PERSPECTIVE
The Insulation of India’s
Constitutional Judiciary
Abhinav Chandrachud
The Indian judiciary is insulated
from vibrant checks and balances.
Its “democratic” insulation arises
from its use of contempt law to
restrict criticism, its permissive
view of libellous speech directed
against “other” public officials,
and, controversially, the use of
English as the official language of
the courts. Its “political”
insulation arises from its ability to
determine its own composition,
and the inability of the political
establishment to effectively
remove allegedly tainted
members of the judiciary. Both
these forms of insulation
embolden the judiciary on the one
hand, while directly and
indirectly restricting participation
on the other, and further threaten
to exacerbate the severe problems
of judicial administration, delay
and corruption in India.
Abhinav Chandrachud (abhinav.
chandrachud@gmail.com) is an attorney
based in Los Angeles, United States.
38
Electronic copy available at: http://ssrn.com/abstract=1743622
T
he Supreme Court has precipitously
expanded its constitutional powers
and its doctrinal analysis has as-
sumed protean capabilities. Within a
crumbling political milieu characterised
by fractured coalitional politics, the Court
has arguably filled a governance vacuum,
commendably opened channels of commu-
nication with the government (Chandra-
chud 2009b), championed the cause of
h­uman rights, and ardently sought to
d­eracinate the strong foothold of bureau-
cratic and political corruption. However,
as a politically self-constitutive institu-
tion, the Court has shown a tendency
to deviate from deference to coordinate
c­onstitutional branches in increasingly
political spheres. The transformation of
the Supreme Court of India into a per­
vasive (and not merely interstitial) law-
maker may have been intertwined with
its political rise to power in the last few
decades. It is proposed in this essay that
the “democratic” and “­political” insulation
of the Indian judiciary, coupled with the
expansion of its traditional standing and
other rules, heralds the precipitous
e­xpansion of the Supreme Court’s consti-
tutional doctrine.
The Indian judiciary is insulated from
vibrant checks and balances. Its insula-
tion occurs at two levels, which are cate-
gorised in this essay as “democratic” and
“political” forms of insulation. Its demo-
cratic insulation arises from three par-
tially intertwined speech related wrin-
kles: its use of contempt law to restrict
criticism, its permissive view of libellous
speech directed against “other” public
officials, and controversially, the use of
English as the official language of the
courts. Its political insulation arises from
its constitutive entrenchment: the ability
of the Indian judiciary to determine its
own composition, and the inability of
the political establishment to effectively
march 27, 2010  vol xlv no 13  EPW   Economic & Political Weekly
r­ emove allegedly ­tainted members of
the judiciary.
1  Background
How has the “least dangerous” (Hamilton
1788) branch of government in India
metamorphosed into the world’s most
powerful court (Sathe 2002), insulated
from the other branches of government?
Within a decade spanning the cases of
S P Gupta vs Union of India1 to In Re Article
143,2 which dealt with questions of judicial
appointment and transfer, the role of the
Chief Justice of India has strikingly shifted
from “consultative” to “binding” in rela-
tion to the President of India. With very
few direct appointees, judges with short
five to seven year tenures capped at the re-
tirement age of 65, a precipitously rising
caseload, and a panel system which re-
sembles an ordinary appellate court rather
than a court which discharges constitu-
tional functions, the Supreme Court today
is remarkably different from what it was a
few decades ago.
Indian constitutional courts have dis-
carded the procedural standing require-
ment (Robinson 2009), culminating in
what is termed here as “legislative void
jurisprudence”.3 Frequently, “guidelines”
resembling legislation have been issued
by a court whose function is adjudication
and not legislation, most notably in the
a­reas of sexual harassment, 4 police
reform,5 procedure for arrest,6 and loan
recovery agents.7 These guidelines are
intended to fill a regulatory or “legislative
void” until legislation follows, which is
seldom the case. Courts routinely admit
“public interest” cases, where the petitioner
need not necessarily have suffered harm,
or have been likely to suffer harm.8
Although this development was initially
intended to benefit the socially and
e­conomically disadvantaged groups,9 the
remedy has not been exercised for such
groups alone. This has culminated in a
process in which “public spirited” individ-
uals file petitions to remedy injustices that
they see around them. The Supreme Court’s
environmental jurisprudence epitomises
this paradigm.10 Similarly, culminating in
the Delhi High Court’s much ­celebrated
opinion, Indian gay rights ­activists have

successfully challenged Section 377 of
the Indian Penal Code, which makes
“carnal intercourse against the order of
nature” illegal, even in the absence of a
tangible conviction.11
An Ordinary Appellate Court
Indian constitutional courts usually under-
take abstract review in their “public interest”
cases. Petitioners in these cases seek to
enforce either diffuse rights (Divan and
Rosencranz 2002),12 i e, rights to which no
single person is entitled, e g, the right to a
clean environment, or disadvantaged third
party rights, i e, the rights of groups that
cannot represent themselves, e g, animals13
or socially and economically disadvan-
taged persons, such as bonded workers.14
Sometimes cases are instituted by judges
themselves, who seek to remedy wrongs
that they see around them by hauling up
public officials in their own court. The court
also hears cases under what is referred to
as its “epistolary jurisdiction”, where letters
written to individual justices are converted
into petitions (Baar 1992). The abstract
review may result in a mandatory “command
and control” type order which takes the
form of the writ of “continuing manda-
mus”,15 i e, where orders are experimental
and the court periodically reviews the im-
plementation of its orders, and revises
them reactively in the light of observed
experiences. Alternatively, abstract review
may result in a declaratory order issuing
“guidelines” which are often difficult to
enforce, or sometimes ignored.16 A petition
filed before the Supreme Court by a group
of lawyers and investment bankers in the
aftermath of the November 2008 terror
a­ttacks in Mumbai, seeking orders to b­etter
equip the police in the fight against terror
epitomises this type of relief requested
(Chandrachud 2009a).
Further, the Supreme Court exercises its
appellate functions in prolific proportions,
largely due to “distrust of the lower judi-
ciary” (Robinson 2009). The court has a
total of 3117 judges including the Chief
Justice, who sit in panels or benches, usually
of two or three, but sometimes as benches
of five, seven or nine, and very rarely as a
bench of 11 or 13. On Mondays and Fridays,
the two or three judge benches routinely
review a plethora of cases filed under the
Supreme Court’s discretionary jurisdiction
Economic & Political Weekly  EPW   march 27, 2010  vol xlv no 13
Electronic copy available at: http://ssrn.com/abstract=1743622
under Article 136 of the Constitution,
which permits the court to grant “special
leave” to appeal. According to a recent
study, approximately 12% of cases insti-
tuted were admitted for regular hearing
between 2005 and 2007 (ibid). There were
a total of 1,63,025 cases instituted for ad-
mission and 76,673 cases pending for ad-
mission between 2005 and 2007 (Supreme
Court Annual Report 2008). Notices are
issued in a wide variety of cases which
depart significantly from the traditional
mould of constitutional adjudication. The
heavy caseload of the Supreme Court
makes it resemble an ordinary appellate
court, rather than a supreme constitutional
court, which decides heightened questions
of policy adjudication.
It is this remarkable structural and sub-
stantive background against which the
democratic and political forms of insulation
discussed hereafter must be measured.
2  Democratic Insulation
Democratically, the Indian judiciary’s insu-
lation arises from its ability to chill or de-
bilitate free speech. First, Indian constitu-
tional courts can punish statements that
“tarnish” or “scandalise” their own image,
or the image of the lower courts. Consider
that in 2007, journalists of the Mid-Day
newspaper were sentenced to prison for
four months by the Delhi High Court, for
publishing a report, which cast aspersions
on the integrity of a former Chief Justice of
India.18 The holding condemned the jour-
nalists for tarnishing the image of the
Supreme Court, and eroding the confidence
of the people in the judicial institution.19
Constitutional courts exercise these
powers under an ordinary statute, the Con-
tempt of Courts Act, 1971. Until 2006, the
law did not permit a defendant to make
the claim that the allegedly scandalous
statements were true. In 2006, “truth” was
introduced as a defence to the contempt
offence, but with two reservations: (i) the
statement must be made in the public in-
terest; and (ii) the statement must be made
in good faith, as determined by the court.20
Indian courts have not been lenient in their
interpretation of the word “truth”, despite
the fact that their restrictive interpretations
may have a “chilling effect”21 on speech.
Second, the democratic insulation of
the Indian judiciary follows from its
PERSPECTIVE
speech hypocrisy. The Supreme Court has
applied the New York Times vs Sullivan22
standard against public officials in defa-
mation cases.23 Under the standard,
d­erived from a celebrated decision of the
United States Supreme Court, even state-
ments negligently made against public offi-
cials would not trigger consequences un-
der defamation law, unless made with
“actual malice”, i e, knowingly, or with
“reckless disregard” as to the truth of the
matter. The New York Times standard seeks
to protect political speech, the core of the
right to free speech, although American
cases may seem to deviate from this norm
in their understanding of “public figures”.
The philosophy which underlies this rule
is that the punishing of innocent yet negli-
gently made statements may have the
effect of chilling other controversial speech
which may be in the public interest to
encourage. However, the same “actual
malice” standard in India does not apply to
speech implicating judges, in contempt
cases. Further, while the Supreme Court
has upheld the right of citizens to be
i­nformed about their political candidates,
and consequently upheld a rule allowing
the Election Commission of India to require
the mandatory declaration of the assets
of political candidates,24 ­Supreme Court
judges refused for some time to declare
their own assets (Times of India 2009b and
2009c) before the highly visible and much
applauded decision to voluntarily declare
assets (Chandrachud 2009c).
Access to Justice Made Difficult
The courts’ democratic insulation finally
follows from the controversial question of
language. All proceedings in Indian consti-
tutional courts are conducted in English.
To the vast majority of the populace, how-
ever, English is the language of the elite
(Karat 1972; Nagarajan 1981). While the
role of the English language as lingua
franca cannot by any stretch of imagination
be understated, the ability of an average
Indian citizen to access justice before India’s
constitutional courts depends upon his
proficiency in the English language. This
must be compared with the example of the
South African Constitutional Court where
proceedings are often conducted in multiple
languages, as opposed to just one official
language.25 Assuming, however, that average
39
PERSPECTIVE
Indians who do not speak or are not
pro­ficient in the English language can be
represented in court by English-speaking
lawyers, this still hinders their ability to
comprehend proceedings for themselves,
and consequently precludes participation.
There are instances where judges speak
with parties appearing in person in a more
accessible tongue, although such instances
are rare. A famous anecdote recalls how a
lawyer tells his lay client upon losing the
case in the court of first instance, that the
judge had referred the case to a larger
bench because it was “too difficult for him
alone to decide”, thereby obscuring the
real reason for preferring an appeal, viz,
the weaknesses in the case.
Additionally, the Bar Council of India
prohibits advocates from charging fees
contingent on the outcome of litigation.26
Although this rule does not follow from a
constitutional court directive, it exacer-
bates two problems: first, access to justice,
since poorer litigants cannot contract with
lawyers to pursue meritorious litigation
without the payment of mandatory (some-
times unaffordable) fees despite the out-
come; and second (arguably), the problem
of judicial delay, since the filing of merito-
rious cases alone is not necessarily incen-
tivised. It is interesting to note that in
countries which permit contingent fees,
only certain types of cases typically in-
volve contingent fees, and regular fee
structures are still widely prevalent.
Stifling Dissent
The democratic insulation of the judiciary
may be defended in the light of what is
often termed the court’s primary purpose:
the protection of minorities.27 Indeed, it
is sometimes argued that it is the court’s
“counter-majoritarian” character itself
which legitimates its existence, since it is
supposed to function as a vibrant check
against majoritarian policies. Additional-
ly, contempt law is often defended on the
ground that it would be undesirable for
the judiciary to publicly defend itself by
utilising the press (Sharlet 1993), unlike
other public officials that can call press
conferences, and its inability to do so man-
dates stricter scrutiny of dissent. However,
these arguments obscure the harm caused
by judicial democratic insulation. First, it
is not suggested that the press should
40
be used as a tool to coerce or inappropri-
ately influence the judiciary in its decision-
making. Public opinion does not conclu-
sively determine the appointment or con-
tinued tenure of judges in India in the
sense that Indian judges are not elected to
office. However, it can serve to ensure that
honest individuals are appointed to office,
and to keep them honest in office or other-
wise provide facts for removal.
Additionally, since the jury system has
been abolished in India, the ability of the
media to influence trained and professional
judges by its possible propaganda is inher-
ently limited. Second, the stifling of dissent
does not ameliorate the legitimacy of the
judicial institution in any case. Since jour-
nalists cannot say exactly what they want
to say about Indian judges, and not enough
is publicly said about the honesty and
integrity of the Indian judiciary, people in-
correctly assume that decisions were some-
times “purchased”. By not allowing the
press to uncover the real cases (if any) in
which decisions were purchased, the court
threatens to illegitimise its honest, well
reasoned decisions. In this sense, the
court’s democratic insulation threatens the
viewpoint reinforcing function of speech.
Third, even in the face of the in­ability of
the judiciary to publicly defend itself, the
chilling effect of the court’s contempt law,
on balance, is far more deleterious to the
judicial system, than is the possibility of
the court’s tarnished image. Fourth, it has
often also been the experience that public
officials against whom charges of corrup-
tion have been levelled seldom convene
press conferences to explain their inno-
cence, preferring to file defamation pro-
ceedings or to prove their innocence in
court (Economic Times 2008; Kanth 2001).
In this sense, judges would be at no greater
disadvantage to public officials by allowing
the press to pierce their veil of secrecy.
It is often suggested that it is the court’s
counter-majoritarian character which justi-
fies its position in an otherwise majoritarian
system. On this view, courts are supposed
to protect those whose small numbers or
marginal (or non-existent) ­political influence
make their position tenuous in a majoritarian
system. However, this part seeks to make a
distinction between the court’s counter-
majoritarian and counter-democratic char-
acter. The phrase “democratic insulation”
march 27, 2010  vol xlv no 13  EPW   Economic & Political Weekly
has been adopted as opposed to “counter-
majoritarian insulation” in order to high-
light this distinction. It is certainly not
proposed in this part that Indian judges
should be politically elected. However,
this part proposes that democratic values
such as transparency and accountability
should inform the functioning of Indian
constitutional courts.
The court’s democratic insulation con-
flicts with its legislative void and public
interest jurisprudence discussed above,
where the State’s affirmative duties are
enforced in order to ensure accountability,
responsiveness and openness28 in govern-
ment. The court’s interference in matters
of public administration is often justified
by the claim that judicial interference will
ensure fairness, participation, account­
ability and openness in government func-
tioning. However, there is an inherent ten-
sion between the court’s rationale in such
“public interest” cases, and the democratic
insulation of the court which militates
against accountability, responsiveness and
openness in the court’s own functioning.
3  Political Insulation
The Indian judiciary is politically insulated.
Although the power to appoint judges
technically rests with the President of
India,29 in reality, the power is exercised by
a group consisting of the Chief Justice of
India and the four senior-most puisne
judges of the Supreme Court, a group often
referred to as the collegium.30 The recom-
mendation of this group is considered
binding on the President of India. Once a
judge is appointed, his31 progress depends
almost exclusively upon his seniority, with
limited emphasis upon his track record.
Accordingly, upon attaining the senior-
most position in the high court, the judge is
then appointed as a chief justice of another
high court, before being appointed to the
Supreme Court. This progression is fairly
routine, with uncertainty at the stage of
appointment as chief justice of a high court
and appointment to the Supreme Court.
Accordingly, the composition of the colle-
gium itself is determined by seniority, and
cannot be shaped by either the executive
or the legislature. Viewed in this light the
Indian judiciary’s control over the appoint-
ment process threatens to render it a self
reinforcing institution.

An Indian constitutional court judge
can be removed only for “proved mis­
behaviour or incapacity”.32 Accordingly, if
both houses of Parliament, by a majority
of the total membership of the house (i e,
more than half of its members) and of
two-thirds of the members present and
voting, address the president on the ques-
tion of removal, the president may, by
o­rder, direct that the judge be removed.
This power has never been successfully
exercised. An impeachment motion to
remove Justice V Ramaswamy, a former
Supreme Court judge, for alleged financial
irregularities during his tenure as chief
justice of the Punjab and Haryana High
Court, was dubiously defeated in 1993
(Bhushan 1993). While judges suspected
of corruption can be transferred by the
chief justice unofficially, this remains an
informal mechanism, and loses its efficacy
if the integrity of the chief justice himself
is ever in question. The Judges (Inquiry)
Bill, 200633 seeks to enable a National
­Judicial Council consisting of the Chief
Justice of India, two senior-most judges of
the Supreme Court, and two nominated
high court chief justices, to issue adviso-
ries, warnings, censures and admonitions,
to withdraw judicial work, or to request
that the judge voluntarily retire.34 This
construct tends to ignore the reality that a
member of the National Judicial Council
may himself or herself be implicated.
The political insulation of the Indian
judiciary seems almost desirable in the
context of judicial independence. The
supercession35 of Justices Shelat, Hegde
and Grover following the Basic Structure
Case36 and of Justice H R Khanna after the
Habeas Corpus Case37 for holding against
the government during Indira Gandhi’s
tenure as prime minister bolsters the
legitimacy of independent judicial ap-
pointment. Indeed, one of the legitimating
factors of a constitutional judiciary can
very well be its impartiality, which can
arguably be achieved only by non-partisan
appointment. However, it is not entirely
implausible to make the claim that impar-
tiality could be achieved through non-
partisan, yet political appointment. For
example, if judges were appointed by a body
consisting of both the majority and the
opposition in Parliament, or some amalgam
of political institutions, the independence
Economic & Political Weekly  EPW   march 27, 2010  vol xlv no 13
and impartiality of judges could still be
achieved, without losing sight of demo-
cratic accountability and legitimacy. Those
in opposition would certainly want to
ensure that appointed judges are inde-
pendent, since they would need to seek
the assistance of the courts if the resources
of the State were to be used against them.
At the same time, in a healthy democratic
system, those in power too would want to
appoint independent judges since the fact
that they may lose power in the next elec-
tion and need the assistance of the court if
state machinery were then to be used
against them, is not entirely inconceivable.
Although both groups would want judges
that would favour them alone, the fact that
each would have an equal say in judicial
appointment would offset the influence
of the other, resulting hopefully in inde-
pendent appointments. The present politi-
cal insulation of the Indian constitutional
judiciary makes it unresponsive to demo-
cratic pressures.
Heavy Caseload
The democratic and political insulation of
the Indian judiciary emboldens the judiciary
on the one hand, while directly and indi-
rectly restricting participation on the other.
It emboldens judges who would otherwise
be restricted by public opinion both in the
development of doctrine and in the exer-
cise of integrity. It directly restricts partici-
pation by making English a prerequisite to
justice. It indirectly restricts participation
by insulating the appointment process
from some form of popular legitimation,
i e, a popularly elected official who appoints
a judge “legitimises” the appointment, at
least in theory, through his mandate from
the people that brought him to power.
However, the people in India cannot repri-
mand their representatives for making ju-
dicial appointments, and consequently the
power of Indian judges does not derive
through the Indian people. This insulation
further threatens to exacerbate the severe
problems of judicial administration, delay
and corruption in India.
It is common knowledge that the Indian
judicial system is beset with a tremendous
backlog of cases, and by unmentionable
delays in judicial administration. There
were more than three million cases pending
before the constitutional courts of India as
PERSPECTIVE
on December 2007.38 The ordinary life of a
civil suit in India is sometimes said to be
between 12 and 20 years. The delay may be
attributed to frequently granted adjourn-
ments, the ability to appeal almost as a
matter of course, the manner of collection
of evidence, inefficiencies in judicial
a­dministration, and nonchalance, among
other reasons. While the delay is often at-
tributed to concerns of soundness and
thoroughness in adjudication, the fact that
the system now works almost entirely on
the basis of interim relief tends to unsettle
this justification. The “chilling effect” of
contempt law threatens to perpetuate the
delays of the system.
The Indian constitutional judiciary is
not by reputation immaculate, despite its
contempt powers. Two recent developments
in this context are instructive. First, the
Central Bureau of Investigation has alleg-
edly unearthed startling details of the use
of provident fund savings to furnish luxury
goods for judges, and allegations have
been levelled against one Supreme Court
judge, 11 high court judges, and 23 district
court judges (Times of India 2009a).
S­econd, in 2008, a Punjab and Haryana
High Court judge allegedly went on leave
following allegations of bribery (Indian
Express 2009). The political insulation of
the judiciary threatens to immunise judges
from political accountability.
Conclusions
Judicial independence can be construc­
ted around several layers involving dif-
ferent objects: litigants (often termed a
concern for “impartiality”), government
(according to US Chief Justice Marshall,
“the very essence of the judicial duty”),39
the general public (Salzburger 1993:
349, 51), and other judges. The Indian
j­udiciary, in particular, deviates from the
traditional “independence-from-politics”
paradigm by iden­ti­f ying a non-political
actor from which it believes it must be
i­nsulated: public ­opinion. Accordingly,
the constitutional judiciary in India is
heavily insulated not merely from politi-
cal checks and balances, but also from
democratic pressures.
While either political insulation or demo­
cratic insulation may, one without the
other, be institutionally desirable means to
an independent institution, the combined
41
PERSPECTIVE
political and democratic insulation of the
Indian judiciary illegitimately amplifies its
insulation, and threatens the legitimacy of
the courts. It would certainly be interesting
to undertake an analysis into a possible
correlation between the judiciary’s rising
insulation, and the court’s expanding con-
stitutional doctrine. For now, the contempt
petition filed against “leading vigilante
lawyer” (Andhyarujina 2009) Prashant
Bhushan, before the Supreme Court of
India40 promises to add value to the debate
on judicial insulation in India.
Notes
1 (1981) Supp SCC 87.
2 AIR 1999 SC 1.
3 Comparisons can be made with Portugal’s “uncon-
stitutionality by omission” under the 1982 constitu-
tion, or with Article 49 of Hungary’s Constitutional
Court Act. See Brewer Carias (1989).
4 Visakha vs State of Rajasthan, AIR 1997 SC 3011.
5 Prakash Singh vs Union of India, (2006) 8 SCC 1.
6 D K Basu vs State of West Bengal, (1997) 1 SCC 416.
7 Manager, ICICI Bank v Prakash Kaur, AIR 2007
SC 1349.
8 See S P Gupta vs Union of India, AIR 1982 SC 149
(discarding the locus standi requirement for the
first time, in holding that Bombay lawyers could
challenge the “transfer of judges policy” in India).
9 Ibid. See also Bandhua Mukti Morcha vs Union of
India, AIR 1984 SC 802 (relaxing the standing
requirement on the question of the rights of bonded
workers).
10 See e g, M C Mehta vs Union of India, AIR 1997 SC 734.
See further, Fuller (1978), drawing a distinction
between “bipolar” and “polycentric” adjudicating,
and highlighting the problems with the latter.
11 Sakshi vs Union of India, AIR 2004 SC 3566. See
further Naz Foundation vs Delhi, WP(C) No 7455/2001:
MANU/DE/0869/2009. See contra Allen vs Wright,
468 US 737 (1984) (holding that a claim of stigmatic
injury, or denigration, suffered by all members of a
racial group when the government discriminates on
the basis of race, was not justiciable since the stand-
ing requirement was not met).
12 Articulating the notion of “representative stand-
ing” and “citizen standing”. See further, Fuller
(1978), highlighting the problems of “polycentric”
adjudication.
13 See e g, All India Animal Welfare Association vs BMC,
(2007) 4 Bom CR 1 (Bombay High Court) (issuing
directions for the protection and care of stray dogs).
14 Bandhua Mukti Morcha vs Union of India, AIR 1984
SC 802
15 See the malnutrition orders passed by the Bombay
High Court in Chandrachud (2006).
16 See e g, Prakash Singh vs Union of India, (2006)
8 SCC 1 (issuing guidelines to overhaul the police
administration of the country).
17 Supreme Court (Number of Judges) Act, 1956, as
amended by the Supreme Court (Number of Judges)
Amendment Act, 2008.
18 The Court on its Own Motion vs M K Tayal and Others,
MANU/DE/8520/2007; See DNA, 2007. See further
R C Cooper vs Union of India, AIR 1970 SC 1318
(regarding speeches made criticising the Supreme
Court’s decision in the bank nationalisation case).
19 Ibid, paragraph 5.
20 Section 2, The Contempt of Courts (Amendment)
Act, 2006 (Act 6 of 2006).
21 For an argument on the “chilling effect” of regula-
tions on speech, see Lee (2002).
22 376 US 254 (1964).
42
23 Rajagopal vs Tamil Nadu, AIR 1995 SC 264 (holding
that a public official is not entitled to the right to
privacy).
24 Cf Common Cause, A Registered Society vs Union of
India, AIR 1996 SC 3081.
25 See Rule 13(4)(a), Rules of the Constitutional Court
of South Africa.
26 Bar Council of India Rules, Part VI, Chapter II,
Section II, Rule 20.
27 See e g, US vs Carolene Products, 304 US 144,
footnote 4 (1938) (per Stone J, emphasising the
importance of protecting “discrete and insular
minorities”); Ely (1980), pp 73-104 (emphasising
the importance of enforcing the “representation
reinforcement” value).
28 A phrase used in Minister of Health vs Treatment Ac-
tion Campaign, Case CCT 8/09 (South African Con-
stitutional Court) available at http://www.consti-
tutionalcourt.org.za/Archimages/2378.PDF (last
visited 28 March 2009).
29 Articles 124(2), 217, Constitution of India.
30 See In re: Under Article 143 of the Constitution of
India, AIR 1999 SC 1; Supreme Court Advocates
on Record Association vs Union of India, (1993) 4
SCC 441; S P Gupta vs Union of India, (1981) Supp
SCC 87.
31 The Supreme Court of India has had only three
female justices so far, and has never had a female
chief justice. A study conducted in 2009 revealed
that there were only 45 female justices in the high
courts of India, and not a single female justice in
the Supreme Court of India. See Kartikeya, 2009.
32 Articles 124(4) and 218 Constitution of India.
33 Bill No 97 of 2006, available at http://www.rajyas-
abha.nic.in/legislative/amendbills/personal_
law/97_2006.pdf (last visited 24 February 2009).
34 Ibid, Section 20(1)(b).
35 These judges were overlooked for appointment as
Chief Justice of India, despite the fact that they
were the most senior judges on the court. See Aus-
tin (1999), pp 278-92.
36 AIR 1973 SC 1461.
37 (1976) Supp SCR 172.
38 See “Court News”, Supreme Court of India, available
at http://www.supremecourtofindia.nic.in/court-
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39 Marbury vs Madison, 5 US (1 Cranch) 137, 176-180
(1803).
40 See Counter Affidavit Filed by Prashant Bhushan,
Outlook Magazine, 9 December 2009, available at
http://www.outlookindia.com/article.aspx?263230
(last visited 12 December 2009).
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