Priests in the temple of justice: The Indian legal complex and the basic structure doctrine

The profession of lawyers is an essential and integral part of the judicial system and lawyers may figuratively be described as priests in the temple of justice…. They are really and truly officers of the court in which they daily sit and practice. They have, therefore a special interest in preserving the integrity and independence of the judicial system and if the integrity or independence of the judiciary is threatened by any act of the State or any public authority, they would naturally be concerned about it, because they are equal partners with the Judges in the administration of filing the writ petition. Justice P. N. Bhagwati, S. P. Gupta v. Union of India (1981) Supp SCC 87 The Supreme Court of India today is one of the most activist and independent constitutional courts in the world. In 2007, the Court reasserted the extraordinary power to invalidate constitutional amendments that violate the “basic structure” of the Indian Constitution. During the early part of the post-Independence era (1950–67), however, the Court was largely positivist in its approach to constitutional interpretation, and asserted a relatively limited role in governance. From the 1970s to the present, the Court shifted toward a new activism in the area of fundamental rights and emerged a champion of the rule of law, constitutionalism, and fundamental rights. Aided by the Indian legal complex, the Court shifted toward a more activist and assertive approach in challenging government land-reform policies and Parliament’s constituent power of amendment in a series of landmark decisions involving property rights. This activism and assertiveness ultimately helped lay the foundation for the Court’s subsequent expansion of the scope of protections for civil liberties and fundamental rights, allowing the Court to emerge as a force for political liberalism and constitutionalism. This chapter ventures beyond the chambers of the Supreme Court of India and explores the critical role played by the Indian legal complex in the battle over protection of property rights, fundamental rights, constitutionalism, and the rule of law in the Supreme Court of India. Following Halliday, Karpik, and Feeley (2007), I define the legal complex as consisting of government and private lawyers (including Supreme Court Advocates), judges, legal scholars and other intellectuals, legal journalists, leaders of the major political parties, and government officials in the legislative and executive branches of the Central Government (including the law ministry and law commission). The independence and power of the Indian judiciary today are in part a product of a series of epic battles between government lawyers who defended Parliament’s power to amend the Constitution without limitation and leading legal scholars, Supreme Court advocates, and conservative intellectuals and political leaders who argued for implied limitations on the amending power. In these battles, the legal complex played an important role in developing the legal and doctrinal arguments that were ultimately adopted by the Court in a series of landmark decisions asserting and developing the basic structure doctrine.