A serious setback to federalism

While writing an article on the Supreme Court’s latest judgment on CBI,(Question of Domain) I realised that my previous post on this was perhaps an understatement. I had the opportunity to discuss with Anupam Gupta, who had written an excellent article (Profile of Federalism in Practice: Role of Judiciary) in the book, Principles, Power and Politics edited by D.D.Khanna and Gert W Kueck, (Macmillan, 1999). According to him, this judgment betrays a serious misunderstanding of our Constitution. The judgment also smacks of certain poverty of ideas, and ignorance of Constitutional scheme. First, Article 21 does not have a non-obstante clause. Therefore, how can this Article transcend all other provisions? Second, how can a limitation in the Constitution not apply to a judiciary? Everything in the Constitution is binding on all parts of the Constitution. The issue before the Bench was not a Constitutional amendment or the validity of a legislation. Therefore, bringing in the basic structure doctrine, to make Article 21 prevail over a Constitutional limitation giving effect to federalism simply makes no sense. Third, Judiciary owes its authority to the Constitution. Can the Supreme Court arrogate to itself a super Constitutional authority? It is conceptually awful to reduce the entire Constitutional scheme to Articles 21, 32 and 226 in the guise of judicial review. The sincerity and honesty behind the judgment are not being questioned, but the Bench could have found other remedies to achieve the same result.This judgment is sure to find its place, if one were to prepare a list of 10 worst judgments of the Supreme Court since the beginning.

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  • True. I had an opportunity to discuss the case with Professor M.P. Singh. He is satisfied with the conclusion of the judgment, but believes that it is based on unsound reasoning. The Court could have based its decision entirely on the duty of the judiciary to protect fundamental rights under Articles 32 and 226. He also mentioned Austin’s first book which records the desire of the framers of the Constitution to invest in the centre greater responsibility as far as protection and enforcement of fundamental rights is concerned.
    In this judgment I can draw parallels with the German conception of duty to protect- the state should not only refrain from violating first generation civil and political rights/fundamental freedoms, but should also actively intervene to protect their violation by anyone else.

  • I have certain points to add to your observations, not necessarily limited to the point on federalism:

    1.Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendent over which vests in the State Government – State of Bihar v. J.A.C. Saldhana, MANU/SC/0253/1979(para 25)

    2. the power of the police is independent from any sanction from any judicial authority – Nirmaljit Singh v. The State of West Bengal and Anr., MANU/SC/0196/1972

    3. A writ of mandamus does not lie as there is no statutory duty to probe into cases that are judicially assigned: Lekhraj Satramdas v. Deputy Custodian, MANU/SC/0010/1965

    4. A previous case of Maniyeri Madhavan v. Sub-Inspector of Police arose whereby the Supreme Court exercising its powers under Art 142 had assigned a case to the CBI. However, the power of the HC under Art. 226 cannot be equated with the power of the SC under Art 142 – State of Punjab v. Surinder Kumar, MANU/SC/0306/1992

  • Dear VV

    Thanks for your post.
    I was wondering however if you could more clearly articulate your reservations with the decision. Is the conclusion fine? Do you accept that some constitutional rights may be on a higher footing than others? I'm sorry but your post seemed rather rhetorical and I was unable to appreciate the substantive reason for your misgivings.


  • Also your first point is severely mistaken. Article 21 does not require a non-obstinate clause, but as you will notice it is an absolute right – unlike some other fundamental rights like free speech. So of course if it is an absolute right it can never be violated. That point is distinct from its specificity and what defines its minimum core – this relates to the scope of the right, but does not limit its absolute nature.

  • Isnt 21 limited in the sense that it can be taken away by procedure established by law? Maneka Gandhi and other cases may have brought in procedural due process, but whether this also means incorporation of substantive due process is debatable.

  • Dear all,
    I agree the post was rhetorical. I just intended it to be a curtain-raiser to my print piece. I hope you get your answers after reading the article – in print or when the online version is available on 9 March.