On the 24th of January 1950, the Constituent Assembly of India convened for the last time. Amidst much fanfare, the Constitution was signed, the national anthem sung, and the Assembly adjourned “sine die”. In the words of Jawaharlal Nehru, a chapter had indeed closed. Yet, as is often the case, the conclusion of one chapter was closely followed by the inauguration of another. After the Assembly had labored for over three years in the backdrop of “turmoil and crisis”, the time had now come to operationalize amongst the most heroic constitutional experiments in modern history. Transitions from “constitutional politics” to “ordinary politics” are often marked by a transfer of power from the constitution-making body to the constitutional courts. After the scope of rights and freedoms is defined by the constitution-making body in general terms, it becomes the job of the courts to decide what those rights signify in specific contexts, how to vindicate them, and when ordinary legislation must fall in the face of contrary constitutional commands. As Hirschl explains, there is a “deliberate transfer of foundational nation-building questions to the judiciary.”
The early constitutional experience in India reflected a quite different narrative. Soon after the Constitution entered into force, the Supreme Court and High Courts began interpreting the text, relying on those interpretations to strike down legislation and executive policy that fell out of scope. These early forays into constitutional judicial review, however, were matched by parliamentary engagements in “non-judicial review”. Under the leadership of Prime Minister Nehru, Parliament offered alternative interpretations of the Constitution, regularly amended it, and revived legislation that had been struck down by the Courts.
At one level, non-judicial review was based on Parliament‟s conviction that it could interpret the Constitution better than the courts. Many influential members of India‟s early parliaments were not just lawyers, but also former members of the Constituent Assembly that deliberated upon, and approved, the text. Non-judicial review was based on the Nehruvian conception of what Parliament‟s role entailed. It was the primary responsibility of the democratically elected Parliament, rather than the Courts, to protect those rights that had been so zealously fought for during the freedom movement. At another level, however, non-judicial review was conceived of as instrumental to constitutional democracy itself. The Constitution‟s legitimacy rested upon its ability to fulfill the promises of “political democracy” combined with “economic democracy” that Nehru had so often emphasized upon. These promises prompted Parliament to offer conceptions of rights that were alternative to those of the courts; amend the Constitution based on those conceptions; and protect legislation that was enacted to transform the existing social order.
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Cite as: Chintan Chandrachud, Nehru, Non-Judicial Review & Constitutional Supremacy, 2 Ind. J. of Const. & Admin. L 45-63(2018).