manipulation of legal language – in other words, the typical
“costs” of statutory interpretation. While judicial self-interest might give rise
to a judge’s impulse to manipulate legal documents in accordance with the
judge’s policy preferences, the costs identified in section 3 of this essay
(namely, reputation and time) can counter-act this impulse, effectively reining
in a rational judge’s manipulation of statutory language. The identification
of these costs paves the way for the development of an economic model of
statutory interpretation, one that depicts the interpretive process as an exercise
in judicial utility maximization constrained by an array of competing costs.

6 R. Coase, The Firm, The Market, and The Law (Chicago: University of Chicago Press, 1988), at 4–5.
7 “Indeed, since man is not the only animal that chooses, it is to be expected that the same approach
can be applied to the rat, cat, and octopus, all of whom are no doubt engaged in maximizing their
utilities in much the same way as does man. It is therefore no accident that price theory has been
shown to be applicable to animal behavior”: Ibid at 3.
8 Ibid.
9 By stating that the Realist Vision is correct, I mean that it is “accurate”, not that the Realist Vision
represents the way in which judges ought to interpret legislation.
60 INDIAN J. C ONST. L.

Judges doing the job of interpreting legislation or constitutions are engaged

in a process of rational, constrained and self-interested maximization: they
subconsciously (and sometimes consciously) weigh the costs and benefits (to
themselves) associated with specific interpretive outcomes, weighing the
benefits derived from the ideological manipulation of legal texts against the
costs that judges incur when interpreting statutes. The ways in which these
costs and benefits interact, and their implications for a broader theory of
statutory interpretation, will be developed throughout the remainder of this
essay.
2. The Realist V ision of Statutory Interpretation
The traditional view of statutory construction holds that judges are
politically neutral and objective when they interpret legislation. On this
conception of the interpretive process, a judge’s only goal in the interpretation
of statutes is to discover and apply the will of the legislative author. The
interpreter’s role “resembles that of an historian, or an archaeologist, in quest of
an ancient thought of which the enactment may contain traces”.10 This idealized
view of the interpretive process – a view Côté refers to as “The Of f icial
Theory” of statutory construction – posits that the meaning judges discover
when interpreting legislation is the meaning that “was sought by the legislator
at the time of [the Act’s] adoption”.11 This official theory accepts “the passivity
of the interpreter on the political level”.12 When carrying out their interpretive
task, it is argued, judges set aside their own political preferences, disregard
their personal ideologies and ignore the meaning that they want the statute
to support. Instead of relying on their own political preferences, judicial
interpreters are subservient to the author of the legislative text, carrying out
will of Parliament without regard for their own ideological goals.
The official theory of statutory construction is attractive. Indeed, this
view has been accepted as the accurate model of statutory interpretation by
virtually every Western court.13 Unfortunately, the idealized view is wrong.
While it would be nice to live in a world where judges were capable of
setting aside their personal policy preferences when interpreting legislation,
this is not the world we inhabit. Instead, we live in a world in which all
language is indeterminate and interpreters cannot help but confront language
through a lens distorted by personal ideology. In the real world, judges
(whether consciously or unconsciously) manipulate the text of legislation as
10 P. Côté, The Interpretation of Legislation in Canada, 2d ed., (Cowansville, QC: Yvon Blais, 1992), at 7.
11 Ibid at 6.
12 Ibid at 9.
13 Some particularly potent endorsements of this view of interpretation can be seen in R. v. Judge of
the City of London Court [1892] 1 QB 273, at 290; Sussex Peerage Case (1844) 11 C&F 85, 8 E.R. 1034
(H.L.), R. v. McIntosh [1995] 1 SCR 686; R. v. Multif orm Manuf acturing Co. [1990] 2 SCR 624, at 630;
and US v. Alpers (1950) 338 US 680 (USSC).
Politics and Prices 61

well as Constitutions in ways that give effect to judges’ ideological preferences.

The depiction of statutory interpretation as an exercise in ideological
manipulation has been put forward in a variety of contexts, most frequently
by scholars affiliated with the school of Legal Realism and, perhaps most
famously, by adherents of the Critical Legal Studies movement (affectionately
called “Crits”).14 This view of interpretation – which I shall call “The Realist
Vision” – is far more accurate than the idealized model of statutory
construction described above. Schauer summarizes the Realist Vision as
follows:
“Realism … maintained that judges were never, rarely, or at least less
of ten than advertised controlled in their decisions by constitutional
provisions, statutes, rules, regulations, reported cases, maxims, canons,
and all of the other traditional items of f ormal law. Instead, these
Realists argued, the primary causal inf luences on judicial decision-
making consisted of the judge’s views about the immediate equities of
the case at hand, the judge’s less particularistic views about public
policy, or the judge’s array of philosophical, political, and policy
views, an array that is nowadays called ‘ideology’.”15
These ideas are echoed by a diverse group of legal academics,16 who
note that judicial decision-making is “obviously open to sub rosa ideological
inf luence”,17 and that judges inevitably reshape legal language “according to
the political philosophies of the judge”.18 According to Manfredi:

14 The nomenclature applied to scholars interested in the “value-laden” nature of interpretive activity
is, somewhat ironically, shifting and indeterminate. Names applied to such groups include
“attitudinalists”, “positive scholars”, “anti-foundationalists”, “non-foundationalists”, etc.
15 F. Schauer, “Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior” (2000)
68 U. Cin. L. Rev. 615, at 619.
16 In another context, I summarized The Realist Vision of statutory interpretation as follows: “…some
element of “ideological appropriation” can be found in every act of interpretation. The views of
the interpreter are necessarily relevant to the interpretation of every legal text. By emphasizing the
elements of the text that support the judge’s opinions, the judge inevitably – and often unconsciously
– gives official approval to his or her own privately held beliefs, effectively grafting those beliefs
onto the otherwise indeterminate legal text. The values of “the law” are inescapably shaped by the
values of those who are charged with the task of interpreting legal rules. The “meaning” of a legal
rule is not discovered by a neutral arbitrator, but selected from a wide array of interpretive
possibilities “by the people who had the power to make the choices in accord with their views on
morality and justice and their own self-interest”. Interpretation is not constrained by any discoverable,
original intention, but is left to the discretion of those who are given the freedom to impose their
own beliefs on legal texts.” See R. Graham, supra n. 1 at 70 – 71. The quoted language within this
passage is taken from Duncan Kennedy, “Freedom and Constraint in Adjudication: A Critical
Phenomenology” (1986), 36 Journal of Legal Education, 521.
17 D. Kennedy, “Law and Economics from the Perspective of Critical Legal Studies”, The New
Palgrave Dictionary of Economics and the Law, Edited by Peter Newman (1998), 465, at 468.
18 J. Goldsworthy, “Interpreting the Constitution In Its Second Century” (2000) 24 Melbourne U. L.
Rev. 678, at 687. Note that Professor Goldsworthy is opposed to this form of judicial power, and
points to it as a reason for embracing originalism as the appropriate theory of statutory construction.
62 INDIAN J. C ONST. L.

“Individual justices are goal-oriented actors whose personal attitudes

and belief s shape their interpretation of the law. They behave
strategically to maximize the probability that their pref erences will
become binding rules. In the end, the Supreme Court makes policy not
as an accidental by-product of perf orming its legal f unction, but because
a majority of justices believes that certain legal rules will be socially
benef icial.”19
Other scholars note that:
“… Justices are not constrained by judicial precedent but rather
manipulate it (and, f or that matter, all other legal materials) to
maximize their personal, policy, and institutional pref erences.”20
Those who endorse this claim believe that when judges interpret
constitutions, read statutes, apply precedent or otherwise engage with legal
materials, they inevitably manipulate those materials (whether consciously
or unconsciously) in a manner that accords with the judge’s personal policy
goals.
While the Realist Vision has inf luenced the writing of numerous
scholars, relatively few legal academics – and virtually no judges – explicitly
adopt the Realist Vision as an accurate model of statutory construction.
Indeed, much of the social science evidence supporting the Realist Vision
has been “ignored by legal scholars”.21 There are exceptions. Endorsements
of (or at least tacit reliance on) the Realist Vision can be seen in the works of
such notable scholars as Jeremy Waldron,22 Peter Hogg,23 Richard Posner,24

19 C. Manfredi, “The Life of a Metaphor: Dialogue in the Supreme Court, 1998 – 2003”, in G.
Huscroft and I. Brodie (eds.), Constitutionalism in the Charter Era (Toronto: LexisNexis, 2004),
105,at 131. See also B. Friedman, “The Politics of Judicial review” (2005) 84 Tex. L. Rev. 257, where
Friedman notes (at 258) that “Many positive theorists suggest that judicial ideology plays a significant
role in how judges decide cases and that judges respond to pressures from other political actors.
Positive scholars believe these forces play a large hand in shaping the content of the law, especially
constitutional law”. At 272, Friedman goes on to note that “attitudinal” scholars believe that “…the
primary determinant of much judicial decisionmaking is the judge’s own values. Judges come
onto the bench with a set of ideological dispositions and apply them in resolving cases. As the
most notable proponents of the attudinal model, Jeffrey Segal and Harold Spaeth, explain:
“Simply put, Rehnquist votes the way he does because he is extremely conservative; Marshall
voted the way he did because he is extremely liberal”.
20 M. Gerhardt, “The Limited Path Dependency of Precedent”, 7 U. Pa. J. Const. L. 903, at 911.
21 Ibid at 905.
22 See J. Waldron, “The Core of the Case Against Judicial Review”, 115 Yale LJ 1346 at 1401, where
Waldron writes that judges engaged in strong judicial review “are ipso facto ruling on the acceptability
of their own view”. Also see J. Waldron, “Do Judges Reason Morally?” (Draft prepared for
conference on constitutional interpretation, University of Western Ontario, October, 2006).
23 See P. Hogg and A. Bushell, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps
the Charter of Rights Isn’t Such a Bad Thing After All)”, (1997) 35 Osgoode Hall LJ, 75, at 77.
24 See R. Posner, “What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)”,
Supreme Court Economic Review, Vol 3. (1993) 1.
Politics and Prices 63

Michael Gerhardt,25 Larry Alexander, 26 Duncan Kennedy, 27 Frederick

Shauer,28 Jeffrey Goldsworthy,29 William Leuchtenburg,30 William Eskridge,31
and Barry Friedman 32 (to name a few). Indeed, I would argue that all
mainstream legal theorists rely (unconsciously in some cases) on the Realist
Vision of statutory construction – even those theorists who suggest that it
provides an inaccurate model of statutory interpretation.
The influence of the Realist Vision is most evident in scholarship
concerning the interpretation of constitutional text. Gerhardt, for example,
baldly states that “personal ideologies and strategic maneuvering do play a signif icant
role in constitutional adjudication.”33 According to Gerhardt:
“Most social scientists reject altogether the possibility of the path
dependency of precedent in constitutional law. They produce extensive
empirical studies, largely ignored by legal scholars, which purportedly
show that Supreme Court Justices base their constitutional decisions
not on precedent (or the law in any f orm, f or that matter), but rather
on exogenous f actors, such as their personal policy pref erences or
strategic objectives.”34
This vision of constitutional interpretation is endorsed not only by
social scientists, but also by influential legal scholars.35 According to Peter
Hogg, for example:

25 See M. Gerhardt, supra n. 20 at 909, where Gerhardt describes the attitudinal model (what I call the
Realist Vision) as asserting that “Justices primarily base their decisions on their personal preferences
about social policy”.
26 See L. Alexander, “Constitutions, Judicial Review, Moral Rights, and Democracy: Disentangling
the Issues” (Draft paper prepared for conference on Constitutional Interpretation, Oct. 13 – 14,
University of Western Ontario), at pages 12 – 13, where Alexander writes “it is …the…decisionmaker’s
view of real moral rights that is constitutionally controlling”.
27 See D. Kennedy, “Strategizing Strategic Behavior in Legal Interpretation” (1996) Utah Law Review
No. 3, 785. At page 788 of that article Kennedy claims that “It is a common belief, supported by a
not inconsiderable social science literature, that judges … often can and do work to make the law
correspond to “justice”, or to some other “legislative” ideal, and that they direct this work under
the influence of their ideological preferences.”
28 See F. Schauer, supra n. 15.
29 See J. Goldsworthy, “Interpreting the Constitution In Its Second Century” (2000) 24 Melbourne U.
L. Rev. 678.
30 See W. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt
(New York, Oxford University Press, 1995).
31 See W. Eskridge, Dynamic Statutory Interpretation (Cambridge, Mass: Harvard University Press,
1994).
32 See B. Friedman, supra n. 19, 276, where Friedman writes that “At best, law is having an influence,
but any judge’s view of the law necessarily is influenced by ideology. (At worst, it is ideology and
preference all the way down)”.
33 M. Gerhardt, supra n. 20 at 906.
34 Ibid at 905.
35 See, for example, J. Goldsworthy, supra n. 29, and D. Dyzenhaus, “The Unwritten Constitution
and the Rule of Law”, in Huscroft and Brodie (eds.), supra n. 19.
64 INDIAN J. C ONST. L.

“Judges have a great deal of discretion in “interpreting” the law of

the constitution, and the process of interpretation inevitably remakes
the constitution in the likeness f avoured by the judges.”36
As a result, leading constitutional scholars accept that the interpretation
of constitutional text involves the judiciary’s ideological manipulation of
text with a view to entrenching individual judges’ personal preferences.37
The Realist Vision of statutory construction is unpalatable. It paints a
picture of a world in which the law is indeterminate and its meaning is
controlled by the political views of judges. Under this view of statutory
interpretation, the meaning of legislative text – and therefore the content of
the law – is not established by politically accountable institutions comprising
elected officials. Instead, it is continually transformed by reference to the
shifting political preferences of an elite cadre of relatively unaccountable
judges. This bleak portrayal of the interpretive process is the principal reason
for the Realist Vision’s failure to achieve widespread acknowledgment. Its
apparently nihilistic depiction of the interpretive process is unseemly and
unsettling, and unlikely to gain support from those who cherish democratic
institutions. I also suspect that many commentators confuse “normative un-
palatability” with “descriptive inaccuracy”: because they believe the Realist
Vision is not how statutory construction ought to proceed, they suggest that it
fails to describe how interpretation does proceed. Moreover, the Realist Vision
is unlikely to be acknowledged by the courts: courts have an obvious interest
in depicting adjudication as a value-neutral process governed by the will of
legislative actors. As a result, judges frequently go to great lengths to deny
the role of judges’ personal policy preferences in the interpretation of
legislative text. Indeed, as we shall see in Section 3, below, denial of the
Realist Vision is one of the core judicial strategies for encouraging respect
for the judiciary.
Despite its lack of popularity, the Realist Vision is an accurate portrayal
of the process of statutory and constitutional interpretation. The Realist
Vision may be normatively unpalatable, but (subject to refinements
introduced in section 3 of this essay) it represents the way that statutory
interpretation really works. I believe this for a number of reasons, only two
of which bear mentioning in this context. First, the Realist Vision accords
with logical and widely accepted views regarding the self-interested nature
of decision-making in general (a subject to which we will return in section 3).

36 P. Hogg and A. Bushell, supra n. 23 at 77.

37 See also M.P. Singh, “Securing the Independence of the Judiciary – The Indian Experience”, 10
Ind. Int’l & Comp. L. Rev. 245, at 281, where professor Singh notes that “Studies on judicial
behavior have long established that a judge’s background plays an important role in that judge’s
decision making”.
Politics and Prices 65

As a form of decision-making, statutory interpretation is subject to the same

forces and constraints as other decisions, including the constraints imposed
by the decision-maker’s interests. More importantly, the Realist Vision offers
the most coherent and sensible explanation for the large number of cases in
which we observe the judicial propensity to render decisions coinciding with
the relevant judges’ personal policy preferences. Obvious examples drawn
from the constitutional context include the nakedly partisan opinions in
Bush v. Gore,38 the United States Supreme Court’s infamous “reinterpretation”
of the Commerce Clause on the heels of FDR’s threat to pack the Court,39
the Supreme Court of Canada’s constitutional entrenchment of judicial
salaries and perquisites in the widely reviled Remuneration Ref erence,40 and

38 531 U.S. 98. In this case, the US Supreme Court effectively had the power (through the interpretation
of the 14th Amendment of the US Constitution) to decide whether the next US President would be
a Democrat (Al Gore) or a Republican (George Bush, Jr.). All five members of the majority (who
decided in favour of the Republicans) were appointed by a Republican President: Chief Justice
Rehnquist, along with Justices Scalia, O ’Connor and Kennedy were appointed by President
Reagan, and Justice Thomas was appointed by the first President Bush. The four judge minority
was comprised of two Justices appointed by the Clinton-Gore administration (Justices Ginsburg
and Breyer) as well as two Justices appointed by Republicans who have nonetheless come to be
regarded as political liberals (namely, Justice Stevens who was appointed by President Ford, and
Justice Souter who was appointed by the first President Bush). For an excellent review of academic
literature concerning the partisan nature of the Bush v. Gore opinions, see P. Berkowitz and B.
Wittes, “The professors and Bush v Gore”, The Wilson Quarterly, Autumn 2001, 76. In that article,
Berkowitz and Wittes conclude that the lion’s share of American Constitutional Experts (including
such luminaries as Cass Sunstein, Ronald Dworkin and Bruce Ackerman) regard the opinions in
Bush v. Gore as manifestations of the relevant Justice’s partisan political preferences. See also
Laurence H. Tribe, The Unbearable Wrongness of Bush v. Gore, 1 Ind. J. Const. L. (2007).
39 In these cases, at least one Justice of the United States Supreme Court (namely, Justice Roberts)
appears to have selected whatever interpretation of the Commerce Clause maximized his personal
preferences. Prior to FDR’s threats, Justice Roberts had consistently held that the President’s New
Deal laws violated the Commerce Clause. Immediately following FDR’s court packing threats
(which, if carried out, would have undermined Roberts’ influence on the Court), Justice Roberts
“switched sides”, now consistently voting that New Deal laws (even those that were startlingly
similar to laws that Roberts had previously held unconstitutional) were constitutionally permissible.
For a thoroughgoing review of the behavior of the Court in response to FDR’s threat, see W.
Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New
York: Oxford University Press, 1995).
40 Re Remuneration of Judges [1997] 3 SCR 3. In this case, the Supreme Court of Canada was asked to
determine whether or not the constitution protected judicial salaries from reduction by the
government. The Court held that “unwritten principles” within the constitution did, in fact,
protect the Justices’ salaries. Canada’s leading constitutional scholar, Peter Hogg, condemned this
decision as unprincipled and nakedly self-interested. See P. Hogg, “Canada: Privy Council to
Supreme Court”, appearing as chapter 2 in J. Goldsworthy, ed., Interpreting Constitutions: A
Comparative Study (New York: Oxford University Press, 2006) 55, at 73 – 74, where Hogg writes that
“The Supreme Court of Canada has held that any reduction in judicial salaries, whether for
superior or inferior judges, is a breach of judicial independence. The Court has struck down
statutes reducing judicial salaries in Prince Edward Island, Alberta, and Manitoba, although in
each case the judges’ salaries had been reduced by a statute that applied across-the-board to all
public sector salaries. How such a measure could be a threat to judicial independence was never
explained. The Court invoked, not simply the guarantees of judicial independence that are
explicit in the Constitution of Canada … but an ‘unwritten constitutional principle’ of judicial
independence, which was broader than the carefully drafted language of the constitutional text”.
66 INDIAN J. C ONST. L.

the same Court’s decision to override the will of the constitution’s framers in
the Motor Vehicle Ref erence41 : a decision by which the Canadian court radically
expanded its own power to invalidate legislation. The Supreme Court of
India has gone so far (under the auspices of constitutional interpretation) as
to grant itself the powers to veto formal constitutional amendments42 and to
nominate, approve and appoint its own members43 notwithstanding
constitutional text vesting the power of appointment in the executive.44 These
examples seem outrageous when listed together, but they are not atypical.
Indeed, recently released correspondence between Justices of the US
Supreme Court suggests that ideological (or self-interested) interpretation of
constitutional text is the norm, and that some Supreme Court Justices have
admittedly interpreted constitutional text disingenuously – that is, giving
effect to interpretations which they did not sincerely believe the text could
bear – where doing so could entrench the relevant Justice’s personal
preferences.45

Hogg concluded (at 74) that “The jurisprudence interpreting judicial independence is not based
on any ambiguity or uncertainty in the text of the Constitution of Canada. Rather, the judges have
constructed an elaborate edifice of doctrine with little or no basis in the text in order to protect the
power, inf luence, salaries and perquisites of themselves and their colleagues” (emphasis added).
41 Re BC Motor Vehicle Act, [1985] 2 SCR 486.
42 Kesavandanda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461.
43 Supreme Court Advocates on Record Ass’n v. Union of India, A.I.R. 1994 S.C. 268 (also known as “The
Second Judges Case”). For an illuminating discussion of this case, see M.P. Singh, supra n. 37.
Singh notes (at p. 270) that, despite s. 124(2) of the Constitution, the Court in The Second Judges
Case held that “the proposal for the appointment of judges to the Supreme Court and the High
Courts must be initiated by the Chief Justices of the respective courts. These proposals have to be
submitted by the Chief Justice of India to the President. The President must consider these
proposals within a set time frame. In case of a difference of opinion between different constitutional
functionaries, the opinion of the Chief Justice of India has primacy.” Singh goes on to note (at page
271) that, as a result of this decision, “No appointment to the Supreme Court or a High Court shall
be made except in conformity with the final opinion of the Chief Justice of India”. It should be
noted that “the Chief Justice of India” is required, as a result of the Court’s decision, to act in
consultation with his fellow judges in making appointment decisions.
44 Section 124(2) of India’s Constitution provides that “Every Judge of the Supreme Court shall be
appointed by the President by warrant under his hand and seal after consultation with such of the
Judges of the Supreme Court and of the High Courts in the States as the President may deem
necessary” (emphasis added). As a result of the Supreme Court’s “interpretation” of this clause, the
President is now required to await the Court’s own list of nominees, and to accept whatever
nominee for appointment is preferred by the Chief Justice (acting on behalf of the members of the
Court).
45 See, for example, B. Friedman, supra n. 19. In that article, Friedman discusses the United States
Supreme Court’s decision in Penssylvania v. Muniz (1990), 496 US 582, in which Justice Brennan (for
the majority) narrowed the application of the “Miranda” rule, notwithstanding Justice Brennan’s
longstanding view that no such narrowing was constitutionally permissible. Private correspondence
between Justices Brennan and Marshall reveals that Justice Brennan’s reason for joining in (and
authoring) the majority opinion was to prevent Sandra Day O’Connor from authoring the majority
judgment and defining the extent of any exception to Miranda. Friedman summarizes that
correspondence as follows (at 283): “Private correspondence between Justice Brennan and Justice
Marshall indicates that Brennan’s vote and opinion in Muniz likely were not an expression of his
sincere [views regarding the meaning of the constitution’s text]. Brennan wrote Marshall explaining
Politics and Prices 67

While the cases noted above may seem exceptional in that they
demonstrate brazenly self-interested and partisan behavior, they are
nonetheless typical in the sense that all of the relevant judges, under the
auspices of constitutional interpretation, manipulated constitutional text with
a view to entrenching their own preferences. With so many powerful
examples of nakedly self-interested construction, it should be easy to accept
the subtler textual manipulations predicted by the Realist Vision of statutory
interpretation. As a result, it is somewhat surprising (to me, at least) that
there are any mainstream scholars who suggest that the Realist Vision is
inaccurate.
We should pause now to note that, while several of the scholars referred
to in this essay believe that judges intentionally manipulate legal texts in
order to give effect to the judge’s policy preferences, we needn’t accept this
notion in order to acknowledge the role of ideological manipulation in the
interpretation of constitutions and other legislative texts. Many scholars posit
that, even where judges do not intentionally manipulate legal text with a
view to entrenching the judge’s personal preferences, the ideological
manipulation of text is inevitable: readers of any text (including judges reading
legislative language) cannot help but view that text through the lens of their
own biases. As Searle notes: “… we have no access to, we have no way of
representing, and no means of coping with the real world except f rom a certain
point of view, f rom a certain set of presuppositions, under a certain aspect, f rom a
certain stance.”46
In the context of statutory construction, this implies that we confront
the text in a context of our own beliefs and biases. Our own presuppositions,
political allegiances, personal experience and values (broadly referred to as
“ideology”) help infuse the text with meaning, leading us (through our
unconscious) to prefer interpretations that support our own ideology. While
we manipulate the text in the direction of these biases, this manipulation
may nonetheless represent our good-faith effort to discern the meaning of
the relevant text. Even if we try our level-best to interpret a constitution
from an originalist perspective (for example), we may subconsciously attribute
that because “everyone except you and me would recognize the existence of an exception to
Miranda for “routine booking questions” … I made the strategic judgment to concede the existence
of an exception but to use my control over the opinion to define the exception as narrowly as
possible”. In response to Marshall’s circulated dissent in the case, Brennan wrote Marshall again:
“I think it is quite fine, and I fully understand your wanting to take me to task for recognizing an
exception for Miranda, though I still firmly believe that this was the strategically proper move
here. If Sandra [O’Connor] had gotten her hands on this issue, who knows what would have been
left of Miranda”. Simply put, Justice Brennan gave the constitution a meaning that he did not think
it supported, specifically for the purpose of maximizing the impact of his own policy preferences
and minimizing the impact of Justice O’Connor’s.
46 J. Searle, Mind, Language and Society, (London: Weidenfeld & Nicolson, 1999) at 20.
68 INDIAN J. C ONST. L.

our own views to the text’s authors: we assume that our own views are
eminently reasonable, and then imagine that constitutional framers (who
we envision as reasonable people) held those views as well. If we attempt to
interpret constitutional text from a progressive or “dynamic” interpretive
standpoint (and therefore interpret it by reference to the current needs of the
public), our assessment of the public’s “current needs” is bound to be shaped
by our own ideological bent. Even where judges do not intentionally entrench
their policy preferences – even where judges do their best to interpret
legislation objectively – the indeterminate nature of all language, coupled
with the “ideological lenses” through which we perceive indeterminate texts,
ensure that all readers of legislation will tend to interpret the text in ways
that align with their own ideologies. The Realist Vision of statutory
interpretation is not an indictment of the judiciary’s intentions: it is simply a
description of how interpretation works.47
Whether one accepts the “subconscious” model of the judiciary’s
manipulation of legal texts or the “f ully conscious” model of value-laden
interpretation, it is important to note that neither model necessitates the
attribution of sinister motives to the judiciary. While both models posit that
judges manipulate legislative text in furtherance of the judges’ preferences,
neither model makes a claim about the content of a particular judge’s
preference-set. A judge’s personal preference-set might include a deep desire
to help the poor, an urge to ease the plight of the suffering, or a preference
for the promotion of world peace. A judge might favour broad interpretations
of human rights enactments, expansive powers of judicial review and narrow
incursions into personal freedoms because the judge believes that a truly
“just” world (a world the judge prefers to inhabit) will have these features.
Another judge might hold the opposite views, believing that a just society
calls for the restrictive interpretation of Bills of Rights and narrow powers of
judicial review. All that the Realist Vision of statutory interpretation posits is
that, whatever the judge’s preferences are (and whatever their original source
might be), the judge will give effect to these preferences, either consciously
or unconsciously, by manipulating statutory language in a manner that
accords with the relevant preference. This does not preclude the existence
of an altruistic judge,48 or suggest that any judge has sinister motives.49
47 Interestingly, this coincides with price theory’s account of human behavior: humans may not (in
many cases) consciously weigh the personal costs and benefits of their actions, but nevertheless
behave as though they do.
48 For a more thorough discussion of the intersection of altruism and self-interest, see R. Graham,
supra n. 4, 18–20.
49 At first blush, it seems that Justice Posner would like to exclude the possibility of altruism. A
closer reading makes it clear that Justice Posner would accept an altruistic motive provided only
that the so-called “altruist” felt that acting in the public interest enhanced the judge’s utility. For
example, in R. Posner, supra n. 24, at 14, Posner writes that “I exclude from the judicial utility
Politics and Prices 69

Now that we have reviewed the Realist Vision of statutory

interpretation, one point should be obvious to any reader familiar with
economic theory. The Realist Vision of statutory construction is perfectly
consistent with the economic notion of self-interested utility maximization.
According to the Realist Vision, judges interpret texts in ways that give effect
to their own preferences. According to microeconomics, “people choose to
perf orm those actions which they think will promote their own interests”.50 When
they manipulate the law in the direction of their own policy preferences,
judges fulfill the basic predictions of economics, acting as self-interested utility
maximizers. All things being equal, an interpretation which favours the judge’s
personal policy preferences will generate (for the judge) more utility than a
contrary interpretation. As a utility maximizer, the judge is very likely to
select the interpretation that coincides with his or her preferences. Because
the Realist Vision of statutory interpretation coincides with basic economic
theory, it seems sensible to apply basic microeconomics to the decisions
judges make when they interpret legislation.
Despite the Realist and economic prediction that, all things being
equal, judges will interpret statutes in a manner that gives effect to their own
preferences, we often observe (or think we observe) judges who make
decisions that go against the judge’s apparent policy preferences.51 Why is
that? Why would judges, who are expected (like the rest of us) to be self-
interested utility maximizers, sometimes act in ways that seem to undermine
their personal preferences? Why don’t judges always interpret legislation in
a way that gives effect to their own ideological goals? As I noted in the
introductory portion of this essay, this can also be explained as a manifestation
of self-interest. In many cases, the costs associated with the ideological
manipulation of text are so great that the judge will be unwilling to incur
those costs in pursuit of specific policy objectives. The nature of those costs,
and their impact upon the interpretive practices of judges, are described in
the following sections of this essay.
3. The Costs of Statutory Interpretation
( a) Introduction
While Realists and Crits have done a successful job of unveiling the

function the desire to promote or maximize the public interest … Although views concerning the
public interest undoubtedly affect judicial preferences, just as they affect voter preferences … they
do so, I assume, only insofar as decisions expressing those views enhance the judge’s utility”.
50 R. Coase, supra n. 6, at 27–28.
51 The most obvious examples include cases in which judges, as a result of constitutional issues, acquit
guilty criminal defendants. Such judges are not “pro-criminal”, yet render decisions with the effect
of immunizing criminals from prosecution. In this sense, such judgments appear to undermine
the judge’s probable preference of having criminals off the streets.
70 INDIAN J. C ONST. L.

ideologically-driven nature of statutory interpretation, they have largely

ignored the costs associated with the interpretive process. By failing to
acknowledge the costs of statutory construction, Crits and Realists have
ignored a vital element of the interpretive equation: if language is
indeterminate and subject to value-based manipulation by interpreters, the
costs interpreters incur in the manipulation of texts serve as a fundamental
source of stability in language. The “f ree play” of deconstruction – or the
interpreter’s willingness to engage in the manipulation of text – is constrained
by the costs interpreters incur in the act of interpretation. In the context of
legislative interpretation, these costs constrain the judiciary’s interpretation
of statutory text. As the costs associated with a particular interpretive outcome
rise, the judge (regardless of his or her own ideological bent) becomes less
likely to endorse that interpretation. This is simply the application of price
theory to the practice of statutory interpretation.
What does it mean to apply price theory to statutory interpretation?
In simple terms, it means accepting the notion that judges weigh the relative
costs and benefits associated with competing interpretations of any legislative
text that they confront. To be precise, it means that judges weigh the costs
and benefits to themselves of those competing interpretations. The higher the
cost (to the judge) associated with a given interpretive choice, the less likely
the judge is to choose that outcome; the greater the benefit (to the judge)
flowing from the relevant choice, the more likely the judge is to choose that
outcome. This does not imply that judges typically calculate the financial
costs and benefits that result from different outcomes: it is uncommon for a
judge’s financial interests to be at stake in a case on which the judge is sitting.
Judges rarely make decisions concerning judicial compensation (although
Canada’s Remuneration Ref erence, noted above, shows that this can sometimes
happen). Moreover, judges are paid the same amount regardless of the
interpretive outcomes that they generate. 52 If price theory applies to the
interpretive choices judges make, the costs and benefits associated with
interpretive choices must involve something more than judicial income.
Happily, price theory can accommodate non-pecuniary determinants of
behavior. As Coase observed, the application of price theory is not limited
to “money price”, but refers “to price in its widest sense”. 53 This raises a good

52 This is not entirely accurate. If we assume that certain interpretive outcomes enhance the judge’s
likelihood of promotion to a higher court, it is possible that specific interpretive outcomes over a
certain number of cases may ultimately increase the judge’s pay. Similarly, if some interpretive
outcomes can elevate the judge’s popularity in a relevant group, that group might grant the judge
access to future income (through lucrative speaking engagements after retirement from the bench,
for example).
53 R. Coase, supra n. 6, at 4. Also see R. Posner, supra n. 24, at 9, where Posner notes that the judicial
utility function “may be dominated by non pecuniary sources of utility”. At page 13 of that article,
Politics and Prices 71

question: if price theory applies to the choices involved in statutory

interpretation, what are the costs and benefits that influence those choices?
Legal scholars have posited a wide array of costs and incentives to
which judges may respond. Justice Posner, for example, suggests that a judge’s
decisions may be influenced by:
“… dislike of a lawyer or litigant, gratitude to the appointing
authorities, desire f or advancement, irritation with or even a desire to
undermine a judicial colleague or subordinate, willingness to trade
votes, desire to be on good terms with colleagues, not wanting to disagree
with people one likes or respects, f ear f or personal saf ety, f ear of
ridicule, reluctance to of f end one’s spouse or close f riends, and racial
or class solidarity.54
Professor Schauer proposes an equally broad array of costs and benefits that
may influence the course of a judge’s holdings. According to Schauer, judges
might render decisions that maximize their chances of “inf luencing the direction
of policy … being the object of def erence by lawyers and litigants … being adored by
legal academics … gaining higher judicial of f ice, and … seeing the morally worthier
party prevail in a particular case”.55 Gerhardt agrees, noting that judges may
“try to maximize other interests, including preserving leisure time, desire f or prestige,
promoting the public interest, avoiding reversal, and enhancing reputation”. 56
According to Friedman: “… judges also might care about things as varied (and
human) as reaching the outcome they pref er, increasing their leisure, anticipating
what other people or groups think of them based on their decisions, seeing that their
will is obeyed, and – particularly f or lower court judges – being promoted.”57
Friedman goes on to note that judges have historically shown a
tendency to change their interpretation of the legal texts where the personal
costs (to the relevant judges) associated with prior interpretations grow too
high. According to Friedman:
“… judicial change in constitutional doctrine is correlated with
utilization of … court-disciplining measures, or the threat to do so.
Under threat of judicial impeachments, John Marshall of f ered to
give up the judiciary’s last word on constitutional questions. Jurisdiction
was stripped in a manner that prevented the Supreme Court f rom
ruling on the constitutionality of Reconstruction at a critical moment,

Posner also states that the judicial “utility function must in short contain something besides money
income (from their judicial salary)”.
54 R. Posner, Overcoming Law (Cambridge: Harvard University Press, 1995), 130.
55 F. Schauer, supra n. 15, at 635-636.
56 M. Gerhardt, supra n. 20, at 916.
57 B. Friedman, supra n. 19, 270–271.
72 INDIAN J. C ONST. L.

and the Court acquiesced. The Court’s size was changed at several
points during the Civil war and Reconstruction and, in at least one
f amous instance; this had an immediate and substantial impact.
Roosevelt’s Court-packing plan did not succeed in changing the size of
the Court, but the doctrine itself changed quickly enough thereaf ter.
Congress threatened to strip jurisdiction af ter Red Monday and the
Court moderated its views. To this day, Justices demonstrate an
awareness of these historical events as a nod toward the Court’s
relatively f ragile position.”58
While the authors quoted above propose a diverse set of determinants
of a judge’s interpretive choices, they seem unified in their assumption that
price theory applies to judicial decision-making. As the cost associated with
a particular outcome rises, a judge becomes less likely to select the relevant
outcome. Whether the cost in question relates to financial incentives, political
preference, likelihood of promotion, or reputation within a relevant group,
a judge will (either consciously or unconsciously) balance that cost against
the benefits of the outcome in question. In effect, judges are engaged in self-
interested utility maximization when they interpret law: they weigh the costs
and benefits (to themselves) of competing interpretations, and choose
whichever interpretive outcome maximizes their utility. On this conception
of the interpretive process, judges are the consumers of specific interpretive
outcomes, and they engage in a process of rational price comparison when
deciding between competing interpretations of legal texts.
The application of price theory to judicial behavior should be
uncontroversial. Indeed, well-accepted legal doctrines are formulated on
the premise that judges are likely to respond to personal costs when making
decisions. Consider, for example, the rule (common to most legal systems)
that no person may act as judge in his or her own cause (encapsulated by the
maxim nemo judex in causa propria sua debet esse).59 The reason for this rule is
obvious: We assume that where a judge’s personal interests are directly
implicated in a dispute, the judge will find it difficult to be objective.60 The
judge’s interest in applying the law objectively is likely to be outweighed by
the judge’s interest in reaching whatever decision the judge prefers.61 Similarly,

58 Ibid at 314–315.
59 For a thorough discussion of this maxim, see chapter 2 of D. Mullen, Administrative Law: Cases,
Text and Materials, 5th ed., (Toronto: Emond Montgomery, 2003).
60 This includes both the possibility of a decision directly in the judge’s favour (regardless of the
merits of the dispute), as well as the possibility of a decision against the judge’s apparent interest
driven by the desire to appear objective (again, regardless of the merits of the dispute).
61 Do not be fooled by the suggestion that it is not “actual bias” that we fear in such cases, but the
“reasonable apprehension of bias”. Bias is “reasonably apprehended” in such cases because
reasonable people are likely to believe that a judge will be biased where his or her own interests are
Politics and Prices 73

judges are precluded from hearing cases in which their family members are
parties. In such cases, we assume that the costs (to the judge) associated with
a decision against the judge’s family are so great that the judge is likely to be
unable to apply the law objectively. In these contexts, we accept that the
costs associated with particular adjudicative outcomes are so great that they
are likely to control the judge’s decision: in short, we acknowledge that self-
interest (in the economic sense) plays a role in the decisions judges make.
A detailed study of every cost or benefit to which a judge is likely to
respond when making interpretive choices is beyond the scope of this essay.
Such a detailed account would require extensive empirical study. In many
instances, the relevant costs and benefits are likely to vary from judge to
judge. There are two costs, however, that are relevant to all judges’ interpretive
choices. Those costs – namely, reputation and time – work together to
generate a useful (and occasionally surprising) model of statutory construction.
The costs associated with reputation and time, together with their implications
for an overall model of statutory construction, are discussed throughout the
remainder of this essay.
( b) Reputation
People like to be liked.62 Indeed, reputation is often regarded as one
of the principal determinants of human decision-making. This should come
as no surprise: it is a matter of common experience that people hope to
avoid stigma, garner respect, appear clever, achieve fame or “win f riends
and inf luence people.”63 Even people who seem to eschew popularity
frequently do so with a view to enhancing aspects of their reputation: they
are happy to be known as gadflies, malcontents or general pains-in-the-neck
provided that they are at least known. People generally attempt to increase
their influence over others, their prestige, or the esteem in which they are
held by relevant members of the community. As a result, reputation functions
as a determinant of the choices that we make: when we predict that a given
choice will undermine our reputation, we become less likely to make the
choice in question. When we think that a given choice will enhance our
reputation, we become increasingly likely to make that choice. Indeed,
concern for reputation frequently has the effect of deterring us from the
choices we would otherwise prefer: I might be most comfortable wearing
jeans and a T-shirt every day, but choose to wear a suit and tie in order to

directly implicated in a dispute. To suggest that judges will not experience bias in such cases is to
suggest that most people, exhibiting that reasonable apprehension, are wrong. That seems rather
presumptuous.
62 R. Posner, supra n. 24, at 13.
63 D. Carnegie, How to Win Friends and Inf luence People, Rev. ed. (New York: Simon & Schuster, 1981).
74 INDIAN J. C ONST. L.

move my reputation in a particular direction (for example, to generate a

reputation as a serious-minded fellow, as a fashionable man, or as a person
who can afford expensive clothes). The utility that I lose (as a result of a loss
in comfort) is outweighed by the utility that I gain by improving my
reputation. In effect, desire for a good reputation constrains the choices that
we make.
Judges are not immune from the constraining force provided by the
desire to achieve or maintain a good reputation.64 Indeed, an individual
justice’s desire to enhance (or at least avoid damage to) his or her reputation
is likely to be a major determinant of the judge’s interpretative choices. This
is not an entirely new idea. Numerous scholars have suggested that judges’
decisions are controlled, at least in part, by individual judges’ desire to
maximize the judge’s (good) reputation. Gerhardt, for example, has observed
that judges try to protect their reputations by exhibiting “reluctance to admit
they have made mistakes” on the ground that such admissions “might make the
Justices appear to be indecisive or incompetent”.65 Friedman echoes these ideas,
noting that judges may make particular decisions – even decisions that conflict
with the judges’ policy preferences – “out of a dislike of reversal or the desire to
be thought well of by their peers”.66
In Incentives, Reputation, and the Inglorious Determinants of Judicial
Behavior,67 Frederick Schauer considers the impact of ‘reputational costs’ on
the decisions made by judges. According to Schauer:
“… there is reason to believe that there are some ref erence groups that
even lif e-tenured and highly prominent Supreme Court Justices desire
to appeal to in a more or less conscious way. It is widely recognized
that reputation or esteem provides a powerf ul money-independent
incentive f or many people. Perhaps the Justices of the Supreme Court,
like the rest of us, care about their reputation, care about the esteem in
which they are held by certain ref erence groups, and care enough such

64 Note that a judge may hope to enhance (or avoid damage to) the judge’s reputation in at least two
ways. First, the judge might act to protect (or enhance) his or her personal reputation (perhaps with
a view to securing advancement or promotion to a higher court): see F. Schauer, supra n. 15, at
623). Alternatively, the judge may seek to protect his or her reputation indirectly by promoting (or
protecting) the reputation of the judicial system, or the particular court on which the judge serves:
B. Friedman, supra n. 19, at 324, where Friedman argues that “If not personal reputation, then the
Justices might care about the institutional legitimacy of the Court”. Jamie Cameron supports this
point in “The Charter’s Legislative Override: Feat or Figment of the Constitutional Imagination”,
in Huscroft and Brodie (eds.), supra n. 19 at 159. See also M. Gerhardt, supra n. 20 at 954, as well
as Coffin and Kattzman “Steps Towards Optimal Judicial Workways: Perspectives from the Federal
Bench”, (2003) 59 N.Y.U. Ann. Surv. Am. L. 377at 390.
65 M. Gerhardt, supra n. 20 at 953.
66 B. Friedman, supra n. 19 at 297–298.
67 F. Schauer, supra n. 15.
Politics and Prices 75

that, at the margin or even f ar f rom the margin, they seek to conf orm
their behavior to the demands of the relevant esteem-granting (or
withholding) or reputation-creating (or damaging) groups.”68
Schauer continues:
“…one hypothesis would be that Supreme Court Justices [have] moved
lef tward in order to conf orm (at an indeterminate level of consciousness)
their attitudes to the attitudes of elite reporters and elite law prof essors,
f or by doing so they increase the esteem in which they were held by the
groups whose esteem they most valued, and they would enhance their
current reputation and increase the likelihood that they would be lauded
both in their lif etimes and thereaf ter. … the Justices, f or all that lif e
tenure gives them, are still human, and thus still somewhat vulnerable
to the pull of reputation, the desire f or esteem, and the wish to avoid
public criticism.”69
Schauer’s hypothesis seems sensible, for it conforms to common
experience: people typically avoid (or at least try to hide) actions that are
likely to undermine their reputation. There is no reason to believe that
judges have immunity from the pull of reputation. Indeed, even judges are
willing to admit the importance of reputation as a determinant of their own
interpretive choices. According to Justice Posner, for example:
“… a potentially signif icant element of the judicial utility f unction is
reputation, both with other judges, especially ones on the same court –
one’s colleagues (and here reputation merges with popularity) – and
with the legal prof ession at large.”70
Posner goes on to note that the desire for prestige is “unquestionably an
element of the judicial utility f unction”. 71 In his opinion: “… judges, although
they are in no way dependent upon the goodwill of the bar … are sensitive to their
popularity with members of the bar, especially if , as is common, many of their
f riends are drawn f rom the bar.”72
Chief Justice Antonio Lamer (formerly Canada’s top jurist) has made similar
assertions, famously arguing that judges may craft opinions with a view to
avoiding criticism and achieving popularity. After condemning any brand
of criticism that “makes [judges] look stupid”,73 Lamer CJ claimed that harsh

68 Ibid at 629.
69 Ibid at 630.
70 R. Posner, supra n. 24, at 15.
71 Ibid at 13.
72 Id.
73 F. C. DeCoste, “Introduction”, 38 Alberta L. Rev. 607, at 611.
76 INDIAN J. C ONST. L.

or virulent criticism “might lead judges to shy away f rom unpopular decisions –
‘the most popular thing to do might become the outcome.”74 In other words, the
desire to be popular might cause judges to change the decisions that they
make.
Reputation is particularly important where judges hope to move the
law in the direction of their ideological preferences. As we have seen, the
Realist Vision suggests that statutory and constitutional interpretation often
involve the judge’s attempt to move the law in the direction of the judge’s
policy preferences. The impact of reputation on this process should be clear:
It is difficult to cause the law to conform to your own preferences if the legal
community thinks you are a buffoon. If the relevant interpretive audience
regards your decisions as foolish or unprincipled, or doubts your capacity to
interpret legislation in a persuasive and sensible manner, that audience is
unlikely to give credence to your decisions. Colleagues on the bench may
not be inclined to endorse your interpretations of legislative text. Your
decisions may attract widespread criticism, leading subsequent courts to over-
rule them. Where this is the case, your political or ideological views are
unlikely to be especially influential. In other words, the ‘interpretive goal’
posited by the Realist Vision is, at least in part, dependent on the ability of
the interpreter to be perceived as a credible and authoritative interpreter of
the text of legislation.75
There are at least two important (and overlapping) ways in which
reputation constrains interpretive choices. First, desire for a good reputation
might lead a judge to decide, regardless of his or her own policy preferences
or views regarding the meaning of legislation, to interpret the relevant statute
in accordance with the preferences of the judge’s favoured esteem-granting
group. If a judge hopes to impress liberal colleagues on the bench, to be
cited favourably in left-of-center law reviews and judgments, or to enhance
the esteem in which the judge is held by liberal law professors (for example),
the judge may attempt to craft a liberal opinion (even in cases in which the
judge would otherwise opt for a conservative reading of the legislation). In
such cases, the utility lost by deciding a case in a manner that conflicts with
the judge’s own political preference is outweighed by the utility generated
by the judge’s expected gains in popularity and respect (among the relevant
74 Ibid, quoting Chief Justice Lamer (as originally quoted in K. Makin, “Lamer Worries About Public
Backlash: Angry Reaction Could Affect Judges’ Decisions, Chief Justice says”, The Globe and
Mail ((6 February 1999) A1 at A4).
75 Indeed, it is possible that the desire to push the law in the direction of the judge’s policy
preferences is simply a corollary of the desire to have a good reputation: power enhances reputation,
and the re-shaping of the law in one’s own image is an exhibition of power. For this reason, the
maximization of a judge’s “ideological impact” and the maximization of the judge’s good reputation
may simply be specific manifestations of the same underlying desire: the desire for social power.
Politics and Prices 77

esteem-granting community). In effect, the pull of reputation becomes a

constraint on the judge’s interpretive decisions. Where a given interpretive
choice is likely to harm the judge’s reputation in a manner that is relevant to
the judge, a judge becomes less likely to make that interpretive choice.
Conversely, where a given interpretive choice seems (to the judge) likely to
enhance a judge’s reputation in ways that are relevant to the judge, the
judge is more likely to adopt that interpretation.
The second way in which the pull of reputation might impact upon a
judge’s interpretive choices relates to the way in which the judge will choose
to justif y interpretive decisions. Rather than reading legislation in a way that
(a) conforms to the preferences of the judge’s favoured esteem-granting group,
but (b) conflicts with the judge’s policy preference, the judge might choose
to make the interpretive choice that conforms to the judge’s policy preference
and try to justify that interpretive choice in a manner that will placate the
relevant esteem-granting (or esteem-denying) audience. As I said in another
context:
“If the interpreter f eels constrained by the interpretive community (out
of a need f or acceptance or a desire to gain legitimacy through the
support of the relevant audience), the interpreter has less f reedom, but
is still able to inject his or her own values and prejudices into the
interpretive process – at least to the extent that he or she can make
these values palatable or persuasive to the relevant audience.”76
This is accomplished through the drafting of justificatory reasons for judgment.
Viewed in this light, reasons for judgment serve to soften (or even reverse)
the reputational impact of decisions that might otherwise appear foolish or
unprincipled. Consider, for example, the decision of the Supreme Court of
Canada in the Remuneration Ref erence (mentioned in section 2, above). In
that case the Court decided that the Constitution protected judicial salaries
from reduction by the government. Imagine the public response if the majority
judgment in the Remuneration Ref erence had looked like this:
“We have been asked to determine whether or not the Constitution,
despite its f ailure to address this issue, protects judicial salaries f rom
reduction by the government. We have decided that it does. So there.”
This cavalier decision seems massively unprincipled, brazenly self-interested,
and unlikely to inspire public confidence in the courts. A judgment of this
nature could harm judicial reputations. Of course, the substance of this cavalier,
three-line decision is the same as the Court’s actual decision in the Remuneration
Ref erence. As Hogg notes, however, the Court in the Remuneration Ref erence
76 R. Graham, supra n. 1 at 70.
78 INDIAN J. C ONST. L.

did not merely say that “the Constitution protects judicial salaries” – instead,
they “constructed an elaborate edif ice of doctrine with little or no basis in the text
in order to protect the power, inf luence, salaries and perquisites of themselves and
their colleagues”.77 One function of the “elaborate edif ice of doctrine” was, of
course, to make it appear that the Court’s decision was rooted in law or in
the intentions of the Constitution’s framers, and not merely a manifestation
of the Court’s financial interests.78 In short, one function of reasons-for-
judgment is to protect the reputation of the Court – or, as Kavanagh puts it,
to “attract respect and honour for a judge”.79
In cases involving statutory construction, reasons for judgment are
typically designed to generate a particular effect: the appearance that, despite
what Realists tell us about judicial interpretation, the judge’s interpretive
choices are driven by factors that are external to the judge. Specifically,
judges deploy their legal skills with a view to “proving” that the interpretive
outcome they have selected flows inexorably from the language of the statute,
from the intention of the legislative author, from the demands of prior
decisions or from other authoritative legal sources. In short, the judge
attempts to deny the Realist Vision: to prove that his or her decisions are
driven by “the law”, and not by the judge’s own political preferences.
Several leading interpretive scholars have made note of judges’
tendency to protect their reputations by attributing their interpretive decisions
(which are governed by the judge’s policy preferences) to a legislative body.
According to Beaulac and Côté, for example, a court’s goal in crafting
interpretive decisions is “to downplay the importance of the policy-making role it
has to assume, inevitably, when it construes … legislation”.80 Beaulac and Côté
argue that the goal of this form of judicial rhetoric is to create:
“the net impression that statutory interpretation implies simply the
discovery or declaration of something which is already there, that the
solution owes nothing to the court’s policy choices and is entirely
determined by the intention of Parliament.”81
In short, this form of decision-making (or, more accurately, decision-justifying)

77 P. Hogg, supra n. 40 at 74.

78 None of this should be taken to suggest that the judges in the Remuneration Ref erence (or other
judges, for that matter) do not buy into the elaborate edifices of doctrine they construct. The judges
are, in my estimation, convinced by what they are writing. They may be convinced by these
arguments, however, largely because these arguments confirm the judge’s personal preferences.
See D. Kennedy, supra n. 27.
79 E. Kavanagh, “The Idea of a Living Constitution” (2003) 6 Can J Law & Jurisprudence 55, at 78.
80 S. Beaulac and P. Côté, “Driedger’s ‘Modern Principle’ at the Supreme Court of Canada:
Interpretation, Justification, Legitimization”, (2006) 40 RJT 131, at 162.
81 Ibid.
Politics and Prices 79

is designed to make the judge’s decisions “appear to be mere mirrors of the will
of the elected assembly”, and to “let judges attribute to Parliament the solution they
select, which f urthers the impression that judicial decision-making and justice are
impersonal”.82 Duncan Kennedy agrees, claiming that judicial decisions are
designed “to generate a particular rhetorical effect: that of the legal necessity
of [the judge’s] solutions without regard to ideology”.83 In Kennedy’s view:
“[Judges] work f or this ef f ect against our knowledge of the ineradicable possibility
of strategic behavior in interpretation, by which I mean the externally motivated
choice to work to develop one rather than another of the possible solutions to the
legal problem at hand.”84
Kennedy goes on to note that judges interpret legislation with a
particular goal in mind:
“... the goal of establishing that her pref erred legislative solution is
the correct legal solution. In pursuit of this goal, she has been anything
but neutral in using her resources. She has spent a lot of time inventing
a strategy, digging through the books, keeping an eye out all the time
f or random bits of stuf f that might be usef ul in building her
argument.”85
In effect, judges protect their reputations by making it seem that
ideologically-driven decisions are not, in fact, ideologically driven.86 If a
decision appears foolish or unprincipled, or if the decision appears to coincide
with the judge’s personal policy preferences, the blame cannot be placed at
the feet of the judge. On the contrary, the blame lies with the legislative
assembly. In effect, this form of decision (that is, a decision which succeeds
in blaming a legislative assembly for the judge’s interpretive choices) provides
the judge with a form of “reputational Kevlar”: a barrier against the potential
reputational costs that might otherwise flow from the judge’s interpretive
choices.87

82 Ibid at 168.
83 D. Kennedy, supra n. 27 at 785.
84 Ibid.
85 Ibid at 793.
86 More accurately, the judge wishes to make it seem that the decision is not driven by the judge’s
ideology. The judge may be perfectly happy to have the decision seem to be ideologically driven,
so long as the relevant ideology can be attributed to a legislative body.
87 Justice Posner defines this form of opinion (that is, one which “blames” the legislature for the
judge’s own opinion) as a form of leisure-seeking behavior. According to Posner supra n. 24, at
20), ““Going-along” voting is one example of the influence of leisure-seeking on judicial behavior.
Another – once leisure is defined for these purposes, as it should be, as an aversion to any sort of
“hassle,” as well as to sheer hard work – is the insistence by judges that their decisions are coerced
by “the law” and hence that the judge shouldn’t be blamed by the losing party or anyone else
distressed by the outcome”.
80 INDIAN J. C ONST. L.

As we have seen, the reputational costs that flow from foolish,

unprincipled, or brazenly self-interested decisions can be avoided (or at least
minimized) through carefully crafted reasons-for-judgment – typically reasons
that cast the “blame” for a decision on factors external to the judge (namely
precedent, legislative intention or the statute’s “plain language”). The judge
deploys his or her legal and intellectual resources – or “burns rhetorical f uel”,
as it were – in an effort to accomplish twin objectives: to promote the judge’s
ideological preference while at the same time preserving (or enhancing) the
judge’s reputation to the greatest extent possible. In effect, the judge sells his
or her decision to the relevant interpretive community.
The “sale” metaphor was not selected by accident. A judge’s justification
of interpretive decisions shares several features in common with a typical
sale of goods. First, the seller’s goal is utility maximization: where an ordinary
seller hopes to maximize utility through profit, the judge hopes to maximize
utility through some combination of “legal impact” (through the promotion
of the judge’s policy preferences) and reputation.88 Second, the judge’s attempt
to “sell” a decision, like a typical sale of goods, gives rise to transaction costs
that have an impact on the actions of the seller. In the context of interpretive
decisions, the transaction costs involve the judge’s time and effort: persuasive
jud gments d o not write themselves. 89 The judge must often spend
considerable time and effort crafting a judgment that accomplishes the judge’s
twin objectives (that is, furthering the judge’s policy preferences and protecting
or enhancing the judge’s reputation). The time it takes to generate such
judgments constitutes one of the key determinants of a judge’s interpretive
choices. Time’s impact on a judge’s interpretive choices, together with its
interaction with the “reputational costs” described above, is discussed in the
following section of this essay.
( c) Time
While the Realists and the Crits are surely correct in their
acknowledgement of the value-laden nature of statutory interpretation, most
proponents of the Realist Vision make an important error: they appear to
assume that statutory text is easily and inf initely malleable – that one
interpretation of legal language is just as easy to justify as any other
interpretation, and that interpretive decisions are accordingly governed
entirely by the judge’s policy preferences. This is implausible. It seems more

88 As I noted in footnote 76, above, a judge’s desire for “reputation” and “legal impact” may be
manifestations of the same desire.
89 Even if one believes that law clerks write a judge’s decision, the clerk’s use of time still counts as
an important transaction cost: the clerk’s time is a limited resource that is usable by the judge.
Having the clerk write a judgment prevents the clerk from using his or her time to accomplish
other goals on behalf of the judge.
Politics and Prices 81

likely that an interpretation rooted in “plain meaning”, or a construction that

flows intuitively from a statute’s literal text, will often be easier to justify
than a counter-intuitive meaning that seems to stretch or over-ride the statute’s
terms.90 A decision that “X means X” is fairly easy to defend, while a decision
that “X means Y ”, or “X means the opposite of X”, could, without significant
stage-setting and justification by the judge, undermine the relevant judge’s
reputation as a competent reader of texts. As a result, an “obvious”
interpretation may require little or no justification, while a counter-intuitive
construction calls for a greater expenditure of the interpreter’s time and
effort. The relative difficulty involved in justifying competing outcomes is
likely to serve as a powerful determinant of interpretive decisions: a rational
judge who has no preference between two interpretive outcomes is, all things
being equal, likely to choose whatever outcome can be justified most easily.
While it is feasible that a wide array of interpretative possibilities are
supported by any legislative text, it is important to recall that statutory
interpretation is hard work – indeed, interpretation is particularly labour-
intensive when deeply contested texts are being interpreted, as is the case in
most appellate litigation and in virtually all disputes involving constitutional
text. In these cases, any judge who hopes to achieve the twin goals identified
in section 3(b), above (namely, furthering the judge’s ideological preferences
while preserving or enhancing the judge’s reputation) must be prepared to
spend whatever resources are needed to explain and justify the judge’s
interpretive decisions. The primary resource a judge expends when
interpreting legislation is time: the judge expends whatever time the judge
believes is needed to “sell” the judge’s decision to the interpretive community.
Time – at least from a mortal’s perspective – is a scarce resource.
Time spent in pursuit of one activity (such as judging) depletes the time that
is available for pursuing other activities (such as leisure). Time devoted to
certain aspects of the job of judging (like interpreting constitutions), reduces
the time available for other judicial tasks (such as writing judgments in non-
constitutional cases, participating in judicial education programs, or engaging
in administrative tasks). According to Coffin and Katzmann, the constraints
imposed by time can have a significant impact on the work of the judge.
Based on extensive empirical data concerning American judges’ use of time,91

90 Of course, what qualifies as a statute’s “plain meaning” is frequently up for grabs: a meaning that
seems plain to some interpreters (when they confront a text through a lens distorted by personal
ideology) may qualify as a counter-intuitive – or even unjustifiable – meaning for others (that is,
those with different perspectives). These contested cases – that is, cases in which “plain meaning”
is unclear – are the primary focus of this paper.
91 The data was drawn a full-year study (conducted in 1988) of the working patterns of all Third Circuit
judges and their law clerks. See F. Coffin and R. Katzmann, “Steps Toward O ptimal Judicial
Workways: Perspectives from the Federal Bench”, (2003) 59 N.Y.U. Ann. Surv. Am. L. 377, at 381.
82 INDIAN J. C ONST. L.

Coffin and Katzmann found that:

“The average judge’s working year exceeded 2400 productive hours,
certainly comparable to the billing hours of most hard-driving law
f irms. Sixty percent of judge time was devoted to cases; of that thirty-
two percent was spent on preparation and f orty-eight percent on opinions.
Of the almost f orty percent spent on non-case activities, court
administration activity accounted f or seventeen percent of the total
recorded judge time, about f ive percent on national Judicial Conf erence
committee work and continuing education, some eight percent on pro
bono community activities, and less than f our percent on general
preparation (embracing all those activities to maintain prof essional
competence).”92
Coffin and Katzmann went on to note that time constraints exerted significant
pressures on most judges:
“There are the pressures to which [the judge] seeks to respond: an
inexorably rising caseload; the demand f or expedition in disposing of
appeals; the demand to publish all opinions …; the rising involvement
in administration and committee work …; the prolif eration of
congressional oversight inquiries and hearings of ten resulting in new
obligations and reporting requirements; the impact of government-wide
ethical restraints, limiting judges’ recompense f rom teaching and
barring any compensation f or delivering a scholarly address or writing
a solidly researched article f or a periodical.”93
The impact of these pressures, according to Coffin and Katzmann, is to
undermine the judge’s ability to “render top quality judicial service”.94 Leo
Levin (former director of the American Federal Justice Center) echoes these
observations, noting that the significant time constraints imposed on judges
have the effect of compromising the quality of the judgments courts produce.
Levin contends that “Judicial dispositions are not widgets, and at some point the
optimal number of decisions per judge may be exceeded. Productivity cannot be
increased indef initely without loss in the quality of justice.”95 In short, judges
doing the work of “judging” are beset by the problem of scarcity – the scarcity
of time. Like all rational actors faced with a problem of scarce resources,
judges must make a series of choices concerning how they will employ that
scarce resource.

92 Ibid at 387–388.
93 Ibid at 381–382.
94 Ibid at 383.
95 A. Leo Levin, Managing Appeals in Federal Courts 3 (Robert A. Katzmann & Michael Tonry eds.,
1988), as quoted in F. Coffin and R. Katzmann, supra n. 91 at 378.
Politics and Prices 83

How does the scarcity of time impact upon the practice of statutory
and constitutional interpretation? As we have seen, both Legal Realists and
Economists predict that a rational judge will interpret statutes in whatever
way will maximize the judge’s utility (or, to translate into the language of
the Realists, judges will interpret statutes in ways that give effect to their own
preferences). We have seen (in section 3(b), above) that the goal of preference
maximization is, in many cases, pursued through the creation of persuasive
reasons-for-judgment: reasons designed to “sell” the judge’s preferred
interpretive solution to a relevant esteem-granting (or esteem-denying) group.
Time constraints will influence this process: a judge who is faced with
interpretive choices must choose between competing interpretations with a
view to maximizing the judge’s utility, while at the same time balancing the
utility gleaned through making any given interpretive choice against the
utility cost that flows from the expenditure of time required to sell that
interpretation to the community. The interaction of the constraints imposed
by time, reputation and the judge’s policy preferences controls the outcome
of the judge’s interpretive choices. Justice Posner gives a useful illustration
of the way in which these constraints can influence a judge’s decision-making
process:
“… in a three-judge panel, provided that at least one judge has a
strong opinion on the proper outcome of the case, or even that a law
clerk of one judge has a strong opinion on the matter, the other judges,
if not terribly interested in the case, can simply cast their vote with the
“opinionated” judge. This will not be random behavior and will
incidentally be leisure-serving. If both indif f erent judges vote against
the opinionated one, he may write a f ierce dissent that will either
make them look bad or require them to invest time in revising the
majority opinion to blunt the points made by him. Notice that if one
indif f erent judge decides to go along with the opinionated one, the
other indif f erent one is likely to go along as well – otherwise he will
be f orcing himself to write a dissenting opinion, at least given the
current norm of explaining a dissenting vote rather than voting without
an explanation.”96
In this example, the disinterested judges’ “ideological payof f ” from writing
reasons-for-judgment (and justifying a particular legal outcome) is fairly low:
they are “indif f erent” about the outcome of the case. As a result, these judges
are unwilling to invest significant time and effort in the justification of a
particular outcome. The judge who is interested in the outcome (Posner’s
“opinionated” judge), by contrast, has an incentive to spend time persuading

96 R. Posner, supra n. 24 at 20.

84 INDIAN J. C ONST. L.

others to accept the judge’s preferred interpretation: the judge has a policy
preference concerning the outcome of the case, and accordingly gains utility
if that preference becomes law. It appears (from Posner’s hypothetical) that
the utility this judge generates by ensuring that his preferences become law
outweighs the opportunity costs associated with the time it takes to write a
judgment giving effect to the judge’s preference. As a result, the opinionated
judge invests the time required to justify his preferred interpretive outcome.
Assuming only that judges are rational, that their policy preferences
play a role in how they interpret legislation, and that time is a scarce resource,
we can generalize Justice Posner’s example and use price theory to describe
the influence of time upon a judge’s interpretive choices. In all cases in
which a judge is faced with interpretive decisions, the judge will weigh the
utility that can be derived through the ideological or reputational gains that
are available in a given case against the utility to be derived from other uses
of the time that it would take to achieve those gains (say, deciding other
cases, engaging in court administration, or spending time with family). Where
the “interpretive payof f ” (that is, the utility gained by furthering the judge’s
personal preferences) is great, the judge will be willing to spend more time
and effort – to burn more “rhetorical f uel”, as it were – manipulating the law
and justifying the outcome sought. The judge is willing to work longer and
harder to manipulate a text in cases where the judge’s personal preferences
are at stake. Where the judge’s personal preferences are not implicated in a
particular case (or where the predicted ideological and reputational impact
of a particular case is low), the judge will be willing to spend less time and
effort manipulating the law.97 This seems sensible: a judge with a particular
agenda (say, for example, an anti-poverty agenda) will be more willing to
make extraordinary efforts to manipulate the law (for example, justifying a
counter-intuitive reading of a statute) in cases where poverty issues are at
stake. In a case that does not raise issues implicating the judge’s agenda, the
judge is more likely to take a less labour-intensive path: to accept a “plain
meaning” interpretation of the law, to follow precedent, to adopt the reasoning
of a court below, or to engage in “go along voting” (perhaps where a colleague
whose preferences are implicated by the relevant case has already crafted a
plausible judgment). This leads to a useful prediction: the level of time and
effort that a judge will be willing to expend on a given case (or, in other
words, the amount of “rhetorical f uel” a judge will be willing to burn in the
ideological manipulation of the relevant legal materials) should vary with

97 In effect, the scarcity of time reins in a judge’s ideological manipulation of text. As Waluchow
notes in “Constitutions as Living Trees: An Idiot responds” (2005) 18 Can J L & Jurisprudence 207
at 241, “the requirement that judgments be publicly defended in light of constitutional principle,
can sometimes work against any political biases to which judges might be subject”.
Politics and Prices 85

the degree to which the judge’s personal preferences are implicated by the
case at hand. In other words, TRF ~ PI, where T RF represents the time a judge
is willing to expend constructing convincing legal arguments in order to
justify an outcome that coincides with the judge’s views, and PI represents
the potential policy impact of a particular case (that is, the ability of the
relevant case to advance the judge’s preferences). T RF varies with PI (or, in
quasi-mathematical notation, T RF ~ PI). As one quantity rises, the other
quantity rises as well.
The implications of price theory’s prediction that TRF will vary with PI
should be straightforward. A judge whose passions are fueled only by privacy
issues (for example) will be willing to spend more time and effort manipulating
the law of privacy than she will on cases involving probate fees (or other
non-privacy issues). In the latter class of cases, she may see no need to be
innovative, no need to “push the envelope”, or no need to depart from the
obvious course of precedent or the statute’s ‘literal’ text. In short, she will be
willing to spend less time crafting and selling interpretive arguments than
she would in a case that implicated privacy concerns. A judge whose passions
are fueled by the desire to promote racial equality will be willing to spend
more time on racial equality cases (or on cases where race relations are
somewhat relevant) than on cases that do not relate to that particular social
agenda. Less charitably, judges whose salaries are in jeopardy might – if
they value their own income – be willing to spend significant time and effort
constructing “an elaborate edif ice of doctrine with little or no basis in the [relevant
statute’s] text in order to protect the power, inf luence, salaries and perquisites of
themselves and their colleagues”,98 as Canada’s top Court did in the Remuneration
Ref erence. In short, a judge will be willing to spend more time and effort on
cases that will allow the judge to further his or her preferences. The judge
seeks a return-on-investment when he or she spends time engaged in the task
of interpreting statutes. That return is measured in policy impact (or associated
reputational gains), and the level of investment is measured in time. A typical
judge will seek the highest return in exchange for the lowest fruitful
investment: a judge will tend to invest his or her time in cases that help the
judge further his or her own policy goals.
While the notion that T RF ~ PI seems to coincide with price theory’s
sensible assumptions regarding the way in which rational judges will behave,
it would be nice to test this hypothesis against observed judicial behavior.
While no scientific studies have gathered data for the purpose of exploring
this hypothesis, a comparison of judicial behavior in different interpretive
contexts may be instructive. If, for example, judges show a marked tendency

98 P. Hogg, supra n. 40, at 74.

86 INDIAN J. C ONST. L.

to (a) avoid counter-intuitive (or “dif f icult to justif y”) constructions in cases
where the likely ideological and reputational payoff is fairly low, while (b)
showing the opposite tendency (that is, frequently straining literal language
or giving effect to counter-intuitive constructions) in cases where the
ideological and reputational stakes are higher, we will have made some
progress in verifying the hypothesis that TRF ~ PI. Happily, we do observe
this pattern if we compare the Supreme Court of Canada’s approach to the
interpretation of constitutional text with the same court’s approach to the
interpretation of income tax legislation.99 When interpreting constitutional
laws (where the ideological and reputational stakes are high)100 Canadian
judges openly over-ride the intention of the constitution’s framers, supplement
(or over-ride) the constitution’s text, and freely manipulate the text with a
view to furthering judges’ personal policy preferences. When interpreting
tax laws, by contrast – where the ideological and reputational stakes are
markedly lower 101 – Canadian judges typically assert that “In interpreting
sections of the Income Tax Act, the correct approach … is to apply the plain
meaning rule”.102 In other words, Canadian judges show a tendency to avoid
counter-intuitive construction (that is, constructions that are relatively difficulty
to justify) in tax cases, while frequently pursuing counter-intuitive constructions
in cases involving constitutional text.
There are a number of reasons why judges may show a tendency to
prefer “plain meaning” (or “intuitive constructions”, which take relatively little

99 The pattern observed with respect to the interpretation of constitutional laws is also observed in
the interpretation of Human Rights enactments: as a result, one cannot conclude that the
“supremacy” or special nature of the constitution is the sole determinant of the court’s interpretive
practice. See R. Graham, “Right Theory, Wrong Reasons” (2006) 34 SCLR (2d) 169.
100 While tax statutes and constitutional texts both qualify as “fundamental elements” of a nation’s
body of public law (that is, constitutional documents establish the ‘plan’ for a society, while tax
statutes establish the method of paying for and implementing that plan), the ideological gains
arising from the interpretation of constitutional texts are much greater than the gains one could
achieve through the interpretation of income tax statutes. To the extent that a judge succeeds in
infusing the text of a constitutional law with his or her own ideology, all laws in the relevant
jurisdiction (due to the supremacy of constitutional text) must now comply with the judge’s
ideology. The “ideological impact” of interpreting tax statutes, by contrast, is more localized,
typically affecting only the administration of the tax statute. This is, perhaps, why relatively few
jurists have achieved renown through their interpretation of income tax laws, while numerous
judicial reputations are built on the strength of the judge’s interpretation of constitutional text.
Moreover, any ideological impact achieved through the manipulation of income tax is likely to
be short-lived (when compared to the ideological impact achieved through constitutional
construction): see footnote 101, below.
101 One reason that the “ideological stakes” are relatively low in most cases involving fiscal legislation
relates to the frequency with which fiscal statutes are amended: a judge may go to great lengths
infusing the text with his or her own personal views, only to see the text amended following the
next annual budget. Constitutions, by contrast – particularly bills of rights – are amended fairly
infrequently. As a result, ideological influence achieved through constitutional construction is
likely to give rise to longer-term policy impact and longer-term reputational gains.
102 Friesen v. Canada [1995] 3 SCR 103, at 113 (per Major J., for the majority).
Politics and Prices 87

time to justify or explain) when interpreting tax statutes while showing greater
willingness to spend time explaining and justifying counter-intuitive
constructions of constitutions. These reasons relate to the differing costs and
benefits that arise in these distinct interpretive contexts. First (as noted above),
the possibility of long-term ideological and reputational gain is greater when
judges interpret constitutional text than it is when they interpret fiscal statutes:
this gives the judge a greater incentive to expend time and effort manipulating
constitutions in the direction of the judge’s personal preferences. As a result,
the “benef it” of ideological-manipulation in the constitutional context is likely
to seem (to the judge) greater than the benefit of ideologically-manipulating
the text of fiscal laws. Second, the “cost” of textual manipulation may be
greater in the income tax context. Tax statutes are typically drafted in
exceedingly precise and detailed language, while constitutional texts
(particularly those that deal with fundamental rights) are couched in vague
and open-textured terminology. All things being equal, a vague and open
textured phrase 103 is more easily manipulated than precise and specific
language: in other words, a counter-intuitive reading of tax statutes (that is,
an interpretation that strays from plain meaning) will, in most cases, take
more time and labour to justify104 than a counter-intuitive reading of a
constitutional text (for example, a reading that conflicts with the framer’s
expectations).105 As a result, the “return on investment” (for the judge) in the

103 On the nature of vagueness and its implications for statutory construction, see R. Graham, supra
n. 1, chapter 4, “Vagueness and Ambiguity”.
104 A second reason that courts may find it harder to manipulate the text of tax statutes than the text
of constitutions relates to the courts’ own perception of their relative institutional competence
(vis-à-vis the legislative or executive arms of government) when it comes to the interpretation and
application of the relevant body of law. Canadian courts see themselves as less competent than
the legislative or executive branches in the interpretation and application of statues involving
financial matters, and therefore often grant significant deference to government interpretations
of laws dealing with such matters: see (for example) Canada (Director of Investigation and Research)
v. Southam Inc., [1997] 1 SCR 748 and Pezim v. British Columbia (Superintendent of Brokers) [1994] 2
SCR 557. By contrast, the Court appears to perceive itself as superior to the legislative or
executive branches in the interpretation and application of statutes dealing with human rights,
and therefore grants the government little difference when interpreting such enactments (see, for
example, Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982).
Indeed, the Court suggests that it has a particular advantage over the other branches of government
when it comes to the application and interpretation of constitutional text, effectively granting
other government actors no deference when interpreting the text of the constitution. For a
discussion of the relevant jurisprudence, see R. Graham, supra n. 99. If one assumes that
expertise with an enactment’s subject matter lessens the difficulty (or lowers the learning-curve)
associated with the manipulation of the language of that enactment, one can safely conclude that
the courts would typically have a harder time manipulating the text of fiscal statutes than they
would manipulating constitutions.
105 More importantly, perhaps, courts face a greater likelihood of “interpretive error” in the interpretation
of tax statutes, particularly where they attempt to justify deviations from plain meaning. Let us
assume, for the moment, that tax statutes are typically more complex than constitutions, and that
courts have less institutional expertise with respect to the language of tax statutes than the financial
advisors retained by the government in the drafting of tax enactments. Further assume (as the
88 INDIAN J. C ONST. L.

interpretation of constitutional laws is (on average) far greater than the return
on investment the judge receives by spending time interpreting tax statutes:
a judge who seeks policy-preference gains through the interpretation of
constitutional text may anticipate potentially large gains with a relatively
small investment of time. A judge who seeks similar gains through the
interpretation of income tax statutes may anticipate smaller (and shorter
term) gains that require a significant investment of the judge’s time. As a
result, judges interpreting tax statutes can be expected to take a less labour-
intensive path, embracing “plain meaning” or intuitive constructions (regardless
of the judges’ personal policy preferences), while judges working in the
constitutional realm should be expected to go to greater lengths to over-ride
intuitive meaning in pursuit of ideological goals. As we have seen, Canadian
judges exhibit this pattern of behavior, lending support to price-theory’s
intuitive prediction that T RF ~ PI: the level of time and effort a judge is willing
to expend on a given case (or, in other words, the amount of “rhetorical
fuel” a judge is willing to burn in the ideological manipulation of the relevant
law) varies with the degree to which the judge’s personal preferences are
implicated by the case at hand. Conversely, a judge’s willingness to manipulate
the law in the direction of the relevant judge’s preferences will decrease as
the interpretive costs rise.
The comparison of Canadian tax jurisprudence with the practices of
courts interpreting constitutional texts not only supports the hypothesis that
TRF ~ PI, it also reveals some of the specific costs and benefits to which judges
respond in accordance with the predictions of price theory. Specifically, it
shows that a judge’s willingness to endorse counter-intuitive interpretations
of a text varies inversely with the level of precision and complexity exhibited
by the language of the relevant enactment. This makes sense: it is harder
(and therefore more costly) to manipulate a precise and complex piece of
legislation than it is to manipulate a vague and open-textured text. As a
result, to the extent that legislators wish to minimize the judiciary’s ideological-
manipulation of statutory text, or to minimize the extent to which the court
will give effect to counter-intuitive constructions of legislation, legislators
have an incentive to increase the level of specificity and precision in the

courts appear to assume) that the courts have greater expertise than the legislature when it comes
to interpreting constitutions. If these assumptions are correct, then there is a greater likelihood
that a court’s counter-intuitive reading of a tax enactment is demonstrably wrong (in the sense of
that construction being demonstrably inconsistent with other provisions of the enactment) than
there is that a court’s interpretation of a constitution is demonstrably wrong. If courts are
protective of their reputations (as we suggested in section 3(b), above), then they are likely to
“tread lightly” in the interpretation of income tax statutes, for fear that the court’s interpretation
will be proven incorrect. They would experience less “fear” with respect to the interpretation of
constitutional text, and would accordingly be more willing to interpret constitutions in a counter-
intuitive manner where doing so could further the judges’ personal preferences.
Politics and Prices 89

language of the statutes and the Constitutions that they pass.106 The effect of
increased specificity is to elevate the cost (to the judge) of pursuing counter-
intuitive interpretations of the relevant legislation. Judges are the consumers
of competing interpretive outcomes, and will tend to act as ordinary
consumers when they make consumption choices – a higher relative cost (or
a lower relative benefit) will reduce consumer demand. As consumers of
competing interpretive outcomes, judge will tend to choose whatever
interpretive outcomes cost the least while giving effect to those that benefit
them the most.
§ Conclusion
I’ve always hated it when papers rooted in microeconomics feebly
conclude with the observation that “more data are required”. It’s usually true,
but I still hate it. In the present context, it is obviously true that more data
would be helpful in the creation of a thorough model of interpretive choice:
it would be helpful to know more about the impact of reputation on specific
interpretive choices, and it would be useful to have specific data concerning
a typical judge’s use of time. If the model that I have proposed is an accurate
account of judicial behavior, the case for the collection of these data should
be clear.107 Even without these data, however, the model I have proposed
supports at least three conclusions.
First, this model helps to explain the basic determinants of the decisions
judges make when they interpret legislation. The Realist Vision explains
that judges interpret statutes and Constitutions with a view to implementing
the judges’ policy preferences. This insight is not revolutionary. We have,
however, answered a good question: what factors tend to “rein in” a judge’s
pursuit of his or her ideological agenda? As we have seen, two prime factors
(or two major determinants of the judge’s interpretive choices) are reputation
and time. Judges typically care about the esteem in which they are held by
specific esteem-granting (or esteem-destroying) groups. Where this is the case,
the judge will either (a) moderate his or her ideological manipulation of text
by accommodating the views of the relevant group, or (b) craft reasons-for-

106 Of course, legislative drafters are not immune from the pull of price theory: it is more difficult
and time consuming to draft a specific and complex law than it is to draft an open textured
statute. As a result, legislators will only do so where the gains associated with more specific
statutes (say, for example, avoidance of judicial activism) outweigh the costs associated with the
time it takes to draft and agree upon specific legislative text.
107 I shall leave aside, for now, the case to be made for the collection of data concerning potential
appointments to the bench. While this paper makes it clear that such data would be useful in
predicting the interpretive practices of prospective judges, the value of such data may be
overmatched by the cost of acquiring it. Moreover, such data would be suspect in many cases:
to the extent that our data is based on the judge’s own self-interested statements (conducted
through an appointment-hearing, for example), such statements are likely to be unreliable.
90 INDIAN J. C ONST. L.

judgment designed to insulate the judge from reputational costs. Where the
judge chooses option (b), the judge is constrained by time. A judge who is
concerned with his or her reputation (or the reputation of the judiciary in
general) will tend to manipulate the law in the direction of his or her own
policy preferences only where the relevant ideological payoff justifies the
amount of time and effort it takes to justify that decision in a manner that
will persuade the relevant esteem-granting group. In a nutshell, this is how
judges interpret legislation.
The second thing we have learned (which is really a broader version
of the first) relates to post-modern claims concerning language. At the outset
of this essay, I noted that post-modern theorists rarely ask why language
works. They are adept at pointing out the vulnerability of language to the
unsettling free-play of deconstruction, but rarely address the issue of why,
despite this inherent vulnerability, language is so effective in conveying
information. I think that we have laid the groundwork for an answer to this
question. Language works because we typically have an interest in interpreting
language in conventional ways. We avoid most attempts to pointlessly
deconstruct everyday language because doing so would often lead to
confusion, frustrate our expectations or make us look foolish or unprincipled
to others. While we could undertake a deconstructive romp through the tax
code, or unravel the layers of meaning underlying a statement of claim, we
tend to refrain from doing so. Our self interest, frequently rooted in such
base concerns as reputation and time, keeps us from trying to destabilize the
texts that we confront. Instead, we tend to do our best to interpret texts in
accordance with the intention of those who wrote them (or those with the
power to generate authoritative meanings), for doing so can lead to
predictable outcomes and preserve our reputations. Generally speaking,
achieving predictable outcomes (and maintaining a good reputation)
maximizes our utility. As a result, self-interest has the effect of pushing us
toward conventional and intuitive interpretations of language, while leading
us away from any counter-intuitive meanings that a deconstruction of the
relevant language might reveal.
Finally, I think that we have learned something about legal theory.
Specifically, we have seen the intersection of post-modern legal theories and
the economic analysis of the law. It is (to me at least) somewhat remarkable
that the rhetoric of the Realists, the Crits and the other supporters of the
Realist Vision of statutory interpretation is so similar to the rhetoric of
microeconomics. Proponents of the Realist Vision of statutory construction
share the economists’ view that the courts’ interpretation of legal language is
a value-laden process. Legal Realists and Crits point out that all interpretation
is an exercise in ideological manipulation. Economists support this view,
 91

pointing out that all judges are engaged in self-interested utility maximization,
even when judges interpret legislation. Once we augment the Realist Vision
with the intuitive assumption that the manipulation of legal text is a difficult
and time consuming activity, the Realist Vision of statutory construction
coincides perfectly with the economic depiction of constrained utility
maximization. Although Crits and economists might use markedly different
language to describe judicial behavior (and make different value judgments
when assessing it), they are telling the same story: a story about constrained
judicial preference maximization through the manipulation of legislative
text. For me, the degree of consistency between the work of Crits and the
analysis put forward by economists is a very welcome discovery. Crits and
economists rarely pay sufficient attention to each other’s scholarly work.
Given the similarity of their views regarding statutory and Constitutional
interpretation, it is time that they began to work together.
92 INDIAN J. C ONST. L.

OUR CONSTITUTION A ND
ITS S ELF -INFLICTED W OUNDS

Arvind P. Datar*
The Constituent Assembly had its first sitting on 6 th December 1946.
On August 29, 1947, after India attained independence, the Constituent
Assembly appointed a drafting committee which submitted the Draft
Constitution in February 1948. After extensive discussion and various
amendments, it was adopted by the Constituent Assembly on November
26, 1949. The result was the most elaborate Constitution in the world for
perhaps the most diverse group of persons: of different religions, ethnic
backgrounds and languages. It would be incorrect to give full credit to the
Constituent Assembly for they did not draft the Constitution from scratch.
The foundation for the new Constitution was the Government of India Act,
1935. Important portions that were added were the Preamble and the Chapters
on Fundamental Rights and Directive Principles of State Policy. The chapter
on Fundamental Rights was perhaps the most glorious chapter of the
Constitution, which also provided for an elaborate judicial system to protect
these rights. Before independence, India already had a complex hierarchy
of courts administering civil and criminal laws although the executive was
not fully separated from the judiciary. The Constituent Assembly decided to
continue with the federal structure with a strong Parliament at the Centre.
The Seventh Schedule set out the fields of legislation for Parliament (List-I)
and for the State Legislatures in List-II. The Concurrent List (List-III) stipulated
fields wherein both, the Parliament and the State Legislatures could make
laws, subject, of course, to the primacy of Parliament.
The final product was a magnificent Constitution which provided the
frame work for good governance and enabled all persons in India to achieve
their dreams without forfeiting their basic human rights. On 26th January,
1950 we gave ourselves this noble Constitution. Little did we realise that, in
the years ahead, the Constitution would suffer self-inflicted wounds from
none other than our elected representatives – who ironically were obliged
to preserve and protect the Constitution.
This article sets out the Constitutional amendments which, in the
opinion of the writer, have done serious harm to the Constitution. Some of
the amendments were to achieve certain social objectives, others were to
protect certain individuals and yet others to achieve populist and politically

* Senior Advocate, Madras High Court.

 93

expedient programmes. In Dred Scott v. Sanf ord1 , the US Supreme Court

held that slaves had no rights and were chattel. Chief Justice Charles Evans
Hughes characterized this decision as a “self-inflicted wound”. This expression
has been borrowed to characterize those amendments which have seriously
damaged our Constitution. In some cases, the damage was restored by another
amendment or by the Supreme Court striking it down. The wounds were
healed but the scars remained. Fifty-seven years later, the Constitution has
survived, enabling us to enjoy basic human freedoms that are virtually non-
existent in most other third-world countries.
I have set out these amendments in chronological order. [Like the
Dred Scott case, some judgments of our Supreme Court can also be
characterised as self-inflicted wounds.] But limitations of time and space have
made it necessary to confine this article only to Constitutional amendments.
§ The First A mendment & the Ninth Schedule
In the beginning of 2007, a nine-Judge Bench of the Supreme Court
observed that the power of Parliament to include laws in the Ninth Schedule
was limited and would be subject to judicial scrutiny. An amendment which
violated the basic structure can no longer be protected by placing it in the
Ninth Schedule.2
Most of us hardly know that the idea of the Ninth Schedule was
conceived by none other than the former Advocate-General of Madras, V.
K. Thiruvenkatachari. The transformation of this idea into the Ninth Schedule,
inserted by the First Amendment made to the Constitution in 1951, is an
interesting story.
Before independence, the Congress Party had promised to abolish
Zamindari estates and large landholdings, and redistribute land to the farmers
or tillers. Pandit Nehru called himself a socialist and a republican. Indeed,
socialism was the preferred policy in several countries and was seen to be
the best way for the equitable distribution of wealth and to attain social
justice.
After independence, several land reform laws were enacted to
implement the policy of redistribution of land. The compensation payable
for the lands that were acquired was often less than the market value. These
land reform laws were soon challenged before various High Courts, and
some of the High Courts also granted injunctions against any acquisition of
land by the State. The main complaint therein related to the quantum of
compensation. Some civil servants suggested that the compensation must be
1 60 U.S. 393 (1856).
2 I.R.Coelho v State of Tamil Nadu, (2007) 2 SCC 1.
94 INDIAN J. C ONST. L.

just and fair but others disagreed. Pandit Nehru felt that these socio-economic
programmes would be slowed down by litigation and wrote to the Chief
Ministers of various States telling them that the Constitution would have to
be amended if it came ‘in our way’. One suggestion was that land reform
legislation should not be subject to judicial scrutiny by any court whatsoever.
While these amendments to the Constitution were being considered,
the Patna High Court struck down the Bihar Land Reforms Act, 1950. The
petition had been filed by the Maharaja of Darbhanga.3 Less than a fortnight
later, the Calcutta High Court struck down certain acquisition proceedings
in the famous Bela Banerjee case4 . Pandit Nehru asked the then Law Minister,
Dr. Ambedkar, to prepare necessary amendments to the Constitution.
Dr.Ambedkar suggested that the question of compensation should not be
reviewed in any court if Presidential assent had been given for acquisition
of property. President Rajendra Prasad raised several doubts and Sardar
Vallabhai Patel, who was in Bombay, also wrote to Nehru asking for some
further time till the doubts raised by the President were considered by the
Law Ministry. The judgment of the Patna High Court was in appeal before
the Supreme Court. It is believed that Nehru threatened to resign if Rajendra
Prasad did not give Presidential assent to the amendment. The President
signed the Bill but expressed his unhappiness at the urgency.5
At this stage, V. K. Thiruvenkatachari, in a letter to the Law Secretary,
K.V.K. Sundaram suggested that a new schedule could be added to the
Constitution. All acts pertaining to land reform laws could be certified by
the President and inserted in this new schedule. These laws would be deemed
to be valid retrospectively and could not be challenged for violating any
provision of the Constitution.6 Austin labeled the Ninth Schedule a ‘genie
that would have a profound impact on the Constitutional governance of the
country.’ V.K. Thiruvenkatachari’s suggestion was later translated into Articles
31A, 31B and the Ninth Schedule. Under Article 31A, laws that related to
acquisition of estates, nationalisation of industries, extinguishment of mineral
leases or their premature termination could not be challenged on the ground
that they violated Article 14 (right to equality), Article 19 (right to various

3 AIR 1951 Pat 91 (FB) – see also State of Bihar v Kameshwar Singh AIR 1952 SC 252 : (1952) SCR 889
– The method of calculating compensation was truly shocking.
4 AIR 1952 Cal 554 – see also State of West Bengal v Bela Banerjee AIR 1954 SC 170 (The impugned
legislation fixed the market value of the land on 31.12.1946 as the maximum compensation
payable irrespective of when the land was acquired. It was common knowledge that after the war,
the value of land had increased considerably particularly in Calcutta. This provision was held to
be violative of Article 31(2). The Supreme Court affirmed the decision of the West Bengal High
Court.)
5 For an enlightening account, see Granville Austin, Working a Democratic Constitution.
6 Gravnville Austin, Working a Democratic Constitution, Chapter 3 (p. 69-74).
Our Constitution and its Self -inf licted Wounds 95

freedoms including the of speech association, etc) and Article 31 (right to

property). Article 31B went even further: it stipulated that none of the Acts
and Regulations specified in the Ninth Schedule shall be deemed to be
void or ever to have become void on the ground that they abridged any
fundamental right. Such laws could not be deemed to be void notwithstanding
any judgment, decree or order of any court or Tribunal. The Ninth Schedule,
initially contained thirteen land reform enactments.
The net result of the First Amendment was that any Act which was included
in the Ninth Schedule would be completely immune from challenge in any
court of law. At that time, this amendment was criticised in the media. Even
the Supreme Court Bar Association passed a resolution expressing concern
over the amendment. It was widely believed that the amendment had been
made with undue haste.
There was no Constitutional justification for the Ninth Schedule. If
the Government had to abolish zamindari estates or nationalise industries,
just and fair compensation ought to have been paid. The large amount of
litigation sought to be avoided could have been so if adequate compensation
had been given to persons whose lands had been taken away. These laws
also spawned dubious devices to circumvent land reform laws and created
extensive illegal holdings.
Thus, we see, that the First Amendment set the precedent for the
Constitution being frequently amended for the purposes of overruling
judgments. It also set the trend of retrospective amendments regardless of
the hardship that would be caused to the public.
The Ninth Schedule eventually was subject to substantial abuse.
Thirteen laws were inserted in the Ninth Schedule in 1951, seven in 1955,
forty four in 1964, two in 1972, twenty in 1974, thirty four in 1975 and another
fifty nine in 1976. During the Emergency, more than eighty laws were included
in the Ninth Schedule and the entire process of getting the approval of the
Lok Sabha, Rajya Sabha and the ratification by two thirds of the States was
completed in a few days! Thereafter, the number of laws included in the
Ninth Schedule has kept on increasing and now contains 284 Acts.
Although several laws do relate to land reform legislation, a number
of Acts have nothing to do with either zamindari abolition or nationalisation.
The Essential Commodities Act, FERA and MRTP, among other laws, find
a place in the Ninth Schedule. Consequently, these laws cannot be challenged
on the ground that they violate a citizen’s fundamental right. Legally, a law
curtailing the freedom of the press could be included in the Ninth Schedule
and nothing could be done – that is, till the basic structure doctrine was
96 INDIAN J. C ONST. L.

evolved.
The greatest abuse was the insertion of amendments to election laws
in the Ninth Schedule. After Mrs. Gandhi’s election was set aside by the
Allahabad High Court and the matter was pending before Supreme Court,
amendments were made to put the elections of the President, Vice President,
Speaker and Prime Minister beyond any challenge in a court of law.
Including the amendments to election laws in the Ninth Schedule was a
clear abuse of Parliament’s power to amend the Constitution. It had nothing
to do with land reforms or any socio economic reform. This demonstrated
that the Ninth Schedule could be misused. H.M. Seervai, one of the greatest
Indian Constitutional scholars, in his book7 , published after the Emergency
observed:
“The power of acquisition under Article 31(2), and under Article
31B, had been abused at all times to secure party political ends of the
parties in power, but more particularly during elections. The power to
acquire property on payment of illusory compensation was used as a
weapon of blackmail to secure “donations” f or the election f unds
of the party in power f rom industrial and commercial concerns.”
Seervai points out that Article 31B and the Ninth Schedule enabled the
Government to make laws that violated fundamental rights but were immune
from any legal challenge. In his view, the “grossest abuse” of Article 31B
was the inclusion of the dreaded MISA (Maintenance of Internal Security
Act) in the Ninth Schedule. Seervai called for a repeal of Article 31B and
the Ninth Schedule.
The Ninth Schedule was further misused by re-enacting laws which
had been held to be unconstitutional and inserting them in the Ninth Schedule.
In several cases, these laws were validated retrospectively. It cannot be disputed
that the Ninth Schedule was used for purposes for which it was never intended.
It was inevitable that the validity of the Ninth Schedule itself would be
eventually questioned.
After the basic structure theory was laid down in the historic
Kesavananda case 8, no law could be immune from judicial review.
Parliament’s power to amend the Constitution could not extend to altering
the basic structure of the Constitution. The basic structure could not be
violated indirectly by inserting unconstitutional laws in the Ninth Schedule.
The Nine-Judge bench 9 has now clearly laid down the scope of legislative

7 “The Emergency, f uture saf eguards and the Habeas Corpus case: A criticism”, p. 149, (1978).
8 His Holiness Kesavananda Bharathi v State of Kerala AIR 1973 SC 1461.
9 I.R. Coelho, Supra n. 2.
Our Constitution and its Self -inf licted Wounds 97

power. It has made it clear that the Constitution is supreme and there are
certain parts of it which are inviolable. Chief Justice Gajendragadkar, speaking
about the Ninth Schedule, remarked that our Constitution was the only one
that contained a Schedule to protect laws against the Constitution itself.10
The Supreme Court has made it clear that Parliament cannot
indiscriminately include laws in the Ninth Schedule and debar judicial
review. The laws inserted in the Ninth Schedule after 24.4.1973, the date of
the Kesavananda ruling would now be examined on the basic structure
doctrine. The latest judgment should not be seen as a confrontation with the
legislature. It has only declared that it is the Constitution that is supreme.11
Barring the controversial issue of compensation, there was no serious
confrontation between the legislature and the judiciary. Pandit Nehru
maintained the dignity of the judiciary, the legislature and the executive.
In 1951, the Supreme Court had held that Parliament could amend any of
the articles in Part-III of the Constitution. A Constitutional amendment was
not a law under Article 13(2).12 The Supreme Court upheld the validity of
the Constitution (1st Amendment) Act, 1951 which had inserted Articles 31A
and 31B. As long as Pandit Nehru was alive, one might not have felt the
need for the basic structure doctrine to protect the Constitution from the
elected representatives of the people.
§ The 24 th A mendment – the onslaught begins
After 1951, the Constitution was amended 23 times. None ‘wounded’ the
Constitution. On July 22, 1971 the 24th and 25th amendments were introduced in
Parliament. They marked the beginning of repeated attacks on the integrity of
the Constitution. Unlike the 42nd amendment, the amendments were brief but
equally devastating. Like the first amendment, they were intended to overcome
judgments of the Supreme Court. The only difference was that the first
amendment had the policy objective of abolishing zamindari estates and providing
nationalisation of industries. The 24th and 25th amendments would have the
effect of placing the Constitution at the mercy of any ruling party that could
command the requisite 2/3rd majority in Parliament and had the power to get it
ratified by two-thirds of the State. In the well known Golaknath13 case, the Supreme
Court by a majority of 6:5 overruled the earlier decision which had held that
Parliament had the power to amend any part of the Constitution including the
portion relating to fundamental rights.14 Golaknath ruled that Parliament would

10 Austin, supra 5.
11 I.R.Coelho, supra 2.
12 Shankari Prasad Singh v Union of India AIR 1951 SC 458.
13 Golaknath v State of Punjab AIR 1967 SC 1643.
14 Shankari Prasad v Union of India AIR 1951 SC 458; Sajjan Singh v State of Rajasthan AIR 1965 SC 845.
98 INDIAN J. C ONST. L.

have no power to take away or curtail any of the fundamental rights which
had been guaranteed by Part-III of the Constitution. The judgment in the
Golaknath case was rendered in 1967. However, these amendment were
introduced in 1971. There is no evidence of the Golaknath judgment being
an obstruction to any programme of economic reform between 1967 and
1971. It was never demonstrated that fundamental rights had interfered with
the implementation of any socio-economic reforms. The 24th amendment
stipulated that Parliament could amend by way of “addition, variation or
repeal” any provisions of the Constitution under Article 368. Under Article
368, the President had the power to send a bill to Parliament for being
reconsidered. The 24th amendment provided that once the Constitution
was amended by the requisite majority mentioned in Article 368(2), the
President had no option but to give his assent to the bill.15 A corresponding
amendment to Article 13 made it clear that a Constitutional amendment
under Article 368 could not be struck down on the ground that it took away
or abridged any fundamental right. The intention of Parliament was clear: it
would have the power to abrogate any or all the fundamental rights and
there would be no judicial review.
§ The 25 th A mendment
The 25th amendment was also introduced on 22nd July 1971. It consisted
of just two effective sections. The first enabled Parliament to acquire any
property without payment of ‘compensation’. Article 31 provided for
acquisition of property on payment of compensation. In the Bank
Nationalisation case16, the court held that the right to compensation would
be the right to get the money equivalent of the property that had been
compulsorily acquired. Further, the Court held that the law which provided
for acquisition or requisition of property for a public purpose should justify
the requirements of Article 19(1)(f).
The Statement of Objects and Reasons of the 25th amendment lamented
that the adequacy of compensation was justiciable and the courts could
determine whether the amount paid to the owner of the property could be
reasonably regarded as compensation for loss of property. Article 31(2) was
amended whereby the word “compensation” was replaced by the word
“amount”. The courts were barred from examining whether the amount
was inadequate or that the amount was to be given otherwise than in cash.
The word “amount”, in any dictionary, means ‘a sum of money’. For instance
15 In a speech at the Loyola College, Chennai in 1971, Nani Palkhivala bitterly criticised the 24th,
25th and 26th amendments. He pointed out that if the President could ask Parliament to reconsider
a Sugar Control Bill but if the entire chapter on Fundamental Rights was sought to be deleted, the
President would have no option but to give the assent immediately.
16 R.C.Cooper v Union of India AIR 1970 SC 564.
Our Constitution and its Self -inf licted Wounds 99

consider this hypothetical absurdity. The Government could acquire property

worth crores of rupees and pay just a few lakhs as compensation. The person
whose property was acquired would have no remedy. It was often forgotten
that acquisition could be of a zamindari estate or other jagir property. The
Government could acquire anyone’s home, shop or factory and pay a paltry
sum as an “amount” for the acquisition. Equally, the Government could
give bonds repayable after ten years. The 25th Amendment also made clear
that the acquisition of property would not be affected by Article 19(1)(f).
Thus, the first part of the 25th amendment placed acquisition of property
outside the pale of judicial review.
But the other amendment proposed by the 25th amendment was far
more vicious. It sought to include Article 31C whose purported object was
to save laws that gave effect to Directive Principles. Once again, it started
with a non-obstante clause and declared that any law giving effect to the
Directive Principles mentioned in clauses (b) and (c) of Article 39 could not
be challenged on the ground that it took away or abridged the rights conferred
by Articles 14, 19 or 31. The sting was in the last part of the Article. It stated
that if a law contained a declaration that it was for giving effect to the Directive
Principles of State Policy, it could not be questioned at any court on the
ground that it did not give effect to the Directive Principles. In other words,
a law, even if actually against public interest or to further private political
ends, could merely contain a declaration that it was intended to give effect
to Directive Principles and get the protection of Article 31C. Even if one
could logically demonstrate that the law would actually defeat Article 39,
one could not challenge it in a court of law.
Nani Palkhivala termed this amendment as being in utter contempt
of Parliament and called it an outrage on the Constitution.17 The effect of
the amendment was that any law could be passed by Parliament and it had
merely to contain a declaration that it was intended to give effect to the
Directive Principles of State Policy. A simple declaration would close the
door of judicial review.
Similarly, any State Legislature could pass laws with such declaration.
The only requirement was that they should be reserved for the consideration
of the President.
The 24th and 25th amendment in their original form, effectively
destroyed the heart of the Constitution that envisaged a democratic system
of Government consisting of the legislature, executive and the judiciary.
These two amendments sought to place the legislature and the executive

17 Supra 12.
100 INDIAN J. C ONST. L.

above any checks or controls by way the judiciary. If the 25th amendment
had not been partly struck down in the Kesavananda Bharati case, it would
have been definitely subjected to extensive abuse as in the case of Ninth
Schedule. A frightening point to note is that six out of thirteen judges who
heard the Kesavananda case did not think anything was wrong with Article
31C!
§ The 26 th A mendment – Constitutional breach of trust
In July 1971, Parliament also passed the 26th Amendment Act that
abolished the Privy Purses; a questionable event in our Constitutional history.
The Republic of India reneged on its Constitutional commitment to the
former rulers of the princely States. The amendment was not in public interest
because the total amount that was given as privy purse to the former rulers
was just Rs. 4 crores per annum and was diminishing year after year. The
princely States covered 48% of the territorial area of undivided India and
28% of the population resided therein.18
The Indian Independence Act, 1947 provided for the lapse of
paramountcy of the sovereignty of the British crown in India over the Indian
States and each Ruler had the option of either acceding to the dominion of
India or Pakistan or to continue as an independent sovereign State. The
Government of India formed a Ministry of States presided over by Sardar
Vallabhai Patel. The herculean task undertaken by Patel with the assistance
of V. P. Menon need not be recounted here.19 C. Rajagopalachari signed the
Instrument of Accession as the Governor General of India accepting the
various Instruments of Accession signed by the Rulers.
From the beginning, members of the Congress party were reluctant to
give anything to the former rulers. Most of the rulers had done little to
support the freedom struggle and they were looked upon as stooges of the
British Empire. However, the Indian Independence Act, 1947 gave them
complete freedom to join India or Pakistan.
As part of the settlement that was reached, several rulers joined India
and Constitution guaranteed to them a privy purse which was to be free
from income tax under Article 291. Under Article 362, this privy purse was
charged to the Consolidated Fund of India. The privy purse that was paid
was substantially less then the earnings of the Maharajas. In return for the
privy purse, the rulers had given up assets worth Rs. 77 crores. Several palaces,
houses etc. were surrendered to the Government and converted into
Government offices in Delhi.

18 Madhavrao Scindia v. Union of India AIR 1971 SC 530, 545 (para 21).
19 Menon V.P., The Story of the integration of the Indian States, Orient Longman (1961).
Our Constitution and its Self -inf licted Wounds 101

After independence, some Congress leaders once again proposed the

abolition of privy purses. Sardar Vallabhai Patel threatened to resign. He
reminded them that it was a promise given to the rulers for signing the
Instrument of Accession and that India could not go back on its promise.
In the late 50s, Pandit Nehru wrote to the rulers asking them to
“voluntarily” reduce the privy purse. This itself was highly objectionable;
once a promise had been made and provisions in the Constitutions reflected
that promise, it was wholly inappropriate to request any kind of reduction
in the quantum of privy purse.
Several leaders of the Congress party proposed the abolition of the
privy purses and privileges given to the rulers. To the credit of Pandit Nehru,
he rejected this proposal on the ground that the Government should not
break its promise. He had also pointed out that the cost incurred on the
privy purses was also diminishing. Thus, a formal resolution moved at the
Bhubhaneswar convention of the Congress party was rejected. This shows
that Pandit Nehru respected the promises made in the Constitution and did
not countenance any proposal for abolishing the privy purses.
With the death of Pandit Nehru and Lal Bahadur Sastri, respect for
the Constitution died as well. Before their death the policies of the
Government were kept within the framework of the Constitution. After 1967,
the Constitution was sought to be brought within the framework of the policy
of the ruling party.
Austin recalls that several rulers joined the Swatantra Party and many
of them defeated the Congress candidates in the Parliamentary elections in
1967.20 The Congress party returned to power but with drastically reduced
strength. Once again, the proposal to abolish privy purses was raised by
introducing the 24th Amendment Bill. This barely received 2/3rd majority in
the Lok Sabha (332 votes in favour and 154 against) but was defeated in the
Rajya Sabha (149:75) on 5th September, 1970. The same night an order was
prepared derecognizing the Princes. President V.V. Giri was then in
Hyderabad. An officer was sent by a special aircraft to get his signature.
An order dated 6th September, 1970 was issued to all rulers withdrawing
their recognition. Within a few days, Madhavrao Scindia (the Maharaja of
Gwalior) and other princes filed a petition in the Supreme Court under
Article 32 to strike down the Presidential order as unconstitutional. (Ironically,
Madhavrao Scindia subsequently became a leader of the Congress party.)
The matter was heard and judgment delivered by December, 1970. From
the date of filing, disposal took less than four months ! The Supreme Court

20 Austin, Working a Democratic Constitution (p. 220 – 227).

102 INDIAN J. C ONST. L.

struck down the laconic order derecognizing the princes. A Bench of eleven
judges heard this case and Justice A. N. Ray supported the Presidential order
on almost all issues. The judgments of Chief Justice Hidayutallah and Justice
J. C. Shah judgment deserve to be read. Thus, a maladroit attempt to
abolish privy purses was unsuccessful.21
In 1971, Mrs.Gandhi won the election with a substantial majority.
The 26th amendment was introduced to abolish privy purses. It sought to
delete Articles 291 and 362 of the Constitution. (The former guaranteed
payment of privy purse which was exempt from income tax and was charged
to the Consolidated Fund of India under Article 362.) The 26th amendment
also inserted Article 363A which formally derecognized the Princes and
abolished privy purses. This was upheld on the ground that it put an end to
the distinction between erstwhile rulers and others which is a sine qua non
for achieving common brotherhood. The 26th Amendment, the court held,
did not violate the basic structure.22
§ 28 th A mendment – another breach of trust
Perhaps even more shameful was the 28th amendment which sought
to delete Article 314. This provision guaranteed to former civil servants, the
same conditions of service as prevailed at the time of just before
independence. In other words, former civil servants would be entitled to
salary, pension etc. in accordance with the rules that prevailed before
independence. The preamble to the 28th amendment stated that
“The concept of a class of of f icers with immutable conditions of
service is incompatible with the changed social order. It is, theref ore,
considered necessary to amend the Constitution to provide f or the deletion
of Article 314 and f or the inclusion of a new Article 312A which
conf ers powers on Parliament to vary or revoke by law the conditions
of service of the of f icers af oresaid and contains appropriate
consequential and incidental provisions.”
Social orders may change but the guarantee given under the
Constitution should be respected. Just as a guarantor cannot unilaterally
revoke his guarantee on the ground that subsequent circumstances have
changed, equally, the nation cannot go back on its promise on the ostensible
ground of change of “social order”. In this context, it is interesting to recall
a passage from a lecture delivered by Fali S. Nariman.23
“... here were two aspects of British rule which we jettisoned with the
21 Madhavrao Jiwajirao Scindia v Union of India AIR 1971 SC 530.
22 Raghunathrao Ganpatrao v Union of India AIR 1983 SC 1267, 1287-1288.
23 Nariman F.S., Quest f or Justice, First Nani A.Palkhiwala Memorial Lecture, 2004.
Our Constitution and its Self -inf licted Wounds 103

British Raj. They were mentioned – somewhat pompously- by a British

historian, G.M.Trevelyan. He wrote that the reason why the British
ruled India f or so long was because (to quote him) “we were looked
upon as a nation which kept our promises; and, as rulers, we took no
bribes.”
§ 39 th A mendment – Touching new lows
Mrs. Indira Gandhi, the former Prime Minister, had won the Lok
Sabha election from the Rae Bareli Constituency against Raj Narain. He
challenged her election alleging certain corrupt practices. The details of this
case are contained in an excellent book24 . In June, 1975, Justice J.M.L.Sinha
of the Allahabad High Court set aside her election and she was disqualified
for six years. The matter was challenged before the Supreme Court. Justice
V.R. Krishna Iyer was the vacation judge and late Shri Nani Palkhivala
appeared for Mrs.Gandhi along with Shri F.S. Nariman who was then the
Additional Solicitor General. The Supreme Court refused to grant a complete
stay of the operation of the Allahabad High Court judgment but granted
only a limited stay. Two days later, Mrs.Gandhi proclaimed the Emergency.25
The worst amendments to the Indian Constitution came during this period.
Within six weeks of the declaration of Emergency, the Constitution (39th
Amendment) Bill was presented to the Lok Sabha. The Statement of Objects
and Reasons pointed out that the President was not answerable to a court of
law for anything done while in office in the exercise of his powers. It then
stated:
A f ortiori, matters relating to his election should not be brought bef ore
a court of law but should be entrusted to a f orum other than a court.
The same reasoning applies equally to the incumbents of the of f ices of
Vice-President, Prime Minister and Speaker. It is accordingly proposed
to provide that disputes relating to the election of the President and
Vice-President shall be determined by a f orum as may be determined by
a parliamentary law. Similar provision is proposed to be made in the
case of the elections to either House of Parliament or, as the case may
be, to the House of People of a person holding the of f ice of Prime
Minister or the Speaker. It is f urther proposed to render pending
proceedings in respect of such election under the existing law null and
void. The Bill also provides that the parliamentary law creating a
new f orum f or trial of election matters relating to the incumbents of
the high of f ices abovementioned shall not be called in question in any
court.

24 Prashant Bhushan, The Case that Shook India, Vikas Publishing House Pvt. Ltd.
25 Nariman F.S., Turning Points, (2006) 8 SCC (J)13.
104 INDIAN J. C ONST. L.

This reasoning is untenable. The President is not elected like the Prime
Minister or Speaker. The purpose of making the President not answerable
in a court of law is entirely different and has nothing to do with an election
of a Member of Parliament being challenged on grounds of corrupt practices.
The 39th Amendment sought to create a forum or authority for deciding the
validity of such election. It expressly stated that this authority would not be
the High Court which normally tried election disputes under Article 329(b).
The entire amendment was introduced with the sole objective of
ensuring that the order of the Allahabad High Court was nullified. This is
made clear by Article 329A(4) which stated that any law made by Parliament
before the commencement of the Constitution (39th Amendment) Act would
not apply to the election of the President, Vice President, Prime Minister
and Speaker. Further, any decision of a court declaring an election to be void
would be of no ef f ect. Despite any such judgment, the election would continue
to be valid in all respects and “shall be deemed always to have been void of
no effect”. The amendment took no chances. At that time, Mrs. Gandhi’s
appeal was pending before the Supreme Court and Clauses (4) to (6) of
Article 329A read as follows:-
(4) No law made by Parliament bef ore the commencement of the
Constitution (Thirty-ninth Amendment) Act, 1975, in so f ar as
it relates to election petitions and matters connected therewith,
shall apply or shall be deemed ever to have applied to or in
relation to the election to any such person as it ref erred to in
Clause (1) to either House of Parliament and such election shall
not be deemed to be void or ever to have become void on any
ground on which such election could be declared to be void or
has, bef ore such commencement, been declared to be void under
any such law notwithstanding any order made by any court, bef ore
such commencement, declaring such election to be void, such election
shall continue to be valid in all respects and any such order and
any f inding on which such order is based shall be and shall be
deemed always to have been void and of no ef f ect.
(5) Any appeal or cross appeal against any such order of any court
as is ref erred to in Clause (4) pending immediately bef ore the
commencement of the Constitution (Thirty Ninth Amendment)
Act, 1975, bef ore the Supreme Court shall be disposed of in
conf ormity with the provisions of Clause (4).
(6) The provisions of the Article shall have ef f ect notwithstanding
anything contained in this Constitution.
Our Constitution and its Self -inf licted Wounds 105

This amendment illustrates the complete disregard for the Constitution. It is

the most glaring example of how the Constitution could be subverted to
save the election of one individual.
The 39th amendment was presented to Parliament on 6th August 1975.
The entire process of obtaining the necessary majority in the Lok Sabha,
Rajya Sabha and the Presidential assent was completed within four days!
With most of the opposition in jail, a rubber stamp Parliament passed the
39th Amendment without any discussion or debate.
The validity of the 39th amendment was considered by the Supreme
Court in Indira Nehru Gandhi26 and Article 329A(4) was held unconstitutional.
Khanna J. observed that Article 329A(4) violated the principle of free
and fair elections which were an essential postulate of democracy and part
of the basic structure. He held:-
(i) Clause (4) abolished the High Court’s jurisdiction without providing
for another forum for going into the disputes relating to validity of
election of Mrs. Indira Gandhi;
(ii) It prescribed that the dispute of Mrs.Gandhi’s election would not be
governed by any election law and the validity of the said election was
absolute and not liable to be assailed;
(iii) It extinguished both the right and remedy to challenge the validity of
election.
Mathew J. termed Clause (4) as a legislative judgment, which, like a
bill of attainder, disposed of a particular election dispute (that of Mrs. Gandhi).
The essential feature of a democracy included the resolution of an election
dispute by the exercise of judicial power after ascertaining the adjudicative
facts and applying the relevant law for determining the real representative
of the people. When there was a dispute between parties as regards
adjudicative facts, there could be no legislative validation of an election.
Mathew J. in the context of the basic structure made an interesting
observation. He held that basic structure was a “terrestrial concept” having
its habitat within the four corners of the Constitution.
Chandrachud J., third member of the majority, delivered an equally
well reasoned judgment. He described Clauses (4) and (5) of Article 329A as
an outright negation of the right to equality under Article 14. No doubt
different rules would apply to different conditions and even a single
individual, by his uniqueness, may form a class by himself. But in the absence

26 Indira Nehru Gandhi v Raj Narain AIR 1975 SC 2299.

106 INDIAN J. C ONST. L.

of a differentia, reasonably related to object of the law, justice must be

administered with an even hand to all. He rightly pointed out that a
democracy is sustained by the common man’s sense of justice. O ur
Constitution provided a system of salutary checks and balance. “Whatever
pleases the emperor has the force of law” is not an article of democratic
faith.
This judgment, delivered during the Emergency, rightly held Articles
329A(4) and (5) to be unconstitutional. It was an unfortunate attempt to
amend the Constitution to save the office of one individual. The inclusion
of the Speaker, Vice President and the President was only a façade to cover
up the real object of the amendment. This case was the first instance of the
basic structure doctrine coming to the rescue of the Constitution. If it had
been held that the power to amend the Constitution was absolute, this
amendment could not have been struck down.
§ 42 nd A mendment – a Constitutional outrage:
The 42nd amendment made the largest number of changes in the
Constitution. It was also the worst in the history of the republic and it is
hoped that such an exercise is never repeated again. The amendment was
based on the recommendations of the Swaran Singh Committee. The
Statement of Objects and Reasons makes remarkable reading and deserves
to be reproduced in full.
1. “A Constitution to be living must be growing. If the impediments to
the growth of the Constitution are not removed, the Constitution will
suf f er a virtual atrophy. The question of amending the Constitution
f or removing the dif f iculties 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
mention of Government and the public f or some year’s now.”
2. The democratic institutions provided in the Constitution are basically
sound and the path for progress does not lie in denigrating any of
these institutions. However, there could be no denial that these
institutions have been subjected to considerable stresses and strains
and that vested interests have been trying to promote their selfish
ends to the great detriment of public good.
3. It is therefore proposed to amend the Constitution to spell out expressly
the high ideals of socialism, secularism and the integrity of the nation,
to make the directive principles more comprehensive and give them
precedence over those fundamental rights which have been allowed
to be relied upon to frustrate socio-economic reforms for implementing
Our Constitution and its Self -inf licted Wounds 107

the directive principles. It is also proposed to specify the fundamental

duties of the citizens and make special provisions for dealing with
anti-national activities.
4. Parliament and the State Legislatures embody the will of the people
and the essence of democracy is that the will of the people should
prevail. Even though Article 368 of the Constitution is clear and
categoric with regard to the all inclusive nature of the amending power,
it is considered necessary to put the matter beyond doubt. It is proposed
to strengthen the presumption in favour of the Constitutionality of
legislation enacted by Parliament and State Legislatures by providing
for a requirements as to the minimum number of judges for determining
questions as to the Constitutionality of laws and for a special majority
of not less than two-thirds for declaring any law to be Constitutionally
invalid. It is also proposed to take away the jurisdiction of High Courts
with regard to determination of Constitutional validity of Central laws
and confer exclusive jurisdiction in this behalf on the Supreme Court
so as to avoid multiplicity of proceedings with regard to validity of the
same Central law in different High Courts and the consequent
possibility of the Central law being valid in one State and invalid in
another State.
5. To reduce the mounting arrears in High Courts and to secure speedy
disposal of service matters, revenue matters and certain other matters
of special importance in the context of the socio-economic development
and progress, it is considered expedient to provide for administrative
and other tribunals for dealing with such matters while preserving the
jurisdiction of the Supreme Court in regard to such matters under
Article 136 of the Constitution. It is also necessary to make certain
modifications in the writ jurisdiction of the High Courts under Article
226.
6. It is proposed to avail of the present opportunity to make certain other
amendments which have become necessary in the light of the working
of the Constitution.
7. The various amendments proposed in the Bill have been explained
in the notes on clauses.
8. The Bill seeks to achieve the above objects.”
An examination of the first five paragraphs indicates that every reason
mentioned therein was totally unsound. It was never demonstrated that a
provision of the Constitution had been an impediment to growth and social
justice. The absence of adequate growth in later 60s and 70s was the
108 INDIAN J. C ONST. L.

consequence of pursuing the wrong policies. Social justice had not been
delivered due to the extensive corruption at the Centre and State
Governments. Large fund s which were meant for provid ing b asic
infrastructure were simply siphoned off. There is no point in blaming the
Constitution for the continuance of poverty, ignorance, disease and inequity
of opportunity. Unfortunately, these continue to be rampant even after 60
years of independence.
It is difficult to understand how a Constitution “to be living must be
growing”. The Constitution is not a child that has to grow to survive. The
Statement does not spell out the possible impediments to the growth of the
Constitution. Indeed, there can be none and it does not require even
elementary intelligence to understand that no country has achieved socio-
economic development by amending the Constitution.
The real object of the 42nd amendment was to substantially reduce the
power of judicial review of the High Courts and Supreme Court. It was a
direct attack on the judiciary. Several amendments are shocking to read and
what is worse is that they were passed without any discussion whatsoever.
There was no reference to any Parliamentary Committee for careful discussion
on the need for these amendments and their consequences. The Supreme
Court of India was not entitled to consider the Constitutional validity of any
such law under Article 32. It could do so only if the Constitutional validity
of any Central law was also in issue in such proceedings. Now, when the
validity of a State law is challenged, it is very unlikely that a Central law is
also challenged at the same time. Consequently, the power of the Supreme
Court to decide the validity of a State law was taken away. No person could
approach the Supreme Court directly for any violation of his fundamental
right if these were breached by any State Government. Article 131A provided
that only the Supreme Court could decide the Constitutional validity of any
Central law. If any case was pending before the High Court, concerning the
Constitutional validity of a Central law, it had to be referred to the Supreme
Court. The High Courts could not deal with the validity of any Central
legislation.
To add insult to injury, Article 141A stipulated that the minimum
number of judges of the Supreme Court who have to sit to determine any
question as to the Constitutional validity of any Central law was seven. The
Central/State law could not be declared Constitutionally invalid unless a
majority of two third of the seven Judges held so! This was obviously to get
over the 6:5 or 7:6 verdicts that were rendered in Golaknath27 and Kesavananda

27 AIR 1967 1643.

Our Constitution and its Self -inf licted Wounds 109

Bharati28 . In the US Supreme Court, a number of important cases on

Constitutional law have been decided by a 5:4 majority. If such a majority
was required, many laws would not have been declared as unconstitutional.
The campaign to humiliate the Supreme Court touched new lows.
Article 77 was amended prohibiting any court (including the Supreme Court
or a High Court) to require production of any rules of business. In other
words, the Supreme Court could not direct the production of any rule that
may be relevant for the decision of a case before it.
The onslaught on the High Courts was even worse. The power of the
High Court to decide the validity of any Central law was excluded. The writ
jurisdiction was substantially curtailed and Article 226 was resubstituted. The
power to grant interlocutory order was drastically limited.
Another amendment which had sinister implications went unnoticed.
Part XIV-A, relating to Tribunals, was inserted. This introduced Articles
323A and 323B of the Constitution providing for administrative and other
Tribunals. In fact, both the Articles 323A and 323B sought to exclude the
jurisdiction of all courts. Under Article 227, the High Court had the power of
superintendence over courts subordinate to it as well as Tribunals. The
superintendence of Tribunals was excluded. Thus, the intention was to create
a parallel justice system which was outside the purview of the High Courts.
It may be noted that this amendment was made in 1976 when we did not
have the benefit of the Supreme Court judgment in L.Chandra Kumar29
wherein it was held that the writ jurisdiction was part of the basic structure
and could not be taken away.
Like the Supreme Court, in the High Court only a bench of five Judges
could decide the Constitutional validity of a State law and, even there, the
decision had to be by a 2/3 majority. If the High Court had less than five
Judges, then all the Judges have to sit to decide the issue and the verdict
would have to be unanimous.
A part of Article 31C (inserted by the 25th Amendment) was held
unconstitutional in Kesavananda Bharati. Parliament could not merely declare
that the law purported to give effect to such abolition and put it beyond
judicial review. The 42nd amendment expanded the scope of earlier part of
Article 31C. While the erstwhile Article 31C was to give effect only to directive
principles under Article 39, the 42nd amendment protected laws that purported
to implement any of directive principles and make them immune from attack
on grounds of Articles 14, 19 and 31. The consequence was that directive

28 AIR 1973 SC 1461: (1973) 4 SCC 225.

29 L.Chandra Kumar v Union of India AIR 1997 SC 1125: (1997) 3 SCC 261.
110 INDIAN J. C ONST. L.

principles would prevail over fundamental rights. This provision was struck
down in the Minerva Mills case30 .
The 42nd amendment made another devastating change. It sought to
insert Clauses (4) and (5) in Article 368 which made any Constitutional
amendment made at any time, unquestionable in any court on any ground.
The provisions are so shocking that they deserve to be reproduced.
(4) No amendment of this Constitution (including the provisions of Part-
III) made or purporting to have been made under this article [whether
bef ore or af ter the commencement of Section 55 of the Constitution
(Forty-second Amendment) Act, 1976] shall be called in question in
any court or any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no
limitation whatever on the constituent power of Parliament to amend
by way of addition, variation or repeal the provisions of this
Constitution under this article.
This amendment was also declared as unconstitutional in the Minerva
Mills case.
Thirty years later, it is hard to believe that any one could make such
amendments to the Constitution. H. M. Seervai observed that “from any
point of view, the 42nd amendment can only be described as a Constitutional
outrage”. The Janata party which came to power in 1977 had promised to
repeal the entire 42nd amendment as part of its election manifesto but Seervai
points out that the Janata party did not make this attempt because they did
not have the requisite majority in the Rajya Sabha.31 Much of the damage
done by the 42nd amendment was rectified by the 44th amendment. Strangely,
the 44th amendment did not delete Clauses (4) and (5) of Article 368. As
mentioned above, these were struck down in 1980 by the Minerva Mills
case.
§ Reservation and the issue of backward classes:
The reservation of seats in educational institutions and reservation in
public sector employment for other backward classes has been a sensitive
political issue. In 1992, the Mandal case32 considered 11 issues pertaining to
reservation in public employment. While rightly emphasising the need for
reservation for the socially and economically backward classes, the Supreme
Court has also emphasised the need to exclude the creamy layer and held

30 Minerva Mills Ltd. v Union of India AIR 1980 SC 1789 : (1980) 3 SCC 625.
31 Seervai H.M. “The Emergency, f uture saf eguards and the Habeas Corpus case: A criticism”, (1978).
32 Indra Sawhney v Union of India AIR 1993 SC 477 : (1992) Supp (2) SCC 212.
Our Constitution and its Self -inf licted Wounds 111

that reservations should neither exceed 50% nor could there be reservation
in the matter of promotion. In several subsequent cases, the Supreme Court
has repeatedly emphasised the need to exclude the creamy layer. Arun
Shourie has pointed out that there are serious flaws in the manner in which
the Mandal Commission of 1980 and the Kalelkar Commission of 1952 had
identified the castes which would be classified as the backward classes. After
1931, there has been no caste-wise census of the population. The Mandal
Commission assumes that the same percentage on the total Hindu population
would continue in 1980.33 If Articles 15 and 16 are to be implemented in the
spirit in which they were enacted, it is necessary to identify the castes that are
really socially and educationally backward and ensure that the benefit of
reservation reaches them. There are enough studies to indicate that the
creamy layer has cornered the substantial benefit of reservation.
No political party has yet been able to take an objective stand on this
issue and every judgment of the Supreme Court has been nullified in the
recent past. The 77th amendment nullified the view taken in the Mandal
case that reservations could not be made in matters of promotion. The 85th
amendment also ensured that persons who had the benefit of accelerated
promotion would also get consequential seniority. This amendment nullified
the view taken in another Supreme Court judgment.34 Similarly, the 81st
amendment permitted the carry forward of backlog vacancies which were
not to be taken into account for calculating the ceiling limit of 50%laid down
in the Mandal case. Finally, the 82nd amendment inserted a proviso in Article
335 to enable relaxation of qualifying marks and standards of evaluation.
The Supreme Court had pointed out that relaxation in qualifying marks or
lowering standards was not permissible.35 The 82nd amendment nullified
this sensible and common sense view.
All these amendments have been upheld by the Supreme Court with
certain limitations. It is outside the scope of this article to discuss the scope
of these amendments and the recent judgment of the Supreme Court.36
What is objectionable is the tendency to overrule Supreme Court
decisions for politically expedient reasons. There has been no objective
examination of any mistake or flaw in the Supreme Court decisions before
the Constitution is amended. There has also been no examination of the
consequences of carry forward of vacancies without the 50% limit or the
effect of relaxation of qualifying marks. In the years to come, the country

33 Arun Shourie, Falling over Backwards, Rupa & Co. (2006).

34 Union of India v Virpal Singh Chawhan (1995) 6 SCC 684 : AIR 1996 SC 448.
35 Vinod Kumar v Union of India (1996) 6 SCC 580.
36 I.R.Coelho v State of Tamil Nadu, (2007) 2 SCC 1.
112 INDIAN J. C ONST. L.

will have to pay dearly for amendments that have sacrificed Constitutional
principles at the altar of vote-bank politics.
In contrast, decisions of the US Supreme Court have been overruled
only five times in over 230 years.37
Conclusion:
The Constitution has thus survived despite tragic attacks. The basic
structure doctrine has repeatedly saved its integrity and sanctity. There is
now a proposal in certain quarters to have a new Constitution to achieve
“social objectives”. The Constitution has not failed us but it is us who have
failed the Constitution. It is absurd to expect that conditions of millions of
Indians will change by having a new Constitution. Our Constitution does
not contain any provision that obstructs a genuine measure to improve the
economic and social conditions of our people. I can only conclude with the
words of Joseph Story that were quoted by Sachidananda Sinha in his
inaugural address as the Provisional Chairman of the Constituent Assembly
on 6th December, 1946:
“ The structure has been erected by architects of consummate skill and
f idelity; its f oundations are sold; its compartments are beautif ul as
well as usef ul; its arrangements are f ull of wisdom and order; and
its def ences are impregnable f rom without. It has been reared f or
immortality, if the work of man may justly aspire to such a title. It
may, nevertheless, perish in an hour by the f olly, or corruption, or
negligence of its only keepers, THE PEOPLE. Republics are created
– these are the words which I commend to you f or your consideration –
by the virtue, public spirit, and intelligence of the citizens. They f all,
when the wise are banished f rom the public councils, because they dare
to be honest,and the prof ligate are rewarded, because they f latter the
people, in order to betray them.”38

37 The Eleventh Amendment (the only amendment removing part of the jurisdiction of federal
courts) was passed in response to the Court’s decision in Chisholm v Georgia (2 Dallas 419,1793); the
passage of the Thirteenth and Fourteen amendments overturned Dred Scott v Sandf ord 60 U.S. 393
(1856); the Court’s decision striking down a federal income tax, in Pollock v Farmers’ Loan and Trust
Co. (158 U.S. 601, 1895), was overturned by the Sixteenth Amendment; and the Twenty-sixth
Amendment, extending the franchise to eighteen-year-olds, overturned the Court’s five-four decision
in Oregon v Mitchell (400 U.S. 112, 1970) – extracts from Views f rom the Bench – The Judiciary and
Constitutional Politics, Asian Books, New Delhi.
38 Constituent Assembly Debates, Vol.-I.
 113

R USSIA N L A W ON E MERGENCY P OW ERS

A ND S TA TES OF E MERGENCY

Alexander N. Domrin*

§ Part I
Before the 1990’s there existed no parliamentary statute in the Soviet
Union for dealing with emergencies, for example, such as those arising as a
result of popular unrest or in the wake of a natural disaster.
The previous USSR Constitution of 1977 (sometimes called ‘Brezhnev’s
Constitution’) did not contain any provisions dealing with a ‘state of
emergency’. It distinguished between two regimes of exception: a ‘state of
war’ (sostoianie voiny) and a ‘state of martial law’ or just ‘martial law’ (voennoe
polozhenie). Questions of peace and war, including the power to declare war,
were assigned to the exclusive jurisdiction of Union authorities1. Simply put,
this was the sole prerogative of the USSR Supreme Soviet..
In the alternative, Article 121(17) provided that “during the time
between the sessions of the Supreme Soviet of the USSR”, a ‘state of war’
could be proclaimed by it’s permanently working Presidium. Such a
proclamation could be issued in the “event of a military attack on the USSR”
or when it was necessary for fulfilling “treaty obligations concerning mutual
defence against aggression”.
In contrast to such a ‘state of war’, the Presidium of the USSR Supreme
Soviet was authorised to proclaim martial law in specific localities or in the
whole country when it was demanded by the USSR defence interests2 .
General rules regarding a ‘state of martial law’ were contained in a
Decree of the USSR Supreme Soviet Presidium of 22 June 1941, “On Martial
Law” (O voennom polozhenii)3 . Even though it was introduced on the day

* Former Chief Specialist of the Russian parliamentary Committee on Foreign Affairs, Moscow
representative of the U.S. Congressional Research Service, and Consultant of the Russian
Foundation for Legal Reform. He has taught at major law schools in the U.S., in addition to being
a Fulbright Research Scholar at Harvard Law School. Besides his Russian doctoral degree, he has
a degree of a Doctor of Juridical Science (Scientiae Juridicae Doctoris, S.J.D.) from the University of
Pennsylvania Law School.
1 Article 73 (8) of the USSR Constitution.
2 Article 121 (15) of the USSR Constitution.
3 Decree of the Presidium of the USSR Supreme Soviet of 22 June 1941 “On a State of Martial Law”
(O voennom polozhenii) (Vedomosti Verkhovnogo Soveta SSSR, No.29, 1941); Resolution of the
USSR Council of People’s Commissars of 1 July 1941 “O n Additional Powers of the USSR
People’s Commissars During the War Period” (O rasshirenii prav narodnykh komissarov SSSR v
usloviyakh voennogo vremeni).
114 INDIAN J. C ONST. L.

when Nazi Germany began its undeclared aggression against the Soviet
Union, the 1941 decree didn’t deal exclusively with the defence of the country
during the Great Patriotic War (1941-1945) but stayed in effect long after the
end of the war. It was partially superseded by subsequent legislation, notably
by the Statute “On Military Tribunals” (O voennykh tribunalakh) of 1958.
According to the 1941 decree, the proclamation of a state of martial
law in the USSR (or in some of its areas) was to lead to the following
consequences: competence and responsibility in matters of public order and
state security being transferred to military authorities; military authorities
acquiring broadly defined powers to take over (‘requisition 4 without
compensation) means of transportation and to conscript civilian labour force;
and in all fields of administration under military control, the military
authorities were authorised to back up their orders by the imposition of
administrative fines and short-term detentions.
Existence of a declared state of martial law during the Great Patriotic
War did not preclude the USSR Supreme Soviet Presidium from occasionally
proclaiming an additional state of exception - a ‘state of siege’ (osadnoe
polozhenie) - within certain defined territories: Moscow, Crimea, Stalingrad
Oblast’, etc.5 A state of siege could be regarded as a stricter form of a state of
martial law and had more extreme consequences. For instance, it entitled
the military to shoot looters, spies, and saboteurs, on the spot.
The 1988 amendments broadened the justification for martial law to

4 Speaking about requisition, we must remember that the socialist legal doctrine prescribed that the
right of the Soviet state to seize any property in the USSR was superior to any individual’s right of
ownership over the property in question. Aware of the potential for misuse of this right, the Soviet
state consented to certain self-imposed limitations. Accordingly, under the Civil Code of the
Russian Federation (art.149) requisition was defined as the seizure by the state of an owner’s
property in the interests of the state or public, with reimbursement for the value of the property.
Requisition was permissible only in the instances specifically designated and pursuant to established
procedure. Instances under which requisition was permissible could be found both under federal
law and law of the fifteen republics constituting the USSR (like Russia, Ukraine, Moldova, etc.) In
all of those instances, the taking of property was permitted only if it was “in the public interest” or
if there were no other adequate alternatives to requisition. The determination of whether a
planned requisition was in the public interest, or whether an adequate alternative to requisition
existed, fell within the exclusive prerogative of the state. No such determinations could be
challenged in a court.
5 See, e.g., Resolution of the USSR State Committee on Defence of 19 October 1941 “On Introduction
of a State of Siege in the City of Moscow” (O vvedenii osadnogo polozhenia v g. Moscwe), in
Kommunisticheskaia partia v period Velikoy O techestvennoy voiny (iun’ 1941 g. - 1945 g.).
Dokumenty i materialy [Communist Party in the Period of Great Patriotic War (June 1941—1945).
Documents and Materials] (Moscow: Gospolitizdat, 1961), pp. 97-98.
6 As a result of the 1988 constitutional amendments, the revised and expanded martial law powers
were found in Article 119(14). After the 1989-1990 amendments, those powers migrated to the new
Art.127(3)(16), becoming a ‘presidential power’. For a translation, see Gordon B. Smith, Soviet
Politics (NY: St.Martin’s, 1992. 2nd ed.), pp. 370-72.
Russian Law on Emergency Powers 115

include ensuring the domestic security of the country’s citizens, while adding
the requirement that the Presidium of the USSR Supreme Soviet (and
subsequently – the USSR President) had to consult with the relevant republican
Supreme Soviet Presidium before taking an action6 . The Union authorities
never actually had a chance to use that power.
A new regime of exception - a ‘state of emergency’ - was introduced to
the USSR constitutional law as a result of the most fundamental constitutional
reform of the perestroika period. In December 1988, the USSR Law “On
Changes and Amendments of the USSR Constitution (Fundamental Law)”7
changed about a third of the whole text of the USSR Constitution introducing
permanently working legislature and other innovations for the Soviet
transition to the rule of law. Establishment of a constitutional mechanism of
a state of emergency became an integral part of such transition. Similar
changes were made to the constitutions of the USSR republics, including the
RSFSR Constitution of 1978. As a result of this radical reform of December
1988 and numerous subsequent changes, the Constitutions of the USSR and
Russia effectively stopped being ‘Brezhnev’s’ and became the most
progressive and democratic constitutional documents in history of the country,
including the current Constitution of 1993.
In 1990, further amendments established Presidency in the USSR (in
Russia it happened in 1991) and transferred emergency powers of the USSR
Supreme Soviet Presidium to the new office. In addition, the President was
given the authority to proclaim ‘temporary presidential rule’ (vremennoe
prezidentskoe pravlenie) as a form of a state of emergency8 .
The Act “On the Legal Regime of a State of Emergency” (O pravovom
regime chrezvychainogo polozhenia)9 , was adopted by the USSR Supreme Soviet
on 3 April 1990, to fill an apparent legal vacuum. Its seventeen articles defined
the nature of a state of emergency, and provided enabling legislation that
gave the Union authorities the operational language, definitions, and
procedures for using emergency powers, as Article 1 stated, “in accordance
with the USSR Constitution”.
Interpreted strictly, the law on a ‘state of emergency’ could not be
invoked against peaceful demonstrations or other legitimate actions. In
reality, however, as Gorbachev made clear in his comments on the situation

7 Vedomosti Verkhovnogo Soveta SSSR, No.49, 1988, item 727.

8 For a commentary on ‘temporary presidential rule’, see Elizabeth Fuller and Stephen Foye,
“Special Status, State of Emergency and President’s Rule”, 3 Report on the USSR (Radio Liberty
/Radio Free Europe, Munich), No.5, 1991, p.33-35.
9 Vedomosti S’ezda narodnykh deputatov SSSR i Verkhovnogo Soveta SSSR, No.15, 1990, item
250.
116 INDIAN J. C ONST. L.

in Lithuania, he put so broad a construction on the ‘safeguarding of citizens’

security’ that the letter of the law was essentially vitiated. In general, the act
allowed the central authorities to override the constitutional and legal
protection of Soviet citizens. A number of Soviet and foreign legal and
political experts disagreed with the official interpretation of the act as the
“extreme legal form for ensuring the safety of citizens and normalising
conditions”10. They called the 1990 Act ‘draconian’, and concluded that “a
measure that should provide a legal basis for the actions of the government
in the event of a natural disaster or of large-scale public disorders has been
formulated in such a way as to give the authorities carte blanche to flout basic
human rights”11 .
Ironically, the Act was used against its strongest supporter – USSR
President Gorbachev himself, in August 1991 on the verge of signing a new
Union Treaty, and in the wake of a 10 per cent reduction of GDP (in the first
half of 1991), and a more than 50 per cent growth of prices for food and the
most basic consumer goods. An extra-constitutional Committee for the State
of Emergency (GKChP), headed by the USSR Vice-President Gennady
Yanaev ‘temporarily’ replaced Gorbachev and announced a state of
emergency in Moscow and ‘some areas’ of the country for a period of six
months12 .
Nevertheless, adoption of special legislation on emergency powers
and a state of emergency was a sign of serious political changes in the Soviet
Union, a breakthrough on the way of Soviet transition to the rule of law.
Legislation on emergency powers and states of emergency could not be
drafted and adopted before the beginning of perestroika, because there was
no necessity of a legal regulation of such questions in the authoritarian regime
of ‘de facto emergency’ that existed in the former Soviet Union for about
seven decades.
Just like it happened with introduction of Presidency, adoption of a
special USSR act on a state of emergency created a precedent that was

10 See V.N. Grigor’ev, “Pravovoy rezhim chrezvychainogo polozhenia” [Legal Regime of a State of
Emergency], Pravovedenie, 2 (1991), p.87.
11 Paul Goble, “Draconian State of Emergency Law”, Report on the USSR (Radio Liberty / Radio
Free Europe, Munich), 4 May 1990.
12 For opposing views on the ‘putsch’ see, e.g., Mikhail S. Gorbachev, Avgustovsky putsch. Prichiny
i sledstvia [August Putsch: Reasons and Consequences] (Moscow: Novosti, 1991); Uroki avgusta
1991 goda. Narod i vlast’ [Lessons of August of 1991: People and Power] (Moscow: Yuridicheskaia
literatura, 1994); Alexander Lebed’, “Spektakl’ nazyvalsya putsch” [The Farce Was Called Putsch],
Literaturnaia Rossia, No.34-36, 1993; Oleg Shenin, Vladimir Kryuchkov, Valentin Varennikov,
Process po delu GKChP [The Case of GKChP] (Mahachkala: ‘Golos Pravdy’, 1995).
13 Vedomosti S’ezda Narodnykh Deputatov RSFSR, No.22, 1991, item 773.
Russian Law on Emergency Powers 117

followed by the largest of the Union republics – Russia. On 17 May 1991,

the Russian Federation Supreme Soviet passed its own act, “On a State of
Emergency” (O chrezvychainom polozhenii)13. Observers of the New York-based
Lawyers’ Committee for Human Rights (now Human Rights First)
acknowledged that “like many other laws” adopted by the Russian parliament
in 1990-1993, the Emergency Law “relied heavily on international human
rights norms, and in particular on the International Covenant on Civil and
Political Rights”14 .
Very symbolic is the fact that the Law was drafted by the parliamentary
Committee on Human Rights rather than by the Committee on Law and
Order, or by the Committee on Defence and Security, or, for that matter, by
some executive agency. Indeed, the Russian Law of 1991 was probably one
of the most liberal acts in this sphere in the world. The act introduced strong
safeguards against its possible abuse by either branch of the government,
especially in case of a collision between the branches themselves.15
As required by international law instruments, no regime of emergency
powers can be instituted unless it is ‘necessary or even indispensable’ to the
preservation of the state and its constitutional order. Given the danger, it is
demanded that emergency powers should be the last resort and that the
executive should bear the burden of showing this kind of necessity. As it was
shown before, an absolute majority of constitutions include clauses for
determining when these powers can be triggered. Though these ‘trigger
clauses’ are often not drafted with clarity, the concepts of ‘imminent danger’
and ‘self-defence’ are universally present either implicitly or explicitly.
The 1990 Soviet legislation defined a state of emergency as “a
temporary measure declared, in accordance with the USSR Constitution
and the present law, in the interests of safeguarding the security or safety,
bezopasnost, of the USSR citizens in the event of natural disasters, major
accidents or catastrophes, epidemics, outbreaks of epizootic disease, and
also mass disorders” (art.1).
Article 1 proclaimed that the goal of a state of emergency was “the
swiftest possible normalisation of the situation and the restoration of legality
and law and order”. In other words, following the letter of the law, explicit
goals of state of emergency in the country could be not preservation of the
state itself and constitutional order (or restoration of constitutional normalcy),
14 Human Rights and Legal Reform in the Russian Federation (New York: Lawyers Committee for
Human Rights, March 1993), pp. 80-81.
15 It was no surprise then, that in September-October 1993, an emergency regime (which included
dissolution of the Russian parliament and a partial suspension of the Constitution), and de facto
state of emergency, were imposed by President Yeltsin not in accordance with the 1991 Russian
Law, but rather in violation of it.
118 INDIAN J. C ONST. L.

but rather ‘security’ (or ‘safety’), ‘normalisation of the situation’, ‘legality’

and ‘law and order’. More notably absent was any provision limiting
declaration of emergency powers to situations of an imminent danger.
In contrast, article 56 of the 1993 Russian Constitution provided that
emergency powers could be declared in order to “ensure the safety of citizens
and the protection of the constitutional system”16. By including language
about preserving the Constitution, Article 56 could be considered a major
step forward from the 1990 Soviet legislation. However, absent again was
any provision limiting declaration of emergency powers to situations of
imminent danger.
For comparison, let us briefly consider the French legal experience in
this sphere. Constitutional Law of France holds special relevance to this
analysis since the USSR Presidency (introduced by a constitutional amendment
in 1990) was based mainly on the French model. Article 16 of Constitution
of France (of the Fifth Republic, 1958) requires that the President may exercise
his emergency power only when “the institutions of the Republic, the
independence of the nation, the integrity of its territory or the fulfilment of
its international commitments” are threatened in a “grave and immediate”
manner and the “proper functioning of the constitutional governmental
authorities” is interrupted (sec.1). In addition, the same article provides that
the goal of such emergency powers must be to “ensure within the shortest
possible time that the constitutional governmental authorities have the means
of fulfilling their duties” (sec. 3).
In ‘defence’ of the Soviet legislation, one may argue that although the
French Constitution uses more definite and precise language and limitations
in declaring emergency powers, it is still rather open ended. The meaning
of ‘institutions’ of the republic and ‘international’ commitments seems rather
vague and open to great latitude of interpretation. However, the danger of
uncertainty of the language of the French norm is minimised by provisions
requiring consultation with the Prime Minister, Constitutional Council, and
chairs of chambers of the parliament (sec.1), immediate meeting of the
parliament ipso jure (sec.4) and a ban on dissolution of the National Assembly
(sec.5).
One of the most important conclusions of Clinton Rossiter’s classic

16 “The Constitution of the Russian Federation” (adopted by referendum on 12 December 1993), in:
The Constitutions of the World (Dobbs Ferry, NY: Oceana Publications, Inc., 1970-1997. Albert P.
Blaustein & Gisbert H. Flanz, eds.). Volume 16 (Release 94-3, May 1994), p.14.
17 Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies
(Princeton: Princeton University Press, 1948), p.299.
Russian Law on Emergency Powers 119

study of emergency powers was that “the decision to institute a constitutional

dictatorship should never be in the hands of the man or men who will
constitute the dictator”17. Rossiter was not alone in this respect. The same
position was expressed by Carl J. Friedrich: “There should be clear and
adequate provision for constitutionally safeguarded emergency powers.
These powers should be exercised not by those who proclaim the emergency,
but by others, duly designated in the basic law”18. In other words, the right to
declare a state of emergency should not belong to those who will be authorised
to exercise emergency powers. Apparently, this kind of limitation may be
able to compensate for a more vague ‘trigger language’. If, for instance,
only the legislature can introduce a state of emergency, then it might have
the same kind of limiting effect as a narrowly drafted trigger clause.
Article 2 of the 1990 USSR legislation specified three kinds of states of
emergency.
The first one could be declared “on the territory of a Union or
autonomous republic or in various locations” by the legislature of a
Union or autonomous republic (ASSR) with a notice being given to
the USSR Supreme Soviet, the president of the USSR, and, in the
case of an ASSR, to the legislature of the Union republic concerned.
The second one could be declared by the USSR President in “various
locations” of the USSR “upon a request or with a consent” of the
Supreme Soviet Presidium of the respective Union republic. If
necessary, a state of emergency can be introduced without such
‘consent’ by a two-thirds majority of the USSR Supreme Soviet over
the objections of the republic involved.
The last one was an all-Union state of emergency, which could be
declared only by the USSR Supreme Soviet.
At first glance, one could argue that Article 2 compensated for the
extreme vagueness of Article 1. However, this argument would assume a
separation of powers. In reality, back in 1990 (especially before elections in
the USSR republics), it would be difficult to suggest that the Supreme Soviet
(especially the USSR Supreme Soviet which was formed as a result of partially
free and fair elections of 1989) was really independent of the USSR
(Gorbachev’s) presidency.
According to Article 3, the declaration of a state of emergency was to

18 Carl J. Friedrich, Constitutional Reason of State: The Survival of the Constitutional O rder
(Providence, RI: Brown University Press, 1957), p.117-118.
120 INDIAN J. C ONST. L.

be accompanied by an announcement specifying: the reasons (motivy) for

the measure, the period it was to last, and the area to which it was to apply.
The article, however, created a massive loophole and provided that each of
those conditions could be modified at its discretion by the body that had
declared the state of emergency, thus seriously diminishing the value of this
provision.

Under Article 16, the USSR Ministry of Foreign Affairs was to

“immediately inform” the UN Secretary-General of an introduction, extension
or termination of a state of emergency.

In contrast, under the Russian 1991 law, a state of emergency could

be introduced by either executive or legislative branches of government -
the President and the Presidium of the Supreme Soviet - with the “immediate
notification” of the other of such act (art.5). The act introduced an effective
mechanism of checks and balances. If a state of emergency had been imposed
by the President, the Supreme Soviet was to review the decree within 24
hours if in session, or within 72 hours if not in session. The Supreme Soviet
was to approve the decree by resolution, or the decree would automatically
lose its force (art.11 and 12). The President could not extend a state of
emergency beyond the stated time periods without the Supreme Soviet’s
authorisation. The law set forth maximum time limits for a state of emergency,
such as 30 days for the republic as a whole, or 60 days for a portion of the
republic. Those periods could be extended only by a new authorising
resolution of the Supreme Soviet (art.13).

Once a state of emergency was declared, an important question arose

regarding how and to what extent the government might legitimately re-
constitute itself. Article 5 of the 1990 Russian Act stated that the higher organs
of state power were empowered to “revoke any decision of lesser organs
operating in localities where a state of emergency” had been declared. It
also gave broad power to the “higher-level authorities” to set up alternative
administrative bodies (‘special temporary agencies’) “to coordinate” the
situation, thus effectively suppressing normal operations of republican and
local governments. Unfortunately, the statute failed to indicate any limits to
the jurisdiction of these ‘agencies’ or to explicitly specify if their existence
was limited by the duration of the state of emergency.

The new Russian Constitution of 1993 took an altogether different

and more vague approach to institutional adaptation during a state of
emergency or martial law. The constitution is silent on the creation of ‘special
temporary agencies’; and it is certainly a step forward that it forbids the
president to dissolve the Duma during a state of emergency. However, the
Russian Law on Emergency Powers 121

constitution, by its silence, appears to leave wide open exactly what changes
in governmental and constitutional structure the president can make. The
document states only that “the regime of martial law shall be defined by the
federal constitutional law” (art. 87(3)) and that a state of emergency is to be
instituted “in accordance with the procedure stipulated by federal
constitutional law” (art. 88). Yet, the Constitution fails to define, or simply
hint at, what such ‘regime’ and ‘procedure’ should be. To evaluate these
provisions in a vacuum, outside the realpolitik, they seem to be extremely
vague and open ended.
Also absent from the 1990 Act, and the 1993 Constitution, is any
provision like Article 150(7) of the 1977 Malaysian Constitution, which
requires that: “At the expiration of a period of six months beginning with
the date on which a Proclamation of Emergency ceases to be in force, any
ordinance promulgated in pursuance of the Proclamation and, to the extent
that it could not have been validly made but for this Article, any law made
while the proclamation was in force, shall cease to have effect, except as to
things done or omitted to be done before the expiration of that period”19 .
This kind of provision can be really important in limiting a possible
abuse of emergency powers by the executive, especially in a legal and political
system that lacks strong federal legislature, as in Russia since 1993. While
illustrations from nations like the United States show that the judiciary is not
always willing to invalidate government abuses in times of dire emergency20 ,
such courts will not usually tolerate gross excesses in situations of non-
emergency. The kind of ‘restoration provision’ found in the Malaysian
Constitution would be extremely helpful to such courts to restrict enforcement
of emergency powers in ‘normal times’.
The 1990 USSR legislation made an attempt to specify rights and
guarantees that were subject to derogation during a state of emergency.
Article 4 established a list of twenty measures that could be applied
“depending on the concrete circumstances, the organs of state power and

19 See S. Jayakumar, “Emergency Powers in Malaysia: Development of the Law 1957-1977”, The
Malayan Law Journal, January 1978, p. xxiv.
20 The U.S. Supreme Court’s refusal to hold unconstitutional - in Hirabayashi v. United States (320
U.S. 81 (1943)), Korematsu v. United States (323 U.S. 213 (1944)), Duncan v. Kahanamoku (327 U.S. 304
(1946)) - the government’s internment of 119,803 Japanese-Americans (70,000 of whom were full-
fledged U.S. citizens) during World War II is one of the most graphic illustrations of this observation.
Rossiter prophetically observed: “The next time it may be a slightly larger minority group.
Whatever it was for its citizens of English, German, Jewish, or Chinese descent, the government of
the American Republic was a naked dictatorship for its 70,000 Japanese-American citizens of the
Pacific Coast” (Clinton L. Rossiter, op.cite, p. 283). For details see, e.g., Jacobus tenBroek, Edward
N. Barnhart and Floyd W. Matson, Prejudice, War and the Constitution: Causes and Consequences
of the Evacuation of the Japanese Americans in World War II (Berkeley & Los Angeles: University
of California Press, 1970).
122 INDIAN J. C ONST. L.

administration”. Taken together, and even more so by extension, they gave

the authorities the power to take over virtually all institutions in the territory
affected: to suspend activities of any “political and social organisations, mass
movements” (sec.18), impose quarantines (sec.13), introduce censorship and
restrict or ban use of audio and video equipment, copying machines (sec.14,
15), prohibit assemblies, meetings, demonstrations and strikes (sec.6, 10),
seize resources (sec.9), exercise business reorganisation (sec.8) and shift
workers from one area to another (sec.11), engage in search-and-seizure
operations without a warrant (sec.20), temporarily deport population (sec.2),
enforce protection of certain objects and areas (sec.1), temporarily confiscate
weapons and other materials (sec.5), restrict movement and transportation
(sect. 3, 16), and to ban any “armed formations” (sec.19).
Article 6 empowered the authorities to transfer workers and employees
“without their consent”, and Article 7 specified that a total curfew may be
imposed. In addition to a regular criminal liability, Article 8 prescribed
administrative fines (of up to 1,000 roubles) and detention (of up to 15 days)
for violations of Article 7 and sections 3, 4, 6, 10, 12-16 of Article 4.
The next two articles introd uced more severe penalties for
“dissemination of provocative rumours, actions that provoke a disruption of
law and order or that stir up national discord and the active hindering of
citizens and officials in the exercise of their lawful rights and the performance
of their duties, as well as persistent failure to obey lawful orders or demands”
by members of law-enforcement agencies, “or any other actions of this sort
that violate public order or tranquillity” (art.9). Such persons could be fined
up to 1,000 roubles or held for up to 30 days. Finally, persons involved in
“leading a banned strike” or “otherwise preventing” an emergency regime
from “operating normally” were announced liable to criminal penalties,
including fines of up to 10,000 roubles, two years of ‘corrective labour’, or
three years of imprisonment. Besides, Article 14 allowed the central authorities
to change the territorial jurisdiction in all civil and criminal cases.
The USSR and Russian acts on a state of emergency have certain
similarities. Both of them (art.11 and 21, respectively) permitted the use of
military personnel, as well as the military formations of the Ministry of the
Interior and KGB upon a decision of the USSR Supreme Soviet or the USSR
President (in Russia’s case - RSFSR Supreme Soviet or Russian President).
Articles 12 and 18 of the USSR and Russian laws (respectively) provided for
the establishment of a joint command in such situations. In addition, Article
13 of the 1990 Law empowered the USSR Minister of Defence to draft
specialists in the reserves for up to two months to deal with natural disasters
or accidents. He was presumably not permitted to do so in cases of public
Russian Law on Emergency Powers 123

unrest. Article 15 of the Russian law provided for compensation to victims

of disasters.
While there were no additional provisions in any other Soviet
legislation of that period shedding light on emergency powers in the USSR,
as they were laid down in the 1990 Act, one could certainly argue that the
statute contained an exhaustive list of restrictions and limitations (especially
those in Articles 4 and 9 of the Act) that could be imposed in a state of
emergency. The problem was that, even though ‘exhaustive’, the list was
very broad. It is hard to imagine what rights and freedoms could not be
affected if the government would have decided to use that legislation. The
phrasing of a provision prohibiting any “actions” that could “provoke a
disruption of law and order” seems to be especially vague and ripe for use as
a vehicle for abuse (art.9).
Perhaps the most dubious provision of the USSR 1990 Act was
contained in Article 16, which specified that “in cases where the organs of
state power and government are not functioning properly in places where a
state of emergency has been declared, the president of the USSR can introduce
temporary presidential rule”.
Under the provisions of the article, the president of the USSR could
‘suspend’ the authority of regional bodies and appoint an alternative power
structure that would exercise all the powers specified in Article 4. Moreover,
this body, and presumably its creator, could make proposals for changing
virtually everything in a republic and could take direct control over any
enterprises, institutions, and organisations in the relevant area. The only
restriction on this virtually unlimited grant of power to the president was a
provision saying that he couldn’t violate the “sovereignty or the territorial
integrity of the Union republic concerned”.
Although the Russian law of 1991 specified the same restrictions (as
the USSR act of 1990) that could be imposed on Russian citizens in a state of
emergency - special regime of exit and entry; increased security; restrictions
on assembly and the right to strike; restrictions on transportation; a curfew
and restrictions on the press and media, etc. (art.23 and 24), - there was a
major and principal difference between the Russian and USSR laws. The
Russian Act clearly and in explicit terms proclaimed that a state of emergency
could not be the basis for derogation of “fundamental” rights protected by
the ICCPR, including the right to be free from torture; cruel, inhuman, or
degrading punishment; or freedom of thought, conscience, or religion
(art.27). In fact, the 1991 Russian Act “On a State of Emergency” became the
very first law among any other similar legislation in the 15 constituent
republics of the USSR that included a ‘non-derogable clause’.
124 INDIAN J. C ONST. L.

The Russian law set other limits on the state of emergency:

prohibiting introduction of emergency courts (art.34) and death penalty
(“the death penalty may not be imposed during the state of emergency,
or for 30 days after its conclusion” (art.36));
making changes to the Constitution or to electoral laws, prohibiting
elections or referenda until the end of a state of emergency (art.38);
in accordance with the ICCPR, obliging the President to inform the
UN Secretary-General (within three days of the imposition of a state
of emergency), to provide the latter with the detailed information about
the reasons for an introduction of a state of emergency and about the
restrictions that were to been imposed in the republic (art.41).
Thus, the Russian 1991 act represented an outstanding legal
development and a remarkable improvement over the USSR legislation.
The 1993 Constitution has kept and repeated the best provisions of
Part 5 ‘Guarantees of Rights and Responsibility of Citizens and Officials in a
State of Emergency’ of the 1991 Russian law. Article 56 enlists the rights and
freedoms that cannot be affected by a state of emergency and deserves a title
of the ‘non-derogable clause’ of the Russian Constitution.
Specifically, Article 56(3) mentions sixteen rights that “shall not be
subject to restriction”. Included in this list are: the right to life (art.20);
protection of human dignity and ban on “torture, violence or any other
harsh or humiliating treatment or punishment... medical, scientific or other
experiments without his or her free consent” (art 21); “right to privacy, to
personal and family secrets, and to protection of one’s honour and good
name” (art 23(1)); prohibition to “collect, keep, use and disseminate
information on the private life of any person without his consent” (art.24(1));
freedom of information (art.24(2)); freedom of conscience and freedom of
religious worship, “including the right to profess, individually or jointly with
others, any religion, or to profess no religion, to freely choose, possess and
disseminate religious or other beliefs, and to act in conformity with them”
(art.28); right to occupation (art.34(1)); right to housing (art.40(1)).
The article also includes the most basic and fundamental criminal
procedural rights: “everyone shall be guaranteed protection of his or her
rights and liberties in a court of law” (art.46); “no one may be denied the
right to having his or her case reviewed by the court and the judge under
whose jurisdiction the given case falls under the law” (art.47); right to legal
counsel from the moment of detention or indictment (art.48); presumption
of innocence (art.49); prohibition to be repeatedly convicted for the same
offence and right to have the sentence reviewed by a higher court (art.50);
Russian Law on Emergency Powers 125

right not to testify against himself or herself, for his or her spouse and close
relatives (art.51); protection of the “rights of victims of crimes and abuses of
power” (art.52); right to compensation by the state for the “damage caused by
unlawful actions (or inaction) of state organs, or their officials” (art.53);
prohibition of retroactive force for laws “instituting or aggravating the liability
of a person”; no one may be held liable for an action which was not recognised
as an offence at the time of its commitment” (art.54).
Naturally, not all rights and freedoms can be protected in a state of
emergency. Among the rights which are not given this constitutional
protection are freedoms of speech, association, democratic elections, and
various social and economic rights, including social security, education and
health care.
However, as with other provisions in the Constitution, the problem is
that the President is the body that has the right to declare a state of emergency
under Article 88, and under Article 80(2) he is also the one who serves as the
“guarantor of the Constitution of the Russian Federation, and rights and
freedoms of man and citizen”. According to the latter article, it’s the President
again who “shall take measures to protect the sovereignty of the Russian
Federation, its independence and state integrity”.
Without a well-established system of checks and balances and
separation of powers, as is the case in the post-1993 Russia, one has to seriously
question the enforceability of all the rights and freedoms guaranteed in
Chapter Two of the Constitution, including Article 56 that proclaimed that
“in the period of martial law citizens enjoy all rights and freedoms established
by the Constitution of the Russian Federation except those rights and
freedoms that are restricted by this Federal Constitutional Act and other
federal legislation” (Art.18(1)).
§ Part II
In the last two decades, states of emergency and emergency regimes
have been introduced by the USSR and republican authorities approximately
thirty times. In general, emergency powers have been invoked at three
different levels of the constitutional systems of the USSR and former Soviet
republics.
An invocation at the all-union level occurred in Lithuania when, on 11
March 1990, this Baltic republic declared its ‘independence’ from the USSR.
President Gorbachev first unsuccessfully appealed to the leadership of the
unruly republic not to violate its constitutional subordination within the
Union, and then invoked his new constitutional power to impose an economic
126 INDIAN J. C ONST. L.

embargo, a form of political coercion, on the secessionist republic. The

embargo was in effect for several months in 1990. On 7 January 1991, the
President of the USSR ordered Soviet airborne troops into Lithuania (as
well as into Latvia, Estonia, Armenia, Georgia, Moldavia and some areas of
Ukraine) to ‘enforce the draft’, and on 13 January 1991, the Soviet army
assisted a shadowy Lithuanian ‘National Salvation Committee’ in taking
over several strategic buildings in Vilnius, the Lithuanian capital. Reports
indicated that 13 or 14 people were killed, and some 100-150 others wounded.
In characteristic fashion, Gorbachev denied that he had given prior
authorisation for the crackdown in Lithuania, but defended it as a ‘necessary
defensive action’ and denied any responsibility for the events in Vilnius.
At the union republic level, on 22 September 1988 the USSR Supreme
Soviet declared a ‘state of exception’ (osoboe polozhenie) and curfew in the
Nagorno-Karabakh Autonomous Oblast’ (NKAO) and district (agdam raion)
of Azerbaijan (east of Karabakh), which by then had been rent by interethnic
conflicts for months21 . On 23 November 1988, the Presidium of the USSR
Supreme Soviet issued a decree ‘On Immediate Measures f or the Establishment
of Public Order in the Azerbaijan SSR and Armenian SSR’ extending the state
of exception to Baku, the capital of Azerbaijan, some other cities and districts
of the republic, as well as to Yerevan, the Armenian capital. Simultaneously,
federal Ministry of the Interior troops were deployed to Yerevan, Baku, and
Karabakh. These measures failed to produce the desired results, and “in
view of the continuing tension in interethnic relations in and around NKAO
and in order to prevent their further aggravation and to stabilise the situation
in the region”, the Presidium of the USSR Supreme Soviet on 12 January
1989 decreed the introduction of a ‘special form of administration’ in
accordance with Article 119(14) of the USSR Constitution. All government
powers over the autonomous region were transferred to the Committee for
the Special Administration of the NKAO headed by Arkady Volsky22 , a
member of the CPSU Central Committee of Gorbachev’s draft (since 1986),
and a former economic aide to CPSU General-Secretaries Yuri Andropov
(1983) and Konstantin Chernenko (1984). In May 1989, federal Army troops
were deployed in Stepanakert, the Karabakh ‘capital’.
Although the very first paragraph of the decree of 12 January 1989

21 NKAO is a predominantly Christian Armenian enclave within the borders of Azerbaijan, which is
predominantly Muslim. In February 1988, the NKAO Supreme Soviet called for its transfer to the
jurisdiction of Armenia under the slogan of the ‘right to self-determination’ of ethnic Armenians in
NKAO. Gorbachev and the governments of the USSR and Azerbaijan based their opposition to
internal border changes and the annexation NKAO by Armenia upon Article 78 of the USSR Constitution
which stated that ‘the territory of a union republic cannot be changed without its consent’.
22 Vedomosti Verkhovnogo Soveta SSSR, No.47, 1988, item 711; No.3, 1989, item 14.
23 See Sovetskaya Kirgizia, 8 June 1990.
Russian Law on Emergency Powers 127

described the measure as ‘temporary’, it set no time limit upon the measure.
In several cases, this distressing tradition continued even after adoption of
the parliamentary statute in 1990. For instance, a decree of the Presidium of
the Supreme Soviet of the Kirghiz SSR of 7 June 1990 declaring a state of
emergency in Frunze, capital of Kirgizia, did not specify how long the state
of emergency was to last23 . This was an obvious violation of Article 3 of the
1990 USSR Law.
Looking back, it would be fair to say that quite often (if not usually)
the imposition of a state of emergency was a reaction to civil unrest and
other forms of internal strife that had led to grave violations of human rights.
In some cases, the declaration of a state of emergency provoked clashes
between the civil population and illegal paramilitary formations on the one
side, and internal troops and/or the army on the other. ‘Black January’ in
Azerbaijan is a typical example of such a situation. Responding to an official
declaration (on 1 December 1989) by the Armenian Supreme Soviet that
Azerbaijan’s province of Karabakh was an ‘integral part’ of Armenia, the
Popular Front of Azerbaijan (PFA), then a nationalist opposition party with
armed militia units, began a railroad blockade of Armenia and NKAO,
severely restricting the delivery of food and fuel. On 13-14 January 1990,
anti-Armenian violence broke out in Baku, where the PFA was in control,
and resulted in between 60 (the official figure) and 100 deaths. Radical PFA
members led attacks on the Communist Party and government buildings in
Baku and other cities, and outposts of the USSR border guards were attacked
on the Soviet-Iranian border. On 15 January, the USSR Supreme Soviet
Presidium continued its experimentation with its emergency powers and
introduced a new regime of exception (the third in the space of 16 months),
this time a ‘state of emergency’24 . Among other measures, the Union
authorities declared a curfew and dispatched thousands of federal troops to
Baku to restore normalcy and ensure safety in the region. Their attempts to
disarm militia and dismantle barricades and other makeshift devices proved
to be ineffective. According to official reports, 124 people were killed and

24 Vedomosti Verkhovnogo Soveta SSSR, No.3, 1990, item 40.

25 In her report to U.S. Congress C. Migdalovitz gave excessive numbers of victims: 150 dead and
“thousands” wounded (Carol Migdalovitz, Armenia-Azerbaijan Conflict (CRS Report for Congress
IB92109; Washington, D.C.: Congressional Research Service, The Library of Congress, updated
16 June 1994), p.3). By mistake, Migdalovitz called a state of exception (osoboe polozhenie) imposed
in Karabakh “martial law”, but she was absolutely right in her conclusion that it was “Michail
Gorbachev’s policy” that “unleashed long-suppressed hostility between Armenia and Azerbaijan,
and between each republic and Moscow” (p.3).
26 El’chibey’s government ended in chaos, when in June of 1993 he fled to a remote village in the
mountains and was stripped of presidential powers by the parliament. On 29 August 1993, more
than 90 percent of the electorate reportedly turned out for a national referendum, overwhelmingly
expressing a lack of confidence in El’chibey’s rule.
128 INDIAN J. C ONST. L.

some 700 wounded 25 . What was viewed as a ‘Soviet intervention’ further

alienated the Azeri population from Moscow, and later helped the Popular
Front leader Abul’faz El’chibey temporarily come to power in the republic26 .
As an example of a regime of exception within a union republic, we
should consider the state of emergency that was introduced on 12 December
1990 within the territory of the ‘South Ossetian Autonomous Oblast’, an
autonomous region of Georgia with a large concentration of non-Georgians.
The imposition was carried out in accordance with Article 113(7) of the 1978
Georgian Constitution.
The disintegration of the USSR in December 1991 along administrative
demarcation lines, which are often illusory, rather than state (national) borders,
led to the division of several ethnic groups living on the territory of the
Soviet Union amongst new ‘independent’ countries. The Ossetian nation,
in this respect, was divided between the Russian Federation (North Ossetia)
and Georgia (South Ossetia). Interestingly, the Wall Street Journal committed
an error when claiming that South Ossetia (and Abkhazia, another region of
Georgia) had broken away from Georgia in wars that followed the collapse
of the Soviet Union in 199127 . In reality, the conflict in South Ossetia had
deeper roots, and was caused by a general discriminatory policy of the
government of Georgia against its ethnic minorities. The Ossetian side claims,
for instance, that while in the 1920s there were as many Ossetians in North
Ossetia as in South Ossetia, by 1991 there were 350,000 Ossetians in the
North, leaving only 68,000 in the South. Many had moved to Northern
Ossetia from the South to avoid the discriminatory treatment of the Georgian
authorities.
The situation was exacerb ated more than two years b efore
disintegration of the Soviet Union by the Language Act (adopted in August
1989) that made Georgian the only ‘official’ language in the republic, including
within schools and other educational institutions. There were plans of further
‘Georgianization’ of the region. Attempting to prevent this, the South Ossetia
Oblast (Council) requested the Georgian Supreme Soviet to grant South
Ossetia the status of an ‘autonomous republic’ which implies a higher level
of self-administration than an ‘autonomous oblast’. The leader of the
Georgian nationalists, Zviad Gamsakhurdia, replied by calling the South

27 Hugh Pope and Guy Chazan, “Georgia Sets Path of Confrontation. New President Saakashvili
Angers Russia, Courts U.S. With Caucasus Ambitions”, Wall Street Journal, 6 August 2004.
28 Members of the current government of President Mikhail Saakashvili continue referring to South
Ossetia as the ‘Tskhinvali region’: “Georgian Prime Minister Zurab Zhvania rejected any attempts
to interfere with the Georgian-South Ossetian relations from the outside. ‘It’s nobody’s business
what military units Georgia will deploy to the Tskhinvali region’”. (See, “Georgia to Deal with
Rebellious Autonomy Alone?”, RIA Novosti, 2 June 2004).
Russian Law on Emergency Powers 129

Ossetians ‘ungrateful guests’ of Georgia, alluding to the claim that they have
lived in the area for ‘only a few centuries’.
As a next step, the Georgian government refused even to use the
name ‘South Ossetia’, and began referring to the region as ‘Samochablo’
(an older Georgian name for the region) or the ‘Tskhinvali Region’ (after
the regional capital city Tskhinvali)28 . In November 1989, groups of Georgian
youth held a ‘march on Tskhinvali’. Arrival of some 15,000 armed men on
trucks, buses and cars led to severe clashes and the injuries of hundreds of
people. In September 1990, the government of South Ossetia proclaimed
the independence of the ‘Soviet Republic of South Ossetia’ (within the USSR),
and in October boycotted the Georgian elections that brought Gamsakhurdia
and the ‘Round Table Free Georgia’ coalition to power.
On 11 December 1990, the Gamsakhurdia government stripped South
O ssetia of any autonomous status, and a day later, imposed a state of
emergency on the stated ground that two Georgians and one Ossetian had
been murdered in Tskhinvali under mysterious circumstances29. Deployment
of 3,000 to 6,000 Georgian militia to Tskhinvali, ostensibly ‘to maintain
order’ in the region, was viewed by the South Ossetians as an ‘intervention’
and ‘occupation’. The resulting resistance led to three weeks of all-out urban
warfare, until the Georgian militia was pushed out of the city. Initially declared
for a period of one month in the city of Tskhinvali and Javsky district, the
state of emergency was repeatedly extended. The continuous struggle that
included armed clashes and the shelling of O ssetian villages, and the
economic and military blockade of the area, made thousands of Ossetians
flee the region and find shelter in North Ossetia, located within the territory
of the Russian Federation.
A coup d’etat staged in Gamsakhurdia (December 1991 - January 1992)
by Edward Shevardnadze and his allies, which included the notorious
convicted criminals Tenghiz Kitovani and Jaba Ioseliani, did not succeed in
changing the nationalities policy of Georgia. In fact, as revealed in a report
of a Swedish-American fact-finding mission to Georgia, more people were
killed in South Ossetia after Shevardnadze’s accession to power than during
the earlier phase30. A peacekeeping mission of the Organisation for Security
and Cooperation in Europe (OSCE) has been deployed in South Ossetia
since 1992. However, several rounds of talks between Georgian and South

29 The Emergency Proclamation was published in Molodezh’ Gruzii, No.49, 14 December 1990.
30 Georgia on Our Minds (Report of a Fact-Finding Mission to the Republic of Georgia, July 1994,
under the auspices of the Psychologists Against Nuclear Arms for Peace and Ecological Balance
and the Transnational Foundation for Peace and Future Research), p.17. For the background of
the Georgian-South Osettian conflict, see, e.g., Ronald Grigor Suny, The Making of the Georgian
Nation (Bloomington, IN: Indiana University Press, 1988).
130 INDIAN J. C ONST. L.

Ossetian representatives have made little progress toward an agreement on

South Ossetia’s future status.
Similar to the Armenia-Azerbaijan conflict over Nagorno-Karabakh,
the territorial problem relating to South Ossetia still lingers in Georgia. Since
the latest coup in Georgia, directed against Shevardnadze, and the election
in January 2004 of president Mikhail Saakashvili, the South Ossetian situation
has shown the tendency of going from bad to worse.

§ Part III
Since the adoption of the Law “On a State of Emergency” of 1991,
this special regime has been declared in Russia (or the RSFSR) thrice; in
Chechnya in November 1991, Ossetia-Ingushetia in 1992-1995, and in Moscow
in October 1993.
On the first occasion, it was introduced by President Yeltsin by way of
Decree No.178 of 7 November 1991, intending to “put an end to mass
disturbances, accompanied by violence, [and] stop activities of illegal armed
formations, in the interests of guaranteeing safety of citizens and protection
of constitutional order of the republic”. A state of emergency with all its
elements (including a curfew, the confiscation of weapons, and a ban on
meetings, demonstrations and strikes) was to come into effect at 5 a.m. on 9
November and last for 30 days. In reality, it turned out to be the shortest
emergency imposed within the territory of Russia, as the Russian Supreme
Soviet refused to ratify it31 . Setting aside the discussion concerning the political
circumstances surrounding the introduction and termination of the emergency
(the lack of coordination between branches of government, different
interpretations of events in Chechnya, etc.), and the question of which decision
was correct, this was the only instance where the Russian Parliament effectively
exercised a ‘termination clause’ of the legal mechanism of a state emergency.
However, it would be fair to say that an abrupt termination of emergency in
1991, just two days after its introduction by the Russian President, caused
what may be termed ‘Chechen syndrome’, and became one of the reasons
for the future reluctance of Russian federal authorities to use the 1991 law.
The longest state of emergency was in effect in parts of North Ossetia
(the official name of the republic is ‘North Ossetia - Alania’) and Ingushetia
between November 1992 and February 1995.
The imposition of a state of emergency for two-and-a-half years in the
region resulted in the prevention of open fighting. In the first months after

31 Vedomosti S’ezda narodnykh deputatov RSFSR i Verkhovnogo Soveta RSFSR, No.46, 1991, items
1546, 1550.
Russian Law on Emergency Powers 131

the introduction of the state of emergency (November-December of 1992)

only 26 persons were killed in the region, compared to 478 before 2
November 1992. In 1993, the number of victims was 124, including 40
O ssetians, 33 Ingush, 21 of ‘other nationalities’ (mainly Russian
peacekeepers), and 30 of ‘unknown nationalities’. In the first half of 1994,
the number was reduced to 16. That was probably the most important
result of the emergency regime.
Overall, the imposition of a state of emergency and its operation in
parts of North Ossetia and Ingushetia between November 1992 and February
1995 was moderately effective in stopping armed fighting and preventing
the worst scenario, open warfare between two ethnic groups. However, it
proved to be unsuccessful in solving the underlying problem and eradicating
the roots of the conflict, which were the territorial claims of Ingushetia upon
Prigorodny district of North Ossetia.
Amongst all the instances of the imposition of the state of emergency
within the territory of the former Soviet Union, observers can hardly identify
a more dramatic and more significant emergency regime than the one
imposed by President Yeltsin on 4 October 1993, after brutal suppression of
the first democratically elected Russian Parliament32 . The event truly became
a def ining episode in contemporary Russian politics.
On 21 September 1993, President issued Decree No.1400, which had
the paradoxical title ‘On the Gradual Constitutional Ref orm in the Russian
Federation’ (O poetapnoy konstitutsionnoy ref orme v Rossiyskoy Federatsii). By way
of the Decree, the Congress of People’s Deputies (the upper tier of parliament)
and the Supreme Soviet (the permanently working legislative body) were
declared dissolved and their activities “interrupted” (Art.1)33 . When the
Parliament declared Yeltsin’s actions a coup, the executive ringed the
parliamentary building (White House) with police cordons, cut off telephone
services, water, electricity, heating, and the emergency systems, as well as
the telephone line of Chairman of the Constitutional Court in the Court’s
building.
The necessity to dissolve the Parliament, as it was stated in Decree
1400, was justified by the allegations that the Supreme Soviet had lost its

32 Democratic character of the first Russian parliament is beyond any doubt. According to the
Central Election Commission, on 4 March 1990, 6,705 candidates ran for 1,068 seats in the
Congress of People’s Deputy (CPD) - an average of more than six per district. About 300 electoral
districts had a race between more than four candidates; 24 electoral districts - more than twenty!
(See, e.g., Human Rights and Legal Reform in the Russian Federation (New York: Lawyers Committee
for Human Rights, March 1993), pp. 44-45).
33 Sobranie aktov Prezidenta n Pravitel’stva Rossiyskoy Federatsii, No.39, 1993, item 3597.
132 INDIAN J. C ONST. L.

“ability to be a representative body”, and that “the security of Russia and its
people” was “a higher value than formal observation of discrepant norms”,
introduced by the Parliament. The problem with this explanation is that the
Russian legislation adopted in 1991-1993 was signed into effect by the
President himself. On a few occasions, he exercised his veto power. In
instances where legislation was not vetoed, he accepted responsibility along
with Parliament for all “discrepant norms”. In the final analysis, the very
creation of the presidency in Russia in 1991 was also a ‘norm’ introduced by
the Parliament. The extent to which the Supreme Soviet ‘represented’ Russian
society, its wishes and interests, was demonstrated by Russian voters in the
next parliamentary elections of December 1993, when 85 per cent of them
voted against pro-Yeltsin’s ‘party of power’ (Egor Gaidar’s ‘Russia’s Choice’).
‘Gradual Constitutional Reform’ was aimed not against the legislative
branch of the Russian government alone. In Article 10 of his Decree No.1400,
Yeltsin also “advised” the Constitutional Court “not to convene” until after
the December 1993 elections. The Constitutional Court did not follow that
‘advice’, which was a blunt violation of the separation of powers and an
infringement of the court’s independence. In an emergency session that took
place the same night34 , it voted 9 to 4 that the President’s action violated
eleven articles of the Russian Constitution. The most important of those 11
counts was a violation of Article 121-6, one of the key provisions of a chapter
on the presidency in the Russian Constitution. Originally, it was an article of
the Law “On the President of the RSFSR” (O prezidente RSFSR) of April 1991,
which introduced the presidency in Russia; later (in May 1991) the provision
was included in the Constitution. According to the article, the President
could not use his powers “to dismiss, or suspend the activities of, any lawfully
elected agencies of state power”. Violation of the article would not merely
subject the President to a long ‘impeachment’ procedure, as it is known in
the U.S. and elsewhere. Article 121-6 was a much more powerful constitutional
check on the authoritarian tendencies of the executive, which provided that
in the case of a violation, the President’s powers were to be “discontinued
immediately”.
In accordance with the Constitution, the tenth CPD convened in the
White House, and with its Resolutions No.5780-1 and 5781-1 discontinued

34 Vestnik Konstitutsionnogo suda, No.4, 1994.

35 Rossiyskaya gazeta, 23 September 1993.
36 Next day Yeltsin issued two supplementary decrees: No.1578 “On Urgent Measures for Ensuring
the Regime of a State of Emergency in Moscow” and No.1580 “O n Additional Measures for
Ensuring the Regime of a State of Emergency in Moscow”, and one more on October 9: No.1615
“On Extension of a State of Emergency in Moscow” (See Sobranie aktov Prezidenta n Pravitel’stva
Rossiyskoy Federatsii, No.40, 1993, items 3748, 3751; No.41, items 3909, 3923).
Russian Law on Emergency Powers 133

the Presidential powers of Boris Yeltsin (at 10 p.m. on 21 September 1993)

and named Vice President Alexander Rutskoi ‘acting President’35 .
At 4 p.m. on 3 October 1993, Yeltsin signed Decree No.1575 ‘On
Introduction of a State of Emergency in Moscow’36 . This decree was far from
being perfect in terms of legislative technique overall, and few of Yeltsin’s
decrees have been as poorly drafted as Decree No.1575. Although the decree
appealed to several provisions of the Act “On a State of Emergency” of 1991,
and although the declared regime was called a ‘state of emergency’, it was
introduced in violation of both the Constitution and the 1991 Russian Law.
The decree appealed to a number of provisions of the Russian Act of
1991 (Arts.22-24; allowing suspension of certain rights and freedoms), but it
lacked an exhaustive list of such suspended rights, as prescribed by the same
Act “On a State of Emergency” (Art.10). The decree failed to give exact reasons
that had made Yeltsin introduce a state of emergency, as prescribed by Article
4(a) of the 1991 law. The decree appealed to Article 24 of the law that named
measures that might be undertaken under an emergency regime, even though
according to the act such measures could be undertaken only when the
emergency is caused by a natural disaster (and not by disturbances and political
unrest, as was the case in October 1993). Yeltsin exceeded his powers and
grossly violated the Russian legislation when he suspended the norms of laws
on the status of parliamentarians and lifted their immunity. The President did
not have a right to ban public organisations, seize their bank accounts,
headquarters and property; this could be done only after giving ‘a preliminary
warning’ to such organisations. Article 21 of the 1991 law allowed use of troops
only with the consent of the Russian Supreme Soviet, and exclusively when
an emergency was caused by natural disasters (‘military aid to civil ministries’,
‘military aid to the civil community’, and ‘military aid to the civil power’, as it
is known in Britain), and not to shoot protesters. In error, the Russian law of
1991 was itself called an act of the “Russian Federation”, whereas technically it
was an RSFSR act. Finally, the emergency declaration was not approved by
Parliament (for it had been dissolved and soon would be physically destroyed),
and therefore what was introduced in Moscow was a de f acto state of emergency
- in the best tradition of juntas and similar dictatorial regimes - not de jure, as it
should be in states governed by law.
Tanks were called in to shell the White House and burn it down, and

37 Nezavisimaya gazeta, 19 October 1993. British magazine The Spectator wrote about “1,000 arrested”
(“Portrait of the Week”, The Spectator, 9 October 1993, p. 4).
38 “Massovye narushenia prav cheloveka v Rossii” [Mass Violations of Human Rights in Russia],
Nezavisimaya gazeta, 23, 26 July 1994. One of those who was severely beaten by Moscow OMON
(Special Police Unit) was a parliamentarian and Secretary of the Constitutional Commission Oleg
Rumyantsev - “Russian James Madison”, as David Remnick called him in The Washington Post in 1990.
134 INDIAN J. C ONST. L.

in the days after the introduction of the state of emergency, scores of people
were arrested. Approximately 35,000 were detained for violation of curfew
regulations (curfew was declared at 11 p.m. on 4 October), and more than
54,000 were detained for ‘administrative misdemeanours’. 9,779 persons were
accused of violating the internal passport system and deported from
Moscow37. According to a Report of the Human Rights Commission, mass
beatings of the detained were a common practice38 .
On 7 October 1993, Yeltsin signed Decree No.1612 ‘On the Constitutional
Court of the Russian Federation’39, stripping the court of its key powers. The
only fault of the court was that it obeyed the Constitution, and it “ended up
on the losing side when Yeltsin emerged victorious from the bloody events
of October”40. It was only 18 months later that the new Constitutional Court
of Russia was able to resume its normal work.
Communist, nationalist and patriotic organisations were banned and
barred from participation in the forthcoming elections41 , and censorship was
introduced. On 13 October, all the opposition dailies were banned, and
criminal investigation was initiated against the editors of 15 periodicals.
The number of victims of those days of ‘civil war’ in Moscow vary
from the ‘official’ number of 147 killed (half of whom were teenagers) and
more then 700 wounded to an estimated “1500 killed”. The precise numbers
of those who were beaten and wounded “has not been reliably determined”42 .
The evaluation by an authoritative human rights organisation
concludes that: “The state of emergency... was a major blow to human rights...
The state of emergency violated Russia’s own domestic rules regarding states
of emergency. It also violated the standards provided in Article 4” of ICCPR.
“Among the non-derogable rights that were violated was the right to life...
Moreover, the extent to which derogable rights, such as freedom of speech,
were restricted also went beyond the boundaries of the covenant... A wide
range of measures taken during the state of emergency involved discrimination
solely on the ground of race or colour - all violations of the covenant... As
the Russian human rights NGO Memorial has documented, the number of

39 Ibid, No.41, 1993, item 3921.

40 Justice Delayed. The Russian Constitutional Court and Human Rights (New York: Lawyers
Committee for Human Rights, 1995), p. 6.
41 Sobranie aktov Prezidenta n Pravitel’stva Rossiyskoy Federatsii, No.43, 1993, item 4080.
42 Boris Kagarlitsky, Square Wheels. How Russian Democracy Got Derailed (New York: Monthly
Review Press, 1994), p.218. As an eyewitness Kagarlitsky testified in his book that the official figure
of victims (142 killed) “was a mockery - the real number of dead had to have been several times
greater” (ibid.).
43 Information Prepared for the Human Rights Committee on the Periodic Report of the Russian
Federation Under Article 40 of the Covenant on Civil and Political Rights by the Lawyers Committee
for Human Rights (New York: Lawyers Committee for Human Rights, 1995), p.4.
Russian Law on Emergency Powers 135

cases that have been pursued by the Procurator’s Office is insignificant,

particularly when compared to the scope of violations”43 .
§ Part IV
A Draft Constitution was quickly prepared to seize the moment and
make Yeltsin’s ‘victory’ even more monumental. The President offered a
draft on 10 November, just a month before the referendum. Discussion of
the draft in the mass media was prohibited, “hardly a sound precedent of
democratic practice”, as British analysts wrote44 . Further, for the very first
time in Russian history since 1917, the minimum voter turnout needed for a
valid parliamentary election was reduced from 50 to 25 per cent. The new
Constitution, whose actual adoption by the Russian population is highly
doubtful, provided for one of the strongest presidencies in Europe,
“superpresidentialism” or “a modern-day czar”, and was described as placing
Russia once again under something similar to authoritarian rule.
As a ‘victor’s Constitution’ (rather than a consensus- or social contract-
based constitution), the 1993 Fundamental Law substituted the separation
of powers and checks and balances with presidential supremacy, and placed
the Executive above other branches of government45 . Among other things,
the 1993 Constitution granted jurisdiction to the President over several areas
which had traditionally been the preserve of the courts, such as the protection
of civil rights and freedoms, and proclaimed him the “guarantor of... the
rights and freedoms of the human being and citizen” (Art.80(2)). “Such
delegation of authority to the Executive to protect constitutional rights “not
only violates the doctrine of separation of powers, but also may give the
President a justification, albeit tenuous, to usurp the Court’s jurisdiction,
and suspend judicial review in a time of crisis”46 . This unhealthy concentration
of authority in the hands of the Executive took place in the context of
emergency powers as well.
The Constitution provides for the adoption of a number of Federal
Constitutional laws that would supersede some outdated acts. Article 88(2)
of the Constitution specifically declared the necessity to adopt a new Federal

44 Stephen White and Ronald J. Hill, “Russia, Former Soviet Union, and Eastern Europe”, in The
Referendum Experience in Europe (London: Macmillan Press Ltd, 1996. Michael Gallagher and
Pie Vincenzo Uleri, eds.), p.163.
45 In an alarming conclusion of another American scholar, Yeltsin “demonstrates how attempts to
copy the American system are likely to end up in dictatorship, as they have so often in Latin
America” (Robert V. Daniels, “Yeltsin’s No Jefferson. More Like Pinochet”, The New York Times,
2 October 1993, pp. 23).
46 See Amy J. Weisman, “Separation of Powers in Post Communist Government: A Constitutional
Case Study of the Russian Federation”, 10 The American University Journal of International Law
& Policy (Summer 1995), p.1397.
136 INDIAN J. C ONST. L.

constitutional law “On a State of Emergency” (O cherzvychainom polozhenii). The

act was eventually adopted and signed into effect by President Putin on 30
May 2001 (No.3 – FKZ).
The first and the second State Dumas (elected in 1993 and 1995) made
several attempts to pass that important piece of legislation (especially in the
period of a state of emergency in North Ossetia and Ingushetia), but none of
those attempts came to fruition. In 2000-2001, the State Duma considered
two bills on the state of emergency. While one was introduced by President
Yeltsin in 1997, the other draft was an ‘initiative bill’ endorsed on 11 April
2000 by a group of liberal State Duma deputies: Edward Vorobyov, Victor
Pokhmelkin, Sergei Stepashin and the late Sergei Yushenkov.
The initiative bill (consisting of 6 chapters and 36 articles) was obviously
inferior to the President’s bill, and was seriously and deservedly criticised by
other Duma deputies as well as by legal experts (from the State Duma’s Law
Department, and the Institute of Legislation and Comparative Law) for its
poor legal quality. Subsequently, the authors of the initiative bill agreed
with the criticism and recalled their bill. Therefore, the work in the State
Duma concentrated on improving the remaining presidential draft.
The bill was eventually passed by the State Duma on 26 April 2001,
and the Federation Council considered the Act on 16 May 2001. Despite its
apparent significance to the country and its legal and political system, as
well as to rights and freedoms of its citizens, only three deputies of the upper
chamber of the Russian parliament actually raised any questions regarding
some of the Act’s provisions.
The visible support extended to the act by two profile committees of
the chamber pre-determined the decisive results of voting in the Federation
Council. The act was passed by 154 votes in favour to just one against, with
one abstention.
The new Federal Constitutional law “On a State of Emergency” maintains
the main principles of the previous act of 1991, which was praised by the
U.S. Lawyers’ Committee for Human Rights as relying “heavily on
international human rights norms, and in particular on the International
Covenant on Civil and Political Rights”.
The law (consisting of 7 chapters and 43 articles) defines the goals of a
state of emergency, and the conditions attached to its introduction. According
to Article 2, a state of emergency is aimed at “elimination of conditions that
caused introduction of a state of emergency, maintenance of human rights
and civil freedoms and defence of the constitutional regime of the Russian
Russian Law on Emergency Powers 137

Federation”. Emergency can be introduced only under conditions posing

an “imminent threat to life and security of citizens or the constitutional regime
of the Russian Federation”. The act divides such conditions into two groups.
The first one includes attempts to effect a violent change in the constitutional
regime of the country, armed mutiny, regional conflicts, etc. The second
group encompasses non-political emergency situations like natural disasters,
technological catastrophes, or epidemics (Art.3).

In legal terms it is an error, albeit a common one, when Russian and

foreign reporters use the terms ‘state of emergency’ (chrezvyhainoe polozhenie)
and ‘emergency situation’ (chrezvyhainaia situatsia) interchangeably, as the
Russian legislation makes a distinction between them. Unlike a ‘state of
emergency’, which is declared for “protection of human rights and civil
freedoms, defence of the constitutional regime”, etc., an ‘emergency situation’
occurs as a result of a natural or technological disaster or a catastrophe that
“can lead or has led to human casualties, a damage to human health and
environment, significant material losses and interruption of functioning of
essential spheres of life” (Federal law No.68-FZ of 21 December 1994, art.1;
Resolution of the RF Government No.516 of 30 April 1997, Art.1). Another
federal law more precisely identifies one such technological disaster as being
the collapse of a “hydrotechnological construction” (Federal law No. 117-FZ
of 21 July 1997, Art.1).

Resolution of the RF Government No.1094 of 13 September 1997

introduced a classification of emergency situations depending on their
magnitude, which may be assessed by taking into account the number of
people affected, the extent of material loss or the size of the affected territory.
An emergency situation can get the highest (‘federal’) status if it satisfies any
of the following criteria: if it has led to “sufferings” (postradali) of more than
500 people; if it has caused the interruption of functioning of essential spheres
of life of more than 1,000 people; if on the first day of an emergency situation,
material losses exceeded 5 million minimum standard salaries (MROT); or
if it has affected more than two regions of the Russian Federation (Art.2).

A state of emergency may be introduced by a Presidential decree

affecting the whole territory of the Russian Federation for a period not longer
than 30 days, or in certain localities for a period not longer than 60 days
(Art.9(1)), with the possibility of an unlimited number of extensions by way
of a new decree (art.9(2)).

For comparison, Article 201 of a similar American law (the National

Emergencies Act of 1976) empowers the President of the United States to
introduce a national emergency for 6 months, with the possibility of its
138 INDIAN J. C ONST. L.

extension an indefinite number of times (50 U.S. Code 1621). This special
regime was introduced by President Bush on 14 September 2001 by his
‘Declaration of National Emergency by Reason of Certain Terrorist Attacks’. The
declaration introduced a national emergency “by reason of the terrorist attacks
on the World Trade Center, New York, New York, and the Pentagon, and
the continuing and immediate threat of further attacks on the United States”
(Proclamation 7463). The proclamation was accompanied by an executive
order calling the ready reserve of the U.S. Armed Forces to active duty “for
not more than 24 consecutive months” (Executive Order 13223)47.
The new Russian law d oes not ob lige the Presid ent to hold
consultations with subjects of the Russian Federation prior to issuing a decree
on a state of emergency, but the decree must be approved by the Federation
Council. The upper chamber of the Federal Assembly is to be convened “as
soon as possible, without a special call” (Art.7(1)), within 72 hours following
the decree’s publication (obnarodovanie) (Art.7(3)). If not approved within
three days, the decree automatically ceases to operate. As mentioned before,
Bernard Siegan in his ‘emergency clause’ recommended that an emergency
proclamation of the President should require parliamentary confirmation
“within five days” 48. Russian law-makers appear to have been even more
restrictive, and limited the term of the decree’s effect without the Federation
Council’s authorisation to three days.
Drafters of the act may be praised for another major achievement.
The act can be considered a major step towards the creation of the legal
institution of a ‘federal intervention’, or ‘president’s rule in the states’ as it is
known in India. The author of this article began writing about the necessity
of introducing this legal mechanism back in 1994-95. That position was
endorsed by the Council for Foreign and Defence Policy, an influential
Russian think-tank, that published the author’s report under its auspices49.
Its shorter version was also published by Nezavisimaya gazeta, one of the
most well-informed Russian newspapers at that time 50. A year later, that
approach was strongly supported by a deputy chairman of the Federation
Council Ramazan Abdulatipov (also in a full-page article in Nezavisimaya
47 Federal Register, 18 September 2001 (Vol.66, No.181). Presidential Documents. Page 48199.
48 Bernard H. Siegan, Drafting a Consitution for a Nation of Republic Emerging into Freedom
(Fairfax, VA: George Mason University Press, 1994. 2nd ed.), p. 87.
49 Alexander Domrin, Federal’noe vmeshatel’stvo v dela sub’ektov federatsii. O pyt pravovogo
regulirovania i praktika primenenia v zarubezhnikh stranakh [Federal Interventions Worldwide:
Transnational Law and Practice of Its Implementation] (Moscow: Council for Foreign and Defence
Policy, [February] 1995).
50 Alexander Domrin, “Federal’noe vmeshatel’stvo v dela sub’ektov federatsii. O pyt pravovogo
regulirovania i praktika primenenia v zarubezhnikh stranakh” [Federal Interventions Worldwide:
Transnational Law and Practice of Its Implementation], Nezavisimaya gazeta, No.36, 28 February
1995.
 139

gazeta) 51. In 1998, the absence of legal regulation of a federal intervention

was recognised as one of the major ‘deficiencies’ of Russian Constitutional
Law. Seven years, historically speaking, is not a very long period of time for
the journey from the first publication dedicated to the issues surrounding a
federal intervention, to the actual introduction of such a legal mechanism in
Russia.

51 R.G. Abdulatipov, “Tol’ko zakon mozhet ostanovit’ bezzakonie. O b institute federal’nogo

vmeshatel’stva v dela sub’ektov federatsii” [Only Law Can Stop Lawlessness. On the Institution of
a Federal Intervention], Nezavisimaya gazeta, 16 July 1996.
140 INDIAN J. C ONST. L.

R EA SON A ND R EA CH OF THE OBJ ECTION TO

E X P OST F A CTO L A W
Suri Ratnapala*
§ Introduction
On the 1st of October 2004, the High Court of Australia made two
decisions that permitted the continued detention of persons already serving
prison sentences for serious crimes. In the first decision, the Court rejected a
challenge to Queensland legislation that authorised the State Supreme Court
to order continued detention of a prisoner when it has reasonable grounds
to believe that the prisoner poses a serious danger to the community.1 In the
second case, the High Court sanctioned New South Wales legislation that
drastically limited the parol prospects of certain categories of offenders serving
life imprisonment.2 The two decisions expose the tenuous nature of the
Australian public’s protection against ex post f acto law. A troubling aspect of
these decisions was the scant attention paid by the majorities to the ex post
f acto nature of these laws. Fardon and Baker were decided on the narrow
issue as to whether the powers given to the State courts were compatible
with their exercise of Commonwealth judicial power. The cases highlight
the need for a re-examination of the reason and reach of the objection to ex
post f acto law and this essay is a contribution to that end.
The term ex post f acto law literally means ‘[arising] from past facts’ but
in its technical sense refers to a class of laws that retrospectively inflict harm
on persons on account of past lawful conduct. The best known historical
cases of the ex post f act law are the bill of attainder and its variant, the bill of
pains and penalties, by which the legislature directly imposes punishment
on named individuals. However the class of laws that has been judicially
condemned, particularly in the United States, and is found objectionable for
the reasons to be discussed presently is wider. It includes laws that do not
name individuals for retrospective harm but leaves their selection to other
agencies. The term ex post f acto law refers to this wider class.
It does not take much science to know that the rule of law is
unachievable without strong restraints on retrospective infliction of harm for
lawful acts. Such impositions are not just assaults on the institutional structures
that promote the rule of law but are direct negations of the rule of law. A
law that undermines the separation of powers or representative government
* Professor of Law and Director, Centre for Public, International and Comparative Law, T C Beirne
School of Law, University of Queensland, Australia.
1 Fardon v Attorney-General (Qld) 210 ALR 50 (2004).
2 Baker v R 210 ALR 1 (2004).
Objection to Ex Post Facto Law 141

will expose the rule of law to subversion but will not per se defeat it. On the
contrary, an ex post f acto law in its classic form is the epitome of the capricious
exercise of authority. The moral objection to ex post f acto law is not founded
on constitutional pragmatics but on the most fundamental demand of the
rule of law that a person is subject only to established and known law.
Accordingly, Art 15(1) of the United Nations Covenant on Civil and Political
Rights (ICCPR) condemns laws that hold a person ‘guilty of any criminal
offence on account of any act or omission, which did not constitute a criminal
offence, at the time when it was committed or impose a heavier penalty than
the one that was applicable at the time when the criminal offence was
committed’. Article 7(1) of the European Convention on Human Rights (ECHR)
makes the prohibition applicable to acts and omissions ‘which did not
constitute a criminal offence under national or international law at the time
when it was committed’. The prohibition is part of the UK law under the
Human Rights Act 1998. Article 20(1) of the Indian Constitution provides that
‘no person shall be convicted of any offence except for violation of a law in
force at the time of the commission of the Act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted
under the law in force at the time of the commission of the offence’. Many
other constitutional democracies have similar safeguards in their constitutions
or general laws.3
These prohibitions prevent retrospective criminal charges and
punishments but not other types of detriments imposed by law on persons
who have committed no wrong. Professor Durga Das Basu states the Indian
constitutional position as follows:
The prohibition [in Art 20(1)] is only against prescribing judicial
punishment with retrospective ef f ect. It does not prohibit the enf orcement
of any other sanction by a civil or revenue authority, e.g., the loss of
deprivation of any business or f orf eiture of property or cancellation of
naturalization certif icate by reason of act committed prior to the
operation of the penal law in question or the imposition of some
statutory penalty, to enf orce a civil liability (as distinguished f rom
criminal prosecution f or an of f ence).4
The narrowness of this prohibition allows legislatures to inflict pain
for innocent acts in the guise of civil liability. The positive constitutional law
of most countries does not offer an effective defense against disguised
penalties, the US being a notable exception. Hence, I argue that the rule of

3 See for example New Zealand Bill of Rights Act 1990 s 26(1); Canadian Charter of Rights and
Freedoms s 11(g); German Grundgesetz Art 103.
4 D D Basu, Shorter Constitution of India (New Delhi: Prentice Hall of India, 2nd ed, 1989) 144-5.
142 INDIAN J. C ONST. L.

law requires a more general constraint on retrospective imposition of harm

than is prescribed by the ICCPR and ECHR standard. There is a strong case
for a liberal interpretation of ex post f acto clauses to protect citizens safeguard
the citizen from legislative harm inflicted outside the criminal justice system.
If such a construction is not open to a national court owing to its interpretive
methodology, there is a case for the national legislature to practice self-restraint
in this regard as a matter of constitutional principle and political morality.
The major impediment to the extension of the ban beyond the criminal
process is the difficulty of distinguishing between injurious affectation resulting
from legitimate regulation and punishment inflicted in the guise of civil
liab ility. Consid er a law that prohib its persons with the human
immunodeficiency virus (HIV) from working as a nurse - with no
compensation for loss of income. HIV positive persons who are already
employed as nurses will lose their jobs. This law does not impose a
retrospective punishment in the conventional sense of that term. Yet it inflicts
harm on people who have committed no wrong by depriving them of their
livelihoods. Such difficult questions are avoided by limiting the ex post f acto
ban to cases where a person is charged with a criminal offence. But that does
not lay to rest the question of whether the law offends a basic constitutional
value. This essay investigates whether it is possible to develop a set of rational
and practical guidelines that will enable constitutional democracies to
reconcile the need for necessary prophylactic measures with the value of
preventing the retrospective infliction of detriment. The question whether
in a given jurisdiction, limits on ex post f acto law are requirements of positive
constitutional law, constitutional convention or simply of political morality
is important. My chosen aim though is to ask the questions: what kinds of
retrospective laws are objectionable and why are they objectionable? The
answers will help lawyers determine what doctrinal means are available in a
given constitutional system to restrain the enactment of such laws. This essay
is based primarily on the constitutional law of the United States and Australia.
It is not possible exhaustively to define the objectionable class without
knowing all the novel devices that may be generated by legislators in the
future. However, a non-exhaustive list of objectionable types will emerge
from this discussion.
In Part 2 of this essay I consider the principal reasons for condemning
ex post f acto law. The discussion is mainly theoretical with judicial reasoning
serving where relevant to explain the reasons. In Part 3, I engage some of
the key conceptual and practical problems in identifying laws that attract
condemnation for the reasons discussed. There is a heavy focus on landmark
cases in the United States and Australia as a means of illustrating problems
and, where relevant, judicial error. In Part 4, I itemize non-exhaustively the
Objection to Ex Post Facto Law 143

kinds of laws that are objectionable, if not in positive constitutional law,

then in constitutional theory.
§ Theoretical objections to ex post f acto law
Constitutional theory offers four reasons for the objection to ex post
f acto law. They overlap in some respects.
( 1) Ex post f acto law is not law
The idea of retrospective illegality makes any sense only if legality is
understood as a provisional condition dependent on the future will of a
legislative authority. If this is the case, the law’s primary function of providing
guidance to conduct is severely weakened. Individuals who cannot predict
the legal consequences of their actions cannot coordinate their behavior in
relation to each other. Therefore substantial restraint on the imposition of
harm for past innocent acts is a necessary condition of civilized social life.
The idea of a law conjures a general rule; hence the frequent question
whether an enactment directed at punishing a single person or condemning
a single transaction can properly be called a law. Blackstone wrote that an
‘act to confiscate the goods of Titius or to attaint him of high treason does
not enter into the idea of a municipal law: for the operation of this act is
spent upon Titius only and has no relation to the community in general: it is
rather a sentence than a law’.5 This rationale has received wide judicial
recognition, the locus classicus being the US Supreme Court’s Opinion in
Hurtado v. Calif ornia.
Law is something more than mere will exerted as an act of power. It
must not be a special rule f or a particular person or a particular case,
but ... the general law ... so that every citizen shall hold his lif e,
liberty, property and immunities under the protection of the general
rules which govern society … Arbitrary power, enf orcing its edicts to the
injury of the persons and property of its subjects, is not law, whether
manif ested as the decree of a personal monarch or an impersonal
multitude.6
The Privy Council in Q v. Liyanage invalidated an Act of the Ceylon
Parliament calculated to lessen the prosecutorial burden and to enhance
punishment in a particular treason trial on the basis that it was a legislative
usurpation of judicial power.7 In Building Construction Employees’ and Builders
Labourers’ Federation (NSW BLF Case), the New South Wales Court of Appeal

5 Sir William Blackstone, 1 Commentaries on the Laws of England (London: T. Cadell & W. Davies,
14th ed, 1803) 44-45.
6 110 U.S. 516, 535-536 (1884).
7 [1967] 1 AC 259
144 INDIAN J. C ONST. L.

found legislation designed to defeat a trade union’s action challenging its

deregistration to be an exercise of judicial, not legislative power. The court
controversially upheld the legislation on the ground that the NSW
legislature’s plenary power included judicial power.8 This reason is untenable
as the NSW legislature could not inherit by the language of the Constitution
Act 1955 the kind of sovereign power that historically accrued to the UK
Parliament. More recently, Justice Deane in the High Court of Australia
observed that a bill of attainder ‘prohibits nothing, prescribes no rule of
conduct and is incapable of being contravened since, by its terms, it is
inapplicable to acts committed after its enactment’.9
( 2) Nullum crimen, nulla poena sine lege
The maxim that there is no crime without a breach of the law is first a
proposition of logic. If a crime is understood to be an act that is prohibited
by law at the pain of a penalty, an act which is not so prohibited can never
be a crime. The fact that Parliament visits the act with its retribution cannot
make it a crime. The act is simply an event with reference to which Parliament
elects to inflict pain on a person or group. However, the maxim nullum
crimen sine lege is more than a proposition of logic. It is a substantive moral
claim to humane treatment. Blackstone in his Commentaries observing that a
person has no cause and cannot foresee a cause to abstain from doing what
is legal wrote that in such cases ‘all punishment for not abstaining must of
consequence be cruel and unjust’.10 The maxim nulum crimen sine lege also
condemns law that eliminates an exculpatory defence that was available at
the time of the commission of the act.11 A person commits no crime if he has
a legal excuse and the retrospective removal of the excuse amounts to the
punishment of a lawful act.
The principle nulla poena sine lege which condemns the retrospective
increase in penalties is again a substantive claim of justice. It can also be
seen as a logical extension of nullum crimen sine lege. A retrospective increase
in punishment is an infliction of new pain not prescribed by law. It is not
punishment of the offence as the punishment has already been suffered or is
being suffered. If there is a cause, it is the fact that the offender is a person
who has been punished or is being punished according to law. Suffering
lawful punishment is not itself unlawful.

8 (1986) 7 NSWLR 372. See my criticism of this decision in S Ratnapala, Australian Constitutional Law:
Foundations and Theory 2nded (Melbourne: Oxford University Press, 2007) 116-117.
9 Polyukhovich v. Commonwealth (1991) 172 CLR 501, 631.
10 W Blackstone, n 2 above, 46.
11 Kring v Missouri 107 US 221 (1883); Dobbert v. Florida 432 US 282 (1977); Carmel v. Texas 529 US 513
(2000).
Objection to Ex Post Facto Law 145

Subtle ex post f acto violations

In Collins v. Y oungblood, the Supreme Court declared that ‘subtle ex
post f acto violations are no more permissible than overt ones’.12 This explains
the Court’s extension of the nullum crimen, nulla poena sine lege principles to
laws that ease the prosecutorial burden by retrospective changes to evidentiary
rules. In Calder v. Bull Justice Chase included within the class of impermissible
ex post f acto laws, ‘Every law that alters the legal rules of evidence, and
receives less or different testimony than the law required at the time of the
commission of the offence in order to convict the offender’.13 In Carmel v.
Texas the Court ruled unconstitutional, a statute that retrospectively authorised
conviction for certain sexual offences without corroboration of the victim’s
evidence. The Court held that ‘a law reducing the quantum of evidence
required to convict an offender is as grossly unfair as, say, eliminating an
element of the offense, increasing the punishment for an existing offense, or
lowering the burden of proof’.14 In Stogner v. Calif ornia the US Supreme
Court overrode a strong dissent to annul a California statute that allowed
the resurrection of time barred prosecutions for child sex offences. The
complaint against Stogner concerned events that happened 22 years before
the charges were laid. The majority saw the statute of limitations primarily
as a safeguard against conviction on insufficient or unreliable evidence and
thought that its removal exposed Stogner to conviction on a lesser quantum
of evidence than was required by law before the statute was passed.15
The reasoning here is more complex and contestable. The legislature
is not overtly criminalising an innocent act but is denying a class of alleged
offenders certain evidentiary safeguards. If the safeguards in fact decrease
the probability of curial error, their removal must logically increase the
probability of innocent persons being punished, the kind of harm that the
maxim seeks to prevent. However, as the dissent in Stogner pointed out, the
theory founded on evidentiary concerns is weakened by the fact that the ban
on ex post f acto law as judicially accepted does not condemn laws that eliminate
the time bar with respect to future offences or laws that extend unexpired
limitation periods.16 Hence if it is to hold, the theory must be further refined.
The majority viewed the revival of expired prosecutions as a retrospective
aggravation of the crime as condemned in Calder v. Bull but so is the extension
of unexpired limitation periods. More persuasively, the majority enlisted
the notion of ‘reliance interest’ in aid of the theory. On the expiration of the

12 497 US 37, 46 (1990)

13 3 Dall. 386, 390 (1798).
14 529 US 513, 532 (2000).
15 539 US 607, 615.(2003)
16 Ibid 650.
146 INDIAN J. C ONST. L.

time limit, persons have a reliance interest in the form of an expectation of

immunity and hence may not preserve evidence of innocence.17 The dissent
ridiculed the reasoning with the observation that it involves a presumption
that ‘criminals keep calendars so they can mark the day to discard their
records or to place a gloating phone call to the victim’.18
Although diary keeping criminals may be hard to find, criminals who
do not re-offend and who redeem themselves might not be so rare. In such
cases the resurrection of expired prosecutions seems harsh. The point remains
though that the extension of prosecutable periods or resurrection of time
extinguished prosecutions as well as the retrospective easing of evidentiary
burdens are not easily explained by the maxim nullum crimen, nulla poena
sine lege.
( 3) Failure of due process
This objection relates to bills of attainder and of pains and penalties.
Whereas Blackstone denied these instruments the status of law, John Lilburne
saw in them the vice of the legislative imposition of punishment without
trial. ‘To say that a freeman of England by Law may be tried by a Bill of
Attainder, is irrational and unjust; for such a proceeding is no tryal, but
rather a sentence, and is no act of jurisdiction, but an act of the legislative
power, but no sentence can be past against an offender, but by some fore-
declared visible, known rule of law; of which the supposed offender, either
actually had, or might have had knowledge’.19 This objection was articulated
by the US Supreme Court in Selective Service System v Minnesota Public Interest
Research Group when it stated that a bill of attainder is ‘a law that legislatively
determines guilt and inflicts punishment upon an identified individual without
provision of the protections of a judicial trial’.20
The doctrinal formulation of this objection is not based on the
institutional separation of powers, but on a distinction drawn between the
type of decisions that do not require the curial method and the type that do.
The first type consists of decisions generating rules of general application
and the second type comprises decisions that apply a general rule to a
particular case.21 The judicial method is unnecessary in the former case, but
is essential to the latter. Tribe states that the distinction is ‘between those

17 Ibid 631.
18 Ibid 670.
19 Quoted from W.B. Gwyn, The Meaning of the Separation of Powers (1965: New Orleans: Tulane
University Press, 1965) 39.
20 468 US 841, 846-47 (1984) quoting Nixon v. Administrator of General Services 433 US 425, 468 (1977).
21 A Dershowitz, ‘Comment: The Bounds of Legislative Specification: A Suggested Approach to the
Bill of Attainder Clause’ (1962) 72 Y ale Law Journal 350.
Objection to Ex Post Facto Law 147

processes of choice which have such wide public ramifications that adversely
affected individuals need not participate personally, and those choice
processes which so focus upon particular persons that their personal
participation must be assured’.22
Tribe’s formulation of the objection does not fully explain its rationale.
The objection holds even if the legislature grants the individuals targeted a
comprehensive hearing before it enacts the ex post f acto law. A legislative
hearing does not overcome this objection for two reasons. Firstly, as Cooley
observes, the legislature ‘is not properly constituted to try with coolness,
caution, and impartiality, a criminal charge, especially in those cases in which
the popular feeling is strongly excited - the very class of cases most likely to
b e prosecuted in this mod e’. 23 Secondly, even if it assumed that a
representative legislature is impartial, it cannot act in the judicial mode without
the guidance of pre-existing law. This highlights the fact that bills of attainder
and of pains and penalties lack the qualities of both law and of adjudication
but are cases of straightforward infliction of pain on chosen individuals.
( 4) Ex post f act o law of f en ds t h e separat ion of powers
doctrine
This objection is based on the claim that the enactment of certain
forms of ex post f acto law involves the exercise of judicial power. In countries
where legislative and judicial powers are constitutionally reposed in separate
organs, the legislative infliction of punishment or detriment on specified
persons is unconstitutional as a matter of positive law. In England, where
the Crown in Parliament had undivided power, the practice of enacting bills
of attainder and of pains and penalties was abandoned as a matter of
constitutional principle. It is worth noting that these Acts were not enacted
to punish lawful acts but to punish criminal acts more expeditiously, more
assuredly and more severely. The precedents collected by Hatsell24 suggest
that for the attainder procedure to be invoked, the party must have
committed some act which by nature is a crime under the existing law. The
practice (not always observed) was to allow the accused to defend themselves
with counsel and witnesses before both Houses.25 Sir John Hawles justified
the practice on the ground that ‘it is no injustice for the supreme power to
punish a fact in a higher manner than by law established, if the fact in its

22 L H Tribe, American Constitutional Law (Mineola: Foundation Press, 2nd ed, 1988) 631.
23 T. Cooley, 1 Constitutional Limitations, vol 1 (Boston: Little, Brown & Co, 8th ed, 1927) 536-537.
24 J Hatsell, Precedents of Proceedings in the House of Commons, vol 4 (London: Luke Hansard & Sons,
1818) 85-96, 100-102, 235-249, 323-346
25 I May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, (London: Butterworths,
19th ed., 1976) 66.
148 INDIAN J. C ONST. L.

nature is a crime, and the circumstances make it much more heinous than
ordinarily such crimes are’.26 Even so, Parliament in these proceedings was
not bound by law with respect to the substance of the offence, the procedural
and evidentiary rules or the punishment. The last bill of attainder was enacted
to attaint the Earl of Kellie and others in 1746 and the last bill of pains and
penalties was enacted against Queen Caroline in 1820.27
The framers of the US Constitution reacted to the post independence
wave of ex post f acto laws that victimised loyalists28 by expressly forbidding
ex post f acto laws in its first article. However, in many cases, the Supreme
Court has treated the ban as part of the Constitution’s implementation of
the doctrine concerning the separation of powers. In Fletcher v. Peck, the
Court concluded that bills of attainder were ‘legislative judgments and an
exercise of judicial power’. 29 In United States v. Brown, the Court stated that
the attainder clause was not intended as a narrow, technical prohibition,
‘but rather as an implementation of the separation of powers, a general
safeguard against legislative exercise of the judicial function’.30
The view that the ban on ex post f acto law is a necessary implication of
the separation of powers is shared by the Privy Council and the High Court
of Australia. The Privy Council made its definitive pronouncement in Q v.
Liyanage, an appeal from the Ceylon Supreme Court.31 The constitution of
Ceylon (now Sri Lanka) did not expressly prohibit ex post f acto legislation.
The two laws examined by the Privy Council constituted a legislative scheme
designed to facilitate the trial, conviction and enhanced punishment of certain
persons accused of an attempt to overthrow the lawfully established
government of Ceylon. The Privy Council struck down the laws as repugnant
to the separation of powers ordained by the constitution and observed that
‘if such Acts as these were valid the judicial power could be wholly absorbed
by the legislature’.32
The early thinking in Australia was that the Commonwealth
Constitution’s division of powers did not prohibit ex post f acto law. Thus in
The King v Kidman,33 a law that made the offence of conspiracy to defraud
the Commonwealth an indictable offence with retrospective effect was
questioned not on the grounds of attainder or separation of powers but on

26 Ibid, 99.
27 Halsbury’s Laws of England, vol. 34 4th ed , 522.
28 Dershowitz, n 20 above, 331.
29 10 US 87, 136 (1810).
30 United States v Brown 381 US 437, 488 (1965).
31 n 6 above.
32 Ibid 291.
33 (1915) 20 CLR 425.
Objection to Ex Post Facto Law 149

the basis that it did not fall within any of the enumerated the subjects of
Commonwealth legislative power.34 The argument found favour only with
Chief Justice Griffith who found that in general ex post f acto law was impossible
to classify under any of the placita of powers vested in Parliament. The true
category to which such laws belong he stated was ‘control over the liberty of
the subject’ or ‘reward and punishment of citizens who deserve well or ill of
the State’. 35 Nevertheless, he did not regard the impugned law as
unconstitutional as it merely put into statutory form, an existing common
law offence. 36 The other judges rejected the argument as a matter of
construction stating that that the power to legislate on a subject contained
the power to make laws having retrospective effect.37
Kidman stood for 75 years until the Mason Court in Polyukhovich v.
Commonwealth entertained the challenge to the War Crimes Act 1988 based
on the separation of powers. Polyukhovich, an immigrant, was charged with
war crimes that he allegedly committed during the German occupation of
the Ukraine. The alleged acts were not punishable under Australian law as
they were not committed in Australia. The charges were made possible by
amendments to the War Crimes Act enacted in 1988. Polyukhovich
challenged the Act on grounds, inter alia, that the Act was an invalid
usurpation of judicial power of the Commonwealth. Five of the six judges
agreed that the separation of powers doctrine barred the enactment of laws
having retrospective penal effect38 and Justice Dawson assumed it for the
purpose of argument.39 However, four of these judges concluded that the
Act did not fall within the prohibited class of statutes. The common theme
in their judgements was that a law that retrospectively makes an act punishable
as a crime does not offend the separation doctrine provided it is general and
not directed at specified individuals. Justice Dawson explained that under
such law the ‘court is still left to determine whether an individual is guilty of
having engaged in the prohibited activity, albeit an activity which took place
before the law created the offence …’40 Justice McHugh observed: ‘Under
such a law, it is still the jury, not the legislature which determines ... whether
the accused is guilty or innocent of the charge against him or her’.41
As I argue later, retrospectivity necessarily involves a degree of
specification of the persons targeted. That aside, the judges were plainly

34 Crimes Act 1915 ss 2 and 3

35 n 32 above, 434.
36 Ibid 436-437
37 Ibid 441-442 (Isaacs J), 453 (Higgins J), 455-456 (Gavan Duffy and Rich JJ), 460 (Powers J).
38 n 8 above, 539 (Mason CJ) 631 (Deane J), 689 (Toohey J), 706 (Gaudron J), 721 (McHugh J).
39 Ibid 648.
40 Ibid 647. Compare Mason CJ at 536, Toohey J at 685-686, and McHugh J at 721.
41 Ibid 721.
150 INDIAN J. C ONST. L.

wrong in denying that the law was aimed at specific individuals. The preamble
to the Act made it clear that its provisions were directed at persons who
committed serious war crimes in Europe during World War II and who
have entered Australia. The Act applied only to Australian citizens or
residents accused of specified war crimes committed during the Second World
War in the European theatre. (ss. 5, 9 and 11) Persons within this class were
few and readily identified. It is also evident that the judges misunderstood
the scope of the prohibition. Toohey J, echoed the other justices in concluding
that ‘there is not a scintilla of difference’ between the roles of the judge and
jury in a trial under this Act and the roles of the judge and jury in a trial
under an identical law operating prospectively.42 That was correct but was
not the point in issue. The question was not whether the court was assigned
a non-judicial task but whether the legislature had performed a judicial (or
non legislative) function in selecting an identifiable group for its sanctions.
Let us consider a less emotive hypothetical case. Statute A makes the sale of
a standard loaf of bread at a price in excess of $1 an offence carrying a
penalty of $500. It is prospective in operation and the legislature has not
passed judgment. Compare this to Statute B made in 2005 that penalises all
persons who in 2004 sold a standard loaf for more than $ 1. Under each law,
the courts have the function of determining whether an accused person in
fact sold bread at the prohibited price. However, in enacting the second law
legislature has made a determination of its own - that all persons who in
2003 sold bread above the stipulated price have committed crimes. There is
no escape for these persons. They remain liable to the penalty on conviction
as long as the law is in force. As Deane J wrote in his dissenting judgment,
such a law ‘prohibits nothing, prescribes no rule of conduct and is incapable
of being contravened since, by its terms, it is inapplicable to acts committed
after its enactment’.43 It is this kind of law that current American jurisprudence
regards as legislative judgments.
The Court could have upheld the law on the basis of the Nuremberg
exception to the constitutional ban, namely the punishment of acts mala in
se, or to employ the words of the ICCPR, acts that are ‘criminal according to
the general principles of law recognised by the community of nations’.44 It is
a reasonable presumption that Polyukhovich, had he committed the alleged
acts would have known that they were crimes. Hence, the law did not violate
the assurance that the ex post f acto ban provides ‘that no future retribution of
society can occur except by reference to rules presently known’.45 In contrast,

42 Ibid
43 Ibid 631.
44 See for example International Covenant on Civil and Political Rights art 15 para 2.
45 n 8 above, 689.
Objection to Ex Post Facto Law 151

the retrospective price control law punishes persons who had no idea that
their actions were wrongful at the time they committed them.
The theoretical objection based on the separation of powers may be
restated as follows. When the legislature enacts an ex post f acto law, it does
not act in a judicial manner, though sometimes such enactments follow a
parliamentary inquiry. It does not determine the matter according to pre-
established law, which is the hallmark of the judicial function. The legislature
in such cases passes political judgment on particular individuals and in that
sense subjects them to an inquisition without due process. Hence when we
say that the enactment of such laws involves the exercise of judicial power,
what we mean is that the legislature is making in a non-judicial manner, a
decision that ought to be made by a court in a judicial manner.
The prohibited class of laws
I have discussed so far the reasons in constitutional theory for
condemning ex post f acto law but have not considered, except in very general
terms, the types of law that are condemned. The following discussion
addresses some of the conceptual difficulties attending the delineation of
this class.
The chimera of the criminal-civil distinction
The ban in the US Constitution applies to any ‘Bill of attainder or ex
post f acto law’.46 The words ‘ex post f acto law’, unless superfluous must refer
to laws other than bills of attainder. The question whether the ban applies
only to retrospective punishment for crimes or extends to similar impositions
of ‘civil’ deprivations is one that continues to challenge judicial minds.47 In
Calder v Bull,48 the first case in which the question arose, the majority of the
US Supreme Court concluded that the ban was limited to the retrospective
punishment of crimes. Justice Chase thought that if the ban on ex post f acto
law was intended to apply to civil cases, the Fifth Amendment’s ban on
uncompensated taking of private property for public use would have been
unnecessary49 and Justice Paterson argued that the ban on contract impairment
indicated ‘that the framers of the constitution ... understood and used the
words in their known and appropriate signification, as referring to crimes,
pains and penalties, and no further’.50 Justice Iredell was emphatic that ‘The

46 Art I § 9 cl 3 and Art I § 10 cl 1

47 For an essay devoted to the argument that the ban on ex post f acto law should be confined to
‘criminal’ offences, see Raoul Berger, ‘Bills of attainder: a study of amendment by the Court’
(1978) 63 Cornell Law Review 355-404.
48 n 12 above.
49 Ibid 394.
50 Ibid 397.
152 INDIAN J. C ONST. L.

policy, the reason and humanity of the prohibition’ did not extend to civil
cases or ‘cases that merely affect the private property of citizens’. The Judge
thought, erroneously in my view, that such an extension would trump some
of the most necessary and important acts of legislation.51 According to this
approach, the critical question is whether the law inflicts punishment for a
crime or merely imposes a ‘civil liability’. The Supreme Court has never
formally departed from this test.52 Presently, I argue from the theoretical
standpoint that this test is wholly misconceived. But first, it is necessary to
show how the Supreme Court itself erased this distinction in its later rulings.
In dealing with retrospective imposition of civic disabilities, the
Supreme Court has uncoupled ‘punishment’ from ‘crime’ and made
retrospective punishment the criterion of invalidity. In two cases following
the American Civil War, Cummings v. Missouri53 and Ex parte Garland,54 the
Supreme Court struck down laws that excluded persons from specified
professions unless they swore that they did not take part in the rebellion
against the Union. In Cummings, the complainant was a priest and in Garland,
a lawyer. Each claimed that he was prevented by the ethics of his profession
from taking the oath that was the condition for remaining in their profession.
There was no question of criminality in these cases and the deprivations
were not in the in the forms usually associated with crime namely: monetary
penalty, confiscation of property, imprisonment or death. In Cummings the
Court stated that the ‘deprivation of any rights, civil or political, previously
enjoyed, may be punishment’, and included in this category disqualification
‘from the pursuits of a lawful avocation, or from positions of trust, or from
the privilege of appearing in the courts, or acting as an executor, administrator,
or guardian’.55
The unconstitutionality of this category of laws was confirmed in the
leading 20th century cases on the attainder clause. In United States v. Lovett56 the
Court struck down a federal law that prohibited the payment of future salary
to three named government employees on the ground that in the past they
engaged in subversive activities. The Court found that the provision
constituted a ‘permanent proscription from any opportunity to serve the
Government’ and ‘a punishment of a most severe type’.57 In United States v.

51 Ibid 400
52 For a list of cases in which the Court has stated that the attainder clause is confined to punishment
for crimes, see A. Mueller, ‘Supreme Court’s view as to what constitutes an ex post f acto law
prohibited by Federal Constitution’ 53 L Ed 2d 1146 (Annotation). See also Collins v. Y oungblood
497 US 37, 42 (1990).
53 71 US 277 (1866).
54 71 US 333 (1866).
55 n 52 above, 320.
56 328 US 303 (1946).
57 Ibid 315-316.
Objection to Ex Post Facto Law 153

Brown58 the Court invalidated a law that made it a crime for a member of
the Communist Party to hold office in a labour union during membership
or within five years of the termination of membership. In Fletcher v. Peck59
the court ruled unconstitutional a law that rescinded a land grant considered
to have been tainted with corruption although the current owner was
innocent of wrongdoing. In Burgess v Salmon the Court invalidated a law
that applied a tobacco tax retrospectively and allowed the penalty for non-
payment to be recovered by a civil suit. The Court stated that the ban on ex
post f acto law cannot be evaded by giving a civil form to an essentially a
criminal penalty.60 These decisions extend the ban to enactments that impose
deprivations having little resemblance to punishments traditionally associated
with crime.
I argued previously that the notion of a retrospectively created crime
makes no sense for a given meaning of crime. The legal concept of crime is
of relatively recent origin. Until recently the law did not differentiate wrong
into tort and crime. Wrongs existed as Winfield notes in the state of ‘viscous
ad mixture’. 61 The genesis of crime is traceable to the start of Crown
prosecutions. The Crown always prosecuted wrongs against itself such as
treason. The reason why the Crown intervened to prosecute wrongs
committed by subjects on other subjects is less clear, though, as Benson
suggests, it gained financially by the forfeitures that resulted from
convictions.62 Later as the state progressively took on the role of social and
economic regulator and provider, parliament legislated to create crimes in
furtherance of policy.63
Blackstone’s distinction between mala in se (acts wrong by their nature)
and mala prohibita (acts prohibited by the state) remains useful. 64 Mala in se
are acts that are wrongs according to the moral values of the community. In
England these were established as legal wrongs through the build up of
common law precedent. The idea of a retrospective offence mala in se makes
no sense at all. There can be technical reasons why a particular incident of
mala in se escapes punishment. The most dramatic examples concern war
crimes or crimes against humanity where defendants often advance the
defence of lawful orders. Crime committed beyond the limits of national

58 n 29 above.
59 n 28 above.
60 97 US 381, 385 (1878).
61 P Winfield, Province of the Law of Tort (Cambridge: Cambridge University Press, 1931- 190.
62 B L Benson, Enterprise of Law: Justice without the State (San Francisco Pacific Research Institute for
Public Policy, 1990) 62.
63 J W C Turner, Kenny’s Outlines of Criminal Law (Cambridge: Cambridge University Press, 19th ed
1996) 4.
64 Blackstone, n 2 above, 54, 57.
154 INDIAN J. C ONST. L.

jurisdictions offer other examples. Retrospective legislation to provide for

redress or punishment in these cases is not considered repugnant to the ban
on ex post f acto law. This is the ‘Nuremberg principle’ implemented by
international treaty law on human rights. Thus the ICCPR and the ECHR
permit ‘the trial and punishment of any person for any act or omission which,
at the time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.’65 The logic of this exception
is apparent. Persons who commit these kinds of acts usually know that they
are serious wrongs against the general norms of society. Hence retrospective
trial and punishment of such acts do not defeat legitimate expectations but
only the hopes held by wrongdoers of getting away with their heinous acts.
Mala prohibita raise by far the more difficult issues. In theory, the state
can make any act a crime in the sense of mala prohibita. As Lord Atkin
observed, ‘The domain of criminal jurisprudence can only be ascertained
by examining what acts at any particular period are declared by the State to
be crimes, and the only common nature they will be found to possess is that
they are prohibited by the State and that those who commit them are
punished.’66 There is always the problem of circularity in defining a crime.
Glanville Williams regards a crime as a ‘legal wrong that can be followed by
criminal proceedings which may result in punishment’.67 A crime by this
definition is an act declared by the legislator to be a crime entailing
punishment. Williams denies that this is a circular definition pointing out
that a criminal proceeding is one that attracts special procedural and
evidentiary rules not applied in civil proceedings.68 Williams is mistaken to
think that the attachment of procedural and evidentiary requirements cures
the circularity of the definition. It simply means that the law maker can
make any act a crime which then attracts the procedural and evidentiary
constraints. The central element of Kenny’s definition of a crime is harm
caused by human conduct that the sovereign power desires to prevent by
means including the threat of punishment. He also notes that the prosecution
of crimes attract legal proceedings of a special kind.69 All these definitions
postulate that a crime in the modern sense is any act designated as a crime
by the state but by the same token they indicate that the state cannot convert
past innocent acts into crimes, as crime must concern a prohibited act. A
retrospective crime makes sense only if crime is differently defined as any
act, past or future, that the state chooses to punish whether or not it is lawful.

65 International Covenant on Civil and Political Rights Art 15(2) and European Convention on
Human Rights Art 7(2).
66 Proprietary Articles Trade Association v Attorney-General of Canada and others [1931] AC 310, 324.
67 G Williams, Textbook of Criminal Law (London: Stevens, 1978) 14.
68 Ibid 14-15.
69 n 62 above, 5.
Objection to Ex Post Facto Law 155

Such a definition carries the monstrous proposition that the state may at its
discretion lawfully inflict pain on any person for doing what is lawful.
If it makes little sense to talk of retrospective crimes, it makes even less
sense to speak of retrospective civil liability. The most important feature of
civil liability is that it is not punishment but reparation. Civil wrongs give
rise to obligations to repay debts, to compensate for loss caused by wilful or
negligent actions or breach of contract, to render specific performance of
contractual undertakings or to effect restitution of unjust gains. In each case
the obligation is to make reparation, to restore the party harmed, as far as
possible, to the position before the wrong was committed. A person cannot
incur such an obligation if he has acted lawfully. Where there is no breach
of obligation, there is no question of civil liability and the legislative
imposition of detriment amounts to the infliction of pain on innocent citizens.
Hence, the civil-criminal d istinction is unsustainab le as a test of
unconstitutional attainder. Lehmann proposes that the proper question is
whether the statute is punitive or regulatory in nature,70 but this test has its
own serious limitations.
Punishment – a usef ul but insuf f icient test
The orthodox view is that the ban prevents ex post f acto imposition of
‘punishment’ but not regulatory devices.71 Punishment in its ordinary sense
is not synonymous with harm but is associated with response to wrong doing.
Punishment may be motivated by retribution, rehabilitation, prevention,
deterrence or a combination of them.72 In the case of laws that offend nulla
poena sine lege, the increased punishment relates to previous wrongdoing.
Strictly speaking laws that offend nullum crimen sine lege do not impose
punishment but inflict harm. Infliction of pain for an innocent act is
punishment only in a perverse sense. A child is punished for behaving badly
and a criminal is punished for committing a crime. On the contrary, a sadist
who inflicts pain on a victim or a robber who takes property does not impose
punishment but causes wrongful harm. Likewise a legislature that imposes
detriments on selected individuals out of spite or for political gain or indeed
in the prosecution of state policy does not impose punishment but causes
intentional harm to a selected individual or group. It is evident that
punishment in the conventional sense is an inadequate concept on which to
enforce the principle nullum crimen sine lege. The more general concept of
detriment better explains the operation of this rule.

70 M.P. Lehmann, ‘The Bill of Attainder Doctrine: A Survey of the Decisional Law’, (1978) 5 Hastings
Constitutional Law Quarterly 834.
71 Tribe, n 21 above, 651.
72 United State v. Brown, n 29 above, 458.
156 INDIAN J. C ONST. L.

The types of d etriment that has attracted the b an includ e

d isqualification from office, 73 forfeiture of property,74 disenfran-
chisement,75 and retrospective tax penalty.76 As against these, the Supreme
Court has upheld laws that take away the right of convicted felons to practice
medicine77 and to be employed in waterfront labour organisations78 although
the laws clearly operated to impose detriments in addition to penalties already
prescribed by law. In an influential student comment in the Y ale Law
Journal79 Dershowitz urged the abandonment of the ‘punishment’ test saying
that it involves inexact and emotive distinctions that in some cases are difficult
to achieve. He proposed instead that the attainder clause should be
understood as banning legislative trial and not legislative punishment.80
Dershowitz asks how the following two statutes can be distinguished. (1) ‘No
person afflicted with a contagious disease shall teach school’ and (2) ‘John
Jones, because he has a contagious disease, shall not teach school’. Only the
second law is contrary to the attainder ban, but Dershowitz argues it is no
more punitive than the first law. He says that the second statute offends the
attainder clause not because of the legislature’s intent to punish but because
of the legislature’s application of its general legislative mandate to a specific
individual. Dershowitz’s assessment that the two laws are equally detrimental
is questionable. Firstly, under the second law Jones cannot avoid the
detriment by showing that he is free of disease and secondly the first law
does not discriminate against him whereas the second does. The test of
legislative trial remains inadequate even when the two statutes are assumed
to be equally detrimental.
Legislative trial - an inconclusive test
The first and obvious point to make is that when the legislature selects
a person or group for punishment, it does not always conduct a trial. The
most abhorrent instances of ex post f acto law are not those where a person is
accused and tried by the legislature but those where the legislature punishes
without trial, where no charges are laid and no defence is heard. It is unhelpful
to equate the enactment of these laws to trials as they represent the classic
cases of punishment without trial. A law that retrospectively punishes all
persons who supported the Communist Party will fail the attainder clause
not because of legislative trial but because the target group are identifiable

73 Cummings, n 52 above; Garland, n 53 above.

74 Fletcher v. Peck, n 28 above.
75 Johannessen v. United States 255 US 227 (1912).
76 Burgess v. Salmon, n 59 above.
77 Hawker v. New Y ork 170 US 189 (1898).
78 De Veau v. Braisted 363 US 144 (1960).
79 n 20 above.
80 Ibid 356.
Objection to Ex Post Facto Law 157

and are denied a legal way of avoiding punishment. The legislature in this
case has not ‘tried’ this group but has determined as a matter of policy that
they ought to be punished if indeed the courts find them to have supported
the Communist Party. In United States v Brown the Supreme Court stated
that ‘Congress may weed out dangerous persons from the labour movement
but must do so by rules of general applicability. Congress possesses full
legislative authority, but the task of adjudication must be left to other
tribunals’.81 A necessary implication of this injunction is that the legislature
also cannot impose detriment as an arbitrary projection of its power.
The problems with the ‘punishment versus regulation’ test
The US Supreme Court has sought to exempt from the attainder clause,
regulatory or prophylactic measures that have no punitive end but
retroactively defeat vested rights. This test like the others discussed, fails to
account for all of the Court’s decisions. The Supreme Court has upheld laws
that took away the right of convicted felons to practice medicine and to be
employed in waterfront labour organisations in addition to penalties already
prescribed by law. These laws were regarded as prophylactic although
permanent exclusion from occupations is a known form of punishment.
Conversely, in United States v Brown, a purportedly prophylactic measure
involving the exclusion of past communists from labour organisations was
struck down on the ground that the legislature had thereby determined that
past membership in the Communist Party made persons unsuitable to engage
in designated occupations.
How is the exclusion of communists from public office different to the
exclusion of persons with contagious diseases from school teaching or grand
mal epileptics from driving? As Dershowitz points out, in the latter cases the
legislature does not have to engage in a ‘trial’ since the danger to society is
conveyed by the established meaning of the term employed to describe the
group. 82 A contagious disease is communicated on contact. Grand mal
epilepsy results in sudden fits. The effects of these disabilities are so well
known that the only question for a court is whether the excluded person
suffers the disability.
The corollary of the last discussed proposition is: where the danger to
society from the disability is not palpable, the exclusion without judicial
trial of the issue amounts to unfair treatment and hence a form of detriment
without trial. In the law which proscribes sufferers of grand mal epilepsy
from driving motor vehicles, the words ‘sufferers of grand mal epilepsy’ is

81 n 29 above, 461.
82 n 20 above, 352.
158 INDIAN J. C ONST. L.

actually shorthand for the condition which makes persons incurably prone
to unpredictable and uncontrollable fits. Behind the apparent specificity of
the words lies a rule of such generality that its enactment properly belongs
to the legislative branch. In contrast, as the Supreme Court states in Brown it
is a fallacy ‘that membership in the Communist Party, or any other political
organization, can be regarded as an alternative, but equivalent, expression
for a list of undesirable characteristics’. 83 The law that disenfranchises
communists does not enact a general rule but imposes an arbitrary sentence.
The effect of United States v Brown is that a law will be treated as
regulative only if: (a) it is not retributive in aim or motive and is not
punishment in the conventional sense (b) does not arbitrarily select persons
for detriment and (c) does not adjudge an individual or group to be dangerous
to society without a judicial except when they suffer a condition that is the
semantic equivalent of the danger.84 Many laws previously upheld by the
Supreme Court would have failed this test. In particular, the test throws in
serious doubt, the cases concerning the disqualification of convicted felons.85
It is arguable that ‘convicted felon’ is not the semantic equivalent of a person
with undesirable character, as it is not universally accepted that a person
who commits one felony is incapable or redemption and reform.
If this approach is accepted, it calls into question the practice of
legislative impositions based on findings of a tribunal that does not follow
the curial process. In these cases the legislature does not conduct a trial but
imposes detriment without granting the affected persons the benefit of a
judicial trial. In the Ceylon case of Kariapper v Wijesinha,86 the Privy Council
considered whether a law that imposed civic disabilities (including expulsion
from Parliament and disenfranchisement) on the basis of findings of
corruption reported by a Royal Commission of Inquiry, violated the attainder
ban implied in that country’s constitution. The judges rejected the challenge
on two grounds. They held that the imposition of the civic disabilities was
not punishment but a measure to ‘keep public life clean for the public
good’.87 On the question of legislative judgement, their Lordships stated that
‘it is the commission’s finding that attracts the operation of the Act’ and that
Parliament ‘did not make any findings of its own’. 88 This decision is

83 n 29 above, 455.
84 Wormuth develops a similar test in treating the imposition of disqualifications as inherently valid
when there is no implicit censorial judgment of individuals, but only the derivation of presumptions
about character from aspects of common knowledge or principles of general psychology. F D
Wormuth, ‘Legislative Disqualifications as Bills of Attainder’, (1951) 4 Vanderbilt Law Review, 603,
610.
85 Hawker v New Y ork n 77 above.
86 [1968] AC 717.
87 Ibid 736.
88 Ibid.
Objection to Ex Post Facto Law 159

questionable as Parliament in adopting the commission’s findings arguably

made a judgment of its own. The commission did not follow the normal
rules of evidence and criminal procedure and did not convict the plaintiff of
any criminal offence. His civic rights were extinguished by a political act
following an extraordinary process established ex post f acto.
Can the ban on attainder apply to prospective provisions?
An ex post f acto law visits persons with detriment on account of past
conduct. Dershowitz in the Y ale Law Journal comment argued that that
retrospectivity is not essential for a law to be called a bill of attainder. He
points to the example of the Act f or the Attainder of the pretended Prince of
Wales of High Treason 1700 that besides attainting the prince made it treason
for a person to correspond with him in the future.89 The example in my
view is unsound. The Act was prospective insofar as it created a new obligation
on subjects to refrain from corresponding with the prince. However, it was
retrospective in relation to the prince himself. It imposed on him an additional
retrospective detriment on account of past conduct namely, the loss of his
freedom of communication by correspondence. As I argue presently,
retrospectivity occurs whenever an individual is selected for punitive
treatment.
Dershowitz’s concern was that the requirement of retrospectivity may
defeat the object of the attainder ban. It was fuelled by certain decisions of
the Supreme Court that validated penalties imposed on specified persons
on the ground that the penalties serve to prevent future harm that may be
caused by such persons. However, these decisions do not stand up to close
scrutiny and since Dershowitz wrote his essay, the Supreme Court has
disapproved of them. The main offending case is American Communications
Association v Douds,90 in which the Supreme Court considered the validity of
a law that disadvantaged labour organisations whose officers had not filed
the so called ‘non-communist’ affidavits. This precedent was overturned by
the Supreme Court in United States v. Brown.91 It is hard to find a clearer
example of Congressional judgment of guilt on account of past conduct,
than the law considered in Douds. Congress having investigated the activities
of communists determined that they were not fit to hold office in labour
unions. The disqualification from office was based on past conduct. This is
the view that the Supreme Court reached in Brown when it found that the
law disqualifying communists was ‘to purge the governing boards of labour
unions of those whom Congress regards as guilty of subversive acts and

89 n 20 above, 338.
90 339 US 382 (1949).
91 n 29 above.
160 INDIAN J. C ONST. L.

associations and therefore unfit to fill the positions which might affect interstate
commerce’.92
Specif ication causes retrospective ef f ect
Specification of persons for detriment may be done by naming the
persons or by defining a class in a way that enables the identification of the
persons targeted for detriment. A law that directly inflicts detriment on
specified persons is necessarily retrospective in effect. How so? The critical
distinction to notice here is between prescription of detriment and inf liction
of detriment. While detriment can be prescribed for future conduct, it is
impossible to inflict detriment on account of future conduct that may or may
not occur. If detriment is inflicted on specified persons, it takes effect
irrespective of what happens in the future. Therefore, the reason for inflicting
the detriment must relate to the past. The motivator may be past reprehensible
conduct or there may not be a discernible reason for inflicting pain. If it is
the latter, the pain is inflicted on the persons for being who they are and
who they have been. Either way, the law is retrospective in operation.
What if the law that selects specified persons is prophylactic? Let us
consider the following laws. Law 1 states that ‘any person who in the opinion
of the mental health tribunal is likely to engage in harmful behaviour may
be interned by order of court’. Law 2 states that ‘If in the opinion of the
mental health tribunal Titius is likely to engage in harmful behaviour he
may be interned by order of court’. Both laws promote public safety. Law 1
is prospective and defensible against the attainder ban. Law 2 is not as it
makes Titius uniquely liable to its process leaving out others in that class.
Assuming that this is detriment, there is no reason for inflicting it except that
Titius is who he is and has been.
J udicial detention orders - the dangerous prisoner cases
Deprivation of liberty by detention is a central case of punishment
and usually involves the aims of retribution or deterrence. Hence the
detention of prisoners beyond their initial sentence presumptively offends
the principle nullum crimen, nulla poena sine lege. There are certain types of
detention that are considered outside the ban. They include detention on
grounds of mental illness, communicable disease, illegal immigration,
national security, criminal investigation and remand pending trial. Security
related detention is usually executively determined while detention on health
grounds and remand are judicial acts. Except in the problematic case of
national security detention, detainees are treated differently from prisoners

92 Ibid 460.
Objection to Ex Post Facto Law 161

on punishment and are kept subject to strict conditions concerning treatment

and release.
In Kansas v Hendricks, the US Supreme Court unanimously found the
detention provisions of the Kansas Sexually Violent Predator Act did not
violate the substantive due process, ex post f acto and double jeopardy
provisions of the Constitution. The Act was saved by its limited scope and
its panoply of safeguards. The Act authorised ‘civil commitment’ of convicts
who, due to ‘mental abnormality’ or ‘personality disorder’ are found likely
to engage in ‘predatory acts of sexual violence’. In the Opinion delivered
by Justice Thomas the Court ruled that ‘a finding of dangerousness, standing
alone, is ordinarily not a sufficient ground upon which to justify indefinite
commitment’ and observed that civil commitment has been allowed when
statutes have combined ‘dangerousness’ with an additional factor such as
‘mental illness or mental abnormality’.93 The Kansas statute required proof
of the mental condition beyond a reasonable doubt, limited detention to
one year at a time and provided effective recourse against orders.
In sharp contrast, the Dangerous Prisoners (Sexual Offenders) Act
2003 (Qld) considered in Fardon v Attorney-General (Qld) dispenses with the
mental health qualification and allows the court to impose continuing
detention on a prisoner if it is satisfied that there is serious danger in the
form of ‘an unacceptable risk that the prisoner [would] commit a serious
sexual offence’.(s.13(2)) The court may take account of the prisoner’s criminal
history and while it may consider medical, psychiatric and psychological
reports it need not come to a finding of mental illness.(s.45(4)) The detainee
is deemed to remain as a prisoner (s.14(2)) and as the dissenting Justice
Kirby stated, ‘After the judicial sentence has concluded, the normal incidents
of punishment continue’. 94 The majority did not disagree with this
characterisation but focused on the prophylactic aspect of the detention.
There is no reason to doubt the protective goal of the law. Yet, a protective
measure can also be punitive, especially when it is disproportionate or ill
adapted.95 Such a law offends the ex post f acto principle in two ways. It
exposes future offenders to multiple punishments for the same offence and
it makes serving prisoners retrospectively liable to additional punishments.
Whereas the Queensland law allowed extended imprisonment by
further detention, the Sentencing Act 1989 (NSW) considered in Baker
provided for the denial of parol rights to prisoners of a defined class who are
subject to ‘non release recommendations’ (euphemism for never to be

93 521 US 346, 358 (1997)

94 n 1 above, 98.
95 Ibid.
162 INDIAN J. C ONST. L.

released) by the trial judge. These prisoners are not eligible to parol unless
the State Supreme Court finds ‘special reasons exist that justify’ the making
of parol orders. Much time was spent on the question whether ‘special reasons’
imported an intelligible standard. The majority found that it did but their
laboured case has no bearing on the question whether this law offends the
principle nulla poena sine lege.
Neither statute was challenged on grounds of ex post f acto effect. The
reason was the High Court’s long held view that State parliaments possessed
indivisible plenary power within their jurisdictions including the competence
to enact ad hominem law and ex post f acto law. Counsel for the prisoners
relied instead on the much narrower ground established by Kable v DPP.96
The High Court in that case struck down the Community Protection Act
1994 (NSW) which was designed to secure the further detention of a single
named prisoner for public safety reasons. Confronted by its own dogma
concerning the plenary power of State parliaments, the Court found means
of invalidating the statute in the implications of the separation of powers
doctrine in the federal Constitution. Observing that State courts were integral
parts of the federal judicial hierarchy the majority concluded that the power
to detain a named individual was incompatible with the court’s exercise of
federal judicial power and hence could undermine public confidence in the
federal judicature in a way that offended the separation of powers in the
federal Constitution.97
In Fardon and Baker the Court regarded the more general power to
impose preventive detention on classes of prisoners as compatible with the
federal judicial role of state courts. It is possible to take the contrary view.
Under the legislation examined in Kable, the Court’s power was exhausted
with one prisoner whereas under the laws considered in Baker and Fardon
the court has continuing authority to make detention orders with respect to
a class. It is arguable that if the law in Kable was bad for the exercise of
federal judicial power, the laws in Baker and Fardon are worse. Each of these
laws would presumably fail if enacted as federal legislation enlisting federal
courts. They would have failed for investing non-judicial powers in federal
courts contrary to the rule in Boilermakers’ Case.98 They would also fail on
the nullum crimens, nulla poena sine lege rule under the authority of
Polyukhovich. The High Court’s position regarding State courts as revealed
by the judicial detention cases is that ex post f acto State laws are not
unconstitutional except to the extent that they compromise the federal judicial
role of State courts.
96 (1995-1996) 189 CLR 51
97 Ibid 108, 109
98 Attorney-General (Cth) v R; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.
Objection to Ex Post Facto Law 163

Legislative intervention in judicial proceedings

Judicial proceedings are instituted to vindicate rights and enforce duties.
Hence every law that alters the rights in issue before a court imposes detriment
on a party with retrospective effect and hence prima f acie invites condemnation
for ex post f acto effect. However, if the intervening law is purely prophylactic
in aim it may not offend the ban. Take the case of the grand mal epileptic
whose application for a driving licence is rejected. If the law does not permit
the licensing authority to deny the sufferer a licence on this ground and its
decision is challenged, the public interest may require the disqualification
of grand mal epileptics generally and further validate the refusal of licences
to such persons in the past. Such a law is purely prophylactic although it
may impact on pending cases. It does not select persons in similar conditions
for dissimilar treatment and has no punitive intent.
In Nelungaloo Pty Ltd v Commonwealth,99 the High Court considered
the validity of an order for the acquisition of wheat made under a war time
regulation.100 There were serious doubts on the question whether the law
authorised the acquisition of future as opposed to existing crops. The validity
of the acquisition order was challenged but while the case was pending
Parliament enacted legislation to clarify the law and to validate orders already
made.101 The plaintiff argued, inter alia, that the retrospective validation of
the regulation under challenge in the court was a usurpation of judicial power.
It was critical to the decision that the acquisition order was not directed
exclusively at the wheat grown by the plaintiff, but applied to the entire
Australian harvest. The only judge to consider the question, Dixon J,
dismissed the objection stating: ‘It is simply a retrospective validation of an
administrative act and should be treated in the same way as if it said that the
rights should be the same as they would be, if the order was valid’.102 The
law would have survived a challenge on ex post f acto grounds as it was
prophylactic in nature, had no punitive aim and did not involve the legislature
in a ‘trial’.
In Nicholas v The Queen103 the High Court upheld the Crimes
Amendment (Controlled Operations) Act 1996 (Cth) that required courts to
disregard offences committed by official agents in anti-narcotics operations
in exercising discretion to admit evidence of importation. The enactment
followed the High Court’s re-iteration, in Ridgeway v The Queen, of the public

99 (1947-1948) 75 CLR 495

100 Order made under regulation 14 of the National Security (Wheat Acquisition) Regulations authorised
by the National Security Act 1939.
101 Wheat Industry Stabilization Act 1946 s 11.
102 n 99 above, 579.
103 (1998) 193 CLR 173.
164 INDIAN J. C ONST. L.

policy discretion to exclude evidence of official wrong doing.104 Nicholas

did not claim that the amendment would affect the jury’s verdict but argued
that the law infringes or usurps the judicial power of the Commonwealth in
two ways. Firstly, it was contended that the limitation of the public policy
discretion denied courts the authority to protect their integrity and dignity
which is an attribute of judicial power. Although the Justices McHugh and
Kirby agreed, the majority viewed the limitation as one of procedure and
evidence and hence ultimately within legislative power.105 Secondly, it was
argued for Nicholas that the law, though facially general, was directed at a
small group of known persons who were subject to ‘controlled operations’,
hence it was similar to the usurpation of judicial power condemned in
Liyanage. The argument found no favour with the majority mainly due to
the prospective operation of the law.
Whereas in Nelungaloo and Nicholas the legislation was general and
impacted incidentally on a pending case, the law challenged in The Queen v
Humby; Ex parte Rooney106 was directed at specified judicial decrees. It had
the aim of extinguishing the constitutional right of the plaintiffs to have their
cases under Commonwealth law heard by a judge. Section 72 of the
Australian Constitution allows Parliament to vest federal judicial power in
State courts. In Knight v Knight, 107 the High Court had ruled that the
constitutional separation of powers required that federal judicial power
devolved on State courts must be exercised by judges of the State court and
that the Master of the Supreme Court of South Australia was not a judge.
One effect of the decision was to call in question all the maintenance orders
made by the Master under section 84 (1) of the Matrimonial Causes Act 1959
(Cth). The Commonwealth Parliament respond ed b y enacting the
Matrimonial Causes Act 1971 with the sole purpose of validating the Masters’
decrees notwithstanding Knight v Knight. The Act was promptly challenged.
In my view, the Act was patently unconstitutional as it sought to validate
specific orders that had been judicially determined to be unconstitutional.
The judges who addressed this issue engaged in exercises of mind boggling
casuistry to deny that the Act had this effect. McTiernan J claimed that the
impugned decrees were validated not as judicial decrees but as legislative
enactments.108 Stephen J maintained that the orders of the Master remained
ineffective but ‘the sub-section operates by attaching to them ... consequences
which it declares them to have always had and it describes those consequences

104 (1995) 184 CLR 19.

105 Ibid 188-189, 202, 210-211, 238, 275-276.
106 (1973) 129 CLR 231.
107 (1971) 122 CLR 114.
108 n 110 above, 239.
Objection to Ex Post Facto Law 165

by reference to the consequences flowing from the making of decrees by a

single judge of the Supreme Court of the relevant State’.109 Mason J declared
that the order of the Master does not acquire validity ‘merely because the
statute attributes to it the effect it would have had, had it been a judicial
determination’.110 The judges evidently saw a distinction between validation
of an order and the statutory attachment to an invalid order of consequences
which the order would have generated had it been valid. The legal effect
though was exactly the same. The critical differences between the laws
considered in Nelungaloo and Humby is that the former was general and
prophylactic whereas the latter was specific and non-prophylactic. In fairness
it must be noted that the Matrimonial Causes Act 1971 had no sinister design
and had no punitive intent. It was enacted to cure a defect that resulted from
earlier understanding of the effect of s. 72 of the Constitution that federal
jurisdiction vested in State courts could be exercised by officers of the court.
Nevertheless the Act denied certain parties of a constitutional right albeit
one they did not know they had until Knight v Knight.
In contrast the law considered in Australian Building Construction
Employees’ and Builders Labourers’ Federation v Commonwealth (Cth BLF Case)111
was straightforwardly punitive. The law was made for the sole purpose of
destroying the status of the BLF as a registered trade union. The BLF was
considered a rogue union by the Commonwealth and State governments
and by the Australian Council of Trade Unions (ACTU). BLF was registered
under the Conciliation and Arbitration Act 1904. Registration conferred an
extensive range of rights and privileges. The Act provided for two methods
of deregistration, one judicial, and the other quasi-judicial. The judicial mode
led to a determination by the Federal Court on objective criteria set out in
the Act.112 The quasi-judicial method culminated in a determination of the
Conciliation and Arbitration Commission based on a more broadly expressed
set of social concerns.113 In its determination to strip the BLF of its statutory
status, the federal government secured the passage of the Building Industry
Act 1985 that made special provision for deregistering the BLF. The Act
empowered the Commission, on the application of the Minister, to make a
declaration that the BLF or an officer or employee thereof had engaged in
industrial action. Following such a declaration, the Minister was authorised
on public policy grounds to order the cancellation of registration and to
impose certain other deprivations on the BLF. The BLF and its members

109 Ibid 231.

110 Ibid 249.
111 (1986) 161 CLR 88
112 Ss. 143(2) and 118A(1)
113 S. 143A(1) and (2)(a)
166 INDIAN J. C ONST. L.

were selected for harsher treatment under the law. The Act was would have
been struck down in the US even on the most stringent construction of the
attainder ban. Yet, it was challenged in the High Court only on the narrow
ground that it was not within the ‘conciliation and arbitration’ power set out
s. 51 (xxxv). The court rejected the argument.114
The Commission duly made the requisite declaration authorising the
Minister to deregister the BLF. The BLF went back to the High Court
complaining of a denial of natural justice and sought orders to quash the
declaration and to prohibit the Minister from ordering the deregistration of
the union. While this case was pending, Parliament passed two more laws,
the Builders Labourers’ Federation (Cancellation of Registration) Act 1986
and the Builders Labourers’ Federation (Cancellation of Registration -
Consequential Provisions) Act 1986. The first Act directly cancelled the
registration of the BLF and the second Act imposed consequential disabilities
on the officers and members of the union. BLF returned to the High Court
complaining that the two Acts amounted to an exercise of judicial power
and ... an interference with [the] Court’s exercise of the power ...’.115 The
challenge was unanimously rejected on the premise that the legislation simply
deregistered the Federation, thereby making redundant the legal proceeding
and observed: ‘It matters not that the motive or purpose of the Minister, the
Government and the Parliament in enacting the statute was to circumvent
the proceedings and forestall any decision which might be given in those
proceedings’.116 The ex post f acto nature of the law escaped the court’s
attention. In enacting these laws, Parliament itself adjudged that the BLF
was deserving of punishment in the form of deregistration. It is hard to find
a clearer case of a legislative trial and punishment in modern times.
Summary
The discussion of the theory and practical reasons for objecting to ex
post f acto law exposes the following types of law to condemnation.
1. Ad hominem laws by which the legislature directly imposes punishments
on named individuals for existing offences with or without a trial by
the legislature. The bills of attainder and of pains and penalties typify
this class but it includes laws that impose detriments on specified
individuals on the basis of adverse findings of tribunals where the
tribunal is not required to determine unlawful conduct according to
established law.

114 Queen v Ludeke and others (1985) 159 CLR 636.

115 n 108 above 94-95.
116 Ibid 96-97.
Objection to Ex Post Facto Law 167

2. Laws that, retrospectively increase punishments for existing offences.

3. Laws that do not directly punish persons but which create new liabilities
for past conduct as judicially determined. Such liabilities may be
criminal or civil in nature and will include laws that impose civic
disabilities. This category does not include laws designed to bring to
trial persons accused of committing acts mala in se or, to use the words
of the ICCPR ‘criminal according to the general principles of law
recognised by the community of nations’.
4. Laws that retrospectively remove defences or exceptions to civil or
criminal liability.
5. Laws that in respect of a class of offences lessen the prosecutorial burden
by retrospectively modifying procedural or evidentiary rules.
6. Laws that impose future non-prophylactic obligations on selected
individuals. The arbitrariness of the selection reveals punitive intent
and for reasons explained, the selection is necessarily based on past
events.
7. Laws that are facially prospective and prophylactic but which select
for its attention some but not all agents thought to be the source of
potential harm. If named HIV positive persons are excluded from an
occupation while others with the condition are not, the law will be
open to the objection that it is imposing the disability on persons for
who they are, rather than for what they cause.
8. Laws that select a class of persons for the imposition of disqualifications
with reference to a named impairment when the name of the
impairment is not the semantic equivalent of a universally recognised
and relevant disability.
9. Laws that affect the outcome of pending legal proceedings by dictating
the decision or by retrospectively altering the rights of the parties.
Such a law will escape condemnation if it applies generally or to all
membersof a class and has a purely prophylactic effect.
It is not surprising that ex post f acto laws of the kind criticised in this
essay are uncommon in countries that maintain acceptable levels of
constitutional government. Yet, the attraction of this type of law as means to
short term ends, both good and bad, is ever present. It is tempting to think
that democracy is a sufficient safeguard against gross abuse of ex post f acto
law but history cautions against such faith. Hence even where constitutions
place no formal limits, the rule of law demands that lawmakers adopt
restraints on retrospective legislation as a matter of constitutional practice.
168 INDIAN J. C ONST. L.

Constitutional practice owes much to the pressure of public opinion and I

hope that this discussion will be a helpful contribution to public understanding
of the reason and reach of the objection to ex post f acto law.
 169

A ‘C ONSTITUTION ’ IN S EA RCH OF ITS L IMITS : THE

G RA DUA LLY E XPA NDING R EA CH OF THE E UROPEA N
CONV ENTION OF H UMA N R IGHTS
Rick Lawson*
§ Introduction
To witness the process of European integration must be a startling
experience for any foreign observer. A high degree of economic integration
goes hand in hand with an incoherent foreign policy; a sophisticated system
for the protection of human rights exists in the absence of a clear constitutional
framework. There is no single federation-like structure, but instead several
regional organisations coexist – such as the European Union (EU), the Council
of Europe, the Organisation for Security and Cooperation in Europe (OCSE),
the NATO and so on. Co-operation between these organisations exists, but
at the same time each seems determined to defend its mandate and strengthen
its own position, if necessary at the expense of others.
Against this confused background, the present contribution will
concentrate on one particular instrument: the European Convention on
Human Rights (ECHR). As is well-known, the ECHR was adopted in 1950 in
the framework of the Council of Europe. It contains a fairly limited set of
‘classic’ human rights and fundamental freedoms, such as the right to life,
the prohibition of torture and the right to a fair trial.1 Its main asset is the
European Court of Human Rights in Strasbourg, which is competent to rule
on individual complaints and which delivers binding judgments. What started
as a project between ten mainly Western European States was joined by
States in Central and Eastern Europe after the fall of the Berlin Wall. The
Convention now embraces 46 States such as the Russian Federation, Armenia
and Azerbaijan – that is, all European States except Belarus (which does not
satisfy the Council’s requirements in terms of democracy and respect for the
rule of law). Hence, over 800 million individuals enjoy the protection offered
by the Convention, from Reykjavik to Vladivostok.
What is perhaps less well known is that the Strasbourg Court described
the ECHR in 2005 as “a constitutional instrument of European public order
(ordre public) for the protection of individual human beings”.2 The launch

* Chair Professor, Kirchheiner Chair on Protection of the Integrity of the Individual, Department
of Public Law, Leiden University, Netherlands.
1 For general information see www.echr.coe.int. For a recent academic analysis see Van Dijk & Van
Hoof et al., Theory and Practice of the European Convention on Human Rights (Intersentia, 2006).
2 ECtHR, 30 June 2005, Bosphorus Airlines v. Ireland (Appl. No. 45036/98), § 156. All ECtHR cases
cited are judgments unless indicated otherwise. For the sake of convenience, only reference is
170 INDIAN J. C ONST. L.

issue of the Indian Journal of Constitutional Law seems to be an excellent

place to dwell on this statement: where does it come from and what does it
signify? In paragraph 2 we will seek to answer that question.
The central question of this article, however, is a different one –
although it is quite related to the constitutional nature of the ECHR. Does
the Convention actually protects more than the 800 million individuals from
Reykjavik to Vladivostok? Is it conceivable that persons in Iraq, Afghanistan,
Sierra Leone and East Timor can rely on the ECHR? This question arises as
a consequence of various military operations carried out by European States
in recent years. Both UN led peace-keeping operations and the ‘fight against
terrorism’ have brought European forces to all quarters of the world. It is
clearly of great practical significance to analyse the rules of law by which the
relevant forces are bound. Indeed there has been a heated debate in recent
years about the question to what extent the ECHR applies to extra-territorial
acts of its signatory States. The case of Bankovic (2001) offered an occasion
for the Strasbourg Court to address this matter in considerable detail.3 Since
then academic writing on this issue – which had been almost non-existent
prior to Bankovic – has been quite prolific.4
In this contribution, I will try to analyse the Strasbourg case-law on
this issue. Although the jurisprudence is still in a state of development,5
some trends may be discerned. I will argue that the Court is gradually
distancing itself from Bankovic; that the more recent case-law suggests that
the Convention does apply to extra-territorial acts of States parties, also in
times of armed conflict; and that future discussions should concentrate on
the question what it actually means to say that the Convention applies.
To avoid misunderstanding I should mention at the outset that I was
involved in the Bankovic case, as legal advisor to the applicants. Since the
case ended – in the applicants’ perspective at least – in a glorious defeat, I
may not be well-positioned to give an objective account of the case and the

made to the application numbers of cases, and not to their official publication in Series A (until
1996) or the Reports (thereafter). All cases cited are easily accessible, in full text, at www.echr.coe.int
by using the ‘HUDOC’ search engine.
3 ECtHR, 12 Dec. 2001, Bankovic a.o. v. Belgium and 16 Other Contracting States (Appl. no. 52207/99;
adm. dec.). All decisions and judgments of the Court can be found on www.echr.coe.int.
4 See esp. F. Coomans & M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties
(Intersentia, 2004); D. Lorenz, Die territoriale Anwendungsbereich der Grund- und Menschenrechte
(Berliner Wissenschafts-Verlag, 2005); M. Gondek, “Extraterritorial application of the ECHR:
Territorial focus in the age of globalization?, in Neth. Int’l Law Rev. vol. 52 (2005), p. 349-387; S.I.
Skogly, Beyond National Borders: States’ Human Rights Obligations in International Cooperation (Intersentia,
2006); L. Loucaides: “The influence of factual situations on the evolution of jurisprudence: The
Bankovic case”, in Eur. Human Rights Law Rev. 2006, p. 397.
5 On 15 November 2006, the Court’s Grand Chamber heard oral argument in two highly relevant
cases: Behrami & Behrami v. France and Saramati v. France, Norway and Germany.
A Constitution in Search of its Limits 171

Court’s subsequent case-law. Of course I like to believe that the Court is

moving away from Bankovic. Yet, it seems difficult to arrive at any other
conclusions.
2. Th e European Conv ention legal order: a network , a
f amily, a community, a zone?
As was mentioned above, the Strasbourg Court described the ECHR
in 2005 as “a constitutional instrument of European public order”. This
statement invites all sorts of questions. Does “a constitutional instrument”
effectively mean “the constitution”? What is meant with “European public
order”? Is that the same as a common legal order? The beginning of an
answer may be found in the famous case of Ireland v. the UK (1978), in
which the Court considered:
Unlike international treaties of the classic kind, the Convention
comprises more than mere reciprocal engagements between contracting
States. It creates, over and above a network of mutual, bilateral undertakings,
objective obligations which, in the words of the Preamble, benefit from a
‘collective enforcement’.6
The Court did not explain what exactly is “above” this “network”.
But the quote seems to echo the seminal Van Gend & Loos judgment of the
Court of Justice of the European Communities (ECJ), delivered 15 years
before:
The objective of the EEC Treaty, which is to establish a common
market, the functioning of which is of direct concern to interested parties in
the Community, implies that this Treaty is more than an agreement which merely
creates mutual obligations between the Contracting States. This view is confirmed
by the Preamble which refers not only to Governments but to Peoples. (...)
The conclusion to be drawn from this is that the Community constitutes a
new legal order of international law for the benefit of which the States have
limited their sovereign rights, albeit within limited fields, and the subjects of
which comprise not only Memb er States b ut also their nationals.
Independently of the legislation of Member States, Community law therefore
not only imposes obligations on individuals, but is also intended to confer
upon them rights which become part of their legal heritage.7
A comparison of Ireland v. UK with Van Gend & Loos immediately
shows the differences between Strasbourg and Luxembourg. The Strasbourg
Court did not speak of “a new legal order”, although the precedent was
there. It did not oblige Contracting Parties to incorporate its provisions into
6 ECtHR, 18 January 1978, Ireland v. UK (Appl. No. 5310/71), § 239, emphasis added.
7 ECJ, 5 February 1963, Van Gend & Loos (case 26/62), emphasis added.
172 INDIAN J. C ONST. L.

national law.8 Only in 2006 – i.e. at the time that the ECHR had finally been
incorporated by all Contracting States – did the Court state that the
Convention “directly creates rights for private individuals within their
jurisdiction”.9 Only in one case the Court stated that Article 10 ECHR is
“directly applicable” in Greece, but this was probably a slip of the pen.10
So what is the European Convention? If it did not establish “a new
legal order” in the Van Gend & Loos sense, then what did it create? In the
case-law we do not find a straightforward answer. Instead we come across
poetic expressions such as the “European family of nations”. In Tyrer the
argument was made that local public opinion was in favour of retaining
judicial corporal punishment. The Court noted that this type of punishment
was not used elsewhere in Europe:
If nothing else, this casts doubt on whether the availability of this
penalty is a requirement for the maintenance of law and order in a European
country. The Isle of Man not only enjoys long-estab lished and
highly-developed political, social and cultural traditions but is an up-to-date
society. Historically, geographically and culturally, the Island has always
been included in the European family of nations and must be regarded as
sharing fully that “common heritage of political traditions, ideals, freedom
and the rule of law” to which the Preamble to the Convention refers.11
It is great from a rhetorical point of view, but it is hard to maintain
that the “European family of nations” is a clearly defined legal notion.
To make matters worse, the Court is not very consistent in its poetry.
In its 1971 Vagrancy judgment the Court observed that scrupulous scrutiny is
necessary “when the matter is one which concerns ordre public within the
Council of Europe”12 – without explaining what this ordre public is. But only
a few years later the Court, referring back to the Vagrancy case, mentioned
“the public order (ordre public) of the member States of the Council of
Europe”.13 So to whom does the public order belong? To the Council of
Europe, to its Member States, to the Member States collectively?

8 See, e.g., ECtHR, 27 September 1995, McCann v. UK (Appl. No. 18984/91), § 153.
9 ECtHR, 8 March 2006, Bleèiæ v. Croatia (Appl. No. 59532/00), § 90. As an authority for this
statement the Grand Chamber referred to “inter alia” Ireland v. UK, cited above, § 239, but there
the Court was actually more cautious: “the drafters of the Convention also intended to make it
clear that the rights and freedoms set out in Section I would be directly secured to anyone within
the jurisdiction of the Contracting States [...]. That intention finds a particularly faithful reflection
in those instances where the Convention has been incorporated into domestic law [...]”.
10 ECtHR, 15 November 1996, Ahmet Sadik v. Greece (Appl. No. 18877/91), § 31.
11 ECtHR, 25 April 1978, Tyrer v. UK (Appl. No. 5658/72), § 38.
12 ECtHR, 18 Juni 1971, De Wilde, Ooms & Versyp v. Belgium (Appl. No. 2832/66), § 65.
13 ECtHR, 18 Juni 1980, De Weer v. Belgium (Appl. No. 6903/75), § 49.
A Constitution in Search of its Limits 173

In Loizidou the Court elaborated upon this theme and described the
Convention as “a constitutional instrument of European public order (ordre
public)”.14 The expression “European public order” is a clever way to avoid
the difference between the Vagrancy formula and subsequent variations. In
addition Loizidou was the first time that the Court referred to the Convention
as a “constitutional” instrument. The same turn emerged, as we saw, in 2005.
But it was, again, unclear what the Court actually meant. The fact that the
same judgment also described the Convention as “an instrument of European
public order (ordre public)”15 (i.e. without the adjective “constitutional”) only
served to increase the confusion.
Yet another concept entered the stage in the final phase of the Loizidou
case, when the Court gave a separate judgment on just satisfaction. The
Government of Cyprus, which had intervened in the case, had asked for
reimbursement of its costs. The Court dismissed that request with the
following consideration:
The Court recalls the general principle that States must bear their
own costs in contentious proceedings before international tribunals (...). It
considers that this rule has even greater application when, in keeping with
the special character of the Convention as an instrument of European public
order (ordre public), High Contracting Parties bring cases before the
Convention institutions (...). In principle, it is not appropriate, in the Court’s
view, that States which act, inter alia, in pursuit of the interests of the
Convention community as a whole, even where this coincides with their
own interests, be reimbursed their costs and expenses for doing so.
Accordingly the Court dismisses the Cypriot Government’s claim for costs
and expenses.16
O n the one hand it is interesting to note that the ad jective
“constitutional” was again left aside. On the other hand, a new concept was
introduced: “the Convention community as a whole”. The credit for the
discovery of this notion – the contents of which is yet to be revealed – goes
to former Bulgarian judge Dimitar Gotchev, who mentioned it in a dissenting
opinion in 1997. 17 It is somewhat peculiar that, since Loizidou, “the

14 ECtHR, 23 March 1995, Loizidou v. Turkey (Preliminary Objections) (Appl. No. 15318/89), § 75. This
expression was repeated by the Grand Chamber in Bosphorus, cited above, § 156.
15 Loizidou, § 93.
16 ECtHR, 28 July 1998, Loizidou v. Turkey (Just satisfaction) (Appl. No. 15318/89), § 48.
17 Judge Gotchev dissenting in ECtHR, 28 November 1997, Mentes v. Turkey (Appl. No. 23186/94):
“The above considerations have gained particular importance in the light of the recent expansion
of the Convention community and the resultant need to establish a relationship of cooperation
between the Strasbourg Court and the courts in the Contracting States which have recently
acceded to the Convention”).
174 INDIAN J. C ONST. L.

Convention community” has only featured in cases involving Norway, a

country which is, coincidentally, not an EU member.18
Evasive expressions continue to pop up. In 2003 the Court, when
dealing with the death penalty, observed that “the territories encompassed by
the member States of the Council of Europe have become a zone free of capital
punishment”.19 This cautious language may be contrasted with the more
confident assertions of other Council of Europe organs, which do not hesitate
to speak of a “death penalty-free continent”.20
The most recent, and most outspoken, passage to date can be found
in the Bankovic case. This deserves special attention, because it also of key
importance to the discussion on the extraterritorial reach of the ECHR. The
case originated in an attack, in April 1999, on a building of Radio Televizije
Srvije (R TS) in Belgrade, Federal Republic of Yugoslavia (FRY). The
television station was hit by a cruise missile launched from a NATO forces’
aircraft in the context of ‘Operation Allied Force’. Sixteen people were
killed and another sixteen were seriously injured. Five relatives of the
deceased and a survivor of the bombing brought a complaint before the
Strasbourg Court against the NATO member states, in so far as they were
bound by the ECHR. The applicants argued that the television station had
not been a legitimate target; they alleged breaches of notably Article 2 (the
right to life) and Article 10 (the freedom to impart information). The
respondent states primarily contended that the applicants and their deceased
relatives were not, at the relevant time, within their ‘jurisdiction’ and hence
did not enjoy the guarantees offered by the Convention.
As it happened the hearing in this case took place in October 2001,
i.e. weeks after the terrorist attacks on the United States. It was clear at the
time that military reactions, notably in Afghanistan, were bound to follow.
The applicants realised the potential impact on their case: if the Court were
to accept the Bankovic claim, then possibly the next person to lodge an

18 Judges Palm, Fuhrmann and Baka dissenting in ECtHR, 20 May 1999, Bladet Tromsø v. Norway
(Appl. No. 21980/93) (“the Court has played an important role in laying the foundations for the
principles which govern a free press within the Convention community and beyond”). And see:
ECtHR, 11 February 2003, Ringvold v. Norway (Appl. No. 34964/97), § 38 (“Such an extensive
interpretation would not be supported either by the wording of Article 6 § 2 or any common
ground in the national legal systems within the Convention community. On the contrary, in a
significant number of Contracting States, an acquittal does not preclude the establishment of civil
liability in relation to the same facts.”). A similar passage was included in ECtHR, 11 February
2003, Y v. Norway (Appl. No. 56568/00), § 41.
19 ECtHR, 12 March 2003, Öcalan v. Turkey (Appl. No.46221/99, Chamber judgment), § 195 (emphasis
added), confirmed by the Grand Chamber in its judgment of 12 May 2005 in the same case, § 163.
20 See Recommendation 1187 (Europe: a death penalty-f ree continent) of the CoE Parliamentary Assembly,
adopted on 26 May 1999. “The Council of Europe is a death penalty free area”, the CoE website
asserts (http://www.coe.int/T/E/Com/Files/Themes/Death-penalty/, accessed 22 Sept. 2005).
A Constitution in Search of its Limits 175

application might be Osama bin-Laden. This might not be an incentive for

the Court to accept Bankovic. In an attempt to convince the Court that it
should ignore recent events, the applicants reminded the Court of the public
ordre mission of the Convention. The Court did not agree:
In short, the Convention is a multi-lateral treaty operating (…) in an
essentially regional context and notably in the legal space (espace juridique)
of the Contracting States. The FRY clearly does not fall within this legal
space. The Convention was not designed to be applied throughout the world,
even in respect of the conduct of Contracting States. Accordingly, the
desirability of avoiding a gap or vacuum in human rights’ protection has so
far been relied on by the Court in favour of establishing jurisdiction only
when the territory in question was one that, but for the specific circumstances,
would normally be covered by the Convention.21
Two conclusions may be drawn. The first time that the Court came
close to circumscribing a legal order of its own, it primarily defined it by
stating what it was not: the ECHR was not designed to be applied throughout
the world. Secondly, the Court did not actually refer to the legal space of the
Convention: it spoke about the legal space of the Contracting States.
3. The basics of extra-territoriality: A rticle 1 ECHR and
Loizidou
Before we analyse Bankovic in greater detail, it seems useful to
recapitulate a number of basic concepts. The key question in all discussions
on the territorial reach of the ECHR is how one should interpret the word
“jurisdiction” in Article 1 ECHR. Article 1 provides that the Contracting
Parties shall secure to everyone “within their jurisdiction” the rights and
freedoms defined in the Convention. Accordingly, for an individual to be
able to rely on the Convention, he must demonstrate that he was “within the
jurisdiction” of the State concerned at the relevant time. In the vast majority
of cases, this is not even an issue: if someone complains that his trial before
the Dutch courts was unfair, no-one will even think of the possibility that the
applicant was not “within the jurisdiction” of the Netherlands. But the question
becomes crucial when a State conducts a military operation abroad and is
alleged to have violated human rights in the process. Was the alleged victim
“within the jurisdiction” of the State concerned? Can he rely on the
Convention?

21 ECtHR, 12 December 2001, Bankovic a.o. v. 17 NATO Member States (Appl. no. 52207/99, adm.
dec.), § 80. It should be noted that the present author acted as legal advisor to the applicants in this
case.
176 INDIAN J. C ONST. L.

In the case of Loizidou, which we also encountered in the previous

paragraph, the Strasbourg Court made clear that the notion of “jurisdiction”
is not identical to the territory of a State. The facts of the case are well-
known: Ms Loizidou owned land in northern Cyprus but left her property
following the Turkish intervention in 1974. She brought a complaint in
Strasbourg against Turkey, arguing that Turkish forces prevented her from
returning to her property. Turkey rejected all responsibility for the situation.
It advanced many arguments, the most relevant of which is for present
purposes that the question of access to property was obviously outside the
realm of Turkey’s “jurisdiction”. [...] the mere presence of Turkish armed
forces in northern Cyprus was not synonymous with “jurisdiction” any more
than it is with the armed forces of other countries stationed abroad. In fact
Turkish armed forces had never exercised “jurisdiction” over life and property
in northern Cyprus.
Any complaints, Turkey argued, should be directed against the
‘Turkish Republic of Northern Cyprus’ (‘TRNC’) which was established in
1983. The Court rejected this preliminary argument as follows: [...] although
Article 1 sets limits on the reach of the Convention, the concept of
“jurisdiction” under this provision is not restricted to the national territory of
the High Contracting Parties. [...]. Bearing in mind the object and purpose
of the Convention, the responsibility of a Contracting Party may also arise
when as a consequence of military action – whether lawful or unlawful – it
exercises effective control of an area outside its national territory. The
obligation to secure, in such an area, the rights and freedoms set out in the
Convention derives from the fact of such control whether it be exercised
directly, through its armed forces, or through a subordinate local
administration.22
Thus the Court’s test focused on ef f ective control over territory. For the
Court’s assessment it was not so relevant whether the Turkish military presence
on Northern Cyprus was lawful under international law or not; nor did the
Court examine whether Ms Loizidou was actually prevented from returning
to her property by Turkish forces or by ‘TRNC’ officials. The Court avoided
difficult questions of proof by emphasising the fact that Turkey was in control
anyhow.
The Loizidou ruling has been consistently confirmed.23 In its Bankovic
decision the Court summarised its own jurisprudence as follows:

22 ECtHR, 23 March 1995, Loizidou v. Turkey (prel. obj.) (Appl. No. 15318/89), § 62.
23 See e.g. ECtHR (GC), 10 May 2001, Cyprus v. Turkey (Appl. No. 25781/94), § 77; ECtHR, 20 Feb.
2003, Djavit An v. Cyprus (Appl. No. 20652/92), §§ 18-23; ECtHR, 6 April 2005, Xenides-Arestis v.
Turkey (Appl. No. 46347/99), § 22.
A Constitution in Search of its Limits 177

In sum, the case-law of the Court demonstrates that its recognition of

the exercise of extra-territorial jurisdiction by a Contracting State is
exceptional: it has done so when the respondent State, through the effective
control of the relevant territory and its inhabitants abroad as a consequence
of military occupation or through the consent, invitation or acquiescence of
the Government of that territory, exercises all or some of the public powers
normally to be exercised by that Government.24
It may be noted that the Court on this occasion silently introduced a
new element: the exercise of “all or some of the public powers normally to
be exercised by [the] Government” of that territory – an element that was
not mentioned in Loizidou or in any of the cases that followed it. It is not
entirely clear what the Court has in mind – some sort of surrogate “jurisdiction”?
What if a Contracting Party occupies a territory and secures effective control
over it, but fails to exercise normal public powers, for instance at the early
stages of the occupation?
4. A closer look at the Bankovic decision
Even if we leave aside this particular aspect of Loizidou, it will be clear
that this branch of case-law did not answer all questions. What about extra-
territorial operations in a situation where the State concerned does not
exercise prolonged “effective control” over foreign territory? Here one may
think for example of ad-hoc operations on foreign territory, or of hostilities
in the course of an armed conflict.
The Bankovic case, which was already briefly described above, seemed
destined to become the landmark case for this category of cases. In order to
argue that the very bombing of the RTS building had brought them “within
the jurisdiction” of the NATO Member States, the applicants developed a
‘gradual’ and context-related approach to “jurisdiction”. In the context of
military operations it would certainly go too far to expect the respondent
States to secure all rights and freedoms included in the ECHR, the applicants
argued – but at the very least one could expect these States to refrain from
acts that endangered their right to life beyond the limits set by the European
Convention.25 It may be noted that the applicants did not express any view
on the legality of ‘Operation Allied Force’ under public international law;
they confined their complaint to the bombing of the RTS building. Similarly,
they did not dispute that in times of war the substantive norms of the
Convention may have to be adapted. Even in the absence of a formal

24 Bankovic (supra note 1), § 71.

25 For a more elaborate discussion of this approach, see my contribution to the Coomans/Kamminga
volume mentioned in footnote 2.
178 INDIAN J. C ONST. L.

derogation under Article 15 ECHR, it is quite conceivable, for instance, that

the Court leaves the States a wide margin of appreciation.26 But these are
issues related to the merits of the complaint; the first hurdle was to pass the
admissibility test.
This first hurdle was never passed, however. The Court rejected the
idea of a context-related understanding of “jurisdiction”. In a lengthy
admissibility decision it stated that the applicants position was “tantamount
to arguing that anyone adversely affected by an act imputable to a Contracting
State, wherever in the world that act may have been committed or its
consequences felt, is thereby brought within the jurisdiction of that State for
the purpose of Article 1 of the Convention”. With some caution, the Court
said it was “inclined to agree” with the defending Governments that the text
of Article 1 does not accommodate such an approach to “jurisdiction”. But
without much caution it continued: the Court is of the view that the wording
of Article 1 does not provide any support for the applicants’ suggestion that
the positive obligation in Article 1 to secure “the rights and freedoms defined
in Section I of this Convention” can be divided and tailored in accordance
with the particular circumstances of the extra-territorial act in question.27
Apparently the Court favoured a ‘digital’ approach: one is either within
the jurisdiction of a Contracting State (and consequently entitled to full
protection of his rights and freedoms), or one is outside the jurisdiction
altogether (and hence not protected at all). Tertium non datur.
It was on this occasion that the Court also stated, as we have seen
above, that “the Convention was not designed to be applied throughout the
world, even in respect of the conduct of Contracting States”.28 At first sight
this statement gives an uneasy feeling: is the Court really saying that it is not
prepared to review complaints concerning conduct which is allegedly in
breach of human rights, if it takes place in non-European countries – no
matter how deliberate the acts or heinous the violations? But a closer look
reveals that the Court does not say this. The Convention was not designed to
be applied throughout the world, but that does not mean that its application
outside Europe is excluded.
Yet one cannot deny that the Court took a restrictive approach. A
likely explanation may be found in a speech of the Court’s President, Mr
Wildhaber, on the occasion of the opening of the judicial year 2002 of the
European Court of Human Rights:

26 Cf. ECtHR, 26 March 1987, Leander v. Sweden (Series A, vol. 116), § 59; ECtHR, 26 May 1993,
Brannigan and McBride v. the UK (Series A, vol. 258-B), § 43.
27 Bankovic (supra note 1), § 75.
28 Id., § 80, emphasis in original.
A Constitution in Search of its Limits 179

Our perception of last year is coloured by the tragic events of 11

September and their aftermath. Terrorism raises two fundamental issues
which human rights law must address. Firstly, it strikes directly at democracy
and the rule of law, the two central pillars of the European Convention on
Human Rights. It must be therefore be possible for democratic States governed
by the rule of law to protect themselves effectively against terrorism; human
rights law must be able to accommodate this need. The European Convention
should not be applied in such a way as to prevent States from taking reasonable
and proportionate action to defend democracy and the rule of law.29
Ref erring more specif ically to Bankovic, President W ildhaber
continued:
We do have to realise that the Convention was never intended to cure
all the planet’s ills and indeed cannot effectively do so; this brings us back to
the effectiveness of the Convention and the rights protected therein. When
applying the Convention we must not lose sight of the practical effect that
can be given to those rights.
The quotes give the impression that the Court may have been afraid,
in the days immediately following ‘9/11’, to be sidelined in the struggle against
terrorism. It was only after a lapse of time that the discourse changed: by the
summer of 2002 the Council of Europe had developed its official position
into the view that the struggle against terrorism must be waged, but always
within the bounds set by the European Convention.30
5. Moving beyond Bankovic : Öcalan, Issa and Ilascu
On a number of occasions the Court reconfirmed Bankovic: for instance
in December 2002, when deciding the cases of Kalogeropoulou (which
concerned a number of Greek citizens who brought a claim for damages
against Germany, before Greek courts, in connection with a Nazi massacre
in World War II)31 and Gentilhomme (which originated in a refusal by a French
State school in Algiers to continue to enrol three children). 32 None of these
cases, however, related to the kind of situations under review here.
4.1 Öcalan
The case of Öcalan seemed more relevant. Former PKK leader Mr
Öcalan’s complained, inter alia, that his arrest in Kenya by Turkish security
forces was in breach of Articles 3 and 5 of the Convention. The key question

29 Speech of 31 Jan. 2002.

30 See esp. the Guidelines on Human Rights and the Fight against Terrorism, adopted by the Committee
of Ministers in July 2002.
31 ECtHR, 12 Dec. 2002, Kalogeropoulou a.o. v. Greece and Germany (Appl. No. 59021/00; adm. dec.).
32 ECtHR, 14 May 2002, Gentilhomme a.o. v. France (Appl. no. 48205/99 a.o.).
180 INDIAN J. C ONST. L.

in this respect was of course whether Mr Öcalan was “within the jurisdiction”
of Turkey at the moment of his arrest. In a somewhat ambiguous passage a
7-judge Chamber of the Court distinguished the case from Bankovic.
In the instant case, the applicant was arrested by members of the
Turkish security forces inside an aircraft in the international zone of Nairobi
Airport. Directly af ter he had been handed over by the Kenyan of f icials to the
Turkish of f icials the applicant was under ef f ective Turkish authority and was
theref ore brought within the “jurisdiction” of that State f or the purposes of Article
1 of the Convention, even though in this instance Turkey exercised its authority
outside its territory. The Court considers that the circumstances of the present
case are distinguishable f rom those in the aforementioned Bankovic and Others
case, notably in that the applicant was physically f orced to return to Turkey by
Turkish of f icials and was subject to their authority and control f ollowing his arrest
and return to Turkey (...).33
The Court then proceeded to review the circumstances of Mr Öcalan’s
arrest under Articles 3 and 5 ECHR. But the passage quoted here begs the
question: does it matter, for the purposes of Article 1 of the Convention,
that Mr Öcalan was forced to return to Turkey following his arrest? Two
opposite answers seem possible:
(a) No, the first sentence suggests: “directly after he had been handed
over by the Kenyan officials to the Turkish officials the applicant was
under effective Turkish authority and was therefore brought within
the ‘jurisdiction’ of that State”; or
(b) Yes, the second part argues: the present case is distinguishable from
Bankovic because Mr Öcalan “was physically forced to return to Turkey
by Turkish officials and was subject to their authority and control
following his arrest and return to Turkey”.
The practical importance of this ambiguity may be clear if one thinks
of the hypothetical case of a ‘hit and run’ operation: forces penetrate into
the territory of another country, seize a person and kill him on the spot – i.e.
without bringing him over to their own territory. Would the Convention
apply to the event? Yes, if we follow the first sentence. Or no, if the second
sentence is relied upon.
Unfortunately the issue was hardly clarified by the Grand Chamber,
which delivered judgment in Öcalan case in 2005: directly after being handed
over to the Turkish officials by the Kenyan officials, the applicant was under
effective Turkish authority and therefore within the “jurisdiction” of that

33 ECtHR, 12 March 2003, Öcalan v. Turkey (Appl. No. 46221/99), § 93 (emphasis added).
A Constitution in Search of its Limits 181

State for the purposes of Article 1 of the Convention, even though in this
instance Turkey exercised its authority outside its territory. It is true that the
applicant was physically forced to return to Turkey by Turkish officials and
was under their authority and control following his arrest and return to Turkey
(see, in this respect, ... by converse implication, the Bankoviæ and Others v.
Belgium and 16 Other Contracting States decision).34
Again the two consecutive sentences seem to radiate a very different
message. But one thing is clear: the Convention may not have been designed
to be applied throughout the world, as the Court stated in Bankovic, but
Öcalan demonstrated that its application outside Europe is certainly not
excluded. After Öcalan it safe to say that there are at least two situations where
the forces of a Contracting State continue to be bound by the Convention,
even when operating abroad: (a) the Loizidou situation, where forces exercise
“effective control” of an area, and (b) the Öcalan scenario where forces arrest
a person. In the latter case it may be of relevance whether the person was
subsequently forced to return to the territory of the State concerned.
4.2 Issa
Meanwhile the Court had delivered judgment in the case of Issa. The
case is about the conduct of – again – Turkish forces, which this time had
crossed into northern Iraq during an operation that lasted for approximately
four weeks. The Turkish forces had allegedly arrested and killed a number
of Iraqi shepherds. The Turkish government confirmed that an operation of
Turkish military forces had taken place in northern Iraq at the relevant time,
but denied that Turkish soldiers had been present in the area indicated by
the applicants. In the end it was indeed the element of proof that decided
the case: the Court did not find it established beyond reasonable doubt that
Turkish forces were actually accountable for the death of the applicants’
relatives.
Yet Issa contains a very intriguing passage. After reconfirming its
Loizidou judgment (which was probably not applicable to the case at hand,
as the element of effective overall control of the region was arguably lacking),
the Court continued: a State may also be held accountable for violation of
the Convention rights and freedoms of persons who are in the territory of
another State but who are found to be under the former State’s authority
and control through its agents operating – whether lawfully or unlawfully -
in the latter State (see, mutatis mutandis, M. v. Denmark, application no. 17392/
90, Commission decision of 14 October 1992, DR 73, p. 193; Illich Sanchez
Ramirez v. France, application no. 28780/95, Commission decision of 24 June

34 ECtHR (GC), 12 May 2005, Öcalan v. Turkey (Appl. No. 46221/99), § 91.
182 INDIAN J. C ONST. L.

1996, DR 86, p. 155; Coard et al. v. the United States, the Inter-American
Commission of Human Rights decision of 29 September 1999, Report No.
109/99, case No. 10.951, §§ 37, 39, 41 and 43; and the views adopted by the
Human Rights Committee on 29 July 1981 in the cases of Lopez Burgos v.
Uruguay and Celiberti de Casariego v. Uruguay, nos. 52/1979 and 56/1979, at §§
12.3 and 10.3 respectively). Accountability in such situations stems from the
fact that Article 1 of the Convention cannot be interpreted so as to allow a
State party to perpetrate violations of the Convention on the territory of
another State, which it could not perpetrate on its own territory (ibid.). 35
This passage too is not devoid of ambiguity – when is one “under a
State’s authority and control”? But it is the last sentence that is most striking:
in passing the Court refers to “the fact” that Article 1 ECHR cannot be
interpreted so as to allow a State party to perpetrate violations of the
Convention on the territory of another State, which it could not perpetrate
on its own territory. How should we reconcile this with the finding in
Bankovic? Assuming that it is not permissible to bomb a television station in
the State’s own territory, why did the Court refuse to review the attack on
the RTS station?
What is also interesting about the passage is Court’s extensive reference
to earlier case-law and the jurisprudence of other international human rights
bodies. Each of these authorities had been cited by the applicants in Bankovic
in support of their argument, but on that occasion the Court did not find it
necessary to mention them expressly.36
A last remark about Issa relates to the consequences of the Court’s
new position (if that is what it is). If the Court still rejects the ‘gradual’ and
context-related approach to “jurisdiction” as advocated by the applicants in
Bankovic, it seem unavoidable that the European Convention applies across
the board as soon as an individual finds himself “under” a Contracting State’s
“authority and control through its agents”. O ne may wonder about the
consequences: is the Court really saying that the Turkish forces operating at
the time in northern Iraq – under difficult circumstances, one may presume
– were bound to secure the entire set of rights and freedoms (including the
right to a fair trial, the right to marry, positive obligations and so) to those
who found themselves under their authority?

35 ECtHR, 16 November 2004, Issa v. Turkey (Appl. No. 31821/96), § 71.

36 See § 26 of Bankovic: “the Human Rights Committee has sought to develop, in certain limited
contexts, the Contracting States’ responsibility for the acts of their agents abroad”, as well as § 48
“Citing one case of the Human Rights Committee...”.
A Constitution in Search of its Limits 183

4.3 Ilaºcu and Treska

Finally the case of Ilaºcu merits discussion here. In this case four
Moldovan citizens brought a complaint about their treatment in the
‘Moldovan Republic of Transdniestria’ (‘MRT’), a region of Moldova that is
led by separatists. They claimed that they had been arrested and convicted
and that their property had been confiscated, because of their political
activities in support of unification of Moldova and Romania. The applicants
complained that they had not had a fair trial and that they were subjected to
inhuman prison conditions.
The applicants considered that Moldova was responsible for the alleged
violations since the Moldovan authorities had not taken adequate measures
to put a stop to them. In their submission, the Russian Federation shared
that responsibility as the territory of Transdniestria was de f acto under Russia’s
control owing to the stationing of its troops and military equipment there
and the support the Russian Federation gave to the ‘MRT’.
In a lengthy judgment, delivered in 2004, the Court’s Grand Chamber
essentially accepted these arguments. Both Moldova and the Russian
Federation were found responsible, albeit it to different degrees, for a number
of violations of the European Convention. With respect to Moldova, the
Court observed: even in the absence of effective control over the
Transdniestrian region, Moldova still has a positive obligation under Article 1
of the Convention to take the diplomatic, economic, judicial or other
measures that it is in its power to take and are in accordance with international
law to secure to the applicants the rights guaranteed by the Convention.37
Given our present topic – the applicability of the Convention to
extraterritorial acts – it is highly interesting to note that the Court repeated
this passage in its 2006 Treska decision with a small but significant change:
Even in the absence of effective control of a territory outside its borders,
the State still has a positive obligation under Article 1 of the Convention to
take the diplomatic, economic, judicial or other measures that it is in its
power to take and are in accordance with international law to secure to the
applicants the rights guaranteed by the Convention (see Ilaºcu and Others v.
Moldova and Russia [GC], no. 48787/99, § 331, ECHR 2004-VII).38
The obligation which the Court in Ilaºcu had accepted to exist as
regards a territory within a State’s border, was thus exported to a territory
outside its borders!

37 ECtHR (GC), 8 July 2004, Ilaºcu and Others v. Moldova and Russia (Appl. No. 48787/99), § 331.
38 ECtHR, 29 June 2006, Treska v. Albania (26937/04, adm. dec.), p. 13.
184 INDIAN J. C ONST. L.

5. Reading between the lines: Saddam Hussein

If cases like Issa and Ilaºcu/ Treska suggest that the Court is moving
away from its Bankovic decision, some indirect support for that theory was
offered in the spring of 2006. This we owe to no-one less than Saddam
Hussein, the former dictator of Iraq. After his arrest by American troops, in
December 2003, Mr Hussein brought a complaint against 21 States Parties to
the European Convention, challenging his arrest, detention, handover to
the Iraqi administration and the trial to which he was subjected.

As a preliminary point Mr Hussein argued that he fell within the

jurisdiction of the 21 States: since the ‘coalition States’ were the occupying
powers, they were and continued to be responsible for respecting human
rights in Iraq. The case was rejected on this very point: the Court considered
that these “jurisdiction arguments” were not substantiated. The Court noted
that Mr Hussein did not address each respondent State’s role and
responsibilities or the division of labour/power between them and the US.
Nor did he indicate which respondent State (other than the US) had any
influence or involvement in his impugned arrest, detention and handover.

What makes the case interesting for present purposes, is the way in
which the Bankovic decision was dealt with. When summarising Mr Hussein’s
argument, the Court included the following:

Bankoviæ and Others v. Belgium and 16 Other Contracting States ((dec.)

[GC], no. 52207/99) was, he argued, incorrect and had to be reconsidered.

Now that in itself is not very persuasive: Mr Hussein has never enjoyed
a reputation as a human rights expert. But it is revealing to see that the
Court, after having mentioned this statement, does not bother to reconfirm
of its Bankovic decision. Apparently the Court preferred to refer to its Issa
and Öcalan judgments, which, as we have seen, have a very different emphasis:

The Court considers that he [i.e. Mr Hussein] has not demonstrated

that those States had jurisdiction on the basis of their control of the territory
where the alleged violations took place (Loizidou v. Turkey, judgment of 18
December 1996, Reports of decision and Judgments 1996 VI and Cyprus v. Turkey
[GC], no. 25781/94, ECHR 2001). Even if he could have fallen within a State’s
jurisdiction because of his detention by it, he has not shown that any one of
the respondent States had any responsibility for, or any involvement or role
in, his arrest and subsequent detention (Issa and Others v. Turkey, no. 31821/
96, §§ 71-82, 16 November 2004 and Öcalan v. Turkey [GC], no. 46221/99, §
91, ECHR 2005 ...).
A Constitution in Search of its Limits 185

6. Conclusions
A number conclusions may be drawn from the foregoing. There are
contradictory trends in the case-law of the European Court of Human Rights.
On the one hand the Court is well-known for its progressive interpretation
of the Convention and its efforts to ensure that rights are practical and effective.
The Court’s contribution to the development of international human rights
law and to the strengthening of the rule of law in Europe cannot be
overestimated. On the other hand the Court has left a degree of uncertainty
as to what it actually seeks to achieve. The question whether the Convention
has established a ‘legal order’ of its own is difficult to answer as the case-law
is evasive and inconsistent. But at any rate it is clear that the Court never
developed a consistent and purposive doctrine in the way that the ECJ did.
As to the extraterritorial reach of the ECHR, it would seem that the
Strasbourg Court is distancing itself from Bankovic. In that case the Court
found that the applicants, despite their having been bombed by Contracting
States, could not rely on the Convention: they had never been “within the
jurisdiction” of the States concerned. Behind that technical argument there
was a clear reluctance to be involved in cases about extraterritorial operations:
“The Convention was not designed to be applied throughout the world,
even in respect of the conduct of Contracting States”.
In hindsight, it would seem that Bankovic was an immediate reaction
to ‘9/11’: the Court heard the case in October 2001 and defined its position
at a time when the ‘war on terrorism’ was about to start. It is conceivable
that the judges did not want to be drawn into that context.
But it did not take long before the attitude changed. Öcalan (2004-
2005) shows unambiguously that the Convention may indeed apply
“throughout” the world. There are at least two situations where the forces of
a Contracting State continue to be bound by the Convention, even when
operating abroad: (a) the Loizidou situation, where forces exercise “effective
control” of an area, and (b) the Öcalan scenario where forces arrest a person.
In the latter case it may be of relevance whether the person was subsequently
forced to return to the territory of the State concerned.
If Öcalan was fairly specific, the cases of Issa (2004) and Ilaºcu (2004)/
Treska (2006) contain more general language. In Issa the Court referred to
“the fact” that Article 1 ECHR cannot be interpreted so as to allow a State
party to perpetrate violations of the Convention on the territory of another
State, which it could not perpetrate on its own territory; in Ilaºcu and Treska
reference was made of a positive obligation to take the diplomatic, economic,
judicial or other measures that it is in a State’s power to take to secure the
186 INDIAN J. C ONST. L.

rights guaranteed by the Convention. Both statements are evidently hard to

reconcile with the outcome of Bankovic.
The Court did not say with so many words that Bankovic needs to be
reconsidered – it left it to Saddam Hussein to say that – but cases like Issa
and Treska clearly suggest that Bankovic would be decided differently when
reviewed by the Court today.
This brings us to a final observation. It is one thing to say that the
Convention applies to overseas operations – but it is quite another thing to
define what this actually means. It is high time that the debate focuses on the
latter question The present state of the case-law clearly does not offer a
sensible answer. Remember that the Court in Bankovic rejected the idea of a
gradual, context related approach: ... Article 1 does not provide any support
for the applicants’ suggestion that the positive obligation in Article 1 to secure
“the rights and freedoms defined in Section I of this Convention” can be
divided and tailored in accordance with the particular circumstances of the
extra-territorial act in question
If one does not “divide and tailor” the obligations under the
Convention when States are conducting military operations abroad, how
can one comply with the very sensible proposition that President Wildhaber
made early 2002: “When applying the Convention we must not lose sight of
the practical effect that can be given to those rights”?
 187

PROTECTION OF THE R IGHT OF P RIVA TE P ROPERTY

IN THE CONSTITUTION OF THE
PEOPLE ’S R EPUBLIC OF C HINA
Han Dayuan*

§ Status of the Right of Private Property in the Fundamental

Rights System
In modern states with rule of law, the Right to Property, together with
the rights of life and of freedom, constitutes the three fundamental right
systems that ultimately embody the basic dignity and values of human beings.
As the fundamental law of a state and the supreme values system of a
commonwealth, the Constitution usually takes the protection of private
property as a starting point and the basis of its social pursuits. To achieve the
fundamental values embodied by the Right to Property, constitutions
worldwide generally provide for the guarantee of the right of private property
in principle, boundary and scope, and by laws make corresponding
constitutional principles specified, laying legal foundations of the realization
of the Right to Property. In the Constitution of China, the right of private
property refers to the right of citizens to gain property from their own labor
or by other lawful means as well as the right to own, use and dispose that
property.1 It is a vital right in all fundamental rights, and as such, indicates
that citizens enjoy the liberty and have access to economic benefits in social
life. Generally speaking, the Right to Property stipulated in the Constitution
covers all rights that are of property value in both public law and civil law.2
In Chinese jurisprudence, however, it falls into two categories: the Right to
Property in the Constitution and the Right to Property in Civil Law3 . They
are different in nature and function, and belong to separate system of rights
respectively. The Right to Property as a fundamental right mainly protects
the citizens against public power; while once the Right to Property in civil

* Ph. D., Professor of Law School, Renmin University of China. The article deals with the position
of law in China upto January 2007.
1 Artice 13 of the Constitution provides that: The state protects the right of citizens to own lawfully
earned income, savings, houses and other lawful property. The state protects by law the right of
citizens to inherit private property. See The Constitution of The People’s Republic of China, http:/
/english.peopledaily.com.cn/constitution/constitution.html.
2 See Han da-Yuan(ed), Advanced Cosntitutional Law, Higher Education Press (2006), pp.270.
3 Right to Property was originally incorporated into the Indian Constitution as a fundamental right
under Article 19(1)(f) in 1978, via the 44th amendment to the Constitution, its status was reduced to
that of a Constitutional right. See, P.K Tripathi, “Right to Property after 44th Amendment-Better
Protected than Ever Before”, AIR 1980 J 49. Also see, A.K Ganguly, “Right to Property: Its
Evolution and Constitutional Development in India”, 48 JILI (2006) 489.
188 INDIAN J. C ONST. L.

law written into the Constitution, it will be far from its civil meaning but
provide consolidated legal basis for the guarantee of civil Right to Property.
It is an inevitable request of a market economy to acknowledge the Right to
Property a fundamental one and to enhance its constitutional protection as
well. Of the economic relations governed by the Constitution, the guarantee
of the right of individual property shall not be neglected because it is not
only one of the fundamental rights, but a general principle established by
the Constitution.

§ The Changing Society in China and the Development of

Right to Property
Since the establishment of the People’s Republic of China on Oct 1,
1949, the country has ratified four constitutions, viz the Constitution 1954, the
Constitution 1975, the Constitution 1978 and the Constitution 1982.4 The
Constitution 1954, also the first Constitution of the People’s Republic of China
and the first socialist constitution in the history of China, has expressly specified
the status of the citizens’ Right to Property. The Constitution 1954 provided
that “The state protects the right of citizens to own lawf ully-earned incomes, savings,
houses and other means of lif e”5 , “The state shall protect the right of citizens to
inherit private property according to law”6 , “Citizens of the People’s Republic of
China enjoy freedom of residence and freedom to change their residence”7 .
The Constitution 1975 and Article 9 of the Constitution 1978 largely followed
the provisions of the Right to Property established by the Constitution 1954.8
O therwise, compared with the provisions of the Constitution 1954, the
Constitution 1982 scores much higher. It extends the scope of the Right to
Property to the rights of citizens “to own lawf ully-earned income, savings, houses
and other lawf ul property ” and “to inherit private property”9 from the
rights of “citizens to own lawfully-earned income, savings, houses and other
means of lif e ” and “to inherit private property”.10
4 Some Chinese scholars contend that the constituent power can only be excercised once, thereafter
it appears as the power to amend the Constitution, therefore they hold that China has only ratified
one Constitution and that the later constitutions are just the revised versions of the Constitution
of 1954. Meanwhile some scholars criticizes the theory by argueing that the living generation shall
not be governed by the dead ones rather than being governed by their own consent. As a logical
outcome of this argument, the living generation is entitled to draft and ratify a constitution at their
own will. If this is taken into consideration, the argument on how many constitutions China has
already ratified is out of question.
5 Article 11 of the Chinese Constitution.
6 Article 12 of the Chinese Constitution.
7 Article 90 (2) of the Chinese Constitution.
8 For details, see Mo Jihong(ed), Constitutional Law, Social Sciences Academic Press(2005), p.p.325-
326.
9 Artcle 13 of the 1982 Constitution
10 Article 11 and 12 of the 1954 Constitution. Both The Basic Law of The Hongkong Special Adminstrative
Region of the People’s Republic of China and The Basic Law of The Macau Special Administrative Region
Right to Private Property in China 189

The Constitutions as shown above provide for the protection of the

right to own lawful property and to inherit private property rather differently
in accordance with the requirements of the changing society in China.
However, before the Fourth Amendment to the Constitution 1982 was ratified
in the year of 2004, both content and system of those provisions were
incomplete, especially respecting and protecting the right to private property
lacked social and legal grounds. Problems caused were as follows: (A) lack
of consciousness about the protection of private property. (B) objects within
the scope of the protection of the Right to Property were undefined, only
the means of livelihood such as lawfully earned income, savings and houses
being covered while the means of production had been excluded though it
had been expected worth its weight in gold 11 . (C) as for the specific norms
system and institution of the protection of the Right to Property, the
Constitution 1982 did not clarify the constitutional status of the Right to
Property nor the principle and process of compensation for the infringement
upon property other than the principle to limit property. (D) comparing
public property with private property, we find that in the Constitution, the
principles of guarantee were on an unequal basis, more positive policies
applied to public property while passive policies to private property and the
protection of public property distinctly outweighed that of private property.
It gave rise to a series of social issues, such as private owners being
unconfident of the security of their property, compelling house removal,
unlawful acquisitions of land and default on payment of peasant workers.
Seeing from the angle of the Constitution, one of the key factors that account
for the conflicts between public interest and private interest in the recent
social development of China is the ineffective protection of the right of private
property.
With the d evelopment of the market-oriented economy, the
accumulation of private wealth and the improvement of legal consciousness,
the public has paid great attention to property issues and increasingly called
for effective protection of the Right to Property. It is widely held that the
state should establish an effectual legal system to enhance the protection of
the right of private property. In responses to such a practical demand, Jiang
Zemin’s Report at the 16th National Congress of the Communist Party of China

of the People’s Republic of China underline the protection of the right of private porperty. The Art.
6 of the HKSAR Basic Law provides that “The Hong Kong Special Administrative Region shall
protect the right of private ownership of property in accordance with law”. And The Art. 6 of the
Macau Basic Law provides that “ The Macau Special Administrative Region shall protect the right
of private property in accordance with the laws”.
11 Unlike the Chinese Constitution, the Indian Constitution does not enumerate the components of
“property” that the Constitution seeks to protect. This is left for the Courts to interpret and
determine.
190 INDIAN J. C ONST. L.

said that “We should strengthen the supervision and administration of the non-
public sectors according to law to promote their sound development. We should
improve the legal system f or protecting private property”.12 The amendments of
the year 2004 to current Constitution have further advanced the protection
of the right of private property by clarifying its status in the Constitution.
They are of great importance for the realization of the fundamental values
of the protection of private property in the whole society, and urge the
governments and public agencies to respect the values of the right of private
property and to offer sound legal protection for the private property owners.

§ Nature and Content of the Right of Private Property

Nature of the Right of Private Property
The right of private property had been universally taken as an
inviolable and absolute natural right not until the ratification of the Constitution
of the Weimar Republic in the year of 1919. From then on, following the
tendency of relativization of rights around the world, the right of private
property is relativized gradually, turning to be a combined right with social
responsibility. Four doctrines concerned with the nature of the Right to
Property are as follows.
Firstly, the Right to Property itself is a liberty, and an inviolable
individual right. Secondly, the constitutional Right to Property is of a legal
institution in which the individual enjoys the right according to laws, that is
to say, it is of an institutional guarantee of the Right of Private Property.
Moreover, Right to Property is a defensive right against the arbitrariness of
the State as well as an individual right and some kind of a legal institution.
Furthermore, the Right to Property is of dual characteristics, referring to a
subjectively defensive property and an objectively existing order of law. As
a def ensive right, it is to protect the citizens against infringement by the State
and to set the boundaries of public power. While of fundamental nature as
an institutional guarantee, it is reckoned as an institution or an objective order
of law in which citizens are free to exercise the Right to Property. Because of
this, provisions of the Right to Property in the Constitution actually play the
role of “the guardian of f reedom”, which guarantees individual free access to
economic conditions of any kinds.
As far as the development of the Right to Property and its nature is
concerned, the third doctrine and the forth doctrine sound more reasonable
than the other two and share the same academic foundations. Thus, the

12 See Jiang Zemin’s report at 16th Party Congress, http://news.xinhuanet.com/english/2002-11/18/

content_632554.htm.
Right to Private Property in China 191

nature of the Right to Property shall be determined in two aspects: the Right
to Property as an individual right and the Right to Property as an institution.
The Scope of the Right to Property
Article 22 of the Amendment to the Constitution of the People’s Republic of
China (2004) provides that: Article 13 of the Constitution, which reads: “The
state protects the right of citizens to own lawf ully earned income, savings, houses
and other lawf ul property.” and “The state protects the right of citizens to inherit
private property according to law.”, is revised. It now reads as follows: “Citizens’
lawf ul private property is inviolable.” “The State protects in accordance with law
the rights of citizens to private property and its inheritance.” and “The state may, in
the public interest and in accordance with law, expropriate or requisition citizens’
private property f or its use and shall make compensation theref ore”. 13 The clause,
“Citizens’ lawf ul private property is inviolable”, refers to that the state has the
duty to protect citizens’ right property and to take any effective measures to
realize the values of the Right to Property. Based on its constitutional nature,
the very amendment expands the scope of the right of private property. The
Constitution 1982 guarantees the Right to Property through enumeration
and originally limits it to the means of livelihood excluding the means of
production. The indetermination of scope directly dampens the enthusiasm
of the property owners to create wealth and their own property accumulates
all along with insecurity and criticism. In the constitutional sense, any legal
interest in property that accrues with to social consensus shall be regarded as
part of the property guaranteed by the Constitution. The right to own property
in the Constitution 1982 is definitely not comprehensive. It is only an aspect
of the Right to Property, so it cannot describe complete content of the Right
to Property. In order to cover the means of production and to determine the
scope of the Right to Property, the very amendment replaces the expression
of “the right to own property” with “the right to private property” and establishes
the principle of the Constitution that “Citizens’ lawf ul private property is
inviolable”. In accordance with Amendment 22 nd, both the rights to the means
of livelihood and the means of production including the share rights, the
right to enter in rural land contract and its operation, and patents are under
the guarantee of the Constitution.
The citizens’ Right to Property covers a wide range of objects as follows:
A. Lawf ully Earned Incomes
The lawfully earned incomes refer to the money or income in kind
for the citizens to gain on their own work or by other means within the scope
of law, which specifically include salaries and wages, wages in kind, bonus,
13 Refered to Constitutional Law(«??»), China Law System Press(2005), pp.72.
192 INDIAN J. C ONST. L.

author’s remuneration, retirement pension; labour insurances, domestic

sideline production, citizens-owned trees and fruiters, cultural relics, books
and reference matereials; the means of production for the use of individual
laborer in the urban and rural units; producation instructments and other
means of production for the use of self-employed laborers; other lawfully
earned incomes of citizens, such as house rental income, interests on bank
deposits, donation and property inherited.
B. Savings
The savings refer to the money or currency that the citizens deposit in
banks or credit cooperatives. The state encourages the citizens to deposit
their surplus money in the bank or credit cooperative. Citizens may deposit
the money on a voluntary basis and draw their money at will. Banks or
credit cooperatives shall observe the principles of paying money at interest
and keeping secret the depositors’ information. No individual or unit shall
be allowed to inquire about, freeze or withdraw any individual deposit except
with the approval of judicial organs according to law.
C. Houses
The houses fall into the category of the ‘means of lif e’. Any illegal
infringement, seizure, sealing-up or destruction of the citizens’ houses
wherever in the rural or urban area shall be prohibited. When it is necessary
to seize, confiscate or destruct the citizens’ houses due to the demand for
national construction, the state shall accommodate the house-owners or house-
users and compensate for their loss in accordance with relevant regulations.
D. Other Means of Livelihood and Production
In China, the scope of the means of life and the means of production
for citizens’ use is being widely extended. Any domestic products related to
citizens’ clothing, food, shelter and transportation that are not forbidden by
laws shall be taken as subject of the right of private property and shall be
guaranteed by the law of the state. With the economic development and the
expansion of the scope of citizens’ Right to Property, some rights of new
kinds such as right to invest, right to run business, etc., are blooming.
Moreover, incomes not from work14 like securities and dividend emerge in
the market economy, which needs to be clarified in nature and legal status.
In the Amendments 1988, the Amendments 1993 and the Amendments 1999,

14 Art. 6 of the Constitution specifies that: The basis of the socialist economic system of the People’s
Republic of China is socialist public ownership of the means of production, namely, ownership by
the whole people and collective ownership by the working people.
The system of socialist public ownership supersedes the system of exploitation of man by man; it
applies the principle of ‘from each according to his ability, to each according to his work.
Right to Private Property in China 193

extending citizens’ Right to Property has always been an important target of

the legislature, which perfects gradually the system of constitutional protection
of citizens’ Right to Property by various ways and lays a beneficial foundation
of further strengthening of the constitutional protection.
The citizens’ incomes mean legitimate incomes that are either from
work or not from work. Herein the incomes not from work refer to the money
earned from dividends, price difference between buying and selling, and
lotteries. With the citizens being well off, legitimate incomes not from work
account for larger and larger percentage in whole incomes. Some citizens
gain from these sources far more than from work. In addition, incomes not
from work are lawfully related to the activities of the means of production. If
the state tries to guide the investment, it should recognize the legitimacy of
investment incomes at first. There are various ways for the citizens to earn
incomes in the real life and it is difficult to enumerate them one by one in
the Constitution. Based on the nature of the Right to Property, the amendments
2004 do not adopt the method of enumeration but establish one principle
that the citizens’ Rights to Lawful Property shall be equally protected. As for
the limits of the Right to Property, the constitutional guarantee is confined
to legal property excluding illegal property. Herein, whether legal or not is
subject to strict lawful judgment, in the hopes of highlighting the legality of
the process of wealth accumulation, urging social members to make money
through honesty and hard work and building up a glorious tradition of
amassing wealth by legal means.

§ The Doctrine of Public interest and the Limits it sets to the

Right to Property
In the modern society of rule of law, the Right of Private Property
plays an important role in promoting individual freedom and guaranteeing
other kinds of fundamental rights. The essence of the Right to Property is to
achieve the end of freedom. It lays down social and material foundations for
a man to live with dignity. Therefore, in the sense of social development, to
own private property is a vital prerequisite for harmonious development of
the society and for the protection of human dignity.
Naturally, the Right to Property is never absolute just like any other
right. Its social characteristics determine its limits. Constitutions around the
world universally establish the principle of guaranteeing the Right to Property
while setting necessary limits to it. Amendment 22nd of the Constitution of
P.R. China provides that “The state may, in the public interest and in accordance
with law, expropriate or requisition citizens’ private property f or its use and shall
make compensation theref ore”. The provision helps to strike a fine balance
194 INDIAN J. C ONST. L.

between state power and private rights, between private property and public
property, and to ensure appropriate compensation for the property rights
infringed. Expropriation and requisition are both the means to restrict private
property for the sake of public interest, but they differ from each other in
essences and functions, specifically as follows:
a. expropriation refers to the change in the ownership of the property
while confiscation means the transfer of the right to use the property.
Confiscation applies to compulsory use in case of emergency. Once
the emergency puts to an end, the confiscated shall be returned to the
owner;
b. the prerequisites and standards differ in the adoption of the
expropriation and confiscation provisions. Since expropriation causes
much more damages to the citizens than confiscation, the compensation
for expropriation is much higher than that for confiscation. Before the
Amendment 2004, there has been no definite standard or well-designed
procedure for the limits to citizens’ Right to Property, which results in
various or even low-paid compensation. To seek a rational balance
between public interest and individual interest, Amendment 22 nd has
set up the prerequisites and processes of expropriation and confiscation,
and defined cautiously the boundaries of public interest. In accordance
with the spirit of the Constitution, the subject of rights is entitled to
make judgments on the legitimacy of public interest. The Right to
Property can only be violated for the sake of public interest, such as
the interests of the whole society, essential state interests in the areas
of national defense and diplomacy, etc. When expropriation or
confiscation is to be carried out, it is necessary to take into full
consideration both the values of national policies out of public interest
and the values of social justice. Public interest, differing from interests
of a group or a social or business organization, should be defined in a
cautious and strict way. The phenomena that some public organs
infringe on the citizens’ Right to Property in the name of public interest
during the social development actually safeguard certain business
interests as well as unjustified social public interest.
At the same time, it should be noted that any restriction on the Right
to Property for the sake of public interest is not to take away the private
property without consideration, reasonable payments must be made as
compensation. The expropriation or confiscation out of public interest may
cause certain losses to the obligee, so it is essential to offer a sound
compensation from the angle of the need to protect the right. The
compensation provision in the Amendment 22 will necessarily have significant
Right to Private Property in China 195

influence on the protection of the right of private property, and enable the
citizens to take advantage of the right to claim compensation as a remedy.15
§ Functions of the Guarantee System of the Right to Private
Property A nd Its Future
Functions of the Guarantee System of the Right of Private
Property
That the protection of the right of private property is written into the
Constitution will produce great effect on the society and enhance the progress
of rule of law in China. Influences potential may be as follows:
(a) the constitutional protection of the right of private property places a
strict restriction on the exercising of public power and sets the boundary
of its kingdom;
(b) it requests all public agencies to respect the right of legal private
property according through the Constitution and not to act beyond
the limits set by law;
(c) it encourages the people to engage in creative jobs and make more
investments so as to produce more social wealth;
(d) the constitutional guarantee system of the Right to Property will promote
the establishment of the remedy system of individual rights.
The Future of Constitutional Guarantee System of the Right
of Private Property
Firstly, it is an issue of popular concern whether the right of private
property provided by the Constitutional scheme can come true in social life.
In this regard the weight shall be attached to the legislature which plays an
imporatnt part in the future law-making on the Right to Property. The
legislation concerned shall severely obide by the Constitutional doctrinces
and set the standards and limits of the restriction on the Right to Property in
accordance with constitutional commission. To lay the constitutional
foundation of the protection of the Right to Property, it is necessary to import
the theory of administrative presentation, which will meet the demands of
the Constitution fot its protection of the Right to Property in the sense of
formal statutes. The provision of the restriction on the Right to Property
shall be stipulated under the package structure, that is, to put the boundary
of restriction, the end and the standard of compensation into the same article.
Now that the right of private property is stipulated in the system of

15 The Standing Committee of the National People’s Congress of the Republic of China has carried
out a plan to draft the National Compensation Law.
196 INDIAN J. C ONST. L.

fundamental rights, the legislator shall weigh the values of the Right to
Property under the constitutional protection with the order of the Right to
Property in conformity with the social justice in an all-round way, and then
respond to the requirements of various interest groups rightly. Any law or
policy that restricts the Right to Property shall subject to the ends of the
constitutional provisions, especially shall not contradict the spirit of the
Constitution concerned. Hence the doctrine of proportionality, the principle
of equal protection and the principle of legitimate expectation shall be
observed.
Secondly, it can not be justified to restrict the Right to Property out of
public interest. So it is necessary to define the reasonable margins of public
interest according to the doctrine of proportionality,16 which has basic
requirements as follows:
(a) the goal of the restriction shall be justified, in other words, the goal is
confirmed within the framework of the Constitution, herefore justifying
the legislative activities.
(b) the approches to the restriction shall be justified, that is, to seek a
balance betweent the approaches and the goal.
(c) even though the goal is justified concerning the expropriation or
confiscation of the Right to Property out of public interest, it still has
to strictly observe the doctrine of proportionality so as to avoid illegal
violations of the Right to Property. D. In addition, the State or the
Government shall endeavor to extend the provinces of the Right to
Property in hope of making the obligees feel safe of their legitimate
property and have the initiative to accumulate more wealth.
Thirdly, it is necessary to clean up or adjust existing laws and
regulations, and repeal or revise those that violate or contravene the
Constitution in order to lay the unified legal foundation of constitutional
guarantee of the Right to Property. In accordance with the Constitutional
Laws, the contents and limits of the Right to Property will come into force in
two ways:
(a) the Constitutional Right to Property is enforced directly by laws;
(b) the abstract and general provision of the Right to Property is
concretized through the administrative activities, though the executive
branch has no discretion to extend or reduce the scope of the Right to
Property. In practice, a great number of arbitrary restriction or deprival

16 Referred to Han Da-yuan, On the Constitutionalization ot the Right of Private Property, Legal
Sciences, 2004(4).
Right to Private Property in China 197

of individual Right to Property occurs during the process of so-called

“concretization” as above shown. The following cases are beyond the
range of reasonable restriction:
(a) a law involving the Right to Property contradicts the Constitution
or an administrative regulation violates the law in its contents;
(b) the administrative organs implement a law that violates the
Constitution or a regulation that contravenes the law;
(c) though the law is constitutional or the regulation is in accordance
with law, the executive activity violates the law. At all events,
cases as above shown are the restrictions on the Right to Property,
for they violate the fundamental Constitutional spirit concerning
the Right to Property. The Constitutional Guarantee of the right
of private property establishes some principles to be observed
and lays a united legislative basis for the making of the law. If the
principles of the Constitution were not concretized by laws, in
other words, if relevant statutories did not exist, the doctrine of
the protection of the Right to Property is no more than a bushwa.
The provisions of the Right to Property of Amendment 22 are
important; however, what is more important is to concretize the
Right to Property by statutories and institutions and to enable
accessible and effectivie remedies for the Right to Property
infringed.
Fourthly, the constitutional protection of the Right to Private Property
relies on a mature constitutional interpretation institution. Whenever it comes
to make a judgement on the issues of the Right to Property, it is necessary to
put into use the norms of constitutional interpretation in an acitve and effective
way. For example, the concepts of property and the Right to Property, the
nature of lawful property, the constitutional meaning of expropriation and
confiscation, the connotation of public interest, etc. shall be clarified and
constructed during the continuous progress of constitutional practice. It is
proved from the constitutional practices worldwide that Constitutional
interpretation has been a key approach to perfect the protection of the right
of private property.
Fifthly, it is nessary to further concretize the doctrines of “taxation
according to law” and to control the exercising of the taxation power.
198 INDIAN J. C ONST. L.

POSITIV E A CTION D ECLA RED U NCONSTITUTIONA L

Martin Buzinger*
This contribution is a critical reaction to the recently adopted ruling
of the Constitutional Court of the Slovak Republic in which the Constitutional
Court concluded that the adoption of positive action measures is in conflict
with the rule of law principle and with the principles of equality and non-
discrimination. This ruling is considered extremely significant, not only
because it denotes principally from the present case law of the Slovak
Constitutional Court, but mainly because it departs from the generally
recognised principles of International and European Human Rights Law.
In October 2004, the Slovak Government challenged the compliance,
of the provision of the antidiskriminaèný zákon (Anti-discrimination Act)1
regarding the positive action principle, (Section 8 paragraph 8 of the Anti-
discrimination Act)2 which had been implemented from the Council Directive
2000/43/CE of 29 June 2000 concerning equal treatment between persons
irrespective of racial or ethnic origin, with several provisions of the Slovak
Constitution, in the Constitutional Court.
The motion had been initiated by the Minister of Justice, arguing
mainly that the challenged provision of positive action constituted a positive
discrimination, which is forbidden by the Slovak Constitution.3
The situation was a bit curious, since the same Government which
had challenged the constitutionality of the principle of positive action, had,
in its resolution of April 20034 and the resolution of November 2003, only a
couple of months before it filed the motion with the Constitutional Court,
adopted specific measures containing programs of positive actions towards
and in favour of the Roma population.

* Lecturer (Constitutional Law of the Slovak Republic, Comparative Constitutional Law, Human
Rights Law), Faculty of Law, Comenius University in Bratislava. Advocate, Buzinger & Partners,
Bratislava. Member, EU Network of Independent Experts on Fundamental Rights for Slovakia.
1 Zákon è. 365/ 2004 Z. z. rovnakom zaobchádzaní v niektorých oblastiach a o ochrane pred diskrimináciou
a o zmene a doplnení niektorých zákonov (antidiskriminaèný zákon) [Act no. 365/2004 Coll. on Equal
Treatment in Certain Areas and Protection against Discrimination, amending and supplementing
certain other laws (Hereinafter Anti-discrimination Act)].
2 The mentioned provision of Anti-discrimination Act states: With a view to ensuring f ull equality in
practice and compliance with the principle of equal treatment, specif ic positive actions to prevent disadvantages
linked to racial or ethnic origin may be adopted.
3 Article 12 paragraph 2 of the Slovak Constitution states: “Fundamental rights shall be guaranteed in
the Slovak Republic to everyone regardless of sex, race, colour, language, belief and religion, political
af f iliation or other conviction, national or social origin, nationality or ethnic origin, property, descent or any
other status. No one shall be aggrieved, discriminated against or f avoured on any of these grounds.”
4 Uznesenie vlády è. 278/ 2003 z 23. apríla 2003 [Governmental Resolution no. 278/2003 of 23 April
2003].
Positive Action Declared Unconstitutional 199

On 18th October 2005, the Constitutional Court delivered a final ruling

on the merits of the case declaring the incompatibility of Section 8 paragraph
8 of the Anti-discrimination Act with Article 1 paragraph 1 (Rule of Law
principle), the first sentence of Article 12 paragraph 1 (principle of equality),
and Article 12 paragraph 2 (non-discrimination principle) of the Constitution
of the Slovak Republic. The Constitutional Court dismissed the rest of the
motion. The decision was taken by the minimal majority of the plenum of
the Court. Four judges of the total number of eleven judges who were present
at the plenary session of the Constitutional Court presented their dissenting
opinions, and one judge presented his concurring opinion, disagreeing only
with the reasoning of the ruling. The ruling has been published in the
Collections of Laws under no. 539/2005 on 7th December 2005. Since that
date, Section 8 paragraph 8 of the Anti-discrimination Act has lost its
applicability.
From the reasoning of the decision it is quite clear, that the
Constitutional Court declared the incompatibility of the positive (affirmative)
action as such, i.e. in its principle, with the Slovak Constitution. The Court
has argued, inter alia, that “it is obvious f rom the Article 12 paragraph 2 of the
Slovak Constitution as well as f rom its standing interpretation of the Court which
must be [stand] to, that the Constitution prohibits both positive and negative
discrimination f or the reasons stated in this provision, i.e. having regard to sex,
race, colour, language, belief and religion, political af f iliation or other conviction,
national or social origin, nationality or ethnic origin, property, descent or any other
status. For all that, adoption of specif ic compensatory measures, although generally
recognized as legislative techniques f or the prevention of disadvantages pertinent to
racial or ethnic origin, is incompatible with the Article 12 paragraph 2 of the
Constitution, and theref ore also with the Article 12 paragraph 1 of the Constitution.”
From the reasoning it seems that the Slovak Constitutional Court also
declared the doctrine of material equality, on which the provision of the
Anti-discrimination Act implementing the positive action principle is based,
unconstitutional as such, because of its inconsistence with the prohibition of
positive discrimination contained in Article 12 paragraph 2 of the Slovak
Constitution.
This conclusion is rather surprising since the Constitutional Court, in
the past, has already several times declared “positive discrimination” to be
instrument of material (de f acto) equality being consistent with the Slovak
Constitution. For instance, in its ruling Ref. no. PL. ÚS 10/02 of 11th December
2003 the Constitutional Court said that “pref erential treatment of some group of
natural persons f or their specif ic, of ten disadvantageous attributes, as compared
with other natural persons, by adoption of special legal regulations, is not a
200 INDIAN J. C ONST. L.

discrimination of other natural persons but on the contrary, it must be understood as

a security of the constitutional principle which is inherent in Article 12 paragraph
2 of the Constitution.”5
The principle of positive action is a standard instrument of international
human rights law, and is contained in a number of international treaties by
which the Slovak Republic is bound. For instance, the International
Convention on the Elimination of All Forms of Racial Discrimination (1965)
in its Article 1 paragraph 4 provides that “special measures taken f or the sole
purpose of securing adequate advancement of certain racial or ethnic groups or
individuals requiring such protection as may be necessary in order to ensure such
groups or individuals equal enjoyment or exercise of human rights and f undamental
f reedoms shall not be deemed racial discrimination, provided, however, that such
measures do not, as a consequence, lead to the maintenance of separate rights f or
dif f erent racial groups and that they shall not be continued af ter the objectives f or
which they were taken have been achieved.”
Similarly, the Framework Convention for the Protection of National
Minorities (1995) in its Article 4 paragraph 2 and 3 states that “the Parties
undertake to adopt, where necessary, adequate measures in order to promote, in all
areas of economic, social, political and cultural lif e, f ull and ef f ective equality
between persons belonging to a national minority and those belonging to the majority.
In this respect, they shall take due account of the specif ic conditions of the persons
belonging to national minorities. The measures adopted in accordance with paragraph
2 shall not be considered to be an act of discrimination.”
In the view of the European Court of Human Rights, Article 14 of the
European Convention on Human Rights and Fundamental Freedoms protects
individuals placed in similar situations from discrimination in their enjoyment
of their rights under the Convention and its Protocols. However, a difference
in the treatment of one of these individuals will only be discriminatory if it
“has no objective and reasonable justif ication”, that is, if it does not pursue a
“legitimate aim” and if there is no “reasonable relationship of proportionality
between the means employed and the aim sought to be realised”.6

5 In this case the Constitutional Court put under judicial review the provisions of Labour Code
allowing the students, and only the students, to conclude special agreements on brigade-work with
employers. The Court decided that although the challenged provisions constitute “positive
discrimination” of students in comparison with other natural persons, the aim of these special
agreements is legitimate (these special agreements on student brigade-work were considered by the
Constitutional Court as instruments which might enhance the access of students to labour market
and thus improve their social-economic situation while studying) and consistent with the principle
of equality and principle of non-discrimination.
6 See, among other authorities, Lithgow and others v. United Kingdom; Inze v. Austria; Darby v.
Sweden.
Positive Action Declared Unconstitutional 201

Material protection of the principle of equality and the principle of

non-discrimination is generally considered as a standard approach also in
EU law. The forms of “positive action” contained in Council Directive 2000/
43/EC (Article 5) and Council Directive 2000/78/EC (Article 7) are not
considered discriminatory, provided they are reasonably and objectively
justified by the need to remedy discrimination, and remain proportionate to
the discrimination to be addressed, and are temporary, i.e. do not lead to
the maintenance of separate rights for different groups.
In the view of the EU Network of Ind epend ent Experts on
Fundamental Rights, presented in the Thematic Comment no. 3 concerning
the protection of minorities in the European Union, “because of the specif ic
situation of Roma minority in the Union, positive action measures should be adopted
in order to ensure their integration in the f ields of employment, education and housing.
This is the only adequate answer which may be given to the situation of structural
discrimination - and, in many cases, segregation - which this minority is currently
f acing.”7
The ruling of the Slovak Constitutional Court declaring non-
compliance of the positive action principle contained in the Anti-
discrimination Act with the Slovak Constitution will, in opinion, have far
reaching consequences on the further protection of minorities in the Slovak
Republic in general, but in particular on the Roma minority. It is obvious,
that the widespread de f acto discrimination suffered by the Roma minority is
cannot be reduced or eliminated without a reasonable use of positive action.
Therefore, the decision of the Slovak Constitutional Court will, in my
opinion, considerably influence the situation of Roma population in the
Slovak Republic, and in fact, it might lead to serious aftermath which could
impact the whole population, not only the Roma minority.

7 Thematic Comment no. 3: The protection of minorities in the European Union, available at http:/
/europa.eu.int/comm/justice_home/cfr_cdf/index_en.htm# (Last visited 27th March 2007).
202 INDIAN J. C ONST. L.

THE INDIA N S UPREME C OURT A ND

CURA TIVE A CTIONS
Muteti Mutisya Mwamisi*
I. Introduction
The decision of the Supreme Court of India in Rupa Ashok Hurra v.
Ashok Hurra and Another1 was in more ways than one, a path breaking
decision. For one, it got rid of the practice of litigants assailing the Supreme
Court’s final decisions via Article 32. In the same vein, however, it added a
new dimension to its exercise of inherent power. This aspect is brought out
by modalities of curative petition that Rupa Ashok Hurra so propounded.
The propounding of modalities of curative petition went beyond the modest
exercise of inherent power of the Court of admitting meritorious petitions
under any appropriate procedure but created a new procedure by which
such petitions can come before the Supreme Court. The Rupa Ashok Hurra
decision was an endeavor by the Supreme Court to bring order to a
Constitutional issue that could as well have become a hotch potch of highly
individualised judicial pronouncements. This could have been so but equally
significant is the controversy that the Rupa Ashok Hurra decision has bestirred
among the litigant public. This article endeavors to bring forth the
controversies generated by the Rupa Ashok Hurra decision and the impact of
this decision on Constitutionalism.
The case commentary is divided into four parts. The first part gives
the factual back ground leading to the Rupa Ashok Hurra decision. This part
provides a justification for propounding the modalities of curative petitions.
The second part looks at what distinguishes a curative petition from a ‘second
review petition’, so to speak. As it will be seen, the question whether a
curative petition amounts to a ‘second review petition’ or not, is an open
ended question. The third part looks at the ex debito justitiae2 obligation that
the Court expounded in order to propound the modalities of curative
petitions. The last part is the conclusion and suggests an alternative that the
Court could have adopted in place of curative petitions in dealing with the
issues raised in Rupa Ashok Hurra.

* Fourth Year, B.A. LL.B. (Hons.), NALSAR University of Law, Hyderabad. I am greatly indebted
to Mr. Anil Nauriya, Supreme Court Advocate, who has been my mentor & teacher, with specific
reference to to this article. I also wish to thank Prof. Amita Dhanda who patiently corrected the
article at various stages & T N. Sansi, Additional Registrar, Supreme Court of India, who allowed
me to access the Supreme Court registry.
1 (2002) 4 SCC 388
2 Ex debito justitiae has been used in Common law doctrine to mean as a matter of right; in
accordance with the requirement of justice. In this case commentary it refers to the Court’s
obligation.
Curative Petitions 203

II. A Factual Background

Many questions have been raised, among academics and lawyers, as
to whether it was necessary for the Supreme Court to propound the modalities
of curative petitions. This is because as the second paragraph in this part will
show, it appears that even without curative petition, persons aggrieved by a
final Supreme Court decision, resulting in a miscarriage of justice would still
able to approach the Court for assailing a judgment of the Court. In India,
the Supreme Court is the ‘guardian angel of fundamental rights’; a cause it
has furthered with a lot of enthusiasm. This enthusiasm has often been called
judicial activism. Perhaps, due to the fact that the matter before the Court in
Rupa Ashok Hurra had come before it through Article 32 might have prompted
the Court to propound the modalities of curative petitions3 . In the subsequent
paragraphs I seek to provide a glimpse of various Supreme Court
pronouncements that culminated in the Court setting forth the modalities of
curative petitions.
Prior to Rupa Ashok Hurra, the Supreme Court in a number of decisions
had held that an order of it, which results in a miscarriage of justice, is amenable
for correction. Examples of this sort are to be found in M.S. Ahlawat4 ,
Harbans Singh v. State of Uttar Pradesh5 and Supreme Court Bar Association v.
Union of India6 . In the above mentioned cases the Court invoked its inherent
power under Article 142 to do complete justice 7 . In all these mentioned
cases the matter came before the Court via Article 32. These cases had been
distinguished in Rupa Ashoka Hurra on the ground that no one had joined
issue with regard to the maintainability of a writ petition under Article 32. 8
However, this state of affairs was changed in A. R. Antulay v. Union of India 9
where the Court ruled that a final Supreme Court judgment cannot be assailed
via a writ petition10 .
In both A. R. Antulay and Rupa Ashok Hurra, the matters were referred
to larger benches by smaller ones; in the case of A. R. Antulay, a Division
Bench and a three judge Bench in the case of Rupa Ashok Hurra. For A. R.
Antulay the Constitutional Bench consisted of seven judges whereas for Rupa
Ashok Hurra it consisted of five judges.

3 Article 32 of the Constitution of India allows persons to approach the Supreme Court directly for
the enforcement of their fundamental rights.
4 (2000) 1 SCC 270.
5 (1982) 2 SCC 101.
6 (1998) 4 SCC 409.
7 Rupa Ashok Hurra V. Ashok Hurra and Anr, (2002) 4 SCC 388 at P. 416, Para 48.
8 Ibid, P. 402, para 13.
9 See an appendix of A. R. Antulay V. Union of India (1984) 3 SCR 482, 48 at P. 764 of A. R. Antulay
V. R. S. Nayak (1988) 2 SCC 602 judgment.
10 Ibid.
204 INDIAN J. C ONST. L.

I will now start with the factual back ground leading to A. R. Antulay
and then proceed to the factual background leading to Rupa Ashok Hurra in
that order. In A. R. Antulay the Court was confronted with the following
situation: the Supreme Court in an earlier case had ordered that the appellant
therein be tried by a High Court Judge as opposed to a Special Judge as laid
down by the Act of 1952.11 This was a clear violation of the statutory provisions
of the Criminal Law Amendment Act, 1952. The petitioner first appeared
before the High Court judge questioning the Constitutionality of the
proceedings before the High Court. However, his objections were rejected
by the High Court Judge. The High Court judge ruled that he had been
granted powers by the Supreme Court through its earlier order to proceed
with the trial of the appellant.
The appellant then sought to challenge this order via writ petition
under Article 32, which was dismissed by a two Judge Bench of the Supreme
Court who observed that the dismissal would not prejudice the right of the
appellant therein referred to as the petitioner to approach the Supreme Court
with an appropriate review petition or to file any other application, which
he may be entitled in law to file.12 Subsequently, the petitioner came before
the Supreme Court via special Leave Petition under Article 136 to question
the High Court’s jurisdiction to try his case in violation of Article 14 and 21
and provisions of the 1952 Act.13 It then follows that in A. R. Antulay an
appropriate procedure to assail a final Supreme Court judgment was available
to the appellant. This meant that at this point in time there was no need for
the Court to propound any new procedures of assailing any of its final
judgments that result in a miscarriage of justice. In the next paragraph, I will
proceed to look at the how the matter raised in Rupa Ashok Hurra came
before the Court and move on to show how the fact scenario in Rupa Ashok
Hurra was completely different to the one in A. R. Antulay.
In Rupa Ashok Hurra a writ petition under Article 32 had been filed
before the three Judge Bench and dismissed since the Court in an earlier
judgment, A. R. Antulay had held that a final Supreme Court judgment cannot
be assailed via writ petitions under Article 32.14 However, more related writ
petitions were again filed before the same three judge Bench. This prompted
the three judge Bench to refer these writ petitions to a Constitutional Bench
seeking its opinion as to whether an aggrieved person is entitled to any relief
against a final judgment/order of the Supreme Court, after dismissal of a

11 A. R. Antulay V. R. S. Nayak (1988) 2 SCC 602, Page 641, paras 11 & 12

12 See an appendix of A. R. Antulay V. Union of India (1984) 3 SCR 482, 48 at P. 764 of A. R. Antulay
V. R. S. Nayak (1988) 2 SCC 602 judgment.
13 A. R. Antulay V. R. S. Nayak (1988) 2 SCC 602, Page 641, para 12.
14 Ashok Hurra V. Rupa Bipin Zaveri, (1997) 4 SCC 226.
Curative Petitions 205

review petition, either under Article 32 of the Constitution or otherwise15

At this point in time it is instructive to note that two possible routes
confronted the Constitutional Bench: to uphold the already laid down dictum
that a final Supreme Court judgment cannot be assailed via writ petition or
overlook this dictum and in the interests of justice admit these writ petitions.
The latter view seemed most plausible and the Constitutional Bench
embraced it. In India such an action by the Supreme Court is not surprising;
after all, the Supreme Court considers itself to be ‘the guardian angel of
fund amental rights’16 . Writ petitions under Article 32 only involve
fundamental rights issues. In Rupa Ashok Hurra these writ petitions were
admitted by a Constitutional Bench. In India a Constitutional Bench 17 can
overrule a Division Bench. The reason for this is that in India there is
hierarchy of Courts and Benches hearing matters before them. Consequently,
a larger Bench can overrule a smaller Bench.
However, the Constitutional Bench admitted the above mentioned
writ petitions with caution18 . The Constitutional Bench in Rupa Ashok Hurra
also went ahead to take the same view that a writ petition under Article 32
cannot assail a final Supreme Court judgment19 . Unlike in A. R. Antulay, in
Rupa Ashok Hurra, there was no appropriate procedure that petitioners could
have adopted to come before the Supreme Court in case the Court decided
to dismiss their writ petitions. This is what prompted the Court in Rupa
Ashok Hurra to propound the modalities of a curative petition. Perhaps the
modalities of curative petitions did not fully fit the bill as subsequent Sections
will try to show. But it is an undisputed fact that an appropriate procedure to
fill up the Constitutional lacunae that the writ petitions in Rupa Ashok Hurra
had pointed out was the need of the hour.
III. Curative Petitions and ‘Second Review Petition’
This part looks at the supposition that a curative petition is not a
‘second review petition’. I try to show here that curative petitions are in
effect the same as ‘second review petitions’ filed after dismissal of the first

15 Rupa Ashok Hurra v. Ashok Hurra and Anr, (2002) 4 SCC 388.
16 In India, the Supreme Court stands poised with a responsibility to uphold Constitutionalism in
the country, this responsibility has resulted in the Supreme Court to refer to itself as the guardian
angel of the Constitution and Fundamental Rights. See V. C. Mohan v. Union of India (2002) 3 SCC
451 at P. 453, Para 2.
17 A Constitutional bench refers to a Bench of the Supreme Court consisting of more than three
judges looking at a matter that is of Constitutional significance.
18 See Rupa Ashok Hurra v. Ashok Hurra and Anr, (2002) 4 SCC 388 at P. 403, Para 14 where the Court
was categorical that a final Supreme Court decision cannot be assailed via Article 32 of the
Constitution, the writ petitions filed in Rupa Ashok Hurra were the last such petitions to assail a
final Supreme Court decision .
19 Ibid at P. 417.
206 INDIAN J. C ONST. L.

review petition. The term ‘second review petition’ is a hypothetical term

used purely illustratively. The above mentioned supposition is necessitated
by the huge number of curative petitions that have been filed so far before
the Supreme Court. The litigant public seems to have taken curative petitions
to amount to the last remedy that is available to a litigant before the Court
finally closes its doors to litigation. Since April 2002 when the Supreme
Court propounded the modalities of Curative petitions, five hundred and
sixty eight curative petitions have been filed before the Supreme Court20.
This implies that the litigant public will not stop till they have exhausted all
remedies available to the Supreme Court including that of filing of curative
petitions. Before Rupa Ashok Hurra, review petitions marked the finality of a
Supreme Court judgment beyond which no further challenge of the judgment
was allowed. This state of affairs, as the article will show, is far from what the
Supreme Court intended when it propounded the modalities of curative
petitions.
Perhaps this confusion is the result of a misinterpretation of the Rupa
Ashok Hurra judgment by ‘curative petitioners’, and the Supreme Court itself.
In the next four paragraphs, I will explore this confusion further and try to
prove that indeed curative petitions are nothing but ‘second review petitions’.
At the outset, the modalities of curative petitions in Rupa Ashok Hurra
involved the invocation of Article 137 of the Constitution by implication.
No where in Rupa Ashok Hurra is Article 137 explicitly mentioned. The
Supreme Court held that under its inherent power under Article 142 of the
Constitution; it can review its final order that results in a miscarriage of
justice 21 . The power of review is granted by Article 137 to the Supreme
Court to review any of its judgments. Such power is not provided anywhere
else in the Constitution. The Supreme Court has defined review to mean re-
examining or reconsidering a final decision.22 In both curative and review
actions, the Supreme Court is only reconsidering its final judgment as such
in both the endeavours the activity is the same save for different words being
adopted to describe these activities.
The fact that Article 137 is an integral component of the procedure of
filing curative petitions is further enhanced by curative petitioners averring
in their petitions that such petitions are filed under Article 137, 141 and
14223 . In Rupa Ashok Hurra, it was necessary that the Supreme Court wore

20 The Source of this information is the empirical data collected from the Supreme Court registry by
the author in the months of November and December, 2006.
21 Rupa Ashok Hurra Vs. Ashok Hurra and Anr, (2002) 4 SCC 388 at P. 416, Para 49.
22 S. Nagaraj V. State of Karnataka 1993 Supp (4) SCC 595, 619, Para 19.
23 Empirical data collected from the Supreme Court registry and also dismissed Curative petitions
reported in Law Reports suggest that a curative petitioner has to aver in the petition that it is filed
Curative Petitions 207

the mantle of infallibility due to the fact that its decisions are final and that
no higher Court exists to correct an error by the Supreme Court24 . The
Supreme Court’s review and curative actions amount to an acknowledgement
by it that sometimes errors or mistakes in judgments do occur resulting in a
miscarriage of justice. Such judgments ought to be corrected through a review
procedure. This line of thought might have been an incentive for the litigant
public to file unwarranted review and curative petitions in the hope that a
mistake if found in the impunged judgment. The many number of curative
petitions that have been filed and dismissed so far bears testimony to this
inference. We find this despite the Supreme Court providing a stringent
procedure for filing review petitions and an even more stringent procedure
for filing curative petitions. The procedures and grounds for filing review
petitions and curative petitions will be dealt with later on.
The power to review does seem to be the answer to Supreme Court’s
(in)fallibility. However, the power of review can only be exercised once and
not twice 25 . Such a limitation to the number of times the power of review
can be exercised marks the first distinction between a curative petition and a
‘second review petition’. Once a review petition has been disposed off, a
second review petition cannot then lie with the Supreme Court. With such
jurisprudence already in place prior to Rupa Ashok Hurra, the Supreme Court
could not give it the go by and propound modalities of a ‘second review
petition’26 . Legally speaking, curative action by the Supreme Court should
not amount to review action. However, as already stated the power to review
is inherent in curative actions of the Court.
A Court of law, more so the highest Court of the land cannot, will not
and should not be seen to be buckling under pressure of expediency and
convenience of the moment so as to lightly transgress into unconstitutional
acts. Perhaps this mantra was oblivious to the Court in Rupa Ashok Hurra
when it coined the term curative action while in essence the term only amounts
to a ‘second review action’. To put it in simple words as long as the Court is
re-considering its earlier final judgment it amounts to review, there are no

under Articles 137, 141 & 142 of the Constitution.

24 S. Nagaraj v. State of Karnataka 1993 Supp (4) SCC 595, 619, Para 19.
25 The Supreme Court under Article 145 of the Constitution can from time to time make rules for
regulating its practice and procedure. Under this power, the Supreme Court propounded, The
Supreme Court Rules, 1966; O-XL Order XL, Rule 5 of the Supreme Court Rules, 1966 provides
that where an application for review of any judgment and order has been made and disposed of,
no further application for review is maintainable in the same matter. Also Supreme Court in
M.S.L. Patil v. State of Maharashtra, (1999) 9 SCC 231 held that a second review after the dismissal
of the first is considered an abuse of the process of the Court.
26 In Rupa Ashok Hurra v. Ashok Hurra and Anr, (2002) 4 SCC 388 at P. 416, para 50, the Court has
stated that the modalities of curative petition do not amount to a passport for filing second review
petitions.
208 INDIAN J. C ONST. L.

two ways to the issue. Having said that, one must also be fair to the Supreme
Court and try not to dismiss offhand the idea of a marked distinction existing
between a curative petition and a ‘second review petition’. However, the
above observation confounds the litigant public as to what a curative petition
actually is.
The above dilemma seems to be further fuelled by the manner in
which the Supreme Court has exercised its power of review and, to a lesser
extent, its inherent power in the past. What most curative petitioners seem
to ask is why the Supreme Court should adopt stringent measures in curative
petitions for matters that pertain to review. A scrutiny of the Supreme Court’s
handling of its power of review is revealing. In A. R. Antulay, the Court
exercised the power of review without insisting on the formalities of a review
petition application.27 Further the writ petitions filed under Article 32 before
the Supreme Court in Rupa Ashok Hurra were admitted even though the
Supreme Court in A.R. Antulay had already held that a final Supreme Court
judgment couldn’t be assailed via a writ petition under Article 3228 . Still
further, the Court in Rupa Ashok Hurra upon admitting the mentioned writ
petitions did not insist on the formalities of a curative petition application 29 .
If in the past the Court has been lenient with one procedure of review, it
seems to turn around and prescribe the procedure for curative petitions that
is almost impossible to be complied with 30 . From empirical data that I
collected from the Supreme Court, not a single curative petition has been
successful before the Supreme Court since Rupa Ashok Hurra.
Previous paragraphs have have tried to show that in effect curative
petitions amount to ‘second review petitions’. I now proceed look at the
other side of the coin : that there is a significant court induced difference
between a curative petition and a ‘second review petition’. I will also move
on to analyse curative petitions in the light of the paradigm of review petitions.
This is because review petitions have been provided for in the Constitution
unlike curative petitions which are a result of a Supreme Court
pronouncement. I will restrict my analysis to the grounds and Constitutional
provisions involved in filing both the petitions. In the subsequent paragraphs
27 A. R. Antulay v. R. S. Nayak (1988) 2 SCC 670, P. 670, para 79, the Appellant came before the Court
under Article 136 to challenge a final Supreme Court judgment.
28 See an appendix of A. R. Antulay v. Union of India (1984) 3 SCR 482, 483 (The matter had been
disposed of by a divisional Bench) at P. 764 of A. R. Antulay v. R. S. Nayak (1988) 2 SCC 602
judgment.
29 In Rupa Ashok Hurra Vs. Ashok Hurra and Anr, (2002) 4 SCC 388 P. 417, Para 54, the Court directed
the Registry to process the writ petitions even though they didn’t contain an averment that the
grounds raised in the them for coming before the Court had been raised in the earlier disposed off
review petitions. The said averment is a prerequisite for filing a curative petition.
30 From the empirical data gathered from the Supreme Court, so far not a single curative petition has
been successful before the Supreme Court.
Curative Petitions 209

I will first illustratively look in turns at these petitions in light of the above
parameters and then proceed to analyze them. At this point it ought to be
noted that Article 137 is the only Constitutional provision that is common in
both curative petitions and review petitions.
As the name suggests, curative petitions refer to petitions filed before
the Supreme Court that seek to prevent the abuse of the Court process and
to cure a gross miscarriage of justice 31 . As already stated earlier curative
actions are filed under Article 137, 141 and 142. They are filed after the
disposal of a review petition. There is no prescribed period for filing a curative
petition.32 A curative petition can only be field under the following grounds:33
1. Where there is violation of principles of Natural justice in that the
aggrieved party filing a curative petition was not a party to the lis but
the judgment adversely affected his interest or if he was a party to the
lis, he was not served with notice of the proceedings and the matter
proceeded as if he had notice.
2. Where in the proceedings a learned judge failed to disclose his
connection with the subject matter or the parties, giving scope for an
apprehension of bias and the judgment adversely affects the petitioner.”
In addition to the above grounds, the ‘curative petitioner’ must aver
specifically that the grounds mentioned in the curative petition had been
taken in the review petition and that such review had been dismissed by
circulation. 34 Circulation in this context means discussion at a judicial
conference and not in Court through oral arguments.35 Also, a curative
petition has to include a certificate by a Senior Advocate indicating that the
same grounds in the curative petitions had also been taken in the review
petition.36 Further, the curative petition has to be circulated to a bench of
the three senior most judges and the judges who passed the judgment
complained of, if available.37 In the event of the bench holding at any stage
that such curative petition is without any merit and is vexatious, it could
impose exemplary costs on the petitioner.38
I will now explain what a review petition is. As already mentioned, a
review petition is filed under Article 137 of the Constitution. The power to

31 (2002) 4 SCC 388, 416, para 49.

32 The Supreme Court Rules, 1966.
33 Rupa Ashok Hurra v. Ashok Hurra and Anr, (2002) 4 SCC 388 at P. 416, Para 51.
34 P. 417, Para 52.
35 P. N. Eswara Iyer v. Registrar, SC of India (1980) 4 SCC 680 at P. 687, Para 14.
36 Rupa Ashok Hurra v. Ashok Hurra and Anr, (2002) 4 SCC 388 at P. 417, para 52.
37 Ibid, Para 53.
38 Ibid.
210 INDIAN J. C ONST. L.

review is not an inherent power39 . Inherent power is given to the Supreme

Court under Article 142 of the Constitution and it refers to the power of the
Court to do complete justice. The power of review must be conferred by law
either specifically or by implication40 . The Supreme Court Rules, 1966 made
in exercise of the powers under Article 145 of the Constitution prescribe that
in civil cases, review lies on any of the grounds specified in Order 47 Rule 1
of the Code of Civil Procedure, which provides:
(i) Discovery of new and important matter of evidence.
(ii) Mistake or error apparent on the face of the record.
(iii) Any other sufficient reason.41
In the case of criminal proceedings a review lies on the ground of an
‘error apparent on the face of the record ’.42 ‘An error apparent on the face
record’ has been taken to mean an error which strikes one on merely looking
at the record and does not require any long drawn process of reasoning on
points where there may, conceivably, be two options.43 However, the Supreme
Court has later held that the above restrictive view on criminal review could
not have been intended and that it ought to be assumed that the contrary is
the case since criminal review matters are more traumatic and touch on
issues of life and liberty unlike civil reviews44. A review petition lies with the
Court if filed within thirty days after the pronouncement of a final Supreme
Court judgment45.The purpose of review is to ensure that justice is not defeated
and that errors leading to miscarriage of justice are remedied.46
Having put down the various distinctive features of curative petitions
and review petitions I now proceed to draw an analysis between curative
petitions and review petitions. Firstly, the manner in which the Supreme
Court takes note of both curative petitions and review petitions is almost
similar, save for slight differences. In both the cases the petitions are first
39 The Supreme Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji AIR 1970 SC 1273,
para 4 has held that it is well settled that the power to review is not an inherent power. See also Lily
Thomas v. Union of India 2000 (6) SCC 224, Para 52 where the Supreme Court has retaliated that
review is the creation of a statute.
40 Ibid.
41 The expression ‘any other sufficient reason’ has been given an expanded meaning and a decree or
order passed under misapprehension on true state of circumstances has been held to be sufficient
ground to exercise the power of review. See S. Nagaraj v. State of Karnataka (1993) Supp. 4 SCC
595.
42 O rder XL, Rule 1 of Civil Procedure Code lays down grounds for a review petition but the
Supreme Court under its powers in Article 145 has made a distinction between grounds for filing
a civil review petition and those for filing a criminal curative petition. See Supreme Court Rules,
Order XL.
43 Meera Bhanja v. Nirmala Kumari Chaudhary AIR 1995 SC 455 at P. 457.
44 P. N. Eswara Iyer v. Registrar, Supreme Court of India (1980) 4 SCC 680 at P. 695, para 34.
45 See Supreme Court Rules, 1966, O-XL relating to review.
46 Lily Thomas v. Union of India (2000) 6 SC 224 at P. 252.
Curative Petitions 211

circulated to the Supreme Court: for review petitions, circulation is to the

judges who passed the impugned judgment whereas in the case of curative
petitions, circulation is the three senior most judges in the Supreme Court
and the judges who had passed the impugned judgment if available47.
Secondly in both the reviews a certificate of a senior counsel is essential.
The purpose of the certificate is to aver that very strong reasons exist for the
Supreme Court to admit the petition. However, in the case of curative petition
the Court can impose exemplary costs for those petitions that are; unwarranted
this not being so in the case of review petitions. Thirdly, with regard to
curative petitions the grounds laid down in Rupa Ashok Hurra are the only
grounds that would warrant the admission of a curative petition by the Court48.
However, with regard to review petitions the Court seems to have taken the
grounds for filing review petitions as illustrative not exhaustive. Lastly the
grounds for filing a curative petition seem to be based on natural justice
principles unlike those of filing review petitions that seem more broad and
not necessarily restricted to natural justice. In conclusion I suggest that a
very thin line exists between a curative petition and a ‘second review petition’
and looks like its more of a case of an old wine in a new bottle rather than
the Supreme Court breaking down new jurisprudential grounds to propound
the modalities of a curative petitions. The Supreme Court has, however
sought to lay down different grounds for filing review petitions and curative
petitions.
IV. Ex Debito J ustitiae Obligation
Though, as already mentioned, the Supreme Court in Rupa Ashok
Hurra chose not to be ‘saddled’ by a ‘discussion’ of A. R. Antulay, both
judgments relied on the same ex debito justititiae obligation, albeit formulating
it differently. In India a smaller Bench cannot overrule a larger Bench. The
A. R. Antulay court consisted of a seven Judge Bench whereas the Rupa
Ashok Hurra Court consisted of a five Judge Bench. This therefore means
that the Court in Rupa Ashok Hurra could only base its ex debito justitiae
obligations within the parameters laid down by A. R. Antulay. This part
finds out if this was so. I will first state the dictum in A. R. Antulay and Rupa
Ashok Hurra and then proceed to my analysis of Rupa Ashok Hurra.

47 In India a Supreme Court judgment is pronounced by a Divisional bench, usually three judges
hence for curative petitions is circulated to five judges in total, however the number of judges to
whom curative petitions have been circulated keeps on fluctuating. A quick perusal of the curative
petitions that have come up before the Supreme Court shows that the size of the bench hearing
them has been fluctuating between five and four. This fluctuation is as a result of unavailability of
one of the judges who passed the impugned judgment otherwise the number of senior judges
never changes, its always three.
48 Ibid, para 51.
212 INDIAN J. C ONST. L.

As I have already mentioned before, a bench of seven judges set aside

an earlier judgment of the Supreme Court in a collateral proceeding because
it was contrary to the provisions of the Criminal Law Amendment Act of
195249 . The directions given by the impugned judgment were in violation of
principles of natural justice and were without precedent in the background
of the Criminal Law Amendment Act of 1952.50 These directions deprived
the appellant of certain rights of appeal and revision and also his rights
under the Constitution.51 In A.R. Antulay, the Court held that it can ex debito
justitiae remedy directions given per incuriam and in violation of certain
Constitutional limitations and in derogation of the principles of natural
justice.52 It was the position of the Court that no man should suffer a wrong
due to procedural irregularities.53 To grant justice and to review its earlier
judgment the Court invoked its inherent power under Article 142 of the
Constitution54 .The basic premise in the dictum of A. R. Antulay is that if facts
are ascertained before the court which prove that the impugned judgment
was given per incuriam or violated natural justice principles or Constitutional
provisions, the Court has no discretion than to set aside the impugned
judgment. This means that the ex debito obligation cannot be derogated from
when such facts are disclosed that call for its use.
In Rupa Ashok Hurra, the Court was clear that to be entitled to a relief
ex debito justitiae a petitioner has to fulfill the grounds laid down for filing a
curative petition.55 This means that a petitioner who seeks to assail a final
Supreme Court judgment but is unable to make out a case within the
parameters laid down in Rupa Ashok Hurra cannot then be heard by the
Court. In other words the Court in such a case cannot be ‘obliged ex debito
justitiae since the petitioner has been unable to come before the Supreme
Court. This state of affairs is what makes Rupa Ashok Hurra dictum appear
different from that of A. R. Antulay. With regard to curative petitions, the
Court can choose to admit or dismiss them depending on whether they
fulfill the parameters laid down in Rupa Ashok Hurra. In other words the
Court can exercise discretionary powers in relation to curative petitions.
However when it comes to the ex debito justitiae obligation the Court has no
discretion as has been laid down in A. R. Antulay. If facts ascertained before
the Court prove that a miscarriage of justice has taken place in the impugned
judgment, the Court would have discretion than to set aside such judgment.

49 A. R. Antulay v. R. S. Nayak (1988) 2 SCC 670, P. 673, para 87.

50 Ibid, at P.670, para 78.
51 Ibid, at P.670, para 78.
52 Ibid, at P.670, paras 78, 79 & 80.
53 Ibid, at P. 672, para 83.
54 Ibid, at P.670, para 79.
55 (2002) 4 SCC 416, para 51.
Curative Petitions 213

In A. R . Antulay, the Court was not worried about the procedure of

ascertaining the said facts whereas in Rupa Ashok Hurra we find that procedure
is of paramount importance. There is nothing constitutionally wrong with
that, but the problem comes to the fore when the Court equates ex debito
justitiae obligation to the filing of curative petitions as it has done in Rupa
Ashok Hurra. This in essence amounts to overruling A. R. Antulay in so far as
ex debito justitiae obligation is concerned. The Court in Rupa Ashok Hurra
introduces a discretionary power to this obligation which is far from the
dictum in A. R. Antulay. There is a need for the Supreme Court to constitute
a large bench to harmonize Rupa Ashok Hurra judgment with that of A. R.
Antulay.
In the next part I will trace the ex debito justitiae obligation in the
common law and use this as a backdrop for analyzing which of the two dicta
A. R. Antulay or Rupa Ashok Hurra has applied this obligation correctly.
However, I must state that this is purely in academic interest since in terms
of constitutional validity it is already settled that A. R. Antulay dicta having
been pronounced by a larger Bench than Rupa Ashok Hurra judgment Bench
is the binding dicta.
In common law jurisprudence ex debito justitiae obligation 56 is often
called “as of right rule” and it entitles defendants to have an irregular, default
judgment set aside without considering the merits57. The ex debito justitiae
obligation means no more than this: ‘in accordance with settled practice, the
court can exercise its discretion in only one way, namely, by granting the
order sought’.58 The rule ensures that litigants comply with the relevant
procedural rules and that defendants have notice of proceedings and is
protected from the injustice that might result if a judgment is unfairly passed
against them. The similarity between the ex debito justitiae obligation usage
in England and India is that the Court has no discretion than to set aside the
impugned judgment. Therefore in conclusion it can be said ex debito justitiae
is an obligation in which the Court does not exercise its discretionary power.
This is what the Supreme Court stated in A. R. Antulay.
The fact that so far no curative petition has been successful before the
Supreme Court suggests two things. First, that so far no curative petition has
been able to make out a case within the Rupa Ashok Hurra parameters.

56 See Anlaby v. Praetorious (1888) 20 QBD 764, mentioned in Camille Cameron “Irregular default
jud gments: should Hong Kong d iscard the ‘as of right’ rule?” 30 HKLJ 245 (2000) at
www.westlawinternational.com, last visited on March 09, 2006, in Common law is considered as
the source of ‘as of right rule’ see.
57 Ibid.
58 Andrew Keay, “Disputing debts relied on by petitioning creditors seeking winding-up orders”,
comp. law. 2001, 22(2), 40-46.
214 INDIAN J. C ONST. L.

Secondly, that so far as no other grounds that result in miscarriage of justice

that have been alleged in a curative petition have succeeded. The second
suggestion is a hypothetical proposition and hasn’t been proven so far
however, it cannot be wished away because the Court in Rupa Ashok Hurra
had stated that it was not possible to enumerate all the grounds on which a
curative petition may be entertained 59. Nevertheless, the Court felt it necessary
to control the ‘floodgates’ of litigation which resulted in the limited grounds
on which the Court would accept curative petititions. That apart, the Court
must ensure that the formalities of filing an application for curative petition
should not deny anyone justice. That several curative petitions have proceeded
beyond the notice stage 60 before finally being dismissed strongly suggest
that the formalities of filing an application for curative petition may not be a
hindrance for approaching the Supreme Court in search of justice. Rather,
the difficulties in filing a meritorious claim in a curative petition.
V. Conclusion
Perhaps the propounding of curative petitions by the Court was a
judicial fiat. This is so since curative petitions apart from the stringent
procedures that have to be fulfilled are nothing but second review petitions.
As I have said it is a case of old wine in a new bottle. That the Rupa Ashok
Hurra dictum is in conflict with a larger Bench’s dictum adds weight to the
above observation. It cannot be denied that the writ petitions in Rupa Ashok
Hurra raised fundamental questions, which, disappointingly, as this comment
has tried to show, have not been fully answered. I submit that the correct
way for the Court to have adopted is through Article 145 of the Constitution.
It is equally significant to note that Article 137 of the Constitution grants the
Supreme Court the power of review of any of its final decisions.
This power of review as per Article 137 is not restricted to only one
time use in relation to a final Supreme Court decision. However, as pointed
out, it is through the Supreme Court’s pronouncement and in exercise of its
power under Article 145 that review power has been used only once in any
relevant final Supreme Court decision. Amending Order 40 of the Supreme
Court Rules, 1966 would have been the most pragmatic way of dealing with
Constitutional questions raised by the Writ petitions in Rupa Ashok Hurra.
Perhaps one reason for the Court to choose to formulate the procedure
59 Rupa Ashok Hurra v. Ashok Hurra and Anr, (2002) 4 SCC 388 p. 416, Para 50.
60 After curative petitions have been circulated before the relevant judges, they are then heard in the
open court and the parties to the matter are issued notice to appear before the Court. None of the
Civil Curative petitiona have ever proceeded beyond the notice stage but as of December 03 2006,
2 criminal curative petitions had proceed beyond the notice stage and were dismissed that proof
of surrender as directed by the Court was dismissed beyond the period thar stipulated by the
Court. These petitions were Deo Narrain Mandal v. State of Uttar Pradesh, Curative petition (CR.L.)
No.2 of 2005 and Raj Deo Rai V. State of Uttar Pradesh, curative petition (Cr.L.) No. 19 of 2005.
Curative Petitions 215

through a judgment was to avoid undertaking the elaborate procedure that

could have been involved in amending Order 40 of the mentioned rules
and the desire of the Supreme Court to deliver instant justice. That may be
so but at the end of the day the Supreme Court sacrificed constitutionalism
at the altar. This is one thing that the Apex Court, which is the Court of
ultimate resort, cannot afford to be seen doing.
216 INDIAN J. C ONST. L.

THE R IGHT TO P RIVA CY : TRA CING THE J UDICIA L

A PPROA CH F OLLOW ING THE K HA RA K S INGH C A SE
Namit Oberoi*

The right to privacy presents itself as an illustration of the interpretative

capabilities of the higher judiciary, as well as a right emanating as a
consequence of the larger process of widening the ambit of specifically
enumerated fundamental rights. Although initially lacking the stamp of
judicial approval from the Supreme Court, this right has been afforded legal
recognition following a series of judicial rulings, which shall be critically
examined in the context of the Supreme Court’s ruling in the case of Kharak
Singh v. State of Punjab1 .
The literal meaning of privacy, as defined in the New Oxford English
Dictionary2 , is the ‘absence or avoidance of publicity or display; the state or
condition from being withdrawn from the society of others, or from public
interest; seclusion.’ The Black’s Law Dictionary3 refers to privacy as “the
right to be let alone; the right of a person to be f ree f rom unwarranted publicity; and
the right to live without unwarranted interf erence by the public in matters with
which the public is not necessarily concerned”.4 Therefore, the right to privacy,
notwithstanding its differing connotations, remains a private right of an
individual.
§ Right To Privacy
In a historical sense, privacy is a civil liberty essential to individual
freedom and dignity. The right to privacy is the hallmark of a cultured
existence, as in the words of Louise Brandeis, J “the right most valued by
civilized men”.5 Winfield has referred to the right to privacy as the absence of
unauthorized interference with a person’s seclusion of himself or his property
from the public. This also manifests the legal appreciation of the individual
personality.6 At the international level, the International Covenant on Civil
and Political Rights (of which India is a signatory), and more recently, the
European Convention of Human Rights recognizes this right.7 However,
* Student at the National University of Juridical Sciences, Kolkata, India.
1 AIR 1963 SC 1295.
2 The New Oxford Dictionary, (Vol. 2, 1993).
3 Black’s Law Dictionary, (6th Ed., 1990).
4 Id. It is further explained as: Term ‘right to privacy’ is generic term encompassing various rights
recognised to be inherent in the concept of ordered liberty…’
5 Olmstead v United States, 277 U.S. 438, 478.
6 P. Ishwara Bhat, Fundamental Rights - A study of their interrelationship 324, (2004).
7 This appears in Article 8 of the European Convention on Human Rights, as well as Article 17 of
the International Covenant on Civil and Political Rights.
Right to Privacy - I 217

the common characteristics underlying this are its being available against
the state, as is the case with other human rights.
The Indian Constitution, in comparison, fails to expressly recognize
the right to privacy. Some scholars contend that the whole notion of privacy
is alien to Indian culture.8 In the celebrated case of ADM Jabalpur v. Shivakant
Shukla9 , the Supreme Court sought to determine if the right to personal
liberty is limited by any limitations other than those expressly contained in
the Constitution and statute law. As observed by Khanna J:
“Article 21 is not the sole repository of the right to personal liberty…..no
one shall be deprived of his lif e and personal liberty without the
authority of laws f ollows not merely f rom common law, it f lows
equally f rom statutory law like the penal law in f orce in India.”10
This establishes that the right to privacy need not be expressly
guaranteed, but may be implicit because of its inclusion in common law.
The Supreme Court in recent years through judicial activism has preferred
to “read into” the Constitution a fundamental right to privacy by a creative
interpretation of the right to life guaranteed under Article 21. In the case of
M.P. Sharma v. Satish Chandra11 , and thereafter, in the Kharak Singh case,
judicial pronouncements categorically rejected that there exists any right to
privacy. In the case of Govind v. State of MP12 , as well as thereafter in
R.Rajagopal v. State of T.N.13 and PUCL v. UOI 14 , observed that this right
emanates from Article 21. On a plain reading of Article 19, it appears that
“liberty” as defined is wide enough to indicate “the right to be let alone”.
However, the Indian higher judiciary has remained rather ambiguous, to
the extent of delivering contradictory rulings.15
§ Tracing the Origins of the Right to Privacy in India
The struggle to specifically incorporate privacy as a specific fundamental
right under the Constitution is substantially attributable, in large measure,
to the rather amorphous character of this right. In the case of M.P. Sharma v.
8 Legal experts such as Upendra Baxi have expressed doubts about the evolution of privacy as a
value in human relations in India. Everyday experiences in the Indian setting, from the manifestation
of good neighbourliness through constant surveillance by next-door neighbours, to unabated
curiosity at other people’s illness or personal vicissitudes, suggests otherwise, as referred to in
Sheetal Asrani-Dann The right to privacy in the era of Smart Governance Journal of the Indian Law
Institute, (Vol. 47, 2005).
9 AIR 1976 SC 1207.
10 AIR 1976 SC 1207, 1258.
11 AIR 1954 SC 300.
12 AIR 1975 SC 1378.
13 AIR 1995 SC 264.
14 (1997) 1 SCC 301.
15 See generally A.M. Bhatachacharjee, Equality. Liberty and Property Under the Constitution of
India 104-105 (1997).
218 INDIAN J. C ONST. L.

Satish Chandra16 wherein the contours of the police’s powers of search and
surveillance were outlined, it was held that there is no right to privacy under
the Constitution. In reaching this conclusion, the Supreme Court preferred
to base its interpretation in a rather narrow sense, limiting itself to simply
the prescribed statutory regulations. This represented the prevailing judicial
approach of simply limiting interpretation, along positivist lines. Therefore,
the Court concluded that it lacked the justification to import [privacy] into a
totally different fundamental right, by some process of strained construction.
Thus the courts adopted a narrow and formalistic approach by pointing to
the absence of a specific constitutional provision analogous to the Fourth
Amendment of the US constitution, to protect the right of privacy of Indians
from unlawful searches.
This ruling has been followed nearly a decade later, in the case of
Kharak Singh v. State of Punjab17 wherein the right to privacy was again
invoked to challenge police surveillance of an accused person. The
contention raised is that the right to privacy may be identified in the “personal
liberty” as contained in Article 21. Citing with approval the observations of
Field, J in Munn v Illinois18 , it referred to the fifth and fourteenth amendment
of the American Constitution and other American and English judgments of
Wolf v. Colorado19 and Semayne’s Case.20 In widening the scope of liberty
under Article 21, the Court held that “personal liberty” is contained in Article
21 as a “compendious term to include within itself all varieties of rights which go
to make up the personal liberty of man other than those dealt with in several
clauses of Article 19(1).”21 However, notwithstanding this, it concluded that
this right to privacy is not in existence under the Constitution, with Ayyangar,
J laying down that:
“The right of privacy is not guaranteed under our Constitution and
theref ore the attempt to ascertain the movements of an individual which
is merely a manner in which privacy is invaded is not an inf ringement
of f undamental right guaranteed by Part III”.22
As in the M.P. Sharma case, the Supreme Court appears to be
influenced by the absence of any provision similar to that of a prohibition
on unreasonable search and seizure as is available under the Fourth
Amendment of the US Constitution. Thus the majority erred in regarding

16 AIR 1954 SC 300.

17 AIR 1963 SC 1295.
18 94 US 113 (1876).
19 (1948) 338 US 25.
20 (1604) 5 Co Rep 91a.
21 AIR 1963 SC 1295,1303.
22 Id.
Right to Privacy - I 219

“prohibition on unreasonable search and seizure” as the only facet of privacy. It

remains surprising as to how the Court arrived at the conclusion that secret
surveillance is not unconstitutional and violative of personal liberty. It is
also not clear how the Court came to the conclusion that secret surveillance
was not unconstitutional and did not violate personal liberty, but at the
same time quoted in a positive light Semayne’s case23 and opined that “the
house to everyone is to him as his castle and f ortress”.24
Taking a more holistic view of the scheme of protection afforded by
Part III, the minority found that all acts of surveillance under the impugned
Regulations offended Articles 21 and 19(1)(d), as movement under the shroud
of police surveillance cannot be described as free movement within the
meaning of the constitution. Thus the minority judgment found the clauses
authorizing “surveillance” as unconstitutional as they believed that even
thought there did not exist an express right to “privacy” in the Constitution,
such a right was built into the very fabric of Article 21 and secondly, they
were of the opinion that “the right to move f reely” implied the right to move
free from psychological impediments, which obviously cannot be the case if
one knows he is under surveillance.25 However, even the minority ruling
rejects recognition of the right to privacy, although it concluded that the acts
of surveillance are unconstitutional.
At this point, it is pertinent to remember that the rationale on which
the majority ruling is based in the Kharak Singh case is that the rights contained
in Article 19 are not contained in Article 21, which has been rejected following
the Supreme Court’s ruling in the celebrated Maneka Gandhi case, wherein a
Bench of the Supreme Court held, while referring to its earlier ruling in the
Kharak Singh case:

“In our view this is not the correct approach. Both are independent
f undamental rights, though they are overlapping. The f undamental
right to lif e and personal liberty has many attributes and some of them
are f ound in Article 19.”26
The majority opinion in the Kharak Singh case relied upon the theory
of “carving out” in Article 21 the residue of the elements of personal liberty
excluded in the ambit of Article 19(1). In rejecting this, subsequent rulings
of the Supreme Court proceeded to detail upon the different manifestation
of personal liberties as contained in both constitutional provisions, because

23 (1604) 5 Co Rep 91a.

24 Nemika Jha, Legitimacy of the Right to Privacy as a Fundamental Right AIR 2001 (J) 325, at 329.
25 See generally Sheetal Asrani-Dann, Supra Fn. 8.
26 Maneka Gandhi v. Union of India, AIR 1978 SC 597, 621.
220 INDIAN J. C ONST. L.

of which Article 21 could not be treated as a residual provision. This judicial

approach resonates the Supreme Court’s categorical rejection of the right to
strike in the All India Bank Employees’ Association case27 , wherein it held that
even upon a liberal interpretation of Article 19(1), it cannot be concluded
that trade unions are guaranteed the right to strike. In a similar manner,
there is no implied right to privacy, thereby reinforcing the plea that the
right to privacy ought to be clearly articulated.
The Supreme Court, a decade later, examined the existence and scope
of the fundamental right to privacy. In Govind v State of MP28 the Supreme
Court, again adjudicating upon the question of the constitutionality of police
surveillance, side-stepped the rationale underlying the earlier rulings in MP
Sharma and Kharak Singh. Tracing the origin of the right in the presumed
intention of the framers of the Constitution, the court, speaking through
Matthew J. said:
“There can be no doubt that the makers of our Constitution wanted to ensure
conditions f avorable to the pursuit of happiness. They certainly realized, as
Brandeis, J. said in his dissent in Olmstead v. US, the signif icance of man’s
spiritual nature, of his f eelings and his intellect(..). They sought to protect
[individual] in their belief s, thoughts, their emotions and their sensations.
Theref ore they must be deemed to have conf erred upon the individual as against
the government a sphere where he should be let alone”.29
The Supreme Court, while accepting the unifying principle underlying
the concept of privacy, noted that the fundamental nature of the right is
implicit in the concept of ordered liberty. Substantiated by recent rulings of
the US Supreme Court30 , the judicial approach remained that there exists a
penumbra or zone of privacy in terms of the different guarantees afforded
by Part III of the Constitution of India, thereby anchoring the right of privacy
in India’s constitutional jurisprudence. However, remaining cautious, the
Supreme Court also observed that in the absence of any legislative enactment,
this right will pass through a “case-by-case development”.
The Supreme Court’s ruling in the Govind case was rendered by a Bench
consisting of three judges, although rather contradictory to that as held by a
Bench of six judges in the Kharak Singh case, hereinbefore referred to. Interestingly,
the ruling in the Govind case fails to refer to earlier decisions on privacy, because
of which it is possible to contend if the law as laid down in this case is valid, as it
appears to be contrary to the ruling in the Kharak Singh case.

27 AIR 1962 SC 171.

28 AIR 1975 SC 1378.
29 AIR 1975 SC 1378, 1384.
30 Griswold v. Connecticut, 381 US 479 (1965), Roe v. Wade, 410 US 113 (1973).
Right to Privacy - I 221

§ The Maneka thesis

The jurisprudential edifice of the distinction between a right as
emanating from a named right and a right as a f acet of a named right is traced
to the opinion expressed by Bhagwati, J, in the Maneka Gandhi case.31
Distinguishing between named rights and unnamed rights, Bhagwati held
that it was not enough that a right merely flowed from or emanated from a
named right, i.e. rights categorically mentioned in the text of the Constitution.
Therefore, an unnamed right (rights not mentioned in the text of the
Constitution) to be a part of the named right, it must be “integral to the
named right or must partake of the same basic nature or character of the named
right.”32 According to his opinion, each activity which facilitates the exercise
of the named fundamental right is not necessarily comprehended in that
fundamental right. Since the right to privacy isn’t existing as a named right,
in order to become a part of the named right to “personal liberty”, this has to
be shown as being “integral to” personal liberty or “partaking the same basic
character” as personal liberty.33 The ruling in the Govind case, concluding
that the right to privacy is a fundamental right, f lowing and emanating as
derivative and penumbral from the other named rights, cannot be regarded to
be good law as it does not satisfy the test of unnamed rights. Although the
benefit of Bhagwati, J’s opinion could not be available to Matthew, J in the
Govind case, the roots of this thesis were already present in the All India Bank
Employees Association case 34
§ Privacy Cases A f ter Maneka
In R. Rajagopal v State of Tamil Nadu,35 the Supreme Court, in the
course of examining the right to privacy, concluded that this right is implicit
in the right to life and personal liberty as guaranteed under Article 21 of the
Constitution. This dispute arose out of the publishing of an autobiography
of a convict sentenced to death. This autobiography was written in jail and
handed over to his wife for publishing, without the knowledge and approval
of the jail authorities. It leveled serious allegations against a number of top
officers of the Indian administration, causing the Police to ask the editor to
stop its publication. The Supreme Court, referring to the rulings of the US
Supreme Court, in Griswold v. Connecticut36 , Roe v. Wade37 and New Y ork
Times Co. v. Sullivan38 held:

31 (1978) 1 SCC 248.

32 AIR 1978 SC 597, 640.
33 See generally AM Bhattacharya, Supra fn. 15.
34 AIR 1962 SC 171.
35 AIR 1993 SC 264.
36 (1956) 381 US 479.
37 (1973) 410 US 113.
38 (1964) 376 US 254.
222 INDIAN J. C ONST. L.

“The right to privacy is implicit in the right to lif e and personal

liberty guaranteed to the citizens of this country by Article 21. It is a
“right to be let alone”. A citizen has a right to saf eguard the privacy
of his own, his f amily, marriage, procreation, motherhood, child bearing
and education amongst other matters. None can publish anything
concerning the above matters without his consent.”39
However, the two exceptions to this rule were carved out by the court
for material based on public records, and information about public official’s
conduct “relevant to the discharge of their duties.” Thus, this is the first judgment
which is an exposition of the current legal position as to the law relating to
privacy, expressly laying down that this is implicit in Article 21. According
to the majority in Kharak Singh, personal liberty even when construed as a
“compendious term” did not include privacy within it. Therefore, it is unlikely
that after Maneka when rights under personal liberty are restricted only to
those that is “integral to” or “partake the same basic character”, privacy may
still be said to a part of it.
The question of right to privacy has been, in more recent times,
deliberated upon in the case of People’s Union f or Civil Liberties v Union of
India40 in the context of telephone tapping. In this case, the Supreme Court
held that right to privacy is a part of the right to life and liberty under Article
21 and it cannot be curtailed except according to procedure established by
law. The Court stated that conversations on telephone are often of an intimate
nature and constitute an important facet of a person’s private life; therefore
its tapping offends Article 21. However, far from continuing with the widening
ambit of this right, it clarified that this right could be curtailed by the procedure
established by law, so long as this procedure is just, fair and reasonable.
§ Conclusion
On the basis of a dispassionate perusal of the aforementioned judicial
rulings, it is evident that there is an implied, unenumerated, but judicially-
evolved and recognized right to privacy under the Indian Constitution.
Although the rulings of the Supreme Court in the cases of MP Sharma and
Kharak Singh, already referred to, denied the existence of any right to privacy,
smaller benches in the cases of Govind, Rajagopal and PUCL unmistakably
indicate the existence of such a right. The shift in judicial interpretation is
most notably observed following the Maneka Gandhi case, wherein this right
is recognized, subject to legal restrictions satisfying the requirements as laid
down in the Maneka Gandhi case. However, if the courts were to address

39 AIR 1993 SC 264, 276.

40 (1997) 1 SCC 301.
Right to Privacy - I 223

the issue of right to privacy under Article 21 afresh, there is little doubt that
it would conclude that there does exist a right to privacy. Such a statement
will not be valid law unless stated by a bench of more than six judges so as
to effectively overrule Kharak Singh.
On a harmonious interpretation of the legal principles as laid down
by the Supreme Court at different points of time, it is sufficient to conclude
the existence of right to privacy under Part III of the Constitution. The first
principle was stated in Kharak Singh, which said that ‘personal liberty’ used
in the Article 21 is ‘a compendious term to include within itself all varieties of
rights which go to make up the personal liberty of man other than those dealt
with in several clauses of Article 19(1).’41 The second and third principles
were laid down in Maneka, which stated that any law interfering with ‘personal
liberty’ must be just, fair and reasonable42 and that an unnamed right may
be regarded as part of a named fundamental right if it partakes of the same
basic nature and character of the named right43 .
Privacy is also a feature of the dignity of an individual that the preamble
to the Constitution assures every individual.44 Thus the right is not merely a
negative mandate upon the state not to encroach upon the private space of
the individual but is also a positive affirmation on the state to create adequate
institutions that would enable one to effectively protect his private life.45
Thus the right to privacy has a strong constitutional edifice, which could, if
clarified by an appropriate Bench of the Supreme Court, settle this judicial
controversy at rest.

41 Kharak Singh v State of UP AIR 1963 SC 1295, 1303.

42 Maneka Gandhi v Union of India AIR 1978 SC 597, 640.
43 Id.
44 The Preamble includes the words “We, the people of India, having solemnly resolved … to secure
to all its citizens fraternity assuring the dignity of the individual…”
45 See R. Unger, Knowledge and Politics (1975), as referred to in Lawrence H. Tribe, American
Constitutional Law 1305 (1988).
224
Positive Action Declared Unconstitutional INDIAN J. C ONST. L.

THE F UNDA MENTA L R IGHT TO P RIVA CY : A CA SE-

BY -C A SE D EV ELOPMENT S A NS S TA RE D ECISIS *

Sandeep Challa**

The principle of stare decisis1 is of utmost importance especially in

relation to a Supreme Court decision, by virtue of Article 141 of the
Constitution 2 . The reasoning behind this principle is to ensure consistency
and stability in the law declared by the Supreme Court.3 The Apex Court
held that: “It is commonly known that most decisions of the courts are of
significance not merely because they constitute an adjudication on the rights
of the parties and resolve the dispute between them, but also because in doing
so they embody a declaration of law operating as a binding principle in f uture
cases.”4 In addition, in cases of conflict of opinions pronounced by the
Supreme Court, the opinion expressed by the larger bench strength prevails.5
Therefore, a decision by a Constitution Bench of the Supreme Court can in
no circumstance be whittled down by a diametrically contrary interpretation
provided by a Division Bench of the same Court. The instant case-comment
deals with the fundamental Right to Privacy in the light of the doctrine of
stare decisis.
The first case6 wherein the Indian Supreme Court substantially dealt

* The instant case comment ranges from District Registrar & Collector, Hyderabad v. Canara Bank,
A.I.R. 2005 S.C. 186 to M.P. Sharma v. Satish Chandra, District Magistrate, A.I.R. 1954 S.C. 300; but
it primarily revolves around the dictum given in the landmark case of Kharak Singh v. State of U.P.,
A.I.R. 1963 S.C. 1295, as the present case comment is a stare decisis critique.
** Third Year, B.A.,LL.B. (Hons.), NALSAR University of Law, Hyderabad.
1 The doctrine of precedent emanates from the legal maxim stare decisis et non quieta movere which
literally means “to stand by decisions and not to disturb what is settled.” 4 P. R AMANATHA AIYAR,
ADVANCED LAW LEXICON 4456 (Y.V. Chandrachud et al. eds., Wadhwa & Co. Nagpur 3rd ed. 2005).
2 Art. 141 of the Const. of India states as follows: “The law declared by the Supreme Court shall be
binding on all courts within the territory of India.”
3 21 C.J.S. Courts § 140.
4 Union of India v. Raghubir Singh, A.I.R. 1989 S.C. 1933, ¶ 8. (italics supplied)
5 See State of U.P. v. Ram Chandra Trivedi, A.I.R. 1976 S.C. 2547; State of Orissa v. Titaghur Paper
Mills, A.I.R. 1985 S.C. 1293; Poolpandi v. Supdt., Central Excise, A.I.R. 1992 S.C. 1795; CST v.
Pine Chemicals Ltd., (1995) 1 S.C.C. 58, at ¶ 17; SBI SC/ST Employees’ Welfare Assn. v. State Bank
of India, (1996) 4 S.C.C. 119; C.I.T. v. Trilok Nath Mehrotra, (1998) 2 S.C.C. 289; N.S. Giri v.
Corpn. City of Mangalore, A.I.R. 1999 S.C. 1958, ¶ 12; Lily Thomas v. Union of India, A.I.R. 2000
S.C. 1650, ¶ 56; Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha, (2001) 4 S.C.C. 448;
S.H. Rangappa v. State of Karnataka, (2002) 1 S.C.C. 538, at ¶ 11; P. Ramachandra Rao v. State of
Karnataka, (2002) 4 S.C.C. 578, ¶ 28. See also N.K. Jayakumar, Courts, in 10 H ALSBURY’S LAWS OF INDIA
339 (M.N. Venkatachaliah et al. eds., 2001).
6 The first case of the Supreme Court of India where the Fundamental Right to Privacy was referred
to, albeit in passing, was in the M.P. Sharma case, A.I.R. 1954 S.C. 300 at ¶ 24, wherein an eight-
judge bench of the Supreme Court, in relation to Article 20(3) of the Constitution of India and the
power of search and seizure, skeptically held as follows: “When the Constitution makers have thought
f it not to subject such regulation to constitutional limitations by recognition of a f undamental Right to Privacy,
analogous to the American Fourth Amendment, we have no justif ication to import it, into a totally dif f erent
f undamental right, by some process of strained construction.” (italics supplied)
Right to Privacy - II 225

with the issue of the Fundamental Right to Privacy with respect to Article
217 of the Constitution of India was in the case of Kharak Singh v. State of
Uttar Pradesh.8
The present case comment attempts to shed light on the interpretation
of this case by the Supreme Court of India in District Registrar & Collector,
Hyderabad v. Canara Bank 9 and other contemporary decisions10 of the
Supreme Court. Furthermore, a ‘case-by-case development’ of the Right to
Privacy as envisioned by the Apex Court11 mandates a thorough analysis of
the judicial process involved in the fundamental Right to Privacy. It is also
pertinent to note that the issue of non-compliance with the doctrine of stare
decisis has not been highlighted despite considerable legal scholarship 12 with
respect to the fundamental Right to Privacy. The principal aim of this case
comment is to establish firstly, the misinterpretation of the fundamental Right
to Privacy as laid down in the case of Kharak Singh v. State of Uttar Pradesh13
and secondly, the non-adherence to the doctrine of stare decisis by the Supreme
Court in its subsequent decisions.
The brief facts of District Registrar & Collector, Hyderabad case14 are as
follows. The A.P. State Legislature amended Section 73 of the Stamp Act,
1899 which gave inspecting officers not only the power to search premises
but also the power to seize deficiently stamped documents.15 The purpose
behind the amendment was to combat stamp duty evasion and also to
supplement the stamp revenue of the state.16 The amendment was challenged
before the Andhra Pradesh High Court as the amendment had given
unbridled power to the officers with respect to exercising discretion and,
consequently the amendment was held to be arbitrary and violative of Article

7 Art. 21 of the Const. of India states as follows: “No person shall be deprived of his life or personal
liberty except according to procedure established by law.”
8 A.I.R. 1963 S.C. 1295.
9 A.I.R. 2005 S.C. 186.
10 See generally R. Rajagopal v. State of T.N., A.I.R. 1995 S.C. 264; P.U.C.L. v. Union of India, A.I.R.
1997 S.C. 568; Dr. Tokugha Yepthomi v. Apollo Hospital Enterprises Ltd., A.I.R. 1999 S.C. 495;
Sharda v. Dharmpal, A.I.R. 2003 S.C. 3450.
11 Gobind v. State of M.P., A.I.R. 1975 S.C. 1378, ¶ 28 as per Mathew, J. See also B.D. Agarwala, The
Right to Privacy: A Case-By-Case Development, (1996) 3 S.C.C. (Jour.) 9.
12 See generally Arvind P. Datar, Constitution of India 222 (2001); Durga Das Basu, Shorter
Constitution of India 263-4 (Y.V. Chandrachud et al. eds., Wadhwa & Co. Law Publishers Nagpur
13th ed. rep. 2006); 1 D.J. De, The Constitution of India 950 (2nd ed. 2005); B.D. Agarwala, supra
note 11; Madhavi Divan, The Right to Privacy in the Age of Inf ormation and Communications, (2002) 4
S.C.C. (Jour.) 12; Abhinav Chandrachud, The Substantive Right to Privacy: Tracing the Doctrinal
Shadows of the Indian Constitution, (2006) 3 S.C.C. (Jour.) 31.
13 A.I.R. 1963 S.C. 1295.
14 A.I.R. 2005 S.C. 186.
15 Id., ¶ 5.
16 Id.
226 INDIAN J. C ONST. L.

14 of the Constitution of India. 17 The decision of the High Court was

challenged by the Appellant before the Supreme Court, and the Respondent
contended that the impugned provision amounted to a violation of the
fundamental Right to Privacy.18
A two Judge Bench 19 of the Supreme Court upheld the A.P. High
Court decision and reiterated recent Supreme Court decisions20 and held
that the Right to Privacy was implicit in the Constitution of India.21
Furthermore, that the impugned amendment was arbitrary and violative of
Article 14 of the Constitution, thus it cannot be construed as procedure
established by law under Article 21 of the Constitution. Therefore the
amendment was held unconstitutional as the Right to Privacy had been
violated in the absence of procedure established by law.
It is respectfully submitted that the two Judge Bench in this decision22
has grossly misinterpreted, the six-Judge Bench decision in the Kharak Singh
case23 wherein it was categorically held by the majority opinion 24 that:
“As already pointed out, the right of privacy is not a guaranteed right
under our Constitution and theref ore the attempt to ascertain the
movements of an individual which is merely a manner in which privacy
is invaded, is not an inf ringement of a f undamental right guaranteed
by Part III.”25
In addition, in the Kharak Singh case26 , it was conceded by the
Respondent that the U.P. Police Regulations was not a law under Article
13(3)(a) of the Constitution of India27 , thereby taking away the only defence

17 Canara Bank v. District Registrar & Collector, Registration & Stamps Dept., (1997) 4 A.L.T. 118, ¶ 11.
18 District Registrar & Collector, A.I.R. 2005 S.C. 186, ¶ 17.
19 R.C. Lahoti, C.J. & Ashok Bhan, J.
20 See R. Rajagopal v. State of T.N., A.I.R. 1995 S.C. 264; P.U.C.L. v. Union of India, A.I.R. 1997
S.C. 568; Dr. Tokugha Yepthomi v. Apollo Hospital Enterprises Ltd., A.I.R. 1999 S.C. 495; Sharda
v. Dharmpal, A.I.R. 2003 S.C. 3450.
21 District Registrar & Collector, A.I.R. 2005 S.C. 186, ¶ 39.
22 Id., wherein it was stated as follows: “The majority did not go into the question whether these visits violated
the ‘Right to Privacy’. But, Subba Rao, J. while concurring that the fundamental Right to Privacy was
part of the right to liberty in Art. 21, part of the right to freedom of speech and expression in Art.
19(1)(a), and also of the right to movement in Art. 19(1)(d), held that the Regulations permitting
surveillance violated the fundamental right of privacy… In ef f ect, all the seven learned Judges held that
the ‘Right to Privacy’ was part of the right to ‘lif e’ in Art. 21.” (italics supplied)
23 A.I.R. 1963 S.C. 1295.
24 The majority consisted of B.P. Sinha, C.J., J.R. Mudholkar, N. Rajgopala Ayyangar & S.J. Imam,
JJ. and the minority consisted of K. Subba Rao & J.C. Shah, JJ.
25 Kharak Singh, A.I.R. 1963 S.C. 1295 at 1303, ¶ 20.
26 Id.
27 Article 13(3)(a) of the Constitution of India states that: “In this article, unless the context otherwise
requires,— (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom
or usage having in the territory of India the force of law.”
Right to Privacy - II 227

of the state under Article 21, i.e., procedure established by law. Hence, the law
laid down by the Supreme Court in the Kharak Singh case28 was that there is
no Right to Privacy under Article 21 of the Constitution regardless of the
existence of a law inf ringing the Right to Privacy; because the U.P. Police
Regulations were not considered to be law under Article 13(3)(a) of the
Constitution of India. Therefore, regardless of the constitutional validity of
the amendment in the District Registrar & Collector, Hyderabad case29 the
respondent cannot claim a fundamental Right to Privacy. Hence it is humbly
submitted that the decision of the Supreme Court is bad in law insofar as it
implicitly reads a fundamental right of privacy under the Constitution of
India.
The second case which dealt with the Right to Privacy substantially
was Gobind v. State of Madhya Pradesh30 wherein, it stated that even assuming
that the Right to Privacy existed under Article 21, it was not absolute and it
was subject to procedure established by law. It is also pertinent to note that
the obiter of Mathew, J. (notwithstanding his decision) went on to state that
these arcane police regulations “were verging perilously near
unconstitutionality”.31
It is submitted that the controversy pertaining to the existence of Right
to Privacy stems from the instant case. The petitioner in the Gobind case32
contended that the Right to Privacy was guaranteed under Part III of the
Indian Constitution. The Supreme Court through the words of Mathew, J.
stated as follows:
“The Right to Privacy in any event will necessarily have to go thorough a
process of case-by-case development. Theref ore, even assuming that the right to personal
liberty, the right to move f reely throughout the territory of India and the f reedom of
speech create an independent right of privacy as an emanation f rom them which one
can characterize as a f undamental right, we do not think that the right is absolute.”33
The Supreme Court in later decisions stretched this assumption to the
extent of recognising a fundamental Right to Privacy.34 It is submitted that

28 Kharak Singh, A.I.R. 1963 S.C. 1295.

29 A.I.R. 2005 S.C. 186.
30 A.I.R. 1975 S.C. 1378.
31 Id., ¶ 33.
32 Id., ¶ 24 wherein the Court inferred that the petitioner was claiming the Right to Privacy implicit
in ‘personal liberty’ under Article 21 of the Constitution.
33 Id., ¶ 28.
34 R. Rajagopal, A.I.R. 1995 S.C. 264, ¶ 9; District Registrar & Collector, A.I.R. 2005 S.C. 186, ¶ ¶ 37-
39. See also Malak Singh v. State of U.P., A.I.R. 1981 S.C. 760. ¶ 6: “But, surveillance may be
intrusive and it may so seriously encroach on the privacy of a citizen as to infringe his fundamental
right to personal liberty guaranteed by Article 21 of the Constitution”: as per O. Chinappa Reddy,
J. See also V.N. SHUKLA, C ONSTITUTION O F INDIA, 131 (Mahendra P. Singh ed., Eastern Book Company
10th ed. 2006) (1950).
228 INDIAN J. C ONST. L.

Mathew, J. only stated that even in a hypothetical situation where a Right to

Privacy existed under Article 21, such a right would be qualified and not
absolute. Therefore assuming but not conceding the existence of a f undamental
Right to Privacy, his Lordship made the above observation. Moreover, the
Gobind case35 was before a three-Judge Bench, and it could not in any manner
over-rule the majority opinion of the Supreme Court in the Kharak Singh case.36
The Supreme Court after Gobind case,37 dealt with the Right to Privacy
in the case of R. Rajagopal v. State of Tamil Nadu.38 It is submitted that this
case before a two-Judge Bench is in derogation to the doctrine of stare decisis
and it has misinterpreted the case of Kharak Singh v. State of Uttar Pradesh.39
This was the first case wherein the Supreme Court held that the fundamental
right of privacy is constitutionally guaranteed. The Supreme Court in this
case stated that the majority opinion in Kharak Singh v. State of U.P.40 merely
referred to the Right to Privacy; and in effect diluted the observation of the
non-existence of the Right to Privacy.41 Therefore, the result of this case was
that the minority opinion of Subba Rao, J. in the case of Kharak Singh v.
State of Uttar Pradesh42 erroneously became the law of the land. It is submitted
that the two-Judge Bench decision in the present case cannot over-ride the
six-judge bench decision, by virtue of Article 141 of the Constitution which
embodies the doctrine of stare decisis; thereby the observations of B.P. Jeevan
Reddy, J. in the instant case is respectfully submitted to be bad in law.
Moreover, it was also stated that the Right to Privacy has two facets,
i.e., general law of privacy which affords a tort action on invasion and the
constitutional recognition under Article 21 against governmental invasions.
The instant case dealt with invasion of privacy by a private person.43 The
Supreme Court in recent times has made Article 21 of the Constitution
enforceable against private persons.44 However, it is submitted that this view
is flawed as these decisions are per incuriam; because they consistently do not
consider the five-judge bench decision of Supreme Court in the case of
Shrimathi Vidya Verma, through next f riend R.V.S. Mani v. Shiv Narain Verma45

35 A.I.R. 1975 S.C. 1378.

36 A.I.R. 1963 S.C. 1295.
37 A.I.R. 1975 S.C. 1378.
38 A.I.R. 1995 S.C. 264.
39 A.I.R. 1963 S.C. 1295.
40 Id.
41 R. Rajagopal, A.I.R. 1995 S.C. 264, ¶ 14.
42 A.I.R. 1963 S.C. 1295.
43 This is in contradistinction to Kharak Singh, A.I.R. 1963 S.C. 1295 and Gobind, A.I.R. 1975 S.C.
1378 where governmental invasions were questioned.
44 Bodhisattwa Gautam v. Subhra Chakraborty, A.I.R. 1996 S.C. 922, ¶ 6; Zee Telefilms Ltd. v. Union
of India, A.I.R. 2005 S.C. 2677, ¶ 28.
45 A.I.R. 1956 S.C. 108, ¶ 8 relied on P.D. Shamdasani v. Central Bank of India, A.I.R. 1952 S.C. 59.
See also 2 H.M. SEERVAI, CONSTITUTIONAL LAW O F INDIA – A CRITICAL C OMMENTARY 1160 (4th ed. 1994).
Right to Privacy - II 229

wherein it was stated unequivocally that Article 21 is not enforceable against

private persons. Therefore, even if it is assumed that the Right to Privacy
existed under Article 21, it is not enforceable against private persons. Hence,
the only remedy available in cases of invasions of privacy by private persons
is a tort action for damages.
It is submitted that with respect to governmental invasions of privacy
also the only remedy available is tort law. It is pertinent to note here that the
Apex Court has held that Article 21 is the sole repository of the right to life
and personal liberty against the State.46 It can be inferred that the Apex Court
has held that ‘Right to Privacy’ does not come under the ambit of ‘right to
personal liberty’ or any other fundamental right.47 Hence, as the Right to
Privacy is not implicit under Article 21; the right under common law/tort
action will survive even against governmental invasions.
The Supreme Court after the R. Rajagopal case48 revisited the Right
to Privacy in the PUCL case.49 In this case, the Supreme Court misconstrued
the Kharak Singh case 50 and stated that the majority actually upheld the
‘Right to Privacy’.51 It is submitted that this view is erroneous as it was
categorically stated in the Kharak Singh case52 that the Right to Privacy is not
a fundamental right.53 The Supreme Court in this case also stated that under
Article 17 of the International Covenant on Civil & Political Rights, 196654
conferred the Right to Privacy. However, the relevance of this international
instrument was placed on the erroneous presumption that the Right to Privacy
was a fundamental right. Hence, it is submitted that an implementation of
Article 51(c)55 of the Constitution read with Article 17 of the Covenant cannot
create a ‘Right to Privacy’ which is directly contrary to municipal law.56

46 Additional District Magistrate, Jabalpur v. Shivakant Shukla, A.I.R. 1976 S.C. 1207, ¶ 135 as per
A.N. Ray, C.J. Cf . Additional District Magistrate, Jabalpur, A.I.R. 1976 S.C. 1207, ¶ 163 (H.R.
Khanna, J. , dissenting).
47 Kharak Singh, A.I.R. 1963 S.C. 1295, ¶ 21.
48 A.I.R. 1995 S.C. 264.
49 A.I.R. 1997 S.C. 568.
50 A.I.R. 1963 S.C. 1295.
51 P.U.C.L. v. Union of India, A.I.R. 1997 S.C. 568, ¶ 16.
52 A.I.R. 1963 S.C. 1295.
53 Id. at 1303, ¶ 20.
54 The Republic of India is a signatory to this international instrument and it has been further ratified
by the Indian Parliament.
55 Art. 51(c) of the Constitution of India states as follows: “The State shall endeavour to foster respect
for international law and treaty obligations in the dealings of organized peoples with one another;
and”.
56 See Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461, ¶ 151 as per Sikri, C.J. Cf .
Additional District Magistrate, Jabalpur v. Shivakant Shukla, A.I.R. 1976 S.C. 1207, ¶ 180 (H.R.
Khanna, J., dissenting). In light of Article 141 of the Constitution of India, municipal law here can
be interpreted to mean the law laid down in Kharak Singh, A.I.R. 1963 S.C. 1295.
230 INDIAN J. C ONST. L.

In the recent case of Sharda v. Dharmpal,57 a three-judge bench of the

Supreme Court dealt with the Right to Privacy. In the instant case the previous
decisions were interpreted accurately by the Supreme Court;58 however the
Apex Court, incredibly, overlooked the doctrine of stare decisis and followed
the later decisions.
It is submitted that a ‘case-by-case development’ of the Right to Privacy
as envisioned by Mathew, J. was a case-by-case development in accordance
with the principle of stare decisis.59 Moreover, once the Apex Court lays
down the law, reconsideration of that law on new grounds is not open to the
court unless it refers the matter to a larger bench. 60 Therefore, for the
‘fundamental Right to Privacy’ to truly become the law of the land either a
seven-judge bench of the Supreme Court is to be constituted in favour of
establishing the Right to Privacy or the recommendation of Article 21-B61 of
the National Commission to Review the Working of the Constitution 62 needs
to be adopted by the Parliament to bring about a constitutional amendment63 .

57 A.I.R. 2003 S.C. 3450.

58 Id., ¶ 55-57.
59 K.K. Mathew, J. was part of a three-judge bench in John Martin v. State of W.B., A.I.R. 1975 S.C.
775, ¶ 3, wherein in the context of A. K. Gopalan v. State of Madras, [1950] S.C.R. 88 it was stated
that: “we do not think that these observations made by two out of six learned Judges can be regarded as laying
down the law on the point.” Therefore a logical extension to the Kharak Singh case, A.I.R. 1963 S.C.
1295 would render the minority opinion of K. Subba Rao, J. redundant. (italics supplied)
60 D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 S.C.C. 259. See also N.K. Jayakumar, supra note, at
342.
61 “Art. 21-B. - (1) Every person has a right to respect his private and family life, his home and his
correspondence.
(2) Nothing in clause (1) shall prevent the State from making any law imposing reasonable restrictions
on the exercise of the right conferred in clause (1), in the interests of security of the State, public
safety or for the prevention of disorder or crime, or for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
62 1, NATIONAL C OMMISSION TO REVIEW THE WORKING OF THE C ONSTITUTION, REPORT 62 (2002).
63 The law laid down by the Supreme Court can be whittled down by a subsequent legislative
amendment: Sakal Deep Sahai Srivastava v. Union of India, A.I.R. 1974 S.C. 338, 341 at ; Baliram
Waman Hiray v. Justice B. Lentin, A.I.R. 1988 S.C. 2267.
 231

U NDERSTA NDING CONSTITUTIONA L S ECULA RISM IN

‘F A RA W A Y P LA CES ’: S OME R EMA RKS ON G A RY
J A COBSOHN ’S THE W HEEL OF L A W *
Upendra Baxi**

§ The Promise and the Peril of Comparative Constitutional

Studies
As is generally well-known, the tasks of comparison are neither easy
nor ever fully done. What to compare and how and why remain difficult questions
in the larger sphere of comparative law. The rather nascent tradition of
doing comparative constitutional studies (COCOS) revives these concerns
in some new ways.
COCOS shares with the spheres of comparative law generally, concerns
about historical method (the choice of telling stories— doing microhistory
or metahistory), ways of periodization, and the unit of comparison (that is
whether one focuses on the history of ideas or mentalities, or of political and
social action, or further the making of institutional and popular cultures1 .) It
also shares more generally the problem of hegemonic intent resulting often
in imposition of law, carrying large potential side-effects. Further, the virtue
of eternal reflexive vigilance is difficult to cultivate even for the best of
comparativists, given the fact they, as also for the lesser comparative beings,
remain encased within traditions of sensibility shaped by religion, culture,
and language. The moderation of the hegemonic intent in fashioning
comparative narratives is never an easy task and the discourse concerning
the universal and the particular does not provide any safe harbour for
comparativist odyssey.
COCOS confront in addition different orders of difficulty. In the f irst
place, the term ‘constitution’ signifies three different ‘things.’ I have named
this elsewhere I terms of the three ‘Cs’: C1 standing for the constitutional
texts, C2 for both the orders of official (constitutional ‘law’) and citizen
interpretations (constitutional insurgencies); and C3 signifying
‘constitutionalism’ standing for distinct theories/ideologies, which shape as
well as remain shaped by C1 and C2, which also shape these2 . Even within-
* Gary Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context,
2003, Oxford University Press, New Delhi.
** Professor of Law, University of Warwick, UK.
1 See, Upendra Baxi, ‘The Craft of Disinterested History: Jury Trials and Plea Bargaining: A True
History by Mike McConville and Chester L. Mirsky’ Kings College Law Journal 17:1, 155-165 (2006.)
2 See, Upendra Baxi ‘Constitutionalism as a Site for State Formative Practices’ Cardozo Law Review
21, 1183-1210 (2000.)
232 INDIAN J. C ONST. L.

nation studies of constitutions at work remain besieged by the dialects and

dialectics of the three Cs; for the practices of COCOS these present an
immensely difficult realm.
Second, COCOS address publics or communication constituencies. The
first constituency of course comprises the charmed circle of COCOS specialists.
The second public may be designated as the official publics. These remain
heterogenous, indeed. Because I find the term ‘elected public officials’ too
restrictive (for example this does not typically include appellate as well as
apex Justices) I here suggest that a more helpful distinction is between
constitutional oath taking public officials and the oathless ones, that is others
who do not swear affirm the obligation to uphold the constitution, without
fear or favour. The latter constitute a vast series of publics: the so-called
‘civil servants’ or more accurately uncivil masters (because for a large body
of Indian people these are neither truly ‘civil’ nor’ servants’), the varieties of
legal professionals, the owners, operators, and independent contractors
(public intellectuals writing for the press or regular participants in TV talk-
shows) of the print and electronic mass media, social and human rights
activist networks, and some self-styled custodians of ongoing traditions of
legal education and research, including the inter-disciplinary communities
of social and cultural sciences concerned with wider issues of symbolization
of law in society. These may be described as the unofficial bodies of
deliberative publics via the Rawlsian notion of constitutional ‘public reason,’
or in Habermasian terms as exploiting the ‘discursive community will
formation.’ One way then of understanding constitutional formations invites
sustained grasp of deliberative/reflexive patterns of interaction, or the moral
trafficking in ideas between the deliberative official and non-official publics.
All this in turn offers a tangled web through which constitutional
normativity stands further socialized. Put another way, constitutional acts,
performances, and even interpretive feats constitute new forms of political
desire, even utopic imagination, concerning constitutional futures. We ought
to pause to note at least four consequences. First, the multiplex process of
commoditization via news/views production of constitutional forms of actions
via the mass media promoting the folklore of constitutionalisms; second,
forms of NGO-ization of constitutions; third, as offering contentious registers
of judgements concerning the success or failure of constitutions put to work
or sleep as the case may be; and fourth, as providing ambivalent sites of
critical judgement concerning liberal and less liberal, even illiberal practices
of constitutionalism.
This last, in my considered view, is a distinction of degree rather than
of kind if only because the so-called liberal constitutionalism capaciously
Book Review 233

accommodates toleration of the intolerable illiberal practices. The United

States constitutionalism during the Cold War and now under the aegis of
the ‘war on terror’ furnishes one example; the routinization of the exceptional
state in the Indian instance (for example by the massive constitutionalization
of dragnet security legislations under Article 22, which mocks the precious
assurances of Article 21 rights to life and liberty.3 ) In saying this, I do not
wish to gainsay some residuary legatees of the Third Reich constitututional
‘paradigms’ of military constitutionalisms in the Global South; rather, I insist
from the perspectives of subaltern constitutionalism that the normative
distinctions between liberal and illiberal constitutional forms furnish partial
and ideologically incomplete narratives4 . I wish to go so far as to suggest
that in a grounded subaltern COCOS perspective all contemporary state
formations constitute ‘failed states.’ Any elaboration of this thematic remains
the task for another day!
Rarely, do COCOS seek to address counter-publics, specially the
militant counter-publics which deploy collective political violence as an act
of political communication which interrogate entrenched iniquitous systems
of domination legitimated by the constitutionalism/good governance, and
the rule of law talk/discourse. Understandably, the COCOS traditions play
safe, even as rebels with a cause confront forms of predatory constitutionalism.
Probably, Professor William Dicey in the late 19th century summated this
best when he urged that those who govern should never make the mistake
of ‘weighing the butcher’s meat in diamond scales.’ The sufferings of the
rightless peoples everywhere remain that meat which ought not to
contaminate the finely calibrated scales of constitutional rights jurisprudence!
Third, by now a thriving law and economics type genre, which entails
the application of statistical and econometric theoretic models in the tasks of
comparing constitutional formats at cross-national levels, makes a pertinent
contribution5 . However, most COCOS studies remain encased in qualitative
rather than quantitative comparison. How may each tradition learn from
the other is an important question, which I do not pursue in this essay save
saying that this divide itself remains rather difficult to bridge if only because
the everyday experience of life under constitutionalism is not just a domain
of reason but also a realm of politics of passion .

3 See K.G. Kannabiran, Wages of Impunity (Hyderabad, Orient Longman, 2003).

4 See concerning the notion of subaltern constitutionalism, Upendra Baxi, ‘The Promise and Peril
of Transcendental Jurisprudence: Justice Krishna Iyer’s Combat with the Production of Rightlesness
in India’ in C. Raj Kumar and K. Chockalingam (ed.) Human Rights, Justice,& Constitutional
Empowerment 3-25 (Delhi, Oxford University Press, 2007.)
5 See, Torsten Persson and Guido Tabellini, The Economic Ef f ects of Constitutions (2003; Cambridge,
The MIT Press); and Darron Acemoglu, ‘Constitutions, Politics, and Economics: A Review Essay
on Persson and Tabellini…’ Journal of Economic Literature 4: 1025-1048 (2005.)
234 INDIAN J. C ONST. L.

Fourth, COCOS, perhaps more than other realms of comparative law

studies need to maintain claims of ontologically robust constitutional identity
even amidst throes of constant transformation. Both permanence and flux
need to be simultaneously addressed. The aspect of permanence is often
seized by identification of C3 genres, for example summed up by terms
such as ‘liberal,’ ‘socialist,’ ‘postcolonial,’ ‘postsocialist,’ ‘supranational,’
‘revolutionary,’ and ‘transitional’ constitutionalisms. This last category is
the puzzling because, truth to say, all constitutions remain transitional. They
remain always work-in-progress, despite some fantastic claims of their identity.
Constitutional development everywhere remains always in a state of crises
in terms of respect for the values, norms, and standards of human rights and
of responsibility for tasks of re-distributive justice.
In this perspective, I know of no actually existing constitution that in
this sense is not transitional because all nations emerge on the contemporary
world historic theatre as equal strangers to the tasks of promotion and
protection of the internationally enunciated human rights norms and
standards6 . If so, the COCOS enterprise may have prospect of some success
when fully informed by a spirit of humility in the task of informed comparative
judgement concerning constitutional development as well as failure.
The Wheel of Law makes a noteworthy contribution to the emergent
CO CO S tradition. Its principal intendment is to foster cross-cultural
understanding of constitutions as work-in-progress. This study also brings
home the utility and value of thematic cross-cultural comparison; through
the prism of constitutional secularism, it traces the complexity of constitutional
development and change across India, Israel, and the United States. Further,
because ‘constitutionalism in faraway places seems finally to have come of
age among all kinds of scholars of public law,’ the claims of American
exceptionalism, and I may equally add the comparative European disregard,
become problematic. Jacobsohn, additionally, as we note briefly in the next
section, redefines the COCOS mission both as a new pedagogy and high
theory.
The Wheel of Law revisits secularism as an essentiality contested concept.
It traces its some distinctive genealogies, or more precisely the iconography
of Indian secularism. It complicates the difficult notion of constitutional
politics in a comparative setting. It shows fully the competitive production
of the ‘truths’ about constitutional secularism and the ways in which
6 The standard narrative device that distinguishes changes in from changes of constitutions does
not quite help. See Sanford Levinson, ‘How Many Times Has the United States Constitution Been
Amended? in Sanford Levinson ,Ed., Responding to Imperf ection: The Theory and practice of Constitutional
Amendment ,13-36 (1995; Princeton, Princeton University Press); Upendra Baxi, Courage, Craf t, and
Contention: The Indian Supreme Court in the mid-Eighties (1985; Bombay ,N.M. Tripathi.)
Book Review 235

adjudicatory power prevails over other forms of state power and authority.
Further, as I read his work, Jacobsohn rather fully disrupts (to invoke here
the Prince of Demark) the ‘stale, weary and unprofitable uses’ of the American
scholarly discourse concerning the ‘counter-majoritarian’ character of ‘judicial
review’ power and process. As Jacobsohn brings home in this imaginative as
well as painstaking exploration, the ‘politics’ of constitutional interpretation
emerges as a sword and a shield. If in certain historic conjunctures, C2 combats
corruption of the first principles that seek to justify the unjustifiable, that is,
the practices of constitutional politics which are directed to reproduce human
rightlesness and promote inequity, in certain other situations C2 defers to
expedient regime oriented negotiation of rights to freedom of conscience
and religion7 .
§ Iconography of Indian Secularism
Constitutions are not mere assemblages of words. They also thrive on
symbolic representations: the flag, the anthem and the linkages between
‘nature’ and ‘nation’ as provided by laws protecting national birds, animals,
rivers, and mountains. Jacobsohn looks at the imageries of constitutional
identity as symbolized by various national flags, which provide passional
forms of loyalty to the idea of a nation-peoples and serve also as a marker of
the ‘membership in the national community’ (p.9.) Jacobsohn here mediates
on the colours and figuration in the Indian national flag; if the colours signify
‘the unfinished business of national integration. (p.6), the figuration of the
Ashoka wheel convey in more determinate sense ‘ a message about the
conceptualization of secular democracy that is significantly different from
the approaches intimated by the American and Israeli flags’(p.7.) He thus
strives to offer a distinct message: COCOS ought to attend seriously to
constitutional iconography placed in service of ‘comparative reflection on
the alternative experience of other constitutional systems’ (p.8.) Jacobsohn,
this context, as also in a comparative focus, suggests that one way to
understand and even secure Indian constitutional secularism is to mediate
on aspects of constitutional iconography.
However, it is the Ashoka wheel that engages him the most. Upon
independence, the search begins for the replacement of Mahatma Gandhi’s
charkha or the spinning wheel which appeared in the flag of the Indian
National Congress during the freedom struggle (p.6.) A crucial question thus
arises: what led to the search for an alternate icon? Perhaps, the charkha was

7 The Indian Supreme Court has thus upheld anti-conversion state legislations that criminalize
conversion by ‘force’ and ‘fraud.’ Proselytizing religious practices that appeal to divine displeasure
for refusal to convert would thus amount to ‘force,’ Appeals to Hell and Heaven would constitute
‘fraud’ because there is no forensic way to site and prove the existence of these entities!
236 INDIAN J. C ONST. L.

too humble a symbol to convey this first twentieth century inaugural

postcolonial state8 ; perhaps, it did not accord with the Nehruvian vision of
Indian economic development; perhaps too it may have been thought that
the nation may not be symbolized after all by a party flag.
In any event, the Ashoka wheel as a ‘wheel of law’ when especially
situated in the Sarnath configuration, does not logically carry the interpretation
associated with philosopher Radhakrishnan in whose view the law as dharma
signifies a kind of virtue-ethics, a dharma that is ‘constantly moving,’ reminding
that ‘there is life in movement’ (p.7.) It is however not self-evident that the
wheel should represent the law/dharma.
On standard and readily available and official and other Internet
descriptions9 , the Sarnath icon consists of ‘four lions, standing back to back,
mounted on an abacus with a frieze carrying sculptures in high relief of an
elephant, a galloping horse, a bull and a lion separated by intervening wheels
over a bell-shaped lotus. The wheel appears in relief in the centre of the
abacus with a bull on right and a horse on left and the outlines of other
wheels on extreme right and left. The bell-shaped lotus has been omitted.’
And the fourth lion remains invisible. How may one fully grasp the reduction
of all these elements into a representation of the wheel as the wheel of law/
dharma? May not the wheel equally yield other interpretive readings — for
example, the wheel of dukkha, the eternal recurrence of suffering, or wheel
of God that in Rabindranath Tagore’s famous aphorism that grinds
exceedingly slowly but it grounds fine! One wonders whether there exists
any tradition of subaltern iconography that may offer us different significations
of the wheel. The Mahatma’s charkhas, as well as the potter’s wheel, perhaps
indicate different ways of some proletarian approaches to understanding the
wheel. All this entails re-visitation of constitutional iconography. I remain
singularly untrained and incompetent to explore alternate readings.
What interests Jacobsohn, however, is the question: what kind of law/
dharma that the wheel may signify? Jacobsohn recalls and reiterates the
Ashokan conception of dharma as a ‘concept intended for secular teaching,’
‘directed towards amelioration of social injustices embedded in a status quo
of religiously based hierarchy’ (p.8.) But this does not quite tell us why
‘secular teaching’ may not merely subvert hierarchy but also reinforce it10 .

8 I need to put the matter thus way because many American students and colleagues insist that theirs
was the first world historic postcolonial constitution!
9 For a representation and detailed description of the Ashoka wheel see http://en.wikipedia.org/
wiki/Dhar macakra, http://en.wikipedia.org/wiki/Ashoka_Pillar (last visited 27th March 2007).
10 A monumental example is offered by the Indian constitution itself when it speaks variously of the
‘scheduled castes,’ thus creating all sorts of new constitutional caste orderings in the pursuit of
complex and contradictory affirmative action programmes.
Book Review 237

The wheel of law even as it rotates on the axes of indissoluble bounds

of the ‘spiritual and temporal domains’ may in the end help to develop a
positive sense of national identity (p.285.) But as concerns the ‘underlying
premise of ameliorative secularism’ that strives to ‘reduce inequalities’ and
to promote ‘just social order’ (p. 287) the wheel of law may perhaps more
aptly be understood as a roulette wheel! Its constant motion rewards more
often than not the constitutional-haves rather than the have-nots11 . At the same
moment, this rotational movement also swings the fortunes of state neutrality
obligations. The wheel then shapes an immense multiplicity into a singularity
of constitutional secularism, in itself subject to different rhythms of historic
time, both the accelerated catastrophic political time and the glacial quotidian
time both of competitive party politics and reasoned adjudicative
interpretation.
§ Understanding Theory and Practice of Secularism
Two COCOS pertinent messages follow from this important work.
First, cross-cultural constitutional comparison entails considerable conceptual
innovation and second comparative learning best occurs when the models
are constantly set against the realities of political, economic, and social
development.
Jacobsohn invites us to fully consider the idea of secular constitution
as signifying a ‘polity where there exists a genuine commitment to religious
freedom that is manifest in the legal and political safeguards put in place to
enforce that commitment’ (p.28.) While this enables us to distinguish a non-
secular from secular constitutionalism, within the latter form neither the
‘commitment’ nor the ‘safeguards’ emerge as self –evident and deciphering
them requires recourse to indicators of the ‘consequential dimension of
religiosity (pp.28-29) Further ideal-type construction yields different models
of constitutional secularism. Chapter 3 offers three models: the ‘visionary’
(Israel) ‘assimilative’ (the United States) and the ‘ameliorative’ (India.)
Jacobsohn distinguishes the Turkish context of ‘reformist secularism’ (p.107,
fn. 131.12 ) Recourse to high political/juristic theory concerning the place and
role of autonomous judicial interpretation becomes necessary because
secularism entails normative interpretation and even definitional re-
articulation. A considerable merit of this work is the re-visitation of John
Rawls’s germinal notions of ‘constitutional essentials’ and the doctrine of
‘public reason (see, Chapters Seven and Eight.)

11 See for this distinction, Upendra Baxi, ‘Violence, Constitutionalism, and Struggle’ or How to
avoid Being a Mahahmoorkha in S.P. Sathe and Sathya Narayan, ed., Liberty, Equality, and Justice:
Struggles f or a New Social Order 9-27 (2003; Lucknow, Eastern Book Co.)
12 Jacobsohn also refers somewhat approvingly to ‘positive secularism’ (p.151.) All this makes the
notion of ameliorative secularism a trifle unwieldy, perhaps?
238 INDIAN J. C ONST. L.

A COCOS theorist going beyond the Euroamerican shores confronts

at least two related hurdles. One is that even eminent Euroamerican political
theory producers remain somewhat insular; the frameworks they offer to
understand the world rarely address histories of South constitutionalisms.
Second, while the South scholarship rightly decries the latent or manifest
hegemonic intent or the universalizing effect of Euroamerican theory, it has
little demonstrable to offer by way of an alternate and explicit way of
theorizing13 .
Jacobsohn offers some ways out of this impasse. He suggests, first, some
India-based ways of interrogating the doctrine of constitutional essentials;
second, at the same moment, he asks us to consider ways of interactive
understanding between high liberal theory and the somewhat hard and
parlous experience of the Indian, and Israeli, and American adjudicatory
experience in construction of secularism. This is indeed a brilliant feat at
once constantly alerting Euroamerican theory producers against their
insularity and urging the South decision-makers and scholarship to avoid
de-privileging approaches to ‘theory’ as a hegemonic contagion. Both sides
have much to learn from each other and this defines the COCOS mission. I
may only urge the reader to fully ponder this high order of Jacobsohn
achievement14 . Overall, I endorse the observation: ‘If under the rubric of
constitutional essentials in India are not to be found principles regulating
basic matters of social and economic equality, then much of the history of
the Indian constitution will need to be rewritten’ (p.171)
Further, the importance of historical narrative, experience, and
imagination may not be gainsaid. Thus both the United States and Israel
stand constitute ‘immigrant societies’ but vast differences inform their historic
and cultural composition. Terms like ‘multi-ethnic,’ ‘multi-religious,’
‘multicultural’ that may be used for many societies; these descriptions remain
superficially useful but also profoundly deceptive. Thus, while the United
States remains admittedly multi-religious, minority religious traditions there
never acquire either a ‘formidable presence’ or a ‘substantial minority of
American people’ confronting the ‘vast majority’ ‘with a rival constitutive
culture’ (p.105.) Jacobsohn goes so far as to say that the American C1, and
even C2, would have otherwise followed the Indian constitutional provisions.

13 Of course, subaltern, feminist, and postcolonial approaches to constitutionalism exist and some
doctrinal commentation on law contains elements of an implicit theory. The question is how far
all this may provide a normative/ philosophical perspective on understanding C3? To what extent
do these provide a general theory of and about constitutionalism, here understood as a complex
relationship between the key ideas of governance, rights, development, and justice?
14 This work does not merely address the re-working of the ‘liberal’ tradition by Rawls; it is replete with
many useful asides concerning contributions of Charles Taylor, Will Kyamicka, though Jurgen
Habermas remain conspicuous by the lack of reference.
Book Review 239

Very few human societies are monocultural. If the pluralities sought

to be conveyed by the prefix ‘multi’ is to have any pertinent meaning at all,
it lies in an opposition to a ‘universalist political creed’ that separates
citizenship (in the words of Michael Walzer) from ‘every sort of particularism’
and justifies a liberal state which remains ‘nationally, ethnically, racially,
and religiously neutral’ (p.65.)
The point surely is not that state neutrality in the state–religion nexus
is unimportant but that in these three units of comparison it necessarily
assumes some staggeringly diverse forms. No ‘comparison’ may ignore some
specific cultural sedimentation of state power. The question then is, from a
COCOS perspective, how high theory may keep good company with lived
social histories. Towards this end of grasping fractured normative histories
of the idea of constitutional secularism, Jacobsohn offers a magisterial
contribution.
§ The Indian Story
Unlike most narratives of Indian constitutional secularism, Jacobsohn
does not detail or distress us with the decisional law concerning the distinction
between religious belief and practice, denominational rights, idols and shrines
as property, and the ‘dangerous supplement’ ( to evoke Derrida) of gender
equality in India’s major religious traditions. The three sub-plots of the Indian
story that interest Jacobsohn the most are the Uniform Civil Code, the Bommai
decision, and the emergence of ‘Hindutva’ as a ‘way of life.’ In terms of a
recent distinction that I draw, Jacobsohn is more directly concerned with
governance oriented secularism (GOS) rather than rights oriented secularism
(ROS. 15 )
RO S seeks to make the best complete sense of the normative
proclamation of the right to freedom of conscience and to religious belief
and practice. The elaboration of the ROS dominates much of the Indian
Supreme Court’s work for its three decades; it also entails complex interface
between rights to religion and other related rights, such as the claims over
the near-absolute Article 30 minority rights to establish and administer
educational institutions of their own choice, claims to immunity from use of
public revenues for renovation of religious shrines or celebrations of historic
memory of inaugural figures of religious traditions, contestation over
definitions of public order as a ground of regulating associational and
movement rights, and claims concerning property rights. ROS signify, overall,
claims and contentions about the integrity of rights-structures.

15 See, U. Baxi, ‘Savarkar and the Supreme Court? — Comment on R. Sen, Legalizing Religion’ East-
West centre, Monograph Series (Washington D.C., in press, March, 2007.)
240 INDIAN J. C ONST. L.

In contrast, GOS seeks to codify the limits of political practices that

craftily appeal to religion as a resource for the acquisition, exercise, and
management of political power. GOS no doubt remains related to ROS;
but the main remains focussed on the preservation of the integrity of secular
governance structures and processes. The GOS formations explicitly remain
subject to adjudicatory surveillance. The distinction needs to be developed
much further. However, it may be said that the spirit and scope of such
surveillance over governance practices [see Chapters Five, Six, and a part
Chapter Four (pp.104-121)] provide a principal focus.
I do not, for reasons of space, here examine Jacobsohn’s analysis of
the Uniform Civil Code debates save to note that this stands here reframed
in terms of distributional questions: ‘Who gets what, when, and how?’ The
issue then, in terms familiarised as well as probelmatized so much by Nancy
Fraser, concerns scrupulous forms of avoidance of both misrecognition and
misdistribution16. For Jacobsohn, the principal issue is not the framing of the
Code itself but rather how this ‘might affect achievement of ameliorative
secular aspirations’ (p.110.) These aspirations are encased no doubt in “the
complicated hierarchies of age, gender and caste” taken by almost everyone
at their face value (p.119.)
Matters do of course get further complicated by considerations of ‘social
comity’ (p.105) directed at ‘preserving political space for religious identity’
(p.108.) The judicial forfeiture of this complexity moves our otherwise reticent
author to a sharp criticism of Justice Kuldeep Singh’s remarks in Sarla Mugdal
reiterating the need for a Code; what is lamentable, says Jacobsohn, is not
this strong commendation but rather ‘a serious misconstruction of Article 44
that bespeaks a broader failure of imagination regarding how one might
conceptualize legal uniformity in the Indian context’ (p.116.) Far from
envisaging either possib ility that Article 44 is ‘unrealizab le’ and
‘unenforceable,’ Jacobsohn suggests a third way that ‘does not expend
political capital in seeking to divest religion from social relations, but rather
deploys it to mandate uniform standards without requiring uniform
behaviour’ (p. 119.17 ) Incidentally, I cannot let go this theme without inviting
your attention to some concerns for judicial political correctness variously
raised by Soli Sorabjee and Tahir Mohamed (pp.114-115) and Jacobsohn’s
rather spirited protest against the imposition of the ‘veil of silence’ (p.110). I
like and endorse Jacobsohn’s approach to Article 44 as inviting the Supreme

16 Nancy Fraser, ‘From Redistribution to Recognition?: Dilemmas of Justice in a Post-socialist Age,’

1 New Lef t Review 212 (1995); and ‘Social Justice in the Age of Identity Politics,’ in Nancy Fraser
and Axel Honneth, Redistribution or Recognition?: A Political- Philosophical Exchange 7-109 (2003,
London, Verso)
17 Drawing here of course upon the high authority of the lamented Professor S.P. Sathe.
Book Review 241

Court to ‘function as an official constitutional gladf ly’ (p.111, emphasis added.)

If the UCC clearly concerns GOS, so does the Bommai decision, which
dealt not with any specific constellation of individual or group rights to
freedom of conscience or religion but rather with the issue of secularity of
governance practices. No doubt the context was catastrophic not just in the
sense of the demolition of the Babri Masjid and the carnage that followed
but also in the sense that some BJP led state governments and the Party itself
proceeded with some abundant and insidious justifications for this. The
dismissal of three BJP governments in the state and the imposition of the
President’s Rule were upheld by the Supreme Court on the ground of their
violation of ‘secularism’ as the essential feature of the basic structure of the
Constitution. The issue posed in terms of conflict between ‘democracy’ and
‘secularism’—both essential features—was appropriately handled ‘at least’ by
some of the Justices who “were inclined to comprehend democracy and
secularism as conceptually intertwined, in effect rejecting a fundamentally
process-based definition of ‘the provisions of this Constitution’ ” in Article
356 ( pp. 134-135.) Further, Jacobsohn writes approvingly of the Bommai
linkage of the basic structure doctrine with the working of Article 356 (p.143.)
While I broadly agree with this last observation, even as votary of
judicial activism Indian–style, I remain uncomfortable with the manner in
which the Kesavananda ruling now stands extended. The basic structure
doctrine extends only to judicial review of constitutional amendments; the
Bommai Court was clearly bound by this as well as by the minimal deference
to the doctrine of precedent which requires judicial deference by smaller
Benches to a Full Court decision. Article 356 is a constitutional, not by any
means a constituent, power. I believe that the eminent Justices had ample
authoritative legal materials before them to have arrived at much the same
result, without claiming the high authority of that doctrine; since Bommai
even a more fantastic recourse to the doctrine converts it into a canon of
constitutional construction and even statutory interpretation! I essay a fuller
review of these trends elsewhere18 .
Perhaps, more to the point is Jacobsohn’s elaborate analysis of judicial
understanding of the Bommai brand equity ‘secularism’ (pp. 145-160.) This
should be compulsory reading for all COCOS community because at stake
remain ‘the long–term consequences of the unchallenged ethnoreligious
nationalism on the prospects of social reform and reconstruction’ (p.134.)19
18 See Upendra Baxi, ‘The Routinization of the Basic Structure Doctrine With and Since Bommai,’
being a paper presented to S.P. Sathe first death Anniversary, ILS Law College, Pune, March 8-
11, 2007.
19 In this sense, Bommai invites comparison with the 2003 European Court of Human Rights
decision in Ref eh Partis (The Welf are Party) and other v. Turkey.
242 INDIAN J. C ONST. L.

The so-called Hindutva judgment manifests yet another domain of GOS.

No doubt, there was involved the question of the individual claim to freedom
of speech and expression in electoral political campaigns in the face of a
statutory prohibition of appeals to religion, which stand described as ‘corrupt
practice.’ The brilliance of Jacobsohn’s contribution lies in meditations on
‘corruption.’ This political evil has many faces. Quoting Dobel, Jacobsohn
reminds us that ‘systematic corruption’ serves a source of ‘certain patterns of
inequality’ (p. 163, fn. 3.) Evoking the difficult notion of Dworkin that struggles
to speak to us of ‘law as integrity’ Jacobsohn also suggests that ‘corruption,
in short, represents the loss of integrity’ (p. 166, fn. 9.) Echoing Montesquieu,
he says that corruption violates the ‘constitutive commitments that establish
a polity’s constitutional identity’ (p.165.)
All this, put together, ought to guide a COCOS type understanding
of systemic political corruption. More specifically, it helps elevate the more
mundane electoral law judicial interpretation to some lofty heights. The
Prabhoo decision is significant precisely because it scales these heights by
establishing some normative linkages between democracy and secularism’
(see the quote from the decision at p. 167.) In the Court-bashing that followed
a decision misread and miscalled as the Hindutva decision this dimension
stands near completely ignored and surely scrupulous Indian constitutionalists
ought to revisit this in fullness.
GOS again becomes pertinent in Prabhoo. I invite you to cheerfully
study Jacobsohn’s exegesis (especially, pp.163-202). This brings to a full view
the difficulties of constitutional justicing in less ontologically robust
constitutionalisms than characterised by the American First Amendment. I
have yet to be convinced about the indictment of judicial ‘conflation between
Hinduism and Hindutva’ (pp. 203-209) for the very same reasons that lead
Jacobsohn to cite my Indian Express article on the decision in the context of
my other related writings (pp. 233-234.) I continue to think that too much is
made of Brother Verma’s references to Hindutva as ‘way of life.’ It was
neither a kiss of life to the Hindutva forces nor a kiss of death for Indian
constitutional secularism; rather, the issue concerned invocation of differently
constituted Utopias during the campaign speech-making; how may Justices
and legislators prohibit freedom of speech and expression as forms of
constitutionally dreaded Dystopia20 ? The issue remains: how may appeals
to constitutional secularism remain subject to the constitutional discipline of
the rights to freedom of speech and expression, association and movement?
Put another way, when as a matter of principle may Justices draw bright
lines between the utopic and the dystopic?

20 Raising this question is certainty not to ally myself with the highly partisan interrogations of Arun
Shourie, profusely, and fortunately dismissively, cited by Jacobsohn on this count.
Book Review 243

There is of course no question that the political right everywhere

appropriates the ‘liberal’ discourse to its own distinctive ‘undemocratic’ ends.
One may say that the doctrine of basic structure remains crucial as setting
standards for judging the issue of appropriation and The Wheel of Law, overall,
provides a devastatingly accurate understanding of how this actually happens
in the Indian case. In this, it remains a safe companion in decoding the
crises of Indian constitutional secularism in some comparative settings. It,
overall, constitutes a remarkable COCOS genre.
I must conclude by a small reference to some remarkable pedagogic
turns and twists in this text. Readers are constantly asked to switch scenarios
(see especially pp.125-30.) They are afforded no safe harbour for
understanding ‘secularism’ in comparative contexts (Chapter Seven.) Most
startling remains the device of ‘chronological manipulation’ (p. 259) which
furnishes in the Indian context a most exciting tool for ‘teaching’
constitutional secularism by raising the question: what if the sequences of
judicial enunciation in these three GOS cases here (including for this purpose
the Ayodhya decisions) studied were to be contingently re-ordered?
The Wheel of Law is indeed a rare COCOS treatise. In the Indian
context, it signifies the need for transition from genocidal politics to a regime
of relatively non-violent transformative state formative practices. In this, it is
a call for résistance to the Modi-f ication of Indian constitution and constitutional
secularism imaginers21 . Surely, this study remains especially crucial for the
nascent COCOS subaltern Indian constitutional scholarship.

21 The reference here is to Narendra Modi Gujarat 2002 catastrophic political management. See
Upendra Baxi, The Gujarat Catastrophe: Notes on Reading Politics as Democidal Rape Culture,’
in Kalpana Kannabiran (ed.) The Violence of Normal Times: Essays on Women’s Lived Realities. 332-
384 (New Delhi: Women Unlimited in association with Kali for Women)
 xv
245

INDIAN JOURNAL OF C ONSTITUTIONAL LAW

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xvi
246 INDIAN J. C ONST. L.

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