EXERCISING JUDICIAL SUPREMACY: COMPARATIVE ANALYSIS OF INDIA AND CHINA

Abstract: This paper attempts to delve into the exercise of judicial supremacy as an element of the rule of law. The paper takes the examples of the rein of Mao Zedong in China and the constitutional dictatorship of Indira Gandhi in India. It analyses the role that judiciary could play when faced with tyrannical leaders. The paper further delves into how the courts can allow authoritarian regimes to establish legitimacy and the different ways in which regimes use courts apart from their general function of dispute resolution. The core idea is to allow a legal machinery to exist, irrespective of the model of government, which would withhold any attempt to overthrow the sovereignty of the people.

Introduction

In this paper, we will look at constitutional concepts of Judicial Supremacy as an element of Rule of Law and Parliamentary Sovereignty and attempt to understand the paradoxical dilemma of the application of the two concepts in polities. Although this paper will not delve into the UK, the contradiction between ‘rule of law’ and parliamentary sovereignty has been attempted to be tackled for a long time, especially in the U.K through enactments like the Human Rights Act and their entry into the European Union in 1973. We will take into consideration two incidents, the fall of Mao Zedong and the Constitutional Dictatorship by Indira Gandhi, and attempt to understand the nuances of the nature of the actions of these leaders. These instances are analyzed from the constitutional perspective itself, by delving into the applicability of principles like judicial supremacy and the rule of law.

After constitutionally analyzing the two instances, the paper compares the constitutional making, and constitutional values inculcated in the drafts. An assumption is made on the part of the author that, irrespective of the economic or governmental model adopted by any polity, a well-drafted legal structure with well deliberated constitutional values, has the ability to avoid the abuse of power. But if the legislature is granted complete sovereignty, the polity could suffer from the era of absolutism under tyrannical leaders.

Parliamentary Sovereignty or Judicial Review under Rule of Law?

It is necessary to look at these constitutional values before we start a discussion on judicial independence due to their contrasting nature, and their relation to a constitutional limit or check on the political powers granted in the country.

Parliamentary Sovereignty is defined as the supremacy of the legislature with respect to its law making and cannot be questioned by any entity in the polity.

Judicial Review is the constitutional power granted to the judiciary to verify that the laws enacted by the legislature or law-making bodies are in consonance with the constitutional principles and are not violative of them.

Rule of Law propounds that no entity is above the law and that the government, people, and institutions must submit and obey to the law, and not arbitrary action of any entity.

Intuitively, the reader may imagine a situation in which these two principles may obstruct each other. An instance arises where the legislature enacts a discriminatory law, states who embedded the principle of parliamentary sovereignty, the people of that state will not be able to claim a violation of their fundamental right to equality, on the other hand, states who have embedded the rule of law, the people of that state would be able to claim the violation of their fundamental right. This is a basic example of the effecting of the conflicting principles of parliamentary sovereignty and rule of law.

It needs to be noted that the above definition of ‘rule of law’ is wider from A.V Dicey’s understanding, a 19th-century constitutional lawyer, in the sense that ‘rule of law’ was primarily used as a check upon the abuse of Crown or executive or police powers.[1] According to him, the two principles could not be conflicting as any claim needed legal backing, and the only source of legal backing was the parliament. But after the emergence of, by various philosophers, a belief of ‘a value of human life, the idea of natural rights and, more internationally, human rights have become increasingly important. If we take a purely theoretical approach, the adoption of ‘rule of law’ is much safer for any polity in terms of safeguarding the population from the abuse of powers of the legislature, but it should also be considered that granting the power to question the actions of the legislature could hinder with its intention of social reform or furtherance of economic and industrial developments.

Judicial Supremacy as an element of ‘Rule of Law’

Before we delve into understanding ‘judicial independence, it needs to be clarified that the discussion will be limited to the aspect of judicial supremacy and judicial review, and not judicial appointments. To understand the nexus between judicial independence and the rule of law, we can look at the example of the United States and their deployment of the principles of judicial supremacy and principle of judicial independence. These two principles allow a constitutional check on the political enactments, ensuring that no political pressures affect the sovereignty of the people. The constitution is an instrument that is granted to the people, by the people themselves. Any political attempt to divert from or subvert the constitutional principles, cannot be held to be bona fide the powers granted to the political persons. Thus, it is necessary to have a check on the enactments by the law-making bodies and ensure that they do not undermine the constitutional values granted and accepted by the people. Although the United States did not invent the rule of law, it contributed to the development of two of the principles with respect to the judiciary. It denied the constitutional value of parliamentary supremacy, and entrenched judicial review and judicial supremacy as the constitutional principles in favour of the separation of powers.

Mao Zedong and the Communist Party of China

The Revolution of 1949 decided with whom the control of the Chinese government would lie with between the Guomindang (GMD) and the Communist Party of China (CPC). The CPC took power in Beijing, and the losing party Guomindang took power in Taiwan. At the time, China had been severely suffering from high levels of urban unemployment due to their civil war as well as multiple economic issues like low levels of gross domestic output and high rates of inflation. The new leaders worked towards eradicating the problems of food shortage and high food prices and restructured the social relationship of the people and the state. The Party profited doubly by restructuring the social relationship with the rural producers, as it now fulfilled the critical need of food as well as ensuring that the people of China now trusted their government. The restructuring of social relationship was able to maintain the social stability with the help and experience of those CPC members who worked in policy making pre-1949 Revolution, and the experience of local cadres of CPC.

Although the policy implementation stabilized the social ground for the time-being, the idea of socialism was still blurred, albeit the continuing critique of ‘the Left’. Customarily, as every ideology has had various interpretations for its implementation, there were a variety of inclinations present in the Chinese leadership as regard to which principles should be prioritized, but it was Mao Zedong’s essay, “On the People’s Democratic Dictatorship”[1], which established a vision for China’s phase of transition from capitalism to communism. The objective of the CPC was to create a society in which its collective surplus would be controlled not by the state, but democratically, by the people.[2] The CPC although, did recognize that this change would take a long time.

Consequence of a ‘people’s democratic dictatorship’

Although not as well acknowledged by literature, the 1954 Constitution was drafted by a committee of jurists belonging from varied intellectual trends and political movements, including non-communists, as to ensure inclusivity of disparate traditions.[3]The 1954 Constitution was debated upon extensively by all the scholars of the committee including the non-communists, although their voices were often suppressed. The drafters discussed legality regarding the powers of the judiciary, inclusion of freedom of religion, and right to obtain defense. Finally, the draft was adopted by the government, following which it was put up for recommendations for the following three months. Over one million recommendations and questions were received, and thereafter making some minor changes, the 1954 Constitution was adopted by the National People’s Congress. The enactment of the Constitution also sparked a legal flourishment of the Chinese legal studies, and students were encouraged to pursue law.

After the enactment of the 1954 Constitution, CPC allowed it to be critiqued by the people in the period between 1956 and 1957. This opened a floodgate of criticism against the Party for violating key constitutional values like rule of law, democracy, multi-party system, and human rights. The Party, in retaliation, enacted the Anti-Rightist Movement of 1957 which prosecuted the critiques. The Party shut the Ministry of Justice in 1959, for the next 20 years, and was followed with the Great Leap Forward, which caused a famine killing approximately 45 million people over the years. Deng Xiaoping came into power after the death of Mao, and the fall of the Gang of Four, who then set a course of the Chinese polity towards liberalization.[4]

Indian context of ‘rule of law’ and ‘parliamentary sovereignty’

India having adopted its Constitution from various polities of Europe, embedded the principle of ‘rule of law’ in its Constitution. Although there is no express mention of a concept of ‘rule of law’, it is entrenched in the Article 32 and Article 226 of the Indian Constitution, which allows any person, upon the violation of their constitutional rights, to approach the High Court or the Supreme Court to issue any orders writs in the nature of habeas corpus, certiorari, mandamus, prohibition, and quo warranto, as may be required as per the violation. The Supreme Court has the power of judicial review which allows it to suo moto assess the constitutionality of legislation, and can repeal the whole, or parts of it, as may be required.

India also has, what one may call, a form of parliamentary sovereignty, in the instance where a National or Partial Emergency is declared by the country. We won’t delve into when may this Emergency be declared, but the nature of this emergency is similar to the nature of a parliamentary sovereignty. During an Emergency, fundamental rights of a person get suspended and can no longer be filed against on the grounds of violation.

In 1975, the then Prime Minister of India Indira Gandhi, invoked an internal emergency on a false ground of breakdown of public order to be able to withhold her unseating from the parliament for adopting corrupt practices. This gave birth to a form of Constitutional Dictatorship.[5] Under the Emergency of 1975 arose some of the most important cases dealing with the objective of the Constitution and, constitutionalism. The views of the Courts have drastically changed as one moves from the rationales Additional District Magistrate v. S. S. Shukla[6]to Kesavananda Bharati v. State of Kerala[7]. The Supreme Court with the help of their judges were able to understand and construct a stronger interpretation of ‘rule of law’ and how it would operate in a constitutional and democratic nation like India.

The questions of law in essence were whether the legislature could alter the provisions of the Constitution itself. The opinions of the judges can be divided into three different ratio decidendi. The first dissenting opinion was on the technical aspect of Article 13, where the question was whether an amendment would also come under the definition of law. If it were to, then the amendment promulgated would be in violation of Article 13(2) of the Constitution of India. The opinion was that an amendment cannot be defined to be the same as a ‘law’ as an amendment process is different from enacting a law. The nature of an amendment is also different from the nature of an ordinary law. The second dissenting school of thought was of a strict application of the letter of the law with respect to the power with the legislature of making amendments to the constitution was unobstructed, and that it could be amended in any way. The majority opinion in this case was the rationale that the legislature may not alter the basic structure of the Constitution as to completely alter the nature of it. The founding fathers of our Constitution embedded certain values in it, and if the alteration abrogates those values, then the alteration may be deemed to be ultra vires the object of the Constitution. This transition was how the Indian Judiciary to some extent, was able to assess the true values of constitutionalism.

Comparative Analysis

It is not unfathomable to say that a political leader may attempt to abuse the powers that they earn in their polities, irrespective of what is the nature of their government, be it a ‘democratic dictatorship’, democracy, or constitutional monarchy. Thus, the drafters of a constitution should attempt to safeguard their polity by using some method with checks and balances by which the legislature or the supreme power may be limited. Therefore, the constitutional concept of ‘rule of law’ may be deemed more desirable as opposed to a Constitutional structure without any tool for limiting the legislative powers. In the case of People’s Republic of China, the Constitution was drafted without even the opposition keeping a check on the powers of the ruling party. This allowed the ruling Party to make substantial changes to the Constitution that altered the nature of the government itself, making it substantially more dictatorial than democratic.

The tone of the conclusion here might indicate an inclination towards democracy as a supreme principle, but the essence here is the necessity of a non-arbitrary legal principle adopted by the Constitution drafters which they aim to protect. If this legal principle is abrogated by the changes made to the Constitution, then the change is unconstitutional. In the case of India, the legislature under Indira Gandhi made several attempts to change the contents of the Constitution in order to establish complete supremacy over the limitations on the powers of the legislature, as well as the ‘watchdog’ capability of the judiciary. In the case of China, there was no such limitation and the legislature had the power to curb the legal machinery itself. The dependence on courts is emphasized due to their process of decision-making through reason, and their understanding that there exists a higher authority above the law-making bodies, which is undoubtedly, the constitution which is adopted by the people. This constitution serves as the guiding light for the political authorities, and that these authorities shall not undermine the powers granted to them by the people.

[1] Mao Zedong, “ON THE PEOPLE's DEMOCRATIC DICTATORSHIP” (Marxists.org, 1949) <https://www.marxists.org/reference/archive/mao/selected-works/volume-4/mswv4_65.htm> accessed 10 October 2019. [2] Satya J. Gabriel, “The Chinese Economy from The 1949 Revolution To The Great Leap Forward” (Mtholyoke.edu, 2019) <https://www.mtholyoke.edu/courses/sgabriel/economics/china-essays/3.html> accessed 24 November 2019. [3] Glenn Tiffert, “Epistrophy: Chinese Constitutionalism and The 1950S” (Escholarship.org, 2009) <https://escholarship.org/uc/item/0rm248nk> accessed 11 October 2019. [4] Ibid. [5] Arun Jaitely, “Constitutional Dictatorship Imposed By Indira Gandhi” (The Pioneer, 2019) <https://www.dailypioneer.com/2016/india/constitutional-dictatorship-imposed-by-indira-gandhi.html> accessed 11 October 2019. [6] 1976 AIR 1207 [7] AIR 1973 SC 1461

Cover Image: Sunday Guardian

About the author: Vineet Sawant is a fifth-year law student of O.P Jindal Global University. He is an aspiring litigator having worked with multiple firms in that field.