Judicial Activism in a Comparative Perspective · 2019-04-05 · Judicial Activism in a Comparative...

Judicial Activism in a Comparative Perspective

Fabian Schusser

Nomos

Moderne Südasienstudien – Gesellschaft, Politik, Wirtschaft | 7Modern South Asian Studies – Society, Politics, Economy

The Supreme Court of India vs. the Bundesverfassungsgericht

Schriftenreihe Moderne Südasienstudien – Gesellschaft, Politik, Wirtschaft

The series Modern South Asian Studies – Society, Politics, Economy

herausgegeben vonEdited by

Prof. Subrata K. Mitra, Ph.D. (Rochester, N.Y.), Ruprecht-Karls-Universität HeidelbergProf. Dr. Dietmar Rothermund, Ruprecht-Karls-Universität Heidelberg

Band / Volume 7

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The Supreme Court of India vs. the Bundesverfassungsgericht

Judicial Activism in a Comparative Perspective

Nomos

Fabian Schusser



The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.d-nb.de

a.t.: Heidelberg, Univ., Diss., 2018

Original titel: “Judicial Activism in India and Germany: A Comparative Analysis of the Political Role and the Development of the Supreme Court of India and the German Bundesverfassungsgericht”

ISBN 978-3-8487-5566-0 (Print) 978-3-8452-9744-6 (ePDF)

British Library Cataloguing-in-Publication DataA catalogue record for this book is available from the British Library.

ISBN 978-3-8487-5566-0 (Print) 978-3-8452-9744-6 (ePDF)

Library of Congress Cataloging-in-Publication DataSchusser, Fabian Judicial Activism in a Comparative PerspectiveThe Supreme Court of India vs. the BundesverfassungsgerichtFabian Schusser 169 p.Includes bibliographic references and index.

ISBN 978-3-8487-5566-0 (Print) 978-3-8452-9744-6 (ePDF)

1st Edition 2019 © Nomos Verlagsgesellschaft, Baden-Baden, Germany 2019. Printed and bound in Germany.

This work is subject to copyright. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. Under § 54 of the German Copyright Law where copies are made for other than private use a fee is payable to “Verwertungs gesellschaft Wort”, Munich.

No responsibility for loss caused to any individual or organization acting on or refraining from action as a result of the material in this publication can be accepted by Nomos or the author.



This doctororal thesis is dedicated

to the two most important women

in my life,

my mother and my wife.


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Acknowledgements Writing a doctoral thesis is always a great challenge, which I could not have mastered without the help of several people, to whom I owe my dee-pest gratitude. First, I would like to express my sincere gratitude to my advisor Prof. Subrata K. Mitra for the support of my doctoral thesis over the last five years.

Furthermore, I would like to thank my second advisor Prof. Dietmar Rothermund and Prof. Markus Pohlmann for their support.

Fabian Schusser

Karlsruhe, November 2018


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Foreword

All stable political systems have a functional need for a fixed point around which the dynamics of political competition can revolve. This is a com-plex issue because the institution which affects politics needs to be inde-pendent of politics. However, in practical terms, people occupying this in-stitution need to be selected, elected or appointed by leaders who are themselves politicians, subject to the usual pressures and cross-pressures of political competition. How can a political system ensure both judicial integrity and the comprehensive attention of the judiciary to the full range of conflictual issues that characterise contemporary societies? Fabian Schusser’s contribution to this important issue, drawing on the cases of India and Germany, analyses this complex problem in a comparative framework.

In modern political systems, it is the judiciary that occupies the key role of adjudicator, and enforcer of norms’ compliance. In addition, liberal democracies require a sense of fairness in political transactions in order to generate the requisite political legitimacy to reinforce authority with force. The supreme judiciary has the responsibility of ensuring a level playing field for competing political forces. Finally, in changing societies and stable liberal democracies facing rapid social change, an institution is nee-ded to oversee political change and ensure orderly transition of the system from one context to another. The judiciary is endowed with this function of being an adjudicator for competing social forces. The importance of Fabian Schusser’s contribution lies in the fact that he undertakes an analy-sis of the Supreme Court in India and the Constitutional Court in Germany with these aspects in mind. He undertakes his analysis in a comparative framework and his empirical analysis is driven by neo-institutional theory.

The Supreme Court is an integral part of the court system of India. It is not only a constitutional court, but also a supreme civil and criminal court. Its judges are mainly recruited from the ranks of the high courts and hold their office until the age of 65. The Supreme Court has control over an ex-tensive jurisdiction. It can review laws for constitutionality or intervene when individuals see their constitutionally guaranteed rights violated. In contrast to the Bundesverfassungsgericht, the Supreme Court has the power to handle and decide on populist complaints (also known as Public


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Interest Litigation). In this case, people can sue for the rights of third par-ties in front of the Supreme Court.

In this important and pioneering work, Fabian Schusser casts the deve-lopment of the judiciary in India and Germany in a historical framework, divided into three phases.

The first phase began immediately after the creation of the Supreme Court after Independence from British colonial rule. During the early years after Independence, under the leadership of Prime Minister Jawahar-lal Nehru, the Indian parliament tried to pass several land reforms, which intended a redistribution of land from the landlords (zamindars) to tenants. However, there were several lawsuits in front of the Supreme Court, espe-cially by the zamindaris. The Supreme Court, defending the fundamental right to property, opposed the government and, in many cases, decided that the laws were incompatible to the constitution. This caused the government to add amendments to the constitution more and more often in order to enforce its land reforms somehow. There was no clear winner in this dispute, but the court was able to strengthen its position as guardian of the constitution and most particularly, fundamental rights.

In the second phase, the Supreme Court again had to decide upon in cases of land reforms and oppose the parliament‘s arbitrarily amending the constitution. In the Golak Nath case, the Supreme Court denied the par-liament this opportunity, while some time later, in the Kesavananda case, it granted this power back to the parliament. In the judgement on the Kesavananda case, the Supreme Court decided that the parliament had the power to change the constitution, but these changes should not damage the rights and freedoms enshrined in the basic structure of the constitution. This doctrine of the basic structure is still valid today. The problem here, however, is that only the judges decide what the basic structure of the con-stitution is. That opened up the scope for potential conflict between the government, representing majority political opinion in the country, and the judiciary as the defender of the constitution. The third phase saw the crea-tion of the Public Interest Litigation (PIL). Under the leadership of Judge Iyer, the PIL was developed. To this day, it is one of the most widely used legal remedies in front of the Supreme Court. It led to the restoration of the reputation for the Supreme Court which was tarnished during the Emergency.

Contrary to the Supreme Court, the Bundesverfassungsgericht of Ger-many is part of the judiciary while at the same time, it is also detached


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from it. It is not integrated into the German court system, but stands outsi-de as an independent court. It cannot decide upon in civil or criminal cases. Its task is to check whether state actions conform to the constituti-on. This includes both state and judicial actions. Like the Supreme Court of India, the Bundesverfassungsgericht has various instruments at its dis-posal. There are several possibilities for federal states to file cases against one another or against the federal government. Most important, however, is the constitutional complaint, in which every citizen can report a violati-on of their constitutionally guaranteed rights.

Unlike in India where judges are appointed by the President of the Re-public, the judges of the Bundesverfassungsgericht are elected for a 12-year term of office. A re-election is not possible. Thus, a possible political dependence of the judges on the powers that can be, is avoided. The court is divided into two senates with eight judges each, including a president and vice-presidents. The Bundesverfassungsgericht went through only two critical phases in its development. The first phase began immediately after its foundation. The court had a status memorandum drawn up on its behalf in which it elevated itself to the status of a constitutional organ. However, the government under Konrad Adenauer saw this differently and had its own legal instruments drawn up which contradicted the court. However, the Bundesverfassungsgericht was able to assert itself despite the political obstacle. In the years to follow, the Bundesverfassungsgericht ruled in se-veral cases, such as the Lüth case or the German television case, by which it was able to assert its position as a constitutional body.

The second phase began in the 1970s under Willy Brandt's government. Here, the Bundesverfassungsgericht got into a political dispute. The Bava-rian state government wanted to scuttle the new Eastern politics of the fe-deral government and used the Bundesverfassungsgericht for its purpose. Through various proceedings, the Bavarian government succeeded in changing the composition towards a conservative majority of judges. A decision rejecting the Eastern politics could have plunged the court into a deep crisis. However, this was avoided by the Bundesverfassungsgericht itself since it decided to commit itself to the guiding principle of judicial self-restraint.

There are only a few similarities in the development of the two courts. The Supreme Court had to defend the Indian constitution and democracy more often, whereas the Bundesverfassungsgericht rather had to defend its own position. However, the two courts are similar when it comes to com-


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petence and equal power. In most cases, both courts can only become ac-tive if they are activated from outside. They cannot determine and control the political agenda themselves. Thus, while they do have power, this pos-session of power is rooted within and justified by the system of checks and balances. Nevertheless, they are important institutions for the develo-pment of democratic states. They protect the constitution and prevent an excessive policy without borders. Without them, functioning democratic states would be unthinkable.

Based on historical neo-institutional and case study approaches, Schus-ser analyses the critical junctures in the development of the judiciary in two societies that are apparently very different, and deals with the questi-on of whether the respective judiciaries have the requisite power to under-take their allocated functions. Political analyses of judicial institutions, es-pecially of the German Bundesverfassungsgericht are rare, which is why this study is intended to contribute to further expanding this field and clo-sing the gap between political science and law.

While one must compliment the author for venturing into a comparative analysis of the Indian and German judiciaries, rarely visited by students of comparative politics, his work also points towards the need for further re-search in the method of comparison, design of judiciaries and contribution of judicialisation to transition to democracy and its consolidation. Overall, this pioneering work which combines a good knowledge of area with an appropriate selection of tools from neo-institutional theories, raises inte-resting issues that add variety, depth and complexity to the analysis of the reciprocal relationship of governance and political development in two apparently dissimilar countries. Many of the questions that Fabian Schus-ser raises in this interesting and innovative study point in the direction of new areas of research which hold the potential to enrich comparative poli-tics.

On the whole, the author has demonstrated his capacity to formulate in-teresting research questions and shape them into testable conjectures, and examine these conjectures in the light of qualitative empirical data. Fabian has shown a good command of the theoretical literature, competence in in-terdisciplinary research, and a penchant for undertaking rigorous concep-tual analysis and good use of qualitative empirical data. The findings are interesting in their own right and would contribute towards further explo-ration of the important theme of judicialisation in the context of democra-cies facing rapid social change.


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The work responds well both to interdisciplinary research as well as to South Asian and comparative studies. Written with clarity, in accessible English, this important monograph will certainly constitute a reference point for South Asian and comparative studies, neo-institutional theories and comparative research on the judiciary, both in stable democracies and transitional societies.

Professor Subrata K. Mitra

Heidelberg, November 2018


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Table of Contents List of Figures 19

List of Abbreviations 21

1. Introduction 23

1.1. Aims and scope 24

1.2. Previous scholarship 25

1.3. Chapter outline 28

2. Theoretical framework 30

2.1. The puzzle: Measuring the power of courts 30

2.2. Institutions 32

2.3. Neo-institutionalism 32

2.3.1. History of neo-institutionalism 33

2.3.2. Streams within neo-institutionalism 33

2.3.3. Historical institutionalism: Central concepts 33

2.3.4. Criticism: Historical institutionalism and political change 35

2.4. Suitability of the theory 37

2.5. Method, analytic narrative 38

3. Judiciary 40

3.1. Constitutional courts 41

3.2. Judicial activism vs. judicial review 42

3.2.1. Judicial interpretation 43

3.2.2. Classical judicial review 43

3.2.3. Judicial review in India 45

3.2.4. Judicial review in Germany 46

4. The Supreme Court of India 48

4.1. Structure and organization 48


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4.2. Tasks and competences 51

4.2.1. Original jurisdiction 52

4.2.2. Appellate jurisdiction 54

4.2.3. Advisory jurisdiction 56

4.2.4. Public Interest Litigation 59

4.3. Historical development 60

4.3.1. The beginning of a new era: India and its new highest court 60

4.3.3. Kesavananda Bharati and what the constitution really is: The Supreme Court and the Basic Structure Doctrine 71

4.3.4. In the name of the people: The Public Interest Litigation 81

4.4. Political role 87

5. The German Bundesverfassungsgericht 90

5.1. Structure and organization 91

5.2. Tasks and competences 96

5.2.1. Constitutional complaint 97

5.2.2. The abstract and concrete judicial review 100

5.2.3. Other proceedings 102

5.3. Historical development 104

5.3.1. If there is law there shall be justice: The creation of the Bundesverfassungsgericht 104

5.3.2. The first decades 108

5.3.3. Battle Royale: The Bundesverfassungericht as a constitutional body 110

5.3.4. The new Eastern politics of Willy Brandt and the BVerfG 116


6. Comparison and contrast of the two courts 129

6.1. Historical development and critical junctures 129

6.2. Jurisdiction 132

6.3. Judges and their appointment 133

6.4. Legitimization 136



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7. Conclusion 144

7.1. Power of the courts 144

7.2. Judicial activism 146

7.3. Purpose of the courts 149

7.4. Suggestions for further research 151

8. Bibliography 153

Index 165


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List of Figures

Figure 1: Different forms of institutionalism accounting for change ....... 36 Figure 2: The eclectic center of the new institutionalism ......................... 38 Figure 3: Court system in India ................................................................ 51 Figure 4: Jurisdiction of the S.C. .............................................................. 52 Figure 5: Summary: Critical juncture: Land reforms ............................... 71 Figure 6: Summary: Critical juncture: Basic structure doctrine ............... 81 Figure 7: Summary: Critical juncture: PIL ............................................... 87 Figure 8: Court system in Germany .......................................................... 95 Figure 9: Summary: The BVerfG as a constitutional body .................... 116 Figure 10: Summary: Critical juncture: The BVerfG and the

Grundlagenvertrag ................................................................. 124 Figure 11: Comparison of critical junctures in Germany and India ....... 131 Figure 12: Trust and confidence in political institutions

and actors in India ................................................................. 139 Figure 13: Trust and confidence in political institutions

and actors in Germany ........................................................... 140


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List of Abbreviations

BVerfG Bundesverfassungsgericht

CNG Compressed natural gas

CDU Christlich Demokratische Union Deutschlands

CSU Christlich-Soziale Union in Bayern

EU European Union

FRG Federal Republic of Germany

GDR German Democratic Republic

GG Grundgesetz

INC Indian Constitution

KPD Kommunistische Partei Deutschlands

NPD Nationaldemokratische Partei Deutschlands

PIL Public Interest Litigation

S.C. Supreme Court of India

SPD Sozialdemokratische Partei Deutschlands

SRP Sozialistische Reichspartei

U.P. Uttar Pradesh

U.S. United States of America

vs. versus


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