Judicial Activism in a Comparative Perspective Fabian Schusser Nomos Moderne Südasienstudien – Gesellschaft, Politik, Wirtschaft | 7Modern South Asian Studies – Society, Politics, Economy The Supreme Court of India vs. the Bundesverfassungsgericht Schriftenreihe Moderne Südasienstudien – Gesellschaft, Politik, Wirtschaft The series Modern South Asian Studies – Society, Politics, Economy herausgegeben von Edited by Prof. Subrata K. Mitra, Ph.D. (Rochester, N.Y.), Ruprecht-Karls-Universität Heidelberg Prof. Dr. Dietmar Rothermund, Ruprecht-Karls-Universität Heidelberg Band / Volume 7 BUT_Schusser_5566-0.indd 2 07.01.19 14:01 The Supreme Court of India vs. the Bundesverfassungsgericht Judicial Activism in a Comparative Perspective Nomos Fabian Schusser BUT_Schusser_5566-0.indd 3 07.01.19 14:01 The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.d-nb.de a.t.: Heidelberg, Univ., Diss., 2018 Original titel: “Judicial Activism in India and Germany: A Comparative Analysis of the Political Role and the Development of the Supreme Court of India and the German Bundesverfassungsgericht” ISBN 978-3-8487-5566-0 (Print) 978-3-8452-9744-6 (ePDF) British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN 978-3-8487-5566-0 (Print) 978-3-8452-9744-6 (ePDF) Library of Congress Cataloging-in-Publication Data Schusser, Fabian Judicial Activism in a Comparative Perspective The Supreme Court of India vs. the Bundesverfassungsgericht Fabian Schusser 169 p. Includes bibliographic references and index. ISBN 978-3-8487-5566-0 (Print) 978-3-8452-9744-6 (ePDF) 1st Edition 2019 © Nomos Verlagsgesellschaft, Baden-Baden, Germany 2019. Printed and bound in Germany. This work is subject to copyright. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. Under § 54 of the German Copyright Law where copies are made for other than private use a fee is payable to “Verwertungs gesellschaft Wort”, Munich. No responsibility for loss caused to any individual or organization acting on or refraining from action as a result of the material in this publication can be accepted by Nomos or the author. BUT_Schusser_5566-0.indd 4 07.01.19 14:01 This doctororal thesis is dedicated to the two most important women in my life, my mother and my wife. 7 Acknowledgements Writing a doctoral thesis is always a great challenge, which I could not have mastered without the help of several people, to whom I owe my deepest gratitude. First, I would like to express my sincere gratitude to my advisor Prof. Subrata K. Mitra for the support of my doctoral thesis over the last five years. Furthermore, I would like to thank my second advisor Prof. Dietmar Rothermund and Prof. Markus Pohlmann for their support. Fabian Schusser Karlsruhe, November 2018 9 Foreword All stable political systems have a functional need for a fixed point around which the dynamics of political competition can revolve. This is a complex issue because the institution which affects politics needs to be independent of politics. However, in practical terms, people occupying this institution need to be selected, elected or appointed by leaders who are themselves politicians, subject to the usual pressures and cross-pressures of political competition. How can a political system ensure both judicial integrity and the comprehensive attention of the judiciary to the full range of conflictual issues that characterise contemporary societies? Fabian Schusser’s contribution to this important issue, drawing on the cases of India and Germany, analyses this complex problem in a comparative framework. In modern political systems, it is the judiciary that occupies the key role of adjudicator, and enforcer of norms’ compliance. In addition, liberal democracies require a sense of fairness in political transactions in order to generate the requisite political legitimacy to reinforce authority with force. The supreme judiciary has the responsibility of ensuring a level playing field for competing political forces. Finally, in changing societies and stable liberal democracies facing rapid social change, an institution is needed to oversee political change and ensure orderly transition of the system from one context to another. The judiciary is endowed with this function of being an adjudicator for competing social forces. The importance of Fabian Schusser’s contribution lies in the fact that he undertakes an analysis of the Supreme Court in India and the Constitutional Court in Germany with these aspects in mind. He undertakes his analysis in a comparative framework and his empirical analysis is driven by neo-institutional theory. The Supreme Court is an integral part of the court system of India. It is not only a constitutional court, but also a supreme civil and criminal court. Its judges are mainly recruited from the ranks of the high courts and hold their office until the age of 65. The Supreme Court has control over an extensive jurisdiction. It can review laws for constitutionality or intervene when individuals see their constitutionally guaranteed rights violated. In contrast to the Bundesverfassungsgericht, the Supreme Court has the power to handle and decide on populist complaints (also known as Public 10 Interest Litigation). In this case, people can sue for the rights of third parties in front of the Supreme Court. In this important and pioneering work, Fabian Schusser casts the development of the judiciary in India and Germany in a historical framework, divided into three phases. The first phase began immediately after the creation of the Supreme Court after Independence from British colonial rule. During the early years after Independence, under the leadership of Prime Minister Jawaharlal Nehru, the Indian parliament tried to pass several land reforms, which intended a redistribution of land from the landlords (zamindars) to tenants. However, there were several lawsuits in front of the Supreme Court, especially by the zamindaris. The Supreme Court, defending the fundamental right to property, opposed the government and, in many cases, decided that the laws were incompatible to the constitution. This caused the government to add amendments to the constitution more and more often in order to enforce its land reforms somehow. There was no clear winner in this dispute, but the court was able to strengthen its position as guardian of the constitution and most particularly, fundamental rights. In the second phase, the Supreme Court again had to decide upon in cases of land reforms and oppose the parliament‘s arbitrarily amending the constitution. In the Golak Nath case, the Supreme Court denied the parliament this opportunity, while some time later, in the Kesavananda case, it granted this power back to the parliament. In the judgement on the Kesavananda case, the Supreme Court decided that the parliament had the power to change the constitution, but these changes should not damage the rights and freedoms enshrined in the basic structure of the constitution. This doctrine of the basic structure is still valid today. The problem here, however, is that only the judges decide what the basic structure of the constitution is. That opened up the scope for potential conflict between the government, representing majority political opinion in the country, and the judiciary as the defender of the constitution. The third phase saw the creation of the Public Interest Litigation (PIL). Under the leadership of Judge Iyer, the PIL was developed. To this day, it is one of the most widely used legal remedies in front of the Supreme Court. It led to the restoration of the reputation for the Supreme Court which was tarnished during the Emergency. Contrary to the Supreme Court, the Bundesverfassungsgericht of Germany is part of the judiciary while at the same time, it is also detached 11 from it. It is not integrated into the German court system, but stands outside as an independent court. It cannot decide upon in civil or criminal cases. Its task is to check whether state actions conform to the constitution. This includes both state and judicial actions. Like the Supreme Court of India, the Bundesverfassungsgericht has various instruments at its disposal. There are several possibilities for federal states to file cases against one another or against the federal government. Most important, however, is the constitutional complaint, in which every citizen can report a violation of their constitutionally guaranteed rights. Unlike in India where judges are appointed by the President of the Republic, the judges of the Bundesverfassungsgericht are elected for a 12year term of office. A re-election is not possible. Thus, a possible political dependence of the judges on the powers that can be, is avoided. The court is divided into two senates with eight judges each, including a president and vice-presidents. The Bundesverfassungsgericht went through only two critical phases in its development. The first phase began immediately after its foundation. The court had a status memorandum drawn up on its behalf in which it elevated itself to the status of a constitutional organ. However, the government under Konrad Adenauer saw this differently and had its own legal instruments drawn up which contradicted the court. However, the Bundesverfassungsgericht was able to assert itself despite the political obstacle. In the years to follow, the Bundesverfassungsgericht ruled in several cases, such as the Lüth case or the German television case, by which it was able to assert its position as a constitutional body. The second phase began in the 1970s under Willy Brandt's government. Here, the Bundesverfassungsgericht got into a political dispute. The Bavarian state government wanted to scuttle the new Eastern politics of the federal government and used the Bundesverfassungsgericht for its purpose. Through various proceedings, the Bavarian government succeeded in changing the composition towards a conservative majority of judges. A decision rejecting the Eastern politics could have plunged the court into a deep crisis. However, this was avoided by the Bundesverfassungsgericht itself since it decided to commit itself to the guiding principle of judicial self-restraint. There are only a few similarities in the development of the two courts. The Supreme Court had to defend the Indian constitution and democracy more often, whereas the Bundesverfassungsgericht rather had to defend its own position. However, the two courts are similar when it comes to com- 12 petence and equal power. In most cases, both courts can only become active if they are activated from outside. They cannot determine and control the political agenda themselves. Thus, while they do have power, this possession of power is rooted within and justified by the system of checks and balances. Nevertheless, they are important institutions for the development of democratic states. They protect the constitution and prevent an excessive policy without borders. Without them, functioning democratic states would be unthinkable. Based on historical neo-institutional and case study approaches, Schusser analyses the critical junctures in the development of the judiciary in two societies that are apparently very different, and deals with the question of whether the respective judiciaries have the requisite power to undertake their allocated functions. Political analyses of judicial institutions, especially of the German Bundesverfassungsgericht are rare, which is why this study is intended to contribute to further expanding this field and closing the gap between political science and law. While one must compliment the author for venturing into a comparative analysis of the Indian and German judiciaries, rarely visited by students of comparative politics, his work also points towards the need for further research in the method of comparison, design of judiciaries and contribution of judicialisation to transition to democracy and its consolidation. Overall, this pioneering work which combines a good knowledge of area with an appropriate selection of tools from neo-institutional theories, raises interesting issues that add variety, depth and complexity to the analysis of the reciprocal relationship of governance and political development in two apparently dissimilar countries. Many of the questions that Fabian Schusser raises in this interesting and innovative study point in the direction of new areas of research which hold the potential to enrich comparative politics. On the whole, the author has demonstrated his capacity to formulate interesting research questions and shape them into testable conjectures, and examine these conjectures in the light of qualitative empirical data. Fabian has shown a good command of the theoretical literature, competence in interdisciplinary research, and a penchant for undertaking rigorous conceptual analysis and good use of qualitative empirical data. The findings are interesting in their own right and would contribute towards further exploration of the important theme of judicialisation in the context of democracies facing rapid social change. 13 The work responds well both to interdisciplinary research as well as to South Asian and comparative studies. Written with clarity, in accessible English, this important monograph will certainly constitute a reference point for South Asian and comparative studies, neo-institutional theories and comparative research on the judiciary, both in stable democracies and transitional societies. Professor Subrata K. Mitra Heidelberg, November 2018 15 Table of Contents List of Figures 19 List of Abbreviations 21 1. Introduction 23 1.1. Aims and scope 24 1.2. Previous scholarship 25 1.3. Chapter outline 28 2. Theoretical framework 30 2.1. The puzzle: Measuring the power of courts 30 2.2. Institutions 32 2.3. Neo-institutionalism 32 2.3.1. History of neo-institutionalism 33 2.3.2. Streams within neo-institutionalism 33 2.3.3. Historical institutionalism: Central concepts 33 2.3.4. Criticism: Historical institutionalism and political change 35 2.4. Suitability of the theory 37 2.5. Method, analytic narrative 38 3. Judiciary 40 3.1. Constitutional courts 41 3.2. Judicial activism vs. judicial review 42 3.2.1. Judicial interpretation 43 3.2.2. Classical judicial review 43 3.2.3. Judicial review in India 45 3.2.4. Judicial review in Germany 46 4. The Supreme Court of India 48 4.1. Structure and organization 48 16 4.2. Tasks and competences 51 4.2.1. Original jurisdiction 52 4.2.2. Appellate jurisdiction 54 4.2.3. Advisory jurisdiction 56 4.2.4. Public Interest Litigation 59 4.3. Historical development 60 4.3.1. The beginning of a new era: India and its new highest court 60 4.3.3. Kesavananda Bharati and what the constitution really is: The Supreme Court and the Basic Structure Doctrine 71 4.3.4. In the name of the people: The Public Interest Litigation 81 4.4. Political role 87 5. The German Bundesverfassungsgericht 90 5.1. Structure and organization 91 5.2. Tasks and competences 96 5.2.1. Constitutional complaint 97 5.2.2. The abstract and concrete judicial review 100 5.2.3. Other proceedings 102 5.3. Historical development 104 5.3.1. If there is law there shall be justice: The creation of the Bundesverfassungsgericht 104 5.3.2. The first decades 108 5.3.3. Battle Royale: The Bundesverfassungericht as a constitutional body 110 5.3.4. The new Eastern politics of Willy Brandt and the BVerfG 116 5.4. Political role 124 6. Comparison and contrast of the two courts 129 6.1. Historical development and critical junctures 129 6.2. Jurisdiction 132 6.3. Judges and their appointment 133 6.4. Legitimization 136 6.5. Political role 141 17 7. Conclusion 144 7.1. Power of the courts 144 7.2. Judicial activism 146 7.3. Purpose of the courts 149 7.4. Suggestions for further research 151 8. Bibliography 153 Index 165 19 List of Figures Figure 1: Different forms of institutionalism accounting for change ....... 36 Figure 2: The eclectic center of the new institutionalism ......................... 38 Figure 3: Court system in India ................................................................ 51 Figure 4: Jurisdiction of the S.C. .............................................................. 52 Figure 5: Summary: Critical juncture: Land reforms ............................... 71 Figure 6: Summary: Critical juncture: Basic structure doctrine ............... 81 Figure 7: Summary: Critical juncture: PIL ............................................... 87 Figure 8: Court system in Germany .......................................................... 95 Figure 9: Summary: The BVerfG as a constitutional body .................... 116 Figure 10: Summary: Critical juncture: The BVerfG and the Grundlagenvertrag ................................................................. 124 Figure 11: Comparison of critical junctures in Germany and India ....... 131 Figure 12: Trust and confidence in political institutions and actors in India ................................................................. 139 Figure 13: Trust and confidence in political institutions and actors in Germany ........................................................... 140 21 List of Abbreviations BVerfG Bundesverfassungsgericht CNG Compressed natural gas CDU Christlich Demokratische Union Deutschlands CSU Christlich-Soziale Union in Bayern EU European Union FRG Federal Republic of Germany GDR German Democratic Republic GG Grundgesetz INC Indian Constitution KPD Kommunistische Partei Deutschlands NPD Nationaldemokratische Partei Deutschlands PIL Public Interest Litigation S.C. Supreme Court of India SPD Sozialdemokratische Partei Deutschlands SRP Sozialistische Reichspartei U.P. Uttar Pradesh U.S. United States of America vs. versus 23 1. Introduction Political science and law are both fields that have attracted a vast amount of scholarly attention, which has produced many excellent works. However, the interface of these two academic areas has received comparatively little attention. Rather, the two fields have been treated separately from each other. This is especially valid when it comes to scholarship on legal institutions. Their history and political role have almost been neglected by academia (Ernst 1998: 206, Wrase 2013: 21). Both political scientists and law-researchers probably shy away from getting too deep into a sphere unknown to them. This is especially valid for Germany (van Ooyen/Möllers 2015: 4). Robert Christian van Ooyen speculates that, for example, lawyers who focus on the political character of law are afraid of scientifically disqualifying themselves (van Ooyen/Möllers 2015: 4). In the Anglo-Saxon area, however, this seems not to be a problem (van Ooyen/Möllers 2015: 3). Thus, an analysis of legal institutions that is located in these two academic realms is very promising. It is especially fruitful when legal institutions of different countries are compared to each other and inferences are made about the political role these institutions have. In the past decades, some literature was published comparing several nations and their highest courts. Mostly, this literature focuses on comparing several courts at once or with the Supreme Court of the United States of America (U.S., hereafter) only. The highest courts of Germany and India have never been compared in detail. But why compare them in the first place? Both countries – in their current status – are of the same age and share a federal democratic system and very strong highest courts. Before their creation, both countries did not have a long history as a nation. Both were great kingdoms once but also existed as a loose covenant of states. Both have developed into modern democracies with highest courts supporting this development. Thus, it is worth looking closer at them. The highest constitutional courts of India and Germany – the Supreme Court of India in Delhi (S.C., hereafter) and the Bundesverfassungsgericht of Germany in Karlsruhe (BVerfG, hereafter) – are often referred to as very powerful courts (Menon 2006: 59, Sturm 2012). Although the history of the two countries may seem very different at first sight, the current situ- 1. Introduction 24 ation and role of the two institutions nowadays is similar. This not only holds true for their legal importance but also for their political standing. Since constitutional courts can always be seen as a creation of politics (Lembcke 2013: 37), it is fruitful to analyze the political role and the political power of the two courts. Since the S.C. and the BVerfG are neither merely legal instruments nor isolated actors but rather institutions that are part of and integrated into a political system, it is important to consider the whole institutional setting of the respective country when analyzing the political importance of the courts. 1.1. Aims and scope The thesis deals with the following puzzles: 1.) How could the S.C. and the BVerfG become such powerful political players? and 2.) Where does the power of a court come from? Is their similar political importance due to a similar historical development? Thus, the courts and their development will be compared and contrasted, with a focus on historical events that contributed to their importance. The core question can be summed up as: Is the similar importance and power of the SC and the BVerfG due to a similar historical development? Firstly, the question “How is their current situation?” is in the focus of the thesis. The courts will be compared in their structure and their tasks. Furthermore, their key functions will be pointed out. This will then shed light on their role in the political system. It will be discussed whether they exceed their function as legal institutions and rather make politics instead of merely interpreting the law. One will ask which factors determine whether a court is powerful, i.e. how one can measure power and if this can be applied to the two courts. Afterwards, the question of how the courts could become so powerful will be dealt with. The historical development of the two institutions will be tracked down with a focus on important actors, decisions and events that shaped the standing of the courts. The theoretical framework of the analysis will be that of historical institutionalism. Being one major stream of neo-institutionalism, it claims that the whole institutional setting is important for the interpretation of political phenomena. It considers formal as well as informal institutions as important. Furthermore, with its central concepts of path dependency, legacy and critical juncture, it draws on the central assumption that history matters (Bassler 2012: 9) and that “political processes can best be understood if they are studied 1.2. Previous scholarship 25 over time” (Schöttli 2009: 60). Events that occurred in the past are important and must not be neglected when analyzing current political phenomena. Thus, current political processes and policy decisions can only be understood within their historical context, i.e. an examination of the historical context can make visible recurrent policy patterns (Bassler 2012: 9). With this theoretical background, the first task in an analysis of the history of the two courts is, consequently, to identify which events led to their power. Since not all events taking place in the history of an institution really had major lasting influences when analyzed in hindsight, one has to identify the critical junctures and the critical agents. Critical junctures are “relatively short periods of time during which there is a substantially heightened probability that agents’ choices will affect the outcome of interest” (Capoccia/Kelemen 2007: 348). Within a critical juncture, new players can be introduced (Schöttli 2009: 86), which change the political scenery. When identifying critical junctures in the history of an institution, one has to be extremely careful since a phase that is a critical juncture for one institution may not be one for another, even when the institutions are connected to one another (Capoccia/Kelemen 2007: 349). Thus, one’s attention must be on two points: Similar events in the history of India and Germany are not necessarily critical junctures in the development for both the S.C. and the BVerfG. Furthermore, a phase that is commonly regarded as an important time in the history of a country does not necessarily affect the courts in particular although the political system in general is affected. After the critical junctures within the development of each court have been tracked down, they will be compared and contrasted. This gives insights into whether the similar power status the two courts enjoy nowadays is rooted in a similar development. 1.2. Previous scholarship Since the topic of this thesis touches several academic fields, there is a vast amount of scholarship to review, e.g. on law, political science, institutions, institutionalism etc.. However, most of it is only partly relevant for our topic since it touches merely a part of the thesis’ puzzles. In the field of comparative law, several edited volumes, e.g. Ginsburg/Dixon 2011, deal with constitutional design, identity, structure and interpretation in different countries in a comparative perspective. Several studies compare a small number of courts directly to each other, e.g. Perry 1. Introduction 26 2001, who compares the Israeli to the U.S. Supreme Court, or Quint 2006 comparing the German BVerfG and the U.S. Supreme Court to each other. Furthermore, there are more abstract works on courts and law, e.g. the volume edited by Melville/Rehberg 2012, which deals with institutional power in the course of time or Rogowski 2013, who analyzes constitutional courts as autopoetic organizations. Furthermore, one needs to review literature on the two legal systems in focus. Exemplary works on the topic ‘law and politics in India’ are Sathe 2002 addressing judicial activism in India, Chopra 2004 dealing with the S.C. and the constitution and Padhy 2004 analyzing the relationship of the S.C. and secularism. The BVerfG is dealt with in Kranenpohl 2010, who focuses on decision processes of BVerfG and Menzel/Müller-Terpitz 2011, Jestaedt et al. 2011 and Rath 2013, who work on important decisions of the BVerfG and its powerful role as an institution between politics and law. To access the theoretical background of this thesis – i.e. institutionalism –, it is important to review relevant works. First of all, there is considerable research on the theory itself, e.g. Kato 1996, Schulze 1997, Jansen 2000, Hall 2010 and Senge 2011. Several scholars deal with the criticism of institutionalism. Peters et al. 2005 emphasize the importance of political conflict for political change as an answer to the criticism that historical institutionalism cannot account for change. Schmidt 2010 answered to the common criticism that the three popular forms of neo-institutionalism cannot account well for political change. She identified ‘discursive institutionalism’ as the fourth stream of neo-institutionalism, which was challenged by Bell 2011 and 2012, who claims that historical institutionalism is very well capable of explaining change (Bell 2011: 883). Radaelli et al. 2012 claim that neo-institutionalism is not apt for comparative analysis of public policy. Institutionalism is applied in various academic fields, e.g. by Lecours 2000, who uses historical institutionalism for accounting for cultural identities, and Koch/Schemmann 2009, who apply it in educational science. The application of institutionalism in political science is dealt with by Mahoney 2004, who focuses on comparative-historical analysis. Capoccia/Kelemen 2007 identify critical junctures in the constitutionalization of the European Union (EU, hereafter). Comparato/McClurg 2007 conduct a neo-institutional analysis of the relationship between U.S. Supreme Court and state supreme courts. Ma 2007 focuses on paradigmatic implications 1.2. Previous scholarship 27 of historical institutionalism for political science. Bassler 2012 uses historical institutionalism for the analysis of the political system of Kirgistan. Böcher 2012 analyzes environmental policy in the light of institutionalism, just to name a few. Institutionalism is also applied in the analysis of legal institutions, e.g. by Burgess 1993, who analyzes judicial supremacy in the U.S. by means of new institutionalism and who sees law and legal rhetoric as more than “merely instrumental tools that foster certain institutional arrangements” (Burgess 1993: 445), and by Lhotta 2003, who makes a plea for neoinstititutionalism as the theoretical framework most apt for an analysis of the BVerfG as a political actor – an opinion we follow in this thesis. Sieckmann 2012 uses a theoretical approach to the interface politics/law/constitutional courts as an answer to the attack against constitutional courts for being too political with the result that a separation of politics and law is not possible. Most important to us are the rare studies that combine all of these approaches, e.g. Mitra 1999, who gives a neo-institutional explanation of political stability in South Asia, Dua et al. 2007, who focus on judicialpolitical relations in India, Khosla 2008, who examines judicial activism in India, and Schöttli 2009, who conducts an institutionalist analysis of Nehru’s policy choices with the method of analytic narrative. Lhotta’s (2003) plea for neo-institutionalism in the analysis of the BVerfG as a political actor is also central, furthermore his (2006) plea for political science, especially neo-institutionalism, to engage in the debate of the individual’s freedom within the relationship of liberalism and neoinstitutionalism. Especially in Germany, the literature on the political sphere of the BVerfG is very thin. Robert C. van Ooyens and Martin H.W. Möllers volume “Handbuch Bundesverfassunsgericht im politischen System” (2015) is one of the most comprehensive books on the political sphere of the BVerfG. Our comparative study tries to close this gap in literature on the BVerfG. The S.C., on the other hand, often was part of analytic literature but not in this comparative way. Our thesis is not only meant to close a gap but also to initiate new studies e.g. focusing on special parts of similarities and differences of the two courts. Thus, this thesis should be seen as the beginning of a wider field of studies. 1. Introduction 28 1.3. Chapter outline After an introductory chapter, which includes information on the aims and scope of the study as well as an overview of the previous scholarship (see above), the theoretical framework of the thesis will be presented. After laying down the puzzle and remarks on how to measure power, the history of institutionalism will be briefly sketched. Afterwards, the central concepts of the theory will be elaborated on. As a next step, it will be explained why this theory was chosen as the framework. Its advantages will be pointed out. Also the criticism against this theory will be sketched and commented on. Afterwards, the steps in applying this theory to the context will be sketched. After some general remarks on the role of the judiciary in a political system, constitutional courts and judicial activism, the next chapter will deal with the current situation and role of the two courts. After a few words on the political systems of India and Germany and the structure and role of their respective judiciary in general, basic information on the courts and their (original) tasks will be listed. The two courts will be compared. This section is followed by the main part of this thesis: The two courts will be presented in terms of their structure and organization, tasks and competences and their historical development and political role today. The subchapter on the historical development includes an analysis of the respective historical events in terms of their being classified as critical junctures. The historical development of the courts will be tracked down, and the critical junctures will be identified and elaborated on. This will include important cases and the courts’ jurisdiction, e.g. the Kesavananda case of 1973, or other political events that contributed a lot to their development, e.g. the invention of the public interest litigation (PIL, hereafter) after the emergency in India 1975–1977 or Konrad Adenauer’s famous declaration that the BVerfG’s decision on a pro-government TV station was wrong in 1961. The analysis of the critical junctures will also include an account of how the courts were used by other institutions, e.g. in the 1970s by the opposition of the German social liberal government. An account of the similarities and contrasts in the basic facts and critical junctures will form the summary to this part. 1.3. Chapter outline 29 The analytical focus of this thesis will be on merely a handful representative events, since it would exceed the scope of our work to analyze all judgements of the two courts in detail. Of course, one could argue that there are many events that could be seen as a critical juncture since they either strengthened the respective court’s position or changed its situation. Whether one regards many events as a critical juncture or only a few, depends on the way one defines a critical juncture, i.e. whether one uses a narrow or a wider definition of the term.1 In this thesis, we decided to focus on the most important cases only. Thus, when it comes to the S.C., we will focus on three and when it comes to the BVerfG, we focus on two particular events/phases as critical junctures. The analyzed phases sometimes contain several separate events, each of which is important on its own but also part of a whole development since they are part of the antecedent to a critical decision. Thus, we will sum up several events leading up to one another as one major critical juncture. For each major critical juncture, a table will illustrate all singular events, actors and decisions. Further research could then focus on the single events and analyze them on their own. The general conclusion of the thesis will briefly discuss what we found out and how further research can deepen the insights gained. 1 As shown in chapter 1.2., there are various ways of applying neo-institutionalism and defining critical junctures. We follow Capoccia/Kelemen (2007), Schöttli (2009) and Bassler (2012) in their definition of critical junctures (see chapter 2.3.3.3.) by seeing them as turning points in history. Thus, our definition is rather narrow compared to that of others, who see any minor event as a critical juncture since it may have changed the course of history. 30 2. Theoretical framework In the following chapter, we will lay down the theoretical framework for our analysis and comparison. The theory we want to make use of needs to account for measuring power of the two courts in question and further elaborate on institutional arrangements in a political setting. The theory, thus, must take into account the relative power one certain institution, in our case the S.C. and the BVerfG, has in relation to the other institutional players. This means that the theory also needs to state a definition for an institution first. 2.1. The puzzle: Measuring the power of courts How is it possible to measure something that some of the greatest political philosophers have labeled as not existent, i.e. the power of a court? Montesquieu called the power of courts as “en quelque façon nulle” (Vorländer 2015: 299) while Alexander Hamilton stated that courts do not have any power over sword or purse (Federalist Papers No. 78). When examining the power of something, it is, first of all, important to determine the dimension of the power one is looking at. Since, as mentioned above, a court’s power is neglectable when it comes to sword or purse, i.e. military or financial strength, a different kind of power is meant here. Instead of these kinds of power, we do rather look at the courts’ power in the institutional setting of their respective political system. When reviewing the power position in a system, it is clear that the outcome is a relative one, i.e. one can ask: Is the S.C./the BVerfG powerful in its political agency, i.e. does it have a powerful role compared to the other institutions? As will be elaborated on in more detail below, it is important to consider formal as well as informal institutions. Thus, we will use a theoretical framework apt for the analysis of institutions considering formal as well as informal aspects for our study. Since especially courts are limited in their scope of exerting influence and enlarging their impact, we have to rely on one of their rather contro- 2.1. The puzzle: Measuring the power of courts 31 versial competences when analyzing their power, i.e. that of judicial review. To measure power, we can draw on the concepts of Steven Lukes (2005). He defines three systems of power: the one-dimensional view, two-dimensional view and the three-dimensional view. The onedimensional view involves: “a focus on behaviour [italics in the original] in the making of decisions on issues over which there is an observable conflict of (subjective) interests, seen as express policy preferences, evealed by political participation.” (Lukes 2005: 19) This view is the most obvious and can easily identified by an observer. This gets a lot harder in the case of the two-dimensional view which involves: “a qualified critique of the behavioural focus of the first view (I say qualified because it is still assumed that non decisionmaking is a form of decision-making) and it allows for consideration of the ways in which decisions are prevented from being taken on potential issues over which there is an observable conflict of (subjective) interests, seen as embodied in express policy preferences and sub-political grievances.” (Lukes 2005: 24–25) The three-dimensional view is the most difficult to analyze as it involves: “a thoroughgoing critique of the behavioural focus of the first two views as too individualistic and allows for consideration of the many ways in which potential issues are kept out of politics, whether through the operation of social forces and institutional practices or through individuals’ decisions. This, moreover, can occur in the absence of actual, observable conflict, which may have been successfully averted – though there remains here an implicit reference to potential conflict. This potential, however, may never in fact be actualized. What one may have here is a latent conflict, which consists in a contradiction between the interests of those exercising power and the real interests of those they exclude. These latter may not express or even be conscious of their interests, but, as I shall argue, the identification of those interests ultimately always rests on empirically supportable and refutable hypotheses.” (Lukes 2005: 28–29) As these two- and three-dimensional views focus on the political arena, its players and whole societies, we should rather draw on the onedimensional view and its definition of power in order to be able to analyze the power of courts. Lukes simplified concept of power is that “A exercises power over B when A affects B in a manner contrary to B’s interests.” (Lukes 2005: 37). So, do the BVerfG or the S.C. really exercise power over the government in the sense of the one-dimensional view? This question will be dealt with in the examination of the critical junctures. 2. Theoretical framework 32 2.2. Institutions First of all, one needs to find a way to define an institution. There are many definitions of what an institution is and what features it comes with. Most definitions include the following features: An institution is a pattern of social relations. An institution works ordering and ruling. An institution is permanent. An institution is legitimate. (Jansen 2000: 2) For this thesis, we will use the following definition by North (1990: 3). He claims that institutions are “rules of the game in a society, the humanly devised constraints that shape human interaction“ (North 1990: 3). Also Wrase’s definition is fruitful. He sees an institution as a structure out of organization, norms and practice that shows in symbolic forms, key ideas and normative discourses (Wrase 2013: 34) According to Bassler, institutions can be seen as rules that structure the behavior of social actors (Bassler 2012: 6). What these definitions have in common is that they rely on formal structures as well as on informal structures such as norms and values. Thus, they follow the tradition of neo-institutionalism, which will be elaborated on below. 2.3. Neo-institutionalism For the following analysis of the two courts, historical institutionalism – one stream of neo-institutionalism – is selected as the theoretical framework. It is pointed out by various scholars (e.g. Lhotta 2003, Wrase 2013) that this approach is fruitful in analyzing courts in the field between politics and law since it is able to connect normative and empirical perspectives (Wrase 2013: 21) 2.3. Neo-institutionalism 33 2.3.1. History of neo-institutionalism In the 1950s and 1960s, behavioralism was the school most prevalent (Bassler 2012: 5). It put the behavior of actors to the center of attention (Bassler 2012: 5). In the 1970s and 1980s, institutions came back to the focus of political science (Schulze 1997: 6, Schöttli 2009: 54, Senge 2011: 11 and Bassler 2012: 5). 2.3.2. Streams within neo-institutionalism Within neo-institutionalism, three streams can be identified (Bassler 2012: 6–7): 1. rational choice neo-institutionalism 2. historical neo-institutionalism 3. sociological neo-institutionalism. They differ in the extent by which institutions structure societal actors (Bassler 2012: 7). Rational choice neo-institutionalism assumes that institutions merely serve as the frame of the strategic acting of rational actors and constrain their scope of action (Bassler 2012: 7). For this stream, formal institutions such as the constitution (Bassler 2012: 7) are important. Sociological institutionalism assumes that institutions are a point orientation for individuals in search of the appropriate behavior (Bassler 2012: 7). Institutions thus provide action patterns for individuals (Bassler 2012: 7). For this stream, informal institutions such as social norms and conventions play a larger role than formal institutions (Bassler 2012: 7). 2.3.3. Historical institutionalism: Central concepts In the following, the central concepts of historical institutionalisms will be sketched. 2. Theoretical framework 34 2.3.3.1. Informality matters: The importance of formal and informal institutions Historical neo institutionalism can be located between the two other forms of neo-institutionalism (Bassler 2012: 7). It tries to avoid the dichotomy of formal versus non-formal institutions by taking into account both strands (Bassler 2012: 6). Formal and informal institutions play an equal role in the understanding of institutions within historical neo-institutionalism (Bassler 2012: 7). In the identification of critical junctures, all actors, their options, aims and outcome of choices have to be reviewed. Especially when it comes to deciding among different outcomes, informal structures, ideas and preferences play an important role. Thus, their impact must not be neglected by merely taking formal structures into focus. 2.3.3.2. Path dependency and legacy One central assumption of historical institutionalism is the insight that history matters (Bassler 2012: 9) and that “political processes can best be understood if they are studied over time” (Schöttli 2009: 60). Events that occurred in the past are important and must not be neglected. Thus, current political processes and policy decisions can only be understood within their historical context (Bassler 2012: 9). This leads to the conclusion that an examination of the historical context can make visible recurrent policy patterns (Bassler 2012: 9). This shows itself in the so-called path dependency and legacies. Not only the current status of an institution can, thus, be better explained by examining its historical development but also the collective thinking of a whole nation can be influenced by its history, as, for example, Mitra/Liebig (2016) elaborate on by showing the influence of Kautilya’s Arthashastra, an ancient treatise, to this very day. Originally, the concept of path dependency hails from economics and denotes a certain form of market failure accounting for why existing technologies prevail over new superior technologies (Bassler 2012: 10–11). According to historical institutionalism, decisions influence the future (Böcher 2012: 16, Schöttli 2009: 68). Thus, path dependency manifests itself in durable institutional influences on future political decisions (Böcher 2012: 16). By assuming that policy making systems tend to preserve existing policy patterns, historical neo-institutionalism is able to account for political continuity (Bassler 2012: 9). Historical neo-institutionalism as- 2.3. Neo-institutionalism 35 sumes that change does not proceed continuously but in a discretionary manner (Bassler 2012: 10). This means that institutional changes are not part of a steady process but long phases of institutional stability are interrupted by critical junctures (Bassler 2012: 10). The concept of legacies implies that a single legacy does not have the power to account for processes (Bassler 2012: 14). Only different variables together account for something (Bassler 2012: 14). 2.3.3.3. Writing history: Critical junctures Critical junctures can be seen as crucial turning points in the history, which lay the foundations for a certain institutional development or consolidation (Bassler 2012: 10). Capoccia/Kelemen defined them as “brief phases of institutional flux […] during which more dramatic change is possible” (Capoccia/Kelemen 2007: 341) and “relatively short periods of time during which there is a substantially heightened probability that agents' choices will affect the outcome of interest.” (Capoccia/Kelemen 2007: 348). Within a critical juncture, new players can be introduced (Schöttli 209: 86). A critical juncture is always “a situation of high uncertainty and unpredictability” (Capoccia/Kelemen 2007: 355). 2.3.4. Criticism: Historical institutionalism and political change One of the main criticisms against historical neo-institutionalism is that it is not able to account for institutional change sufficiently (Hira/Hira 2000, Peters et al. 2005: 1275, Schmidt 2010: 2, Bell 2011: 883, Bassler 2012: 9). Schmidt 2010 even came up with a fourth stream of neoinstitutionalism – discursive – since she thinks that the other three cannot explain change well enough. However, many scholars think that this criticism is exaggerated (e.g. Bell 2011). The following table shows how the different forms of institutionalism account for change. 2. Theoretical framework 36 Rational choice institutionalism Historical institutionalism Sociological institutionalism Discursive institutionalism Object of explanation Behavior of rational actors Structures and practices Norms and culture of social agents Ideas and discourse of sentient agents Logic of explanation Calculation Path dependency Appropriateness Communication Definition of institutions Incentive structures Macro-historical structures and regularities Cultural norms and frames Meaning structures and constructs Approach to change Static – continuity through fixed preferences, stable institutions Static – continuity through path dependency interrupted by critical junctures Static – continuity through cultural norms and rules Dynamic – change (and continuity) through ideas and discursive interaction Explanation of change Exogenous shock Exogenous shock Exogenous shock Endogenous process through background ideational and foreground discursive abilities Recent innovations to explain change Endogenous ascription of interest shifts through RI political coalitions or HI selfreinforcing or self-undermining processes Endogenous description of incremental change through layering drift, conversion Endogenous construction (merge with DI) Endogenous construction through reframing, recasting collective memories and narratives through epistemic communities, advocacy coalitions, communicative action, deliberative democracy Figure 1: Different forms of institutionalism accounting for change (RI = rational choice institutionalism; HI = historical institutionalism; DI = discursive institutionalism; adapted from Schmidt 2010: 5) 2.4. Suitability of the theory 37 2.4. Suitability of the theory This theory is chosen since, as Lhotta (2003: 143) puts it, the role of a court as a political actor can only be analyzed by taking into account system specific institutional variables. The degree of influence of constitutional courts is rooted in the institutional design of the respective political system (Lhotta 2003: 143). Political actors such as courts are part of an institutional setting influencing their preferences and actions (Lhotta 2003: 147, Chandhoke 2005: 1037). This theory is also very apt for comparative research as Capoccia and Kelemen state: “In this context, comparing processes of development that involve critical junctures (or producing "multiple narratives") presents several advantages. First, a counterfactual argument in one unit may actually be a factual argument in another. In other words, if critical junctures occur in similar units and under similar conditions, then different decisions of the same actors can give rise to different outcomes, allowing variation and increasing the overall leverage of the analysis. Second, this facilitates the identification of negative cases, that is, junctures that present the same characteristics of structural fluidity and actors' prominence but do not actually give rise to sweeping change. Third, comparing similar junctures (possibly with different outcomes) helps focus on the important actors, moments, and choices, while omitting less relevant contextual details.” (Capoccia/Kelemen 2007: 359) There are not many theories helping to analyze and explain institutional change (Mahoney/Thelen 2010: 2). All definitions of institutions point to their persistence and enduringness (Mahoney/Thelen 2010: 4). Historical institutionalists stress “continuity over change” (Mahoney/Thelen 2010: 6) and they “view institutions […] as the political legacies of concrete historical struggles” (Mahoney/Thelen 2010: 7) 2. Theoretical framework 38 Figure 2: The eclectic center of the new institutionalism (Ethington/McDonagh 1995: 470) The figure gives an overview over several approaches prevalent in the social sciences. The x-axis shows the objects to be examined, the y-axis the methods applied (Ethington/McDonagh 1995: 470). New institutionalism lies in the middle and is, thus, apt for analyzing constitutional courts in their political role. 2.5. Method, analytic narrative The main task is to identify the key actors and critical junctures that led to the development of the two courts. One has to pay attention since a phase that is a critical juncture for one institution may not be one for another (Capoccia/Kelemen 2007: 349); even when the institutions are connected to one another (Capoccia/Kelemen 2007: 349). Formal Scientific Methods Informal Discursive Methods Informal Institutions Formal Institutions Harvey Lieberman Hermeneutics Levi New Institutionalism ZeiglerConnolly Old Institutionalism Rational ChoiceBehavioralism 2.5. Method, analytic narrative 39 Furthermore, one should bear in mind that not every event that took place in the history of the courts is necessarily a critical juncture: “We submit, first, that the duration of the critical juncture must be brief relative to the duration of the path-dependent process that it initiates. Treating an entire decade as a critical juncture with respect to an outcome observed a century later might be sensible. But it would clearly not be sensible to consider a decade-long period a critical juncture with respect to an outcome observed only one year later.” (Capoccia/Kelemen 2007: 350) Thus, the British Raj might be seen as a legacy and as a critical juncture since it influences India till the very day. Furthermore, critical juncture and change are not necessarily one and the same thing (Capoccia/Kelemen 2007: 352), and one must differentiate between critical junctures whose outcome was change and critical junctures whose outcome only reinforced the existing situation. An analysis of critical junctures, thus, always implies, an analysis of decision making (Capoccia/Kelemen 2007: 354). One method is the analytic narrative. When analyzing critical junctures, one has to take into account the main actors and their goals and events influencing the decisions ultimately taken (Capoccia/Kelemen 2007: 357). In doing so, one should also consider the decisions “that were considered and ultimately rejected” and one “should reconstruct the consequences of the decisions that were taken and (as much as the available data allow) the likely consequences of those that could plausibly have been taken but were not” (Capoccia/Kelemen 2007: 357). 40 3. Judiciary Before going into the analysis of two concrete institutions, one has to ask what the role of the judiciary in general is. Where is judicial decision making located in the political process? In how far are politics and law intertwined? When it comes to the interpretation of the constitution, law and politics cannot be considered separate from one another (Sieckmann 2012: 43). Politics is seen as the total of activities aiming at making collectively binding decisions (Sieckmann 2012: 44) and law as a system of collectively binding norms, ultimately justifying constitutional decisions (Sieckmann 2012: 43–44). Thus, one can understand politics as a system of actions and law as a system of norms, with the constitution being a part of the norms (Sieckmann 2012: 44). While the ultimate outcome of politics is law (Sieckmann 2012: 44), the norm is the necessary connecting link between political decision making and law (Siechmann 2012: 45). Constitutions and, in a downstream manner, also constitutional courts do not only enable political actors in making law but also restrict their competences (Sieckmann 2012: 46). The interpretation of law by certain organs does not only mean the application of existing law norms but also creating new ones (Sieckmann 2012: 49). The creating of new legal norms is part of politics (Sieckmann 2012: 49). Thus, landmark decisions of constitutional courts are at the same time political as well as legal decisions (Sieckmann 2012: 50). Especially when the courts have room to interpret the law, one has to bear in mind that they are influenced by the “political values […] [which] are historically contingent and can be altered through creative political choices. Hence it makes sense to examine how the role of courts and the meaning of law changes within different regimes as a result of major political ‘realignments‘ or major ‘constitutional moments‘ when the people make political choices to alter the existing array of political and social institutions.” (Clayton/May 1999: 248) While institutionalism takes these informal values and historical dependencies into account, other theories, such as Luhmann’s systems theory sees law and politics as two functionally differentiated subsystems of society, in which each fulfils its function only (Luhmann 2011: 746). Other, more recent, systems theoretical approaches see constitutional 3.1. Constitutional courts 41 courts as independent “autopoietic social systems guided by an underlying concern for autonomy and self-reproduction” (Rogowski 2013: 123). In contrast to Luhmann’s and Rogowski’s view, we argue that informal values, historical developments, as well as all institutional players need to be taken into account for an analysis of the judiciary’s power. 3.1. Constitutional courts It was the U.S. Supreme Court with which the idea of constitutional courts was initially born (Vorländer 2012a: 13). The American constitution already provided for the installment of a highest court (Vorländer 2012a: 13). In the middle of the 20th century, the idea of constitutional courts was also incorporated in continental Europe (Vorländer 2012a: 14). Especially after World War II, constitutional courts were established in nearly every country (Vorländer 2012a: 14). This evolution happened also in countries in which the concept of constitutional courts had been unknown up until then, e.g. in France (Vorländer 2012a: 14). Usually, written constitutions are not static entities but cultivate and develop further after their implementation. Over the years, our world changes and with it the challenges for the law and the “old” constitutions. It is the duty of a constitutional court to interpret the constitution in order to make it feasible for its people and to redefine the constitutional law to make it apt for the modern world (Vorländer 2012a: 14). In constitutional states, the constitution is supreme, while at the same time it needs interpretation and does not communicate with the actors of a system directly (Vorländer 2012a: 17). A constitution does not count as such if it is not interpreted by an institution (Vorländer 2012a: 17). This situation would become epecially problematic in the case of a conflict, e.g. between institutions of between an institution and the people; especially then, an institution with authority is needed to enforce the constitution (Vorländer 2012a: 17–18). This situation automatically leads to the creation of a constitutional court, who posseses the power to interpret the constitution and to enforce it (Vorländer 2012a: 18). Constitutional courts operate in an area between law and politics (Kneip 2009: 18). They are at the same time political and judicial actors in the democratic system (Kneip 2009: 18). Their position within the system make these courts vulnerable in a sense that they are often criticized (Kneip 2009: 18). This was already noted by Robert Dahl in 1957. Alt- 3. Judiciary 42 hough his remarks were related to the U.S. Supreme Court, they are still apt: “As a political institution, the court is highly unusual, not least because Americans are not quite willing to accept the fact that it is a political institution and not quite capable of denying it; so that frequently we take both positions at once. This is confusing to foreigners, amusing to logicians, and rewarding to ordinary Americans who thus manage to retain the best of both worlds” (Dahl 1957: 279). Constitutional courts are political actors in the political system and its constitutional life (Vorländer 2012a: 15). They are not only appellate or revision courts but actively part of the political domain and act as political referees between the other powers (Vorländer 2012a: 15). This leads to a break in the barrier between politics and law; this position as a ‘border crosser’ is often attacked by critics (Vorländer 2012a: 15). Through the interpretation of the constitution, the lawgiver loses some of its sovereignty while, at the same time, the constitutional interpreter gains more of it (Vorländer 2012a: 18). This leads to the fear that a constitutional state could transform from a democratic parliament-controlled state into a juristically controlled state. 3.2. Judicial activism vs. judicial review The existence of a constitutional court automatically leads to a conflict between the institutions, i.e. between the executive with legislative against the judiciary to be more precise (Vorländer 2012a: 18). This happens because of the breakdown of the barrier between the constitutional judicial and the political sphere (Vorländer 2012a: 18). This could lead to a judicialization of the political sphere while the judicial sphere could get politicized more and more (Vorländer 2012a: 18). The conflict between the institutions in a democratic state is not uncommon at all; furthermore, it does not necessarily manifest itself (Vorländer 2012a: 18). One source of this conflict can be identified in the concept of judicial activism. What is judicial activism? Most of the relevant literature sees judicial activism as the source of power of the courts’ action of judicial review. Politicians often use the phrase judicial activism in a negative context, e.g. when the courts’ decisions are not in line with their politics (Garoupa 2016: 1091–1092). Defining the concept of judicial activism is difficult, and there is no prescribed model defining it that is apt for a comparative analysis (Garoupa 2016: 1104). Over time, it has been shown that 3.2. Judicial activism vs. judicial review 43 judicial review played an important part in the actions of some of the most powerful courts in the world. This is why judicial review should be considered as an important part of judicial activism. There are different models of judicial review which have developed over the decades. 3.2.1. Judicial interpretation The first model is that of judicial interpretation which is especially prominent in Britain (Verney 2007: 41). The British model accepts the sovereignty of the parliament; this is also called Westminster system (Verney 2007: 41–42). During the 17th century, the Court of Common Pleas in England tried to undermine this system by asserting the common law over the parliament’s primacy, e.g. in the Bonham’s case of 1610 (Verney 2007: 42). The court was not very successful in its attempt. However, this could be described as an early form of the upcoming judicial review. In 1885, Albert Venn Dicey’s law of the constitution emerged with the three principles of British government (Verney 2007: 44). First, the rule of law, second, the conventions of the constitution and third, the sovereignty of the parliament (Verney 2007: 45). Dicey concluded that the British courts were only limited to judicial interpretation (Verney 2007: 45). The system of parliamental supremacy was somehow ‘broken’ by the EU, which made Britain part of the European judicial system, which follows the system of judicial review (Verney 2007: 49). 3.2.2. Classical judicial review The second type of judicial review is that of classical judicial review, which is practiced by the U.S. Supreme Court (Verney 2007: 43). This form of judicial review was born in the case of Marbury vs. Madison (Vorländer 2012a: 13). The premise of the case was very unspectacular but it still was a model case with a very interesting political background and impact (Menzel 2011: 4). The case evolved around the delivery of a certificate of appointment as justice of peace for the Columbia District for William Marbury (Menzel 2011: 4). Marbury was part of the so-called midnight judges, loyal federalists appointed in the last hours of John Adams’ presidency (Menzel 2011: 4). Marbury’s appointment was signed by Adams and by his undersecretary John Marshall on the last day of the 3. Judiciary 44 presidency (Menzel 2011: 4). Marshall, who was appointed as chief justice of the U.S. Supreme Court, made one crucial mistake: He missed to deliver the appointment to Marbury in time (Menzel 2011: 4). After Adams’ presidency ended, the new president Thomas Jefferson and his new undersecretary James Madison refused to deliver the appointment to Marbury and saw the appointment as not valid (Menzel 2011: 4). The new government under Jefferson had two opinions on the last-minute appointment of the judges by the Adams government. First, it saw it as an attempt of the former federalist government to create a loyal majority of judges who would stand against the newly elected Republicans (Menzel 2011: 4). Second, Jefferson saw it as a deal-making for federalist followers (Menzel 2011: 4). Marbury approached the court in order to start a proceeding against the government’s decision (Menzel 2011: 4). This brought the U.S. Supreme Court into a very difficult situation. If the court rejected Marbury’s case, it would miss the opportunity to create the competences to make further decisions in this kind of cases itself and, thus, weaken itself sustainably (Menzel 2011: 4). On the other hand, if it allowed the proceeding it would clearly violate the decision of the executive and, at the same time, possibly weaken the court as well (Menzel 2011: 4). Marshall and the other judges found a third possibility to handle the case. Marbury’s case was rejected with the explanatory statement that the procedural jurisdiction norm was unconstitutional (Menzel 2011: 4). Formally, the government was the winner of the case but on the other side, the court postulated its competence to make a decision in the case (Menzel 2011: 4). In short, the U.S. Supreme Court argued that there was no original jurisdiction in matters of a judge’s appointments to a bench (Verney 2007: 51). The decision was revolutionary because no longer, common law, like in the British system, but the constitution was the new standard reference for the court’s verdict (Menzel 2011: 4–5). With this decision, the U.S. Supreme Court freed itself from the British tradition (Menzel 2011: 5). At this time, the concept of judicial review had not been completely new to the court; but the case Marbury vs. Madison cemented it as a procedure (Menzel 2011: 5). With judicial review, the U.S. Supreme Court – at this time merely a regular highest court – claimed to have the competence to review laws and state behavior in the light of the constitution (Menzel 2011: 5). The court’s judgement was important as it showed that it stood above emotional party politics since Marshall himself was a federalist (Verney 2007: 51). Douglas V. Verney argues that the U.S. Supreme Court’s jud- 3.2. Judicial activism vs. judicial review 45 gement would not have worked out in a system in which the parliament was supreme (Verney 2007: 51). For a judgement like this to be accepted, the separation of powers was absolutely necessary, in which “both branches of government were responsible to the constitution” (Verney 2007: 51). With its judgement, the court made clear that the judiciary was to be seen as a third branch of government (Verney 2007: 52). This branch would be an umpire between the executive and the legislative in cases of disputes (Verney 2007: 52). But it was also the ‘American way’ through which the court’s decision was promoted. While the British system was based on parliamentary supremacy, the American way tried to limit the government’s power (Verney 2007: 53). This led to the acceptance of judicial review as a tool to limit the government “through checks and balances” (Verney 2011: 53). 3.2.3. Judicial review in India The Indian system follows its own path. From the beginning on, the S.C. had declared parliamental acts ultra vires, but the parliament always had the last word (Verney 2007: 60). This happened through amending the constitution or by placing the disputed law in the ninth schedule of the constitution in which it was not justiciable (Verney 2007: 60). This system was first challenged in the Golak Nath case in 1967 (Baxi 1980: 12, Verney 2007: 60), which will be elaborated on in more detail below. But even this did not lead to a supremacy of the S.C. over the parliament since, on many occasions, the S.C. left the stage to the parliament as the introduction of the emergency rule showed (Verney 2007: 60). However, there was a constant struggle for supremacy between the S.C. and the parliament (Mitra 2017: 91). The emergency was first challenged in 1977 in the case State of Rajasthan vs. Union of India but the S.C. hesitated to deliver a groundbreaking judgement (Verney 2007: 60). Finally, in the Bommai case, the S.C. stood up against the parliament and declared federalism as part of the basic structure of the constitution (Verney 2007: 61). Over the years, the S.C. started to practice the system of judicial review in different cases like Kesavananda or the Minerva Mills case (Verney 2007: 66). This led to the invention of the basic structure doctrine through the S.C. (Mitra 2017: 91–92), which formed the foundation of judgements in the light of the power of judicial review (Verney 2007: 62). But besides this, the Indian system always tried to follow the principle of parliamental supremacy 3. Judiciary 46 while, at the same time, practicing judicial review (Verney 2007: 63). The Indian system also created a special form of judicial activism, which could be accounted for with the incapability of the parliament to respond to public issues such as poverty or environmental pollution (Verney 2007: 63). With the introduction of the PIL, the S.C. became more and more activist and somewhat changed the roles of the parliament and the court (Mitra 2006: 70, Verney 2007: 63, Mitra 2017: 91). The S.C. implemented reforms for protecting the environment and against poverty while the parliament was reluctant to respond to these matters (Verney 2007: 63). In all these cases, the S.C. acted instead of the central or federal governments. Thus, judicial activism can be seen as a consequence of the parliament’s passivity. 3.2.4. Judicial review in Germany The German way cannot be forced into one of these systems. The possibility of judicial review is already written down in the Grundgesetz (Basic Law; GG, hereafter) and gives the BVerfG the possibility to review laws if it is asked to do so in the legal process. The German system resembles the American way of judicial review. Judicial review is part of the system of checks and balances. In 1989, Kenneth Holland delivered a comparative study on judicial activism in eleven countries, in which he formulated seven premises for judicial activism to be prevalent (Singh 2007: 124). First, that judicial activism does not necessarily require judicial review (Singh 2007: 124). One example for this is the Japanese Supreme Court which has the possibility of judicial review but has rarely used it over time (Singh 2007: 124). Second, judicial activism “serves the end of liberalism” (Singh 2007: 124). Third, he lists civic education, which is a non-adjudicative function but often performed by the courts (Singh 2007: 124). Fourth, activist courts “show a penchant for a higher law, eschewing legal positivism” (Singh 2007: 124). Fifth, judicial activism has a tendency to degrade the parliamentary system and also the majoritarian democracy (Singh 2007: 124). Sixth, a court does not only become active in constitutional cases but also reviews administrative decisions (Singh 2007: 124). Seventh, the U.S. Supreme Court’s activism has influenced the behavior of the respective court (Singh 2007: 124). Based on his study, Holland also developed a list of conditions for judicial activism (Singh 2007: 124). There are some con- 3.2. Judicial activism vs. judicial review 47 ditions, structural and intellectual, which make it more likely for an activist judiciary to exist in a country (Singh 2007: 124). Structural conditions are, for example, “federalism, written constitution, judicial independence, absence of separate administrative courts, a competitive political party system, and generous rules of access to the courts” (Singh 2007: 124– 125). Other conditions are “the common law tradition, the concept of limited government, high esteem for judges, and a social consensus on fundamental regime questions” (Singh 2007: 125). In Holland’s framework, judicial review plays a minor role only. However, for the analysis of the BVerfG and the S.C., it plays a significant role. Both courts have used this instrument over time since their existence. In both cases, some of the most important rulings were made by using the instrument of judicial review. Holland also delivers some other instruments and concepts for analyzing and measuring the possibility of judicial activism for both courts. Some of the above-mentioned criteria will be used to explain judicial activism for both courts below. 48 4. The Supreme Court of India The S.C. is part of a single integrated judiciary (Chaudhary 2004: 25). Legal basis for the S.C.’s existence is Art. 124 (1) IC, which constitutes that “[t]here shall be a Supreme Court of India”. The Indian constitution foresees a system of a unified judiciary, in which the courts are responsible to “administer Union and state laws” (Chaudhary 2004: 25). The S.C. holds the top position within the judicial pyramidal system with high courts existing in nearly every state (Chaudhary 2004: 25). Below the high courts, there is a system of subordinate courts in each state (Chaudhary 2004: 25). The Indian constitution prescribes that the seat of the S.C. shall be Delhi and cannot be changed (Chaudhary 2004: 26). The first chief justice of India was Harilal Jekisundas Kania (S.C. 2018b). He was appointed to office on January 11, 1950 and remained in office until November 06, 1951 (S.C. 2018b). Since the appointment of justice Kania, he was followed by 43 chief justices in India (S.C. 2018b). Current chief justice is Jagdish Singh Khehar, who was appointed on January 04, 2017 (S.C. 2018b). As retirement for S.C. judges is prescribed for the age of 65, some of the chief justices remained in office for a few months only, e.g. Rajendra Mal Lodha (April 27, 2014–September 27, 2014) and his successor Handyala Lakshminarayanaswamy Dattu (September 28, 2014–December 11, 2015) (Art. 124 (2) IC). These short periods led to a great number of chief justices since the existence of the S.C.. As a study by Subrata K. Mitra and V.B. Singh has shown, the S.C. enjoys a great deal of trust (Dohrmann/Fischer 2001: 150, Mitra 2006: 75, Mitra 2017: 93). The trust in the S.C. as a state institution is an indicator for its tremendous level of power which will be elaborated later on. 4.1. Structure and organization Currently, the S.C. consists of 26 judges (Betz 2007). They can only be unseated by an impeachment proceeding (Betz 2007). Through the Constitutional Provisions Act No. 11/2009, the maximum number of possible judges was raised to 31 (Annual Report 16–17 2017: 32). This figure is composed of thirty judges plus the chief justice (Annual Report 16–17 4.1. Structure and organization 49 2017: 32). Originally, the S.C. consisted of seven judges only; for the first time this number was raised in 1956 (Chaudhary 2004: 27). Over the decades the number of judges was raised further to compensate the enormous workload of the court (Chaudhary 2004: 27). Formerly, the judges were appointed by the state president; nowadays they are appointed by an independent commission formed by representatives of the highest judges and the ministry of justice (Betz 2007). The Indian constitution does not make any provisions for the qualifications of the chief justice of the S.C.. Usually, the most senior judge at the S.C. is chosen for this position (Chaudhary 2004: 27, Gadbois 2017: 96). For the common S.C. judges, the Indian constitution foresees several provisions: “Supreme Court – citizen of India and experience of (a) five years as a judge of High Court or of two or more such courts in succession; or (b) ten years as an advocate of High Court or of two or more such courts in succession; or (c) in the opinion of the President, a distinguished jurist.” (Chaudhary 2004: 27–28). From the beginning onwards, the tenure of the judges was one of the largest challenges the S.C. faced. On average, the chief justice has a short tenure of only two years in office. This can be explained by the fact that S.C. judges must retire at 65 years of age (see above). The administrative head of the S.C. is the chief justice (Annual Report 16–17 2017: 49). He determines the structure of the S.C., its registry and the court’s ministerial side (Annual Report 16–17 2017: 49). Since the chief justice is the head of administration, he should, ideally, not only be chosen due to seniority but also due to his competence (Gadbois 2017: 96). In contrast to the BVerfG, the S.C. is not organized in senates but in benches, which are not fixed in their composition (Gadbois 2017: 88). In the beginning, there were only three different types of benches, i.e. the constitutional, the civil and the criminal bench (Gadbois 2017: 88). In 1960, a fourth bench was created, i.e. the tax bench (Gadbois 2017: 89). The power of the benches is only prescribed for the constitutional bench. The constitution describes that: “3[2*** The minimum number] of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five” (Art. 145 (3) IC). In its Practice and Procedure and Office Procedure of 2017, the S.C. defined the number of judges for the other benches. Division benches for 4. The Supreme Court of India 50 common appeals should not consist of less than two judges, which have to be nominated by the chief justice (S.C. 2017: 25). If the proceeding arises out of a death sentence, the minimum number of judges has to be three (S.C. 2017: 25). If the election of the president or the vice-president is in question, the bench must consist of five judges, just as for a constitutional case (S.C. 2017: 26). If necessary, the chief justice can create a larger bench with more than five judges to hear any appeal or matter (S.C. 2017: 26). If a smaller bench decides that a certain case should better be handled by a larger bench, it can refer the case to the chief justice, who can then constitute a larger bench for the hearing (S.C. 2017: 26). Art. 146 IC regulates the appointment of officers to the S.C. and vests these powers into the hand of the chief justice or to another judge or a committee of judges who are authorized to do so (Art. 146 IC, Annual Report 16–17 2017: 49). The highest administrative officer of the S.C. is the secretary general, whose rank is equal to that of a secretary of the government (Annual Report 16–17 2017: 49). The position of a secretary general is reserved for district or session judges (Annual Report 16–17 2017: 49). Another supporting staff member is the registrar, a position reserved for judicial officers in the rank of additional district or session judges (Annual Report 16–17 2017: 49). These registrars provide assistance to the secretary general (Annual Report 16–17 2017: 49). There are eight registrars, who are assisted by 25 additional registrars; they work for specific branches at the court (Annual Report 16–17 2017: 49). Overall, there are 2.272 subordinate officers at the court handling all kinds of judicial matters (Annual Report 16–17 2017: 49). The registry office is organized in 56 sections, out of which 21 handle all “SLPs, Writ Petitions, Original Cases, References and other appeals” (Annual Report 16–17 2017: 49). The workload between the sections is divided by judicial categories but also by geographic ones, e.g. federal state or high court (Annual Report 16–17 2017: 49). Figure 3 sums up the ourt system of India and shows where the S.C. is located. 4.2. Tasks and competences 51 Figure 3: Court system in India (S.S. Rana & Co. Advocates) 4.2. Tasks and competences The literature often mentions the broad competences of the S.C. in comparison to all other highest courts in the world. It is the final court of appeal in any state and constitutional matter, and also in criminal, civil and other matters (Gadbois 2017: 107). In contrast to the BVerfG, the S.C. does not define different types of proceedings. The S.C. differentiates between original jurisdiction, appellate jurisdiction and advisory jurisdiction. Apart from these, the PIL is a separate proceeding through which the S.C. can get active. Besides its defined jurisdiction, the S.C. fulfills the same task as every Supreme Court, namely that of protecting the written constitution. The S.C. acts as the safeguard of the constitution and fundamental rights. The most important kind of jurisdiction is the S.C.’s option to get active in cases in which people subject to the laws of India appeal to the court directly when they believe that their fundamental rights have been violated by provisions of a law that has been passed by the union or a state parliament (Gadbois 2017: 108). This also includes actions from union or state Supreme Court High Courts District and Session Courts Civil Judges Metropolitan Magistrate Supreme Court High Courts District Court and Additional District Judges Civil Judges Metropolitan Magistrate Subordinate Judge Class I Subordinate Judge Class II Civil Justice SystemCriminal Justice System 4. The Supreme Court of India 52 executives (Gadbois 2017: 108). These jurisdictions are part of the original jurisdiction, which will be elaborated on in more detail below. Figure 4 provides an overview of the different kinds of jurisdictions of the S.C. Figure 4: Jurisdiction of the S.C. (Annual Report 16–17 2017: 40) 4.2.1. Original jurisdiction Article 131 endows the S.C. with the original jurisdiction in “any dispute - (a) between the Government of India and one or more states; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States…[p]rovided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.” (Art. 131 IC) The first case instituted under Art. 131 IC was State of West Bengal vs. Union of India. The law in question was the Coal-Bearing Areas (Acquisi- 4.2. Tasks and competences 53 tion and Development) Act of 1957 (Gadbois 2017: 110). This act authorizes the union to acquire any land, whether it belonged to a private person or a state, from which coal could be obtained (Gadbois 2017: 110). Under this act, the union government tried to acquire land belonging to the state of West Bengal, which itself was pursuing its own plans in exploiting the coal-bearing areas (Gadbois 2017: 110). By a majority of five to one, the S.C. voted in favor of the union government (Gadbois 2017: 110). The S.C. pointed out that there was no specific authorization for the government to ‘occupy’ the areas in the constitution but given the nature of the constitution, the power to do so has to be regarded as implicit (Gadbois 2017: 110). In the first decades, cases under Art. 131 were not very common. This might be due to the political structure of India. Whenever conflicts between the union and the states or between the states arose, they were settled extra-judicially (Gadbois 2017: 111). One explanation for this was the dominance of the Indian National Congress party in the union and the states (Gadbois 2017: 111). This political homogeneity had an enormous influence on the parties of dispute; i.e. it lead to a consent building. Probably the most important original jurisdiction is defined under Art. 32 IC (Gadbois 2017: 112). Proceedings filed under Art. 32 IC were the source of more cases than under any other article (Gadbois 2017: 112). Art. 32 (1) IC concedes every person who is subject to the Indian law the right to approach the S.C. for the enforcement of their fundamental rights (Gadbois 2017: 112). Clause 2 of the article endows the S.C. with the authority to “issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.” (Art. 32 (2) IC) This means that every person believing that their constitutional rights have been violated can directly approach the S.C. (Gadbois 2017: 112). Thus, they do not have to follow the procedure from lower to higher courts like in cases not involving fundamental rights (Gadbois 2017: 112). One of the first cases under Art. 32 was Romesh Thappar vs. The State of Madras, in which the advocate-general of Madras stated that the high court of Madras under Art. 226 IC had a concurrent jurisdiction and that the petitioner first had to appear in front of the high court (Gadbois 2017: 112). The S.C. rejected the general-advocate’s argument with the following argumentation: 4. The Supreme Court of India 54 “We are of opinion that neither the instances mentioned by the learned Advocate General nor the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution. That article does not merely confer power on this Court, as article 226 does on the High Courts, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction. Article 32 provides a "guaranteed" remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point.” (1950 AIR 124, 1950 S.C.R 594) Thus, the S.C. made absolutely clear that cases under Art. 32 IC had to be decided upon by the S.C.. In the case Kalavappara Kottarathil Kochunni Moopil Nayar vs. The State of Madras and Others, the S.C. reinforced this decision (Gadbois 2017: 113). In the early 1960s, the S.C. began restricting access to Art. 32 IC (Gadbois 2017: 114). One aim behind this could have been to minder the workload produced by cases under Art. 32 IC and to force people to use other options concerning the reinforcement of their rights (Gadbois 2017: 114– 115). It is notable that in the first decades, the most important decisions of the S.C. were fundamental rights cases filed under Art. 32 IC (Gadbois 2017: 116) 4.2.2. Appellate jurisdiction In the Indian constitution, there are four articles dealing with the appellate jurisdiction of the S.C., i.e. Art. 132, 133, 134 and 136 IC. Art. 132 IC defines the constitutional appellate jurisdiction whereas Art. 133 IC relates to civil appeals (Gadbois 2017: 116). Art. 134 IC covers criminal appeals and Art. 136 the S.C.’s special leave jurisdiction (Gadbois 2017: 116). 4.2. Tasks and competences 55 4.2.2.1. Constitutional appeals Constitutional appeals under Art. 132 IC fall under any judgement decree or final order of any high court in India, no matter if they belong to a civil, criminal or any other proceeding, if a high court certifies that a case “involves a substantial question of law as to the interpretation of the Constitution” (Gadbois 2017: 117). If the respective high court does not grant the certificate, but the S.C. has the opinion that a “substantial question of constitutional law is at issue” (Gadbois 2017: 117), the S.C. can grant special leave to appeal (Gadbois 2017: 117). It is noteworthy that the article sees the S.C. as the final authority in cases involving the interpretation of the constitution (Gadbois 2017: 117). This gives the S.C. the power to review all decisions of lower courts (Gadbois 2017: 117). 4.2.2.2. Civil appeals Civil appeals are regulated by Art. 133 IC. This article provides the right to appeal to the S.C. in civil cases if a high court certifies that the matter “involves a substantial question of law of general importance that needs to be decided by the Supreme Court” (Gadbois 2017: 118). In the first decades of the S.C.’s existence, an appeal was also possible when the matter of dispute had a value of at least 20.000 Indian rupees (Gadbois 2017: 118). From the beginning on, the S.C. was whelmed with civil appeals in which a high court had overruled a lower court’s decision, most of them with a value of more than 20.000 Indian rupees (Gadbois 2017: 119). In cases like this, it is the S.C.’s duty to hear the appeals (Gadbois 2017: 119). As Art. 133 IC states, it also possible to move to the S.C. for an appeal if a high court issues a special certificate (Gadbois 2017: 119). This does not mean that the S.C. is obliged to accept this appeal (Gadbois 2017: 119). In fact, it is up to the S.C. to decide whether this certificate meets the required conditions (Gadbois 2017: 119). 4.2.2.3. Criminal appeals Criminal appeals are regulated by Art. 134 IC. It grants an appellant the right to appeal to the S.C. if 4. The Supreme Court of India 56 “any judgement, final order or sentence in a criminal proceeding of a High Court if the High Court on appeal reversed a lower court acquittal and handed down a death sentence, or if the High Court withdrew for trial before itself any case from a subordinate court and, having found the accused guilty, sentenced him to death. Moreover even in non-capital cases, the High Court may, at its discretion, certify a criminal case as one meriting the scrutiny of the Supreme Court, and an appeal, shall lie under such certification.” (Gadbois 2017: 121–122). Art. 134 IC indicates that appeals are only possible when involving death sentences by a high court (Gadbois 2017: 122). In the first decade of its existence, the S.C. had to deal with more than 1.500 criminal appeals, most of which did not involve death-penalty judgements (Gadbois 2017: 122). Over the years, the S.C. developed a number of principles to help interpreting and defining the scope of the criminal appellate jurisdiction (Gadbois 2017: 123). The S.C. is still a regular court of appeal, which means that it deals with “appeals where lower courts have disagreed on findings of fact, and in capital cases in general” (Gadbois 2017: 123). 4.2.2.4. Special leave appeals The special leave appeals are the last among the appellate jurisdiction. They are defined by Art. 136 IC which states that: “Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.” (Art. 136 (1) IC) This means that the S.C. could “sit in judgement over every court and tribunal in India” (Gadbois 2017: 134). Thus, the S.C. can impose a very high uniformity in the interpretation of Indian federal and state law (Gadbois 2017: 134). 4.2.3. Advisory jurisdiction The third original jurisdiction is the advisory jurisdiction, in which the S.C. is vested with advisory or consultative jurisdiction to aid the president (Gadbois 2017: 134). If there is a question of law with public importance, the president can ask the S.C. to consider and provide an opinion on these matters, which the S.C. can do (Gadbois 2017: 134). This possi- 4.2. Tasks and competences 57 bility is provided for in Art. 143 (1) and in 143 IC (Gadbois 2017: 134). The articles include the word “may” which indicates that the S.C. is not obliged to deliver an opinion (Gadbois 2017: 134). During the first two decades, the S.C. faced one of the most spectacular challenges in its early history (Gadbois 2017: 140). It was confronted with different questions, such as: “(i) Are the legislatures in India sovereign in the British sense?, (ii)or does India’s written constitution mean that the constitution is supreme and that the legislatures must conform on the requirements of this constitution?, and (iii) is the role of the Supreme Court to safeguard individual liberties and to serve as the ultimate interpreter of the constitution?” (Gadbois 2017: 140) Gadbois identifies the conflict between judges and politicians as the major issue (Gadbois 2017: 140). These questions arose out of a dispute between the legislative assembly of Uttar Pradesh (U.P., hereafter) and the Allahabad high court when the court ordered the release of Keshav Singh, a Gorakhpuri socialist worker (Gadbois 2017: 140). He was sentenced to imprisonment by the assembly because of the contempt of a general warrant (Gadbois 2017: 140). Singh petitioned the high court for a writ of habeas corpus “alleging deprivation of his personal liberty without any authority of law” (Gadbois 2017: 141). The Lucknow bench of the high court ordered the release of Singh, partly also because no member of the state assembly had been present during the hearing (Gadbois 2017: 141). The assembly then ordered to bring Singh, his lawyer and the Lucknow judges into custody and imposed them to appear in front of the assembly due to contempt (Gadbois 2017: 141). The judges and the lawyer made petitions to the high court to restrain the speaker and others from implementing the assembly’s order (Gadbois 2017: 141). A full bench of the high court ruled in favor of the judges, Singh and his lawyer, whereon the assembly withdrew the warrant against the lawyer and the judges (Gadbois 2017: 141). Nevertheless, the assembly asked the judges and the lawyer to appear in front of the committee of privileges for explaining themselves (Gadbois 2017: 141). Before an escalation of the situation could happen, president Radhakrishnan asked the S.C. for its advisory opinion by formulating the following five questions (Gadbois 2017: 141). “(i) Did the Lucknow Bench of the Uttar Pradesh High Court have the authority to entertain and deal with the petition of Keshav Singh, or was this a matter outside of the purview of a court in India?” (Gadbois 2017: 141) 4. The Supreme Court of India 58 The S.C. answered that the Lucknow bench of the high court had remained within its jurisdiction and even pointed out that it had to entertain petition on a habeas corpus case if a question on individual liberty was raised (Gadbois 2017: 141). “(ii) Did Keshav Singh and his lawyer, by petitioning the Lucknow Bench for a writ of habeas corpus, and did the judges, by entertaining and dealing with the petition, commit contempt on the Assembly?” (Gadbois 2017: 141) The S.C. answered this question negatively (Gadbois 2017: 141). “(iii) Did the Assembly posess the authority to order the lawyer and the two judges to appear before it, or to call for their explanation for what it regarded as contempt of the Assembly?” (Gadbois 2017: 141) Out of the seven judges, six gave a negative answer; judge Sarkar expressed that, in his view, the legislature was competent to ask or even request an explanation but that he did not believe that it could order them to appear (Gadbois 2017: 141). “(iv) Did the Full Bench of the High Court of Uttar Pradesh posess the authority to entertain and deal with the petitions of the two judges and lawyer, and to pass interim orders restraining the Speaker of the Legislative Assembly from implementing the directions of the Assembly?” (Gadbois 2017: 142) The S.C. judges answered this question positively (Gadbois 2017: 142) “(v) Does a judge who entertains and deals with a petition challenging any order or decision of a legislature which imposes any penalty for its contempt commit contempt himself, and, if so, is the legislature competent to “take proceedings” against such a judge?” (Gadbois 2017: 142) With six voices against one, the S.C. gave a negative answer; judge Sarkar held the opinion that this question was too general and complex to be answered by a single statement (Gadbois 2017: 142). The real and lasting question arising out of this situation was if the Indian legislature was omnipotent and could imprison critics especially for contempt without judicial review or whether India was governed by a written constitution including a bill of rights where conflicts between the legislative and matters of human rights should be resolved in front of the courts by means of the interpretation of the constitution (Gadbois 2017: 142). To the S.C., the answer to this question was obvious. In its view, the Indian constitution was supreme and it had entrusted the courts with the task of safeguarding the fundamental rights of the Indian citizens (Gadbois 2017: 142). 4.2. Tasks and competences 59 The advisory jurisdiction is not binding but in the past, it has been accepted by the executive (Gadbois 2017: 146). Apart from the executive, also the lower courts have never ignored the S.C.’s opinions (Gadbois 2017: 147). 4.2.4. Public Interest Litigation The PIL is, according to the S.C., a unique phenomenon (S.C. 2018a). It allows people to commence a proceeding in front of the S.C. whenever the wellbeing of the public in general is involved (S.C. 2018a). This is possible by filing a written petition or by writing a letter to the office of the chief justice (S.C. 2018a). In this letter the person can elaborate on the respective matter, which must be of public importance (S.C. 2018a). In the years since the introduction of the PIL, the S.C. has developed a framework for it: If the rights of a person or a group are violated but it is not possible for them to invoke the court because of social or economic reasons, every citizen can approach the high court or the S.C. to start a complaint (Dohrmann/Fischer 2001: 147). If the complaint concerns any fundamental rights, it is only possible to approach the S.C. directly (Dohrmann/Fischer 2001: 147). The appellant is not allowed to start a complaint for themselves but only for the general public’s sake (Dohrmann/Fischer 2001: 148). The appellant is also not allowed to pursue any political goals with their complaint – a fact they have to prove in front of the court (Dohrmann/Fischer 2001: 148). If the court rules that the state has violated its constitutional duties in securing the fundamental rights to the disadvantage of underprivileged groups, the S.C. can order that this behavior by any state institution has to stop immediately (Dohrmann/Fischer 2001: 148). If there is not a specific violation of the rights of a group or a single person but there is a violation of the public interest in general, any person can start a PIL if they do not want to follow personal interests with it (Dohrmann/Fischer 2001: 148). Whether the public interest is really touched has to be decided upon individually; there shall be no rigid framework for it (Dohrmann/Fischer 2001: 148). 4. The Supreme Court of India 60 Only justiciable rights can be claimed unlike every political misbehavior is a case to be handled by the courts as the courts have to restrain themselves due to the system of checks and balances (Dohrmann/Fischer 2001: 148). A third party can initiate a litigation if the affected person is not able to do it themselves because of illiteracy or social status (Dohrmann/Fischer 2001: 148, see also above). It is not possible if the affected person just surrenders their option of locus standi to another person (Dohrmann/Fischer 2001: 148). The PIL will be elaborated on in more detail below. 4.3. Historical development 4.3.1. The beginning of a new era: India and its new highest court When the S.C. came into existence on January 26, 1950, it was the successor to the federal court, the first indigenous highest court in India (Gadbois 2017: 1). Already before India became independent on August 15, 1947, a committee had been appointed by the constituent assembly with the task to prepare reports with suggestions and recommendations regarding changes of the central judiciary after the independence (Gadbois 2017: 83). The committee was composed of five former jurists and lawyers with high reputation (Gadbois 2017: 83). Their report was submitted on May 21, 1947; in its essence, it described that the successor of the federal court should be endowed with a much broader jurisdiction than the federal court had enjoyed (Gadbois 2017: 83). The new court should be equipped with a broad exclusive original jurisdiction (Gadbois 2017: 83). This jurisdiction should include disputes between the central government and the bodies – that still were to be created – of the unit and between those units (Gadbois 2017: 83). Furthermore, it should decide upon the validity of legal enactments, treaties, enforcing the fundamental rights guaranteed by the Indian constitution, give advisory opinions and, like the privy council before, an appellate jurisdiction should be possible (Gadbois 2017: 83–84). The committee also suggested that it should be possible for the parliament to confer other jurisdictions onto the newly created S.C. at any time after the constitution’s enactment (Gadbois 2017: 84). In the committee’s opinion, the S.C. should consist of ten judges plus a chief justice; the appointment proceedings and qualifications of the judges should be similar to those of the already existing federal court (Gadbois 2017: 84). The committee’s re- 4.3. Historical development 61 port was submitted to the union constitution committee under the chairmanship of Jawaharlal Nehru and then submitted to the president of the constituent assembly (Gadbois 2017: 84–85). The committee accepted all suggestions apart from those regarding the appointment of judges to the new S.C. (Gadbois 2017: 85). They were replaced by the recommendation that the judges should be appointed by the president, who should consult the chief justice and other judges of the S.C. and of the high courts, if necessary (Gadbois 2017: 85). This was followed by a discussion of the report of the Nehru committee in the constituent assembly, which was almost limited to the appointment of S.C. judges (Gadbois 2017: 85). The report of the ad hoc committee and its suggestions on the new S.C. were not discussed at all (Gadbois 2017: 85). The suggestions of the Nehru committee on the appointment of judges were not welcomed enthusiastically (Gadbois 2017: 85). Strangely, the discussion on the original jurisdiction of the S.C. was not as prominent in the constituent assembly as suggested by the much broader scope of jurisdiction compared to that of the already existing federal court (Gadbois 2017: 107). There was a consensus that the successor of the federal courts should be endowed with a very wide scope of original and appellate jurisdiction; nevertheless, there were not much debates concerning this issue (Gadbois 2017: 108). One explanation for the absence of dispute could be the “vast amount of prestige and confidence among the public” (Gadbois 2017: 108) the court enjoyed. The ad hoc committee suggested that the jurisdiction should not be completely described in the draft constitution but should be clarified in detail by a legislation act passed by the legislature of the union (Gadbois 2017: 86). This view was in accordance with that of the leaders of the constituent assembly (Gadbois 2017: 86). However, the draft constitution of 1948 contained 21 articles, clauses and subclauses that were all related the S.C. (Gadbois 2017: 86). Why its former restraint was abandoned was never made clear by the assembly (Gadbois 2017: 86). When the constitution was enacted, it contained even twenty-four articles and details concerning the S.C. (Gadbois 2017: 86). The intense discussion around the appointment of judges could be explained by the intention of the framers of the Indian constitution to merely appoint the most competent candidates, which is why the necessary qualifications were laid down in the constitution (Gadbois 2017: 89). It was decided that all appointments to the S.C. should be made by the president of 4. The Supreme Court of India 62 India after consulting the existing judges of the S.C. and of the high courts, if deemed necessary; for the appointment of the chief justice, the S.C. should be consulted (Gadbois 2017: 89). This mode of appointment was very similar to the one suggested by the Nehru committee in 1947 (Gadbois 2017: 90). The intense discussions about the appointment of judges had a clear aim: The constitution’s creators had the intention to eliminate any possible “danger of political considerations, political pressure or political patronage in the process of appointing judges” (Gadbois 2017: 90). There was the idea that “the greater the role of the executive or the legislative in the appointing process” (Gadbois 2017: 90), the weaker the not completely independent judiciary could come out (Gadbois 2017: 90). It was Dr. Ambedkar, who delivered a speech during the constituent assembly debates stressing this attitude: “It seems to me in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United State, (it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day) Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations. The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort […]” (Constituent Assembly Debates On 24 May, 1949 Part Ii) The S.C. was created as the top of a pyramidal and unified judicial system, which was not influenced by the more federal structure of India (Gadbois 2017: 86). With its birth on January 26, 1950, it took up the task of safeguard of the constitution, which made conflicts inevitable. 4.3.2. What is yours is ours: The Supreme Court and the Land Reforms During the constitutional assembly debates, the property rights caused heated discussions between the assembly members (Gadbois 2017: 158). The discussion about the property rights were connected with planned land reforms, which would have had a (planned) great impact on the eco- 4.3. Historical development 63 nomic and also on the social status of peasants (Gadbois 2017: 158). During the debates, three important issues became evident; “the matter of zamindari abolition, the amount of compensation to be paid when property is acquired by the state, and the degree to which the courts should get involved in such matters” (Gadbois 2017: 159). The word zamindar itself has its roots in Persian and was used by the Mughal and other Muslim Indian dynasties (Britannica Academic 2018b). In Bengal, the word was associated with tax collectors (Britannica Academic 2018b). With the introduction of the Cornwallis Code of 1793, the role of the zamindars was uplifted and also cemented. The Cornwallis Code of the administrative framework for British India and was also known as the Cornwallis and as the Bengal system (Britannica Academic 2018a). The code regulated that the Indian service personnel was to be divided into three different branches: revenue, judiciary and commercial (Britannica Academic 2018a). As private trade was forbidden, another system of compensation had to be established (Britannica Academic 2018a). Thus, the land revenue assessment was permanently fixed with the zamindars (Britannica Academic 2018a). At the same time, they were deprived of their magisterial and also of their police functions which were instead transferred to a newly created governmental police force instead (Britannica Academic 2018a). This socalled “permanent settlement” created a class of natives which had a great interest in supporting the British authority in order to maintain their privileges (Britannica Academic 2018a). Even before the land reforms were discussed, Nehru and the leadership of the Congress party considered it necessary to abolish the zamindari system and distribute the lands to the tenant-farmers (Gadbois 2017: 159). In late 1950, the state governments commenced with the implementation of the land reforms (Gadbois 2017: 176). The compensation paid to the zamindars for their land not only differed from state to state but also the way the compensation was calculated (Gadbois 2017: 176). This led to the situation that the multiplying factor for small zamindar lands was relatively higher than that for larger ones (Gadbois 2017: 176–177). As soon as the reforms were implemented, the high courts were overwhelmed with petitions from zamindars (Gadbois 2017: 177). In an important decision in the case Kameshwar Singh vs. State of Bihar, the Patnam high court declared the land reforms of Bihar as unconstitutional as they were discriminatory due to the application of differing multipliers (Gadbois 2017: 177). 4. The Supreme Court of India 64 The high court argued that this practice violated Art. 14 IC (equality in front of the law) and was, thus, unconstitutional (Gadbois 2017: 177). In other states, the high courts kept up the land reforms; however, those cases were immediately forwarded to the S.C. (Gadbois 2017: 177). In this process, the union government tried to accelerate the implementation of the land reforms and, thus, introduced a bill to the parliament to be amended to the constitution (Gadbois 2017: 177). Nehru, who had introduced the bill, made it clear that its intention was to take away the possibility from the courts to decide upon these zamindari-related cases; he also stated that he was not pleased with the high court’s decision in Patna (Gadbois 2017: 178). In 1951, the amendment passed the parliament and soon came into force (Gadbois 2017: 178). The amendment added Art. 31A IC to the constitution, which stated that: “notwithstanding anything in the foregoing provisions of this part, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment of modification of any such rights shall be deemed to be void on the ground that it is inconsistent wit, or takes away or abridges any of the rights conferred by, any provisions of this Part […]” (Gadbois 2017: 178). This meant that no court could challenge the government’s right to take actions on grounds of fundamental rights infringement (Gadbois 2017: 178). It was tried to remove the court’s possibility of interference completely (Gadbois 2017: 178). With the insertion of Art. 31B into the Indian constitution, the government managed to put the state land reforms into the ninth schedule and, thus, remove them from the court’s jurisdiction (Gadbois 2017: 178–79). The zamindars tried to challenge the whole amendment in front of the S.C. but were not successful as the S.C. declined their plea (Gadbois 2017: 179). Nonetheless, there were still some petitions pending in front of the S.C. which had to be decided upon (Gadbois 2017: 179). Nearly one year later, the S.C. announced its decision in the case State of Bihar vs. Maharajadhiraja Sir Kameshwar Singh of Darbangha and Others; with a majority vote of three against two voices, the S.C. declared that some parts of the Bihar land reforms were unconstitutional (1952 1 SCR 889). The S.C. further noticed that “there was nothing to prevent the Court from declaring that some of the provisions of the Act amounted to a ‘colourable exercise of legislative power’ and a ‘fraud on the Constitution’” (Gadbois 2017: 179). 4.3. Historical development 65 One of these provisions granted the state the possibility to take more than fifty percent of the rent of the zamindars’ land (Gadbois 2017: 180). Justice Mukherjea called this practice a “naked confiscation” (1952 1 SCR 889). After the decision was announced, the parliament, strangely, remained silent (Gadbois 2017: 180). One explanation could lie in the fact that the S.C. upheld the zamindari enactments in Madhya Pradesh and Uttar Pradesh (Gadbois 2017: 181). Hardly three years later, the Nehru government again introduced an amendment to the constitution to the parliament (Gadbois 2017: 181). With this amendment, it tried to further clarify the constitution framers’ intentions regarding Art. 31 IC (Gadbois 2017: 181). This period brought a shift from agrarian acquisition reforms towards general property acquisitions or restriction of property (Gadbois 2017: 181). This period was marked by the question what the main clause of Art. 31(2) IC concerning compulsory acquisition really meant (Gadbois 2017: 181). Within roughly one year, the S.C. delivered four landmark decisions which led to new amendments to the constitution by the parliament (Gadbois 2017: 181). The first case was The State of West Bengal vs. Mrs. Bela Banerjee and Others (Gadbois 2017: 181). Here, the state of West Bengal acquired some land under the West Bengal Land Development Act of 1948, which limited the compensation of the acquired land to a market value of December 31, 1946 (Gadbois 2017: 181, 1954 SCR 558). The state of West Bengal argued that this fixed date should hinder land speculators to benefit from the rise of land values since independence (Gadbois 2017: 181). The questions now raised in front of the court were firstly: How much compensation should a person receive if the state acquired land for a public purpose and secondly: Who determined what the appropriate compensation would be (Gadbois 2017: 181)? The S.C. delivered a brief ruling in this case and remarked that the compensation for the property must be “a just equivalent of what the owner has been deprived of” (1954 SCR 558). With its judgement, the S.C. denied the parliament the possibility to fix the amount of compensation but ordered it to fix it on a level of full market value (Gadbois 2017: 182, 1954 SCR 558). One week later, the S.C. had to decide in the case of The State of West Bengal vs. Subodh Gopal Bose and Others (1954 SCR 587). In 1942, Bose had bought a large tract of land with the right to evict all tenants from his property if he wanted (1954 SCR 587). When he tried to make use of his right several years later, the state of West Bengal amended the act un- 4. The Supreme Court of India 66 der which he had gained this right (1954 SCR 587). The amendment prevented the eviction but, on the other side, allowed Bose to raise the rent for the tenants (1954 SCR 587). The S.C. now had to decide if this was a deprivation or the taking of property as described in Art. 31(2) IC (1954 SCR 587). The S.C. ruled that even this was an interference with property rights; it did not see it as a deprivation and thus, a compensation as unnecessary (1954 SCR 587). This was because Bose was allowed to raise the rent for the tenants as a compensation for himself for not evicting them (Gadbois 2017: 183). The S.C. made clear that every case was different and that property interference would not automatically mean compensation (Gadbois 2017: 183). One day later, the S.C. delivered a decision in another case, i.e. Dwarkadas Shrinivas of Bombay vs. The Sholapur Spinning and Weaving Co. Ltd., and Others (1954 SCR 674). The case evolved around the closure of the Sholapur textile mill and the resulting unemployment of its 13.000 workers (Gadbois 2017: 184). Because of the economic importance, the parliament ordered an investigation of the case, which led to the opinion that the closure had happened because of mismanagement (Gadbois 2017: 184). Shortly after the investigation, the government promulgated an ordinance which allowed it to take over the mill’s management (Gadbois 2017: 184). Soon after this, one of the mill’s stakeholders filed a suit against the ordinance (Gadbois 2017: 184). Before he filed the suit, the stakeholder had been informed that the governmental management had made a call of 50 Indian rupees on each share of the stakeholders (1954 SCR 674). The goal of the suit was to challenge the validity of the ordinance and to answer the question whether the management of the mill had the right to make a call like this (1954 SCR 674). The S.C. decision in this case was not what the government and the parliament had hoped for (Gadbois 2017: 183). In short, the S.C. ruled that even if the government acted in the public interest, it was necessary to pay a full compensation (1954 SCR 674). The fourth case was Saghir Ahmad vs. The State of U.P. and Others, which evolved around the validity of the Uttar Pradesh Road Transport Act of 1951 (1955 SCR 707). The question was if the transport service monopoly, which was granted to the state by the act, would lead to a compensation for the private operators who had lost their licenses and were not allowed to further use routes taken by the state (1955 SCR 707). The S.C. decided that a compensation under Art. 31(2) IC was necessary (1955 4.3. Historical development 67 SCR 707). Even if the state had not taken tangible property from the petitioners, it had taken valuable property from them (1955 SCR 707). The Nehru government was not happy with the four decisions delivered by the S.C. since they implied that the state would have to pay full compensations in all further cases to come (Gadbois 2017: 186). In the government’s opinion, full compensation fixed by market value would hinder the state to carry out the schemes of social change and engineering (Gadbois 2017: 186). This led to the introduction of the fourth amendment to the constitution by Nehru; he stated that this amendment would not imply a limitation of the authority of India’s judiciary but it was necessary to pursue social change for the country, just as the framers of the constitution had intended (Gadbois 2017: 186). Nehru also remarked that the government accepted the S.C. decisions but that the decisions did not reflect the social and economic policy India should pursue (Gadbois 2017: 186). On April 27, 1955, the fourth amendment went into operation, which meant that cases relating to the adequacy of compensation were no longer justiciable (Gadbois 2017: 187). The amendment also restricted the S.C. and other courts in the use of the terms ‘deprivation’ and ‘acquisition’, which had played a substantial role in the cases Bose, Sholapur and Saghir Ahmad, where the terms were seen as the bases for compensation (Gadbois 2017: 186). This meant that without transferring property to the state, there was no compensation (Gadbois 2017: 186). The amendment nearly completely hindered the courts from acting out judicial review in cases of private property, which led to a retreat of the S.C. in cases like these for the next few years (Gadbois 2017: 188–189). However, on December 6, 1961, the S.C. discovered a loophole in the fourth amendment (Gadbois 2017:189). This loophole enabled the S.C. to declare the Kerala Relations Act of 1961 as unconstitutional, which led to a third battle between the court and the government concerning property rights (Gadbois 2017: 189). The S.C. argued in the case Karimbil Kunhikoman vs. State of Kerala, that the term ‘estate’ in Art. 32(2) did not include the term ryotwari and thus, the Kerala Act, which referred to ryotwari land, was not immune against judicial review (1962 SCR Supl. (1) 829). As the act was discriminatory against poor property owners, the S.C. declared that this violated Art. 14 IC (1962 SCR Supl. (1) 829). As this decision was binding to the high courts, they also began to review state land reforms and declared them as unconstitutional (Gadbois 2017: 189). 4. The Supreme Court of India 68 This situation led to the introduction of the 17th amendment, which stated the definition of the term ‘estate’ to also include ryotwari lands (Gadbois 2017: 190). The amendment also added 44 state land reforms to the ninth schedule of the constitution and by this, put them beyond the reach of the S.C. (Gadbois 2017: 190). The fight evolving around land reforms and compensation led to a situation which not only changed the S.C. but also the Indian government and parliament. With its decisions, the S.C. always stood in the parliament’s way of creating its desired social state by declaring its laws as unconstitutional or demanding compensations which could have ruined the Indian state. This situation led to a change of the S.C. but also to a behavioral change of the government and the parliament, and, as a result, can be seen as a critical juncture. But what could have been another possible outcome of this critical juncture? The S.C. could have chosen the option of following the government’s and the parliament’s quest of pushing its social agenda and thus, creating the social state just as the government always promoted as the framers of the constitutions had imagined. This could have led to a future in which the conflict between the S.C. on the one and the government plus the parliament on the other side would not have been as strong as it was in the past decades. But this would also have led to a weak S.C. not challenging the legislature if it was necessary. On the other hand, a weaker S.C. could have led to a parliament which would not have amended the Indian constitution this often as it did not have to put its laws beyond the reach of the S.C. and the other courts. The actual outcome of this juncture, as we know, was different. From the beginning onwards, the S.C. challenged the government and the parliament and thus, cemented its position as an important institution within the Indian political system. Maybe one could argue that the decisions made by the S.C. hindered the social state from flourishing but these decisions also created a court which would stand up for the fundamental rights no matter what. Even in the light of social welfare, the fundamental rights have to be protected as their violation, even with a good purpose, could have had horrible outcomes. The parliament’s amendments also showed that even if the S.C. was ‘defeated’, it always sought a way to defend its right of practicing judicial review. The parliament and the government, on the other side, were brought into the situation of having to defend their social policy against the judges of 4.3. Historical development 69 the S.C.. This led to a situation of ongoing amendments to the constitution to put acts out of the reach of the judges. The enactment of amendments would have not been erased without the conflict between court and legislature but it could have been toned down. Even after this period, the S.C. dealt with a great number of property rights cases, which led to some of the most important decisions in the court’s history and more critical junctures to come. Figure 5 summarizes the land reforms as a critical juncture. Event Actors Goals of actors Further actors Outcome Zamindari abolition (1950) Nehru and Congress party: abolished zamindari system and distribute land to tenantfarmers Socialist politics Suit in front of the Patnam high court Patnam high court: Kameshwar Singh vs. State of Bihar (1952) Patnam high court: declared Bihar land reforms as unconstitutional Other high courts: kept up land reforms Introduction of the 1st amendment to the constitution Nehru: 1st amendment to constitution (introduced May 10, 1951/enacted June 18, 1951) Take away the possibility to become active from courts Zamindaris tried to challenge the amendment in front of the S.C. Zamindaris tried to challenge amendment in front of S.C.; S.C. declined their plea S.C. declared some parts of the Bihar land reforms as unconstitutional 4. The Supreme Court of India 70 Event Actors Goals of actors Further actors Outcome State of Bihar vs. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others: S.C. declared some parts of Bihar land reforms as unconstitutional (1952) Parliament remained silent because S.C. upheld zamindari abolition enactments in Madhya Pradesh and Uttar Pradesh S.C.: 4 landmark decision concerning property acquisitions: 1) The State of West Bengal vs. Mrs. Bela Banerjee and Others; (1953) 2) The State of West Bengal vs. Subodh Gopal Bose and Others; (1953) 3) Dwarkadas Shrinivas of Bombay vs. The Sholapur Spinning and Weaving Co. Ltd., and Others; (1953) 4) Saghir Ahmad vs. The State of U.P. and Others (1954) S.C. Introduction of 4th amendment to the constitution by Nehru: general property acquisitions/restriction Pursue social change and welfare as constitution framers had intended 4.3. Historical development 71 Event Actors Goals of actors Further actors Outcome of property (April 27, 1955) S.C. discovered loophole in the 4th amendment (April 27, 1955) S.C. and other high courts Reviewing different land reforms and declaring them unconstitutional Nehru government prepared another amendment Introduction of 17th amendment by Nehru government (June 20, 1964) Nehru government Putting property rights again beyond the reach of the S.C. Overall Outcome: The S.C. was partly weakened by the parliament’s amendments to the constitution as matters of property rights were put beyond its reach. The S.C. further tried to make decisions in cases of property rights. Generally, there was a stalemate between the legislature and the judicative as both tried to gain the upper hand but none of them succeeded. Figure 5: Summary: Critical juncture: Land reforms (source: author’s own) 4.3.3. Kesavananda Bharati and what the constitution really is: The Supreme Court and the Basic Structure Doctrine On April 24, 1973, the S.C. announced its decision in the case Kesavananda Bharati vs. State of Kerala, which changed the relations of the S.C. and the government in terms of amending the constitution of India (Baxi 1980: 12, Mody 2013: 3). The decision was made at a time in which the relations between the S.C. and the Indira Gandhi government had reached a boiling point (Mody 2013: 3). Initially, it is important to shed light on some events leading up to this landmark decision. Before dealing with Kesavananda, the S.C. had dealt with many cases concerning land reforms and fundamental rights. One of the most important ones was the case of Golak Nath vs. State of Punjab in 1967. In this case, the petitioners were landlords deprived of their land und the state law land reform legislation (Mody 2013: 3). They challenged the first, fourth and 17th constitutional amendment in front of the S.C. (Mody 2013: 3). This case fell in a time when the government circumvented the S.C. rulings by amending the constitution, especially when land and general pro- 4. The Supreme Court of India 72 perty rights were concerned (Dua et al. 2007: 22). Golak Nath led to the first uprising of the S.C. against the government and to its fight to defend the fundamental rights of part III of the constitution (Dua et al. 2007: 22). At the same time, the S.C. entrenched the system of judicial review (Dua et al. 2007: 22). The S.C. regarded the fundamental rights as a permanent and untouchable part of the constitutional system (Dua et al. 2007: 22). The S.C. defined different points underlining the untouchability of the fundamental rights and statetd the following: The parliament cannot amend the provisions of the constitution if this takes away or abridges the fundamental rights; furthermore, there is no unlimited power for amendments (1967 SCR (2) 762). The parliament’s power to amend the constitution does not derive from Art. 368 IC but from other provisions (Khosla 2008: 168). At the same time, Art. 13 IC does limit the provisions made for amending the constitution (Khosla 2008: 168). Amendments can also be declared as void if they abridge any fundamental rights (Khosla 2008: 168). This possibility of rejecting amendmends gives the S.C. constituent power (Baxi 1980: 10). The terms “amendment of the constitution” (Khosla 2008: 168) and “laws made in pursuance of “ordinary legislation” cannot be compartmentalized to overcome the limitations imposed by Art. 13 IC (Khosla 2008: 168–169). The fundamental rights “are given a transcendental position under our constitution and kept beyond the reach of parliament” (1967 SCR (2) 762). Also, the directive principles of state policy can “be enforced within the self-regulatory machinery provided by Part III […] and IV of the Constitution” as it forms an elastic scheme which is elastic enough to enforce them without infringing the fundamental rights (1967 SCR (2) 762). The parliament’s answer to this judgement came in the form of several amendments to prevent the S.C. from reviewing any of its amendments (Dua et al. 2007: 22). Thus, the parliament deprived all its laws concerning the realization of the directive principles of state policy from the incursion of the S.C. (Dua et al. 2007: 22). Therefore, the parliament issued the 24th amendment to empower itself to amend any constitutional provisions relating to fundamental rights (Khosla 2008: 170). This also meant that Art. 13 IC was no longer applicable to any amendment made under Art. 368 IC (Khosla 2008: 170). After the S.C.’s decision in two other cases, i.e. the Bank Nationalization case and Privy Purses case, the parliament enacted the 25th, the 26th the 29th amendment in order to circum- 4.3. Historical development 73 vent the S.C.’s judgements (Khosla 2008: 170). Those cases also touched matters of fundamental rights relating to adequacy of compensation in Art. 31 IC, right to property in Art. 19 (1) (f) IC and the right to equality in Art. 14 IC (Khosla 2008: 170). The decisions made in these cases laid down the foundations to the judgement in the Kesavananda case. The case evolved around Swami Kesavananda Bharati Sripadagalvaru, who was the head of the Edneer math, a religious establishment in Kerala (Mody 2013: 10). The land reforms in Kerala also affected the property of the Edneer math leading the swami to challenge the land reforms in front of the S.C. (Mody 2013: 10). Some amendments were challenged in detail in front of the court, i.e. the 24th, the 25th and the 29th amendment (Mody 2013: 10–11). The main task for the court was to decide whether the parliament had an unlimited power to amend the constitution or not (Mody 2013: 12). The government, of course, argued that the parliament had an unlimited amendment power to do so, based on Art. 368 IC (Mody 2013: 12). To decide upon the matter, a 13 judge bench was established sitting for five months in order to make a decision (Mody 2013: 12). The decision finally made by the bench was crucial in the history of the court. The judges expressed no less than eleven different opinions (Mody 2013: 12). All judges had divergent views, which shows that there was no real consent in the decision (Mody 2013: 12). A tight majority of the judges added one more point to the decision which changed everything. This will be elaborated below. A summary of the judges’ decision was issued but was not signed by all of them since four judges argued that the summary was inaccurate (Mody 2013: 12). The majority view contained the following points: 1. The judges declared that the 24th amendment was valid (Writ Petition (civil) 135 of 1970). 2. The 25th amendment was declared as valid, too (Writ Petition (civil) 135 of 1970). On the other hand, the clause relating to the ousting of the courts’ jurisdiction was declared as not valid (Writ Petition (civil) 135 of 1970). 3. The 29th amendment was declared as valid (Writ Petition (civil) 135 of 1970) 4. The judges overruled the Golak Nath case, in which they had first asserted that the parliament could not take away fundamental rights (Writ Petition (civil) 135 of 1970). 4. The Supreme Court of India 74 5. Art. 368 IC does not limit the power of the parliament to amend the constitution (Writ Petition (civil) 135 of 1970). For the parliament and the government, this ruling could have been nearly an ideal outcome. It overruled Golak Nath, and the parliament was now allowed to amend the constitution without any limitations (Dua et al. 2007: 23). But there was more to it. With a tight decision – seven voices compared to six – the judges ruled that the power of the parliament to amend the constitution was not unlimited as it was not allowed to destroy the ‘basic structure’ of the constitution (Mody 2013: 13). This did not mean that Swami Kesavananda had won the case. Rather, it meant that all amendments to be made after this case would have to “pass the ‘basic-structure filter’” (Mody 2013: 13), which was defined only by the S.C. itself (Dua et al. 2007: 23, Mody 2013: 13). With this ruling, the S.C. provided itself with the power to review all constitutional amendments and, if necessary, declare them as unconstitutional (Dua et al. 2007: 23). With this clever move, the S.C. strengthened its own position and its possibility to exert judicial review (Dua et al. 2007: 23). In contrast to the U.S., where the case Marbury vs. Madison marked the beginning judicial review, judicial review had been an integral function of the Indian S.C. from its beginning on. Nevertheless the S.C.’s right to exert judicial review was challenged several times during its history. Golak Nath is one example where the S.C. stood up for its right. Similar to the different opinions on the judgement itself, the judges also had different opinions on what the basic structure of the constitution was (Dua et al. 2007: 23, Mody 2013: 14). Chief justice Sikri defined republican and democratic government, a secular constitution, the separation of powers, federalism and the supremacy of the Indian constitution as the main features of the basic structure (Mody 2013: 14). Justices Shelat and Grover had two additions to Sikri‘s list: first, dignity of individuals secured by fundamental rights and second, the mandate for building a welfare state in accordance with the directive principles of state policy (Writ Petition (civil) 135 of 1970). This should not be seen as an attempt to force the state to implement the directive principles of state policy but rather as a suggestion to use them to create a better state. Hegde and Mukherjea defined sovereignity of India, unity of India, democratic character of India’s polities, individual freedoms of the citizens, the mandate for a welfare state and an egalitarian society as central to the basic structure 4.3. Historical development 75 (Mody 2013: 14). For Jagmohan Reddy, the basic-structure meant a sovereign democratic republic, the integrity of the three organs of the state and a parliamentary democracy (Mody 2013: 14). The essence of the different opinions on the basic structure doctrine can be summed up as the following: the constitutions’ democratic nature, fundamental rights, secularism, the separation of powers and federalism (Dua et al. 2007: 23). The S.C.’s decision did indeed produce several concerns regarding the basic structure doctrine. Especially problematic was the question of who defined what the basic structure of the constitution was. One argument of the criticts was that this decision lay within the hands of a few judges not elected by the people (Dua et al. 2007: 23). It was argued that the basic structure doctrine undermined the democratic process, whereas only this process itself should be part of the basic structure doctrine (Dua et al. 2007: 23). It took the Indira Gandhi government and the parliament not very long to ‘strike back’ after the S.C.’s decision. Chief justice Sikri’s official retirement began one day after the court’s decision; a successor was yet to be named (Mody 2013: 20). Over time, it had become common practice that the senior-most judge of the S.C. was appointed the new chief justice (Mody 2013: 20). This meant that next in line was justice Shelat, whose successors should have been Grover and then Hegde (Mody 2013: 20). The government superseded the judges who had voted in favor of Kesavananda and, thus, none of the three was appointed chief justice (Mody 2013: 20). Instead of the senior-most judges, the government appointed justice Ajit Nath Ray to be the new chief justice (Mody 2013: 20). Ray had been one of the judges voting against the Kesavananda decision, and it was very obvious that the government promoted him for exactly this reason (Mody 2013: 20). The three superseded judges resigned in protest; however, this was only the beginning of the government’s attempts to avenge itself on the S.C. (Mody 2013: 20). Shortly before the emergency period convened by Indira Gandhi, the basic structure doctrine was applied in the case Indira Nehru Gandhi vs. Raj Narain (Mody 2013: 20). Prior to this case, Raj Narain, one of Indira Gandhi’s political adversaries, challenged her election in front of the Allahabad high court (Mody 2013: 20). He argued that, because of corrupt practices committed by Indira Gandhi under section 123(7) of the Representation of the People Act 1951, her election should be declared as 4. The Supreme Court of India 76 void (Mody 2013: 20–21, Indira Nehru Gandhi vs. Raj Narain). The high court followed Narain’s line of argumentation and voided Indira Gandhi’s election (Mody 2013: 21). She was allowed to keep her position as prime minister, while the court forbade her to accept a salary for it and to speak and vote in the parliament (Mody 2013: 21). Shortly after the court’s judgement, the emergency was proclaimed (Mody 2013: 21). After introducing the emergency, the parliament passed the constitution’s 39th amendment act, which placed the election of the prime minister, the speaker of the Lok Sabha, the president and the vice-president out of reach of any court in India (Mody 2013: 21). The parliament tried to nullify the high court’s judgement and, thus, to protect Indira Gandhi’s election from any challenge in front of the S.C. (Mody 2013: 21). Narain challenged the amendment in front of the S.C. (Mody 2013: 21). It was the first time in the history of the S.C. that electoral law was challenged instead of a law concerning the rights of property (Mody 2013: 21). Again, the court followed Narain. The judges of the S.C. struck down the 39th amendment with a majority of four voices against one (AIR 1975 S.C. 2299). The judges argued that the amendment violated fundamental principles of free and fair elections and also the rule of law (AIR 1975 S.C. 2299, Mody 2013: 21). It is remarkable that four of the bench’s judges did not back the basic structure doctrine when it was formulated (Mody 2013: 21) because they were bound by the decision on the basic structure doctrine and applied its theory in this special case (Mody 2013: 22). Even after the amendment had been declared void, Indira Gandhi was allowed to remain prime minister (Mody 2013: 22). In the same year, newly appointed chief justice Ajith Nath Ray constituted a bench constisting of thirteen judges to re-review the Kesavananda case; however, it was dissolved after two days already (Mody 2013: 22). The reasons why the bench was dissolved this quickly are more or less a mystery as press reportings from the court were restricted at this time and only the present lawyers and judges could tell what had really happened in the court rooms (Mody 2013: 22). The struggle between the S.C. and the parliament over the S.C.’s power of judicial review was not over yet. With the 42nd amendment, the parliament tried to eradicate the S.C.’s possibility to review the parliament’s amendments and, thus, alter the constitution with unlimited power completely (Mody 2013: 23). This led to the insertion of part IVA of the constitution, which described the “fundamental duties” of citizens (Mody 4.3. Historical development 77 2013: 23). It also stated that any law helping to enact the directive principles should be protected (Mody 2013: 23). The amendment also affected Art. 368 IC. The changes made to Art. 368 IC nullified the Kesavananda decision binding the parliament’s power of amending the constitution to the basic structure doctrine and also strengthened the central government’s power in contrast to the state governments (Mody 2013: 23). It did not take long until the new case led to another conflict between the S.C. and the parliament concerning the power of judicial review. In the case of Minerva Mills vs. Union of India, the owner of a textile mill challenged the nationalization of his property in front of the S.C. (Mody 2013: 23). He particularly challenged section 55 of the 42nd amendment, which had transformed the formerly limited power of amending the constitution into an unlimited power (Mody 2013: 24). In its decision, the S.C. struck down all amendments made to Art. 368 IC by the 42nd amendment arguing that the limited amendment power and the S.C.’s possibility of judicial review were basic features of India’s constitution (Mody 2013: 24). The judges also argued that the decision in the Kesavananda case and the basic structure doctrine prohibited the nullification of judicial review and the limited amendment power (Mody 2013: 24). The Minerva Mill case marked the last attempt of the parliament to secure its power over the constitution and the S.C. (Mody 2013: 24). This struggle for supremacy over the constitution marked a turning point in the relations between the parliament and the S.C.. The literature described the relationship between the S.C. and the parliament as problematic, especially in cases where the parliament tried to promote its socialist politics. The Indira Gandhi government, on the other hand, pushed this fragile relationship towards a fully-fledged confrontation, which could have led to a completely different S.C. and even a completely different India. The S.C. had two options to choose from. The first one would have been resignation on all the amendments made to the constitution by the parliament. If the S.C. would have resigned concerning the amendment power, the parliament would have shaped India differently. One cannot be sure what the ultimate outcome would have been. Anyways, it would have been contradictory to democratic principles and especially to the Indian constitution. The S.C. could have changed from a serious adversary of the parliament to a politically irrelevant institution without power. Apart from its various jurisdictions, one of the S.C.’s main roles is that of the safeguard of the Indian constitution. With the parliament’s unlimited power to 4. The Supreme Court of India 78 alter the constitution, this purpose would be void. The parliament would have altered the constitution every time it saw the necessity to do so for following its own purposes. Several cases have shown that this method often would have violated the fundamental rights of the citizens. One could argue that depriving the old landlords of their property would have been rightful regarding the overall injustice in the distribution of wealth and land. But even then, one has to acknowledge that everyone is equal in front of the constitution and can challenge a law if they think that their fundamental rights have been violated. With a weak S.C., this option would have been eradicated. It could have been possible that at a later point, the S.C. would again have stood up for defending the constitution and the fundamental rights but history has shown that this was not necessary. The path chosen by the S.C. was the one of being a defender of the constitution and the fundamental rights. It should not be ignored that apart from its role in the cases Golak Nath, Kesavananda and Minerva Mills, the S.C. came to some different decisions in the Habeas Corpus case. This will be elaborated on in more detail below. Before and during the emergency, the S.C. defended the constitution against the parliament and the Indira Gandhi government and, thus, showed its being capable of fulfilling its defending purpose. Despite many attempts by the government to purge the S.C.’s option to review its laws or its amendments, the S.C. stood its ground and kept the upper hand in the struggle between the two. During this period, the S.C. strengthened its position as the safeguard of the constitution and made clear that its power could not be weakened easily. This status quo was also reinforced through the creation of the basic structure doctrine in the Kesavananda case. With the basic structure doctrine, the S.C. created an instrument which gave it the absolute control over the constitution. It is also argued that, with the introduction of the basic structure doctrine, the S.C. had rescued the Indian democracy (Mody 2013: 26). In the light of electoral changes made by the parliament’s amendments, this can be considered a legit statement. The S.C. did not redefine its purpose but it rather strengthened its position as an institution in the Indian power system. Figure 6 summarizes the basic structure doctrine as a critical juncture. 4.3. Historical development 79 Event Actors Goals of actors Further actors Outcome Golak Nath: first uprising of S.C. against parliament (February 27, 1967) S.C., State of Punjab, different landlords Challenging the 1st, 4th and 17th amendment in front of the S.C. The S.C. ruled that the fundamental rights are untouchable The parliament enacted several amendments as an answer on all S.C. judgements: 25th, 26th, and 29th amendment (April 20, 1972, December 28, 1971, June 09, 1972) Parliament Further keeping amendments and property right laws beyond the reach of the S.C. and other courts Filing of the Kesavananda case in front of the S.C. (April 24, 1973) Swami Kesavananda, S.C. Reviewing of the 25th, 26th, and 29th amendment and the question if the government had the unlimited power to amend the constitution The 24th amendment was valid, the 25th amendment was valid; the court’s jurisdiction invalid, the 29th amendment was valid, Golak Nath was overruled, Art. 368 IC did not limit the amendment power of the parliament. 4. The Supreme Court of India 80 Event Actors Goals of actors Further actors Outcome The S.C. also ruled that, in general, the parliament’s amendment power was not unlimited as it was not allowed to destroy the basic structure of the constitution. Parliament reacted to the decision by changing the judge’s succession S.C., Indira Gandhi government Promoting judges who had ruled in its favor Ajit Nath Ray (successor of the chief justice) Some judges resigned because of the change in succession. Challenge of Indira Gandhi’s election (January 34, 1975) Indira Gandhi, Raj Narain, Allahabad high court Challenging of Indira Gandhi’s election in front of the Allahabad high court by her political adversary Narain Indira Gandhi’s election was declared void but she could remain in the parliament. The parliament prepared another amendment. Introduction of the 39th amendment (August 10, 1975) Parliament, S.C. Nullifying the high court decision and reinstate Gandhi as prime minister Indira Gandhi, Raj Narain Narain challenged the amendment, and the S.C. struck it down because of the basic structure doctrine. For the first time, it was not a property right case which was 4.3. Historical development 81 Event Actors Goals of actors Further actors Outcome so important. Indira Gandhi was allowed to stay prime minister. The parliament introduced the 42nd amendment (November 02, 1976) Parliament Putting all amendments beyond the reach of the S.C. and allow the parliament to amend the constitution without any limits In Minerva Mills vs. Union of India, the S.C. struck down all changes made by the 42nd amendment to Art. 368 IC (July 31, 1980) S.C. The S.C. wanted to nullify all possibilities of the parliament to prohibit the S.C. from reviewing any amendments made by it and limit the amendment power Overall Outcome: The S.C. defined the basic structure doctrine as a safeguard for the constitution. Thus, it prohibited the parliament from unlimitedly amending the constitution to push its political agenda. Finally, the S.C. strengthened its position as safeguard of the constitution. Figure 6: Summary: Critical juncture: Basic structure doctrine (source: author’s own) 4.3.4. In the name of the people: The Public Interest Litigation The development of the PIL in the Indian legal system can be seen as one of the most crucial events in the development of the S.C.. The PIL has its roots in the time of the emergency and is strongly connected to the Habeas Corpus case. After the end of the emergency, the Indian judiciary had 4. The Supreme Court of India 82 nearly lost all reputation it had gained before with the decisions in Golak Nath and Kesavananda (Dohrmann/Fischer 2001: 149). Apart from its standing up in the development of the basic structure doctrine, the S.C. suffered from extreme pressure by the parliament and the government (Dohrmann/Fischer 2001: 149). High court judges were transferred to provincial courts if their decicisions were not in line with the government’s ideas while S.C. judges were not even considered when it came to the promotion to being chief justice (Dohrmann/Fischer 2001: 149, Dhavan 2007: 84). During this time, a bench consisting of five judges delivered an ordered retreat from standing its ground to the parliament with their judgement in the case A.D.M. Jabalpur vs. Shukla also known as Habeas Corpus case (Dohrmann/Fischer 2001: 149). In this judgement, the bench decided with four votes against one that during the emergency rule, the other courts were not allowed to decide in Habeas Corpus cases and, thus, deprived them from reviewing if, in the case of detention, all regulations had been adhered to (Dohrmann/Fischer 2001: 149). This led to a situation where everyone was exposed to arbitrary arrest without the prospect of receiving a fair trial (Conrad 1995: 423, Dohrmann/Fischer 2001: 149). After the end of the emergency, the S.C. realized that its reputation had greatly suffered from its decisions during the emergency period (Dhavan 2007: 84). The court was still crowded with judges from the emergency time; especially three of the judges from the Habeas Corpus case (Dhavan 2007: 84), i.e. judges Beg, Bhagwati and Chandrachud, who had voted in favor of the government (Dhavan 2007: 84) were unpopular. From 1977 till 1986, all of them became chief justice of India (Dhavan 2007: 84). All three did, however, not very well in making things better for the citizens. Chandrachud apologized for his involvement into the case (Dhavan 2007: 84). Bhagwati wrote the judgement for the case of president’s rule in 1977, which undermined the Indian federalism (Dhavan 2007: 84). Beg tried to silence the press in order to protect his reputation by issuing contempt orders – not a very well-thought move (Dhavan 2007: 84). It was justice Krishna Iyer who persuaded Beg, at this time chief justice, to drop his contempt charges as it would further damage the reputation of the S.C. (Dhavan 2007: 84). Justice Iyer did not only persuade Beg, he also delivered a solution to the problem of the court’s dwindled reputation (Dhavan 2007: 85). Iyer was a former minister of the communist government of Kerala; he was not only a good rhetorician but also a clever strategist 4.3. Historical development 83 (Dhavan 2007: 85). For Iyer, judges were not craftsmen but architects whose architectural design options hailed from the constitution (Dhavan 2007: 85). In his opinion, the S.C. was not only “a satellite to the government” (Dhavan 2007: 85) but an independent institution which was not only indebted to the people but rather to the state (Dhavan 2007: 85). He saw the judges as not anti-catalyst for social change (Dhavan 2007: 85). Instead, he believed that the judges should play a supporting role for the government in achieving its goal of bringing social justice to the people (Dhavan 2007: 85). Iyer’s goal was to motivate the people to approach the S.C. with their problems directly (Dhavan 2007: 85). The fruit of these thoughts was the PIL. The PIL was already known in the U.S. as part of the Legal Aid Movement which secured the rights of the poor, the underprivileged and minorities who were not able to claim their rights (Dohrmann/Fischer 2001: 148–149). While the American PIL became less important in the 1980s, the Indian one came into existence (Dohrmann/Fischer 2001: 149). The PIL changed the complete system of how people could claim their rights in front of the high courts and S.C.. Over the years, the S.C. defined a framework for the PIL through different cases, which we have already elaborated on above. Ironically, one of the first PIL cases was not initiated because the rights of an underprivileged person or group were violated. The first litigation was started by a group of lawyers who believed that the bad behavior of some lawyers in Bombay had damaged the reputation of the Maharashtra bar association in the Bar Council of Maharashtra vs. M.V. Dabholkar (Dohrmann/Fischer 2001: 151). Before this case, the court had been strict in its interpretation of locus standi; the appellant had to prove that they were affected by a violation (Dohrmann/Fischer 2001: 151). In this case, the S.C. changed its view on locus standi and allowed lawsuit with the argument that the bar association was affected as it represented the Maharashtra lawyers and was also responsible for the standardization of the administration of justice of its members (Dohrmann/Fischer 2001: 151). The S.C. also argued that the bad behavior damaged the association’s reputation and that of its members and, thus, the litigation was justified (Dohrmann/Fischer 2001: 151). It was Iyer who propagated the PIL in the case’s judgement not to be a contradictory proceeding which is closer to the real life and could be very useful in the Indian context (Dohrmann/Fischer 2001: 151). In the judgement, Iyer stated: 4. The Supreme Court of India 84 “Traditionally used to the adversary system, we search for individual persons aggrieved. But a new class of litigation public interest litigation-where a section or whole of the community is involved (such as consumers' organizations or NAACP-National Association for Advancement of Coloured People-in America), emerges. In a developing country like ours, this pattern of public-oriented litigation better fulfils the rule of law if it is to run close to the rule of life.” (1975 AIR 2092, 1976 S.C.R (1) 306) The decision to introduce the PIL led to a more open S.C. and its role as a citizen-friendly safeguard of fundamental rights (Dohrmann/Fischer 2001: 151). However, the lawyers’ case was not the final version of the PIL. As mentioned above, the framework for the PIL was created through many judgements; one of them was the case, in which an association wanted to claim the rights of its members on their bonus payments (Dohrmann/Fischer 2001: 152). The S.C. accepted the lawsuit and underlined that an eased access to the courts was necessary, especially for the weaker parts of the population (Dohrmann/Fischer 2001: 153). In a case against the state of Bihar, the S.C. completely abandoned the strict concept of locus standi, when a woman started a PIL for 18 prisoners who had been jailed without an arrest warrant waiting for their trial (Dohrmann/Fischer 2001: 153). In some cases, the detention of the inmates was already longer than the actual time of the punishment for their crime (Dohrmann/Fischer 2001: 153). The S.C. accepted the lawsuit started by the petitioner who was not affected by the detention expansion of the locus standi herself (Dohrmann/Fischer 2001: 153). Over time, other forms of the PIL developed, like the citizen standing, which means that a person can start a lawsuit not for another person or group but for all citizens and their supra-individual rights (Dohrmann/Fischer 2001: 154). In this case, the appellant is able to claim these rights in their own name (Dohrmann/Fischer 2001: 154). This form was especially used in cases concerning environmental protection or administrative behavior (Dohrmann/Fischer 2001: 154). Over time, these instruments connected to the PIL led to an extension of the realms in which the S.C. could get active (Dhavan 2007: 86). This led, for example, to several judgements concerning environmental protection, like the introduction of compressed natural gas (CNG, hereafter) fueled transport for Delhi or the banishment of industries from the city, even against political opposition (Dhavan 2007: 87). The introduction of the PIL marked one of the most important shifts in the development of the S.C. as an institution. After the emergency, the 4.3. Historical development 85 S.C. found itself at a crossroad. The situation was paradox: On the one hand, the S.C. had created the concept of the basic structure doctrine and, on the other hand, it had delivered the disastrous judgement in the Habeas Corpus case. Particularly the latter had left the S.C. devastated. It could have totally destroyed its reputation. If the court had not developed the PIL, the emergency decision could have rendered the S.C. useless in the eyes of the citizens. Without the invention of the PIL, it would have been very likely that the S.C. would have lost its reputation completely up until today. Yet, the S.C. chose another path. The decisions during the emergency led to a turning point where the S.C. had to decide to do something or leave everything the way it was. The emergency situation was the stumbling block for the S.C. to change itself. But it was not only the situation but also the people involved who changed the court. Judge Iyer may be the most important actor in the creation of the PIL, even if he had only delivered few judgements before his retirement (Dhavan 2007: 87). It is important to also name judges Bhagwati and Chandrachud, who had already been part of the S.C. before the emergency, and judges Desai and Reddy, who were appointed only afterwards (Dhavan 2007: 87). Together they created a new judiciary (Dhavan 2007: 87). The PIL can not only be seen as an instrument but also as an event that changed the S.C. until today. Dhavan, for example, comments: “This was designed to alter the very basis of the operation of the judiciary as an institution of governance.” (Dhavan 2007: 85) With the PIL, the S.C. also managed to gain back the trust of the people. In a survey conducted by Subrata K. Mitra and V.B. Singh in 1996 analyzing trust of the people in different Indian institutions, the S.C. is mentioned in second place with 41.6% of the respondents stating that they have high trust into the S.C. (Dohrmann/Fischer 2001: 150), a lot of which is based on the PIL (Dohrmann/Fischer 2001: 150, see also Mitra 2017). Apart from making the S.C. regain trust among the people, the PIL changed the S.C. on another level: It is often claimed that the people’s possibility of easily initiating a lawsuit has led to an S.C. that is too active. It is the phrase “judicial activism” mentioned most often describing this phenomenon. Judge Iyer’s intention behind the PIL was to support the state in implementing social change for the population for the good. The question is whether this lead to a new kind of lawgiver. With its decisions in some environmental cases, the S.C. surely has acted beyond its compe- 4. The Supreme Court of India 86 tences in some people’s view but, on the other hand, one can argue that the S.C. merely did its job in securing the people’s rights to clean and breathable air. Whether it was the PIL which ultimately transformed the S.C. into an activist court cannot be determined here. Nevertheless, it can be stated that the PIL marked a turning point in the S.C.’s development as an institution. As much as the PIL changed the S.C., its evolution was determined by several factors overall. The emergency decisions led to a decline in the S.C.’s reputation and forced it to do something to change this situation. While other judges, who backed the Indira Gandhi government, remained silent or tried to keep critics quiet, some wise members of the court made far reaching decisions. Without this situation, Iyer would probably never have been able to step forward, and the PIL would not have been more than an early idea of the Rajasthan law reform committee, which had spoken of the introduction of the PIL as early as 1975. Instead, the emergency and Iyer acted as catalysts in creating the instrument, which changed the S.C. towards becoming a more active court. The example of the PIL introduction and the following change of the S.C. can be seen as a very clear example of a critical juncture. Several factors were important: an event which gave the S.C. different options and players who realized that they had to get active in choosing a path. Figure 7 summarizes the PIL as a critical juncture. Event Actors Goals of actors Outcome Transfer of high court judges during the emergency (1975–1977) Parliament, several high courts Bringing the high court judges in line with the parliament’s political agenda A.D.M. Jabalpur vs. Shukla (Habeas Corpus Case) (April 28, 1976) S.C., several high courts Decision if high courts could review habeas corpus cases The S.C. ruled that high courts were not allowed to review any habeas corpus cases. 4.4. Political role 87 Event Actors Goals of actors Outcome The S.C.’s reputation suffered from the habeas corpus cases. S.C., judge Krishna Iyer Iyer wanted to transform the S.C. into a court close to the people and better understanding their social needs and, thus, promote social change. The invention of the PIL (1976) Overall Outcome: With the invention of the PIL, the S.C. was transformed into a more activist court. It tried to better understand the social, economic and environmental needs of the citizens especially of those who could not start a proceeding for themselves because of their social status. This also had a positive impact on the court’s reputation and the trust people had in it. The PIL’s invention saved the S.C.’s credibility. Figure 7: Summary: Critical juncture: PIL (source: author’s own) 4.4. Political role Among the debates in the constitutional assembly, the debates about the election of the S.C. judges took more room and time than those concerning its jurisdiction. Even before India’s independence, the judiciary had enjoyed a high reputation among the citizens due to the federal court which India was already familiar with and the system of apex courts. It was clear that the federal court’s successor would have to have a broader scope of jurisdiction and should be consulted more often than the federal court had been. This broader scope of jurisdiction turned out to be a disadvantage for the parliament and Congress government in the light of their socialist political agenda. During the first decades of the S.C.’s existence, it often defended the fundamental rights of property against the parliament’s decisions and laws. The resulting conflicts peaked during the emergency rule of the Indira Gandhi government. As the highest court in the Indian judicial system, the S.C. has the duty to safeguard the constitution and to be the last stand for the people to defend their constitutional and their civil rights. In the first decades of its existence, the court especially defended fundamental rights concerned with property. Even the basic structure doctrine had its roots in cases 4. The Supreme Court of India 88 evolving around property rights. In the first decades, the most important cases evolved around property rights while other fundamental rights cases were present but not as popular. Even the landmark case which created the basic structure doctrine was based on property rights questions. This does not diminish their importance as the basic structure has shown. With the introduction of the basic structure, the S.C. has pointed out possible conflicting issues between judiciary and legislative/executive. One of the duties of a constitutional court is the interpretation of the constitution. With the basic structure, the S.C. has not only defined what the constitution really is but also created boundaries restricting the parliament in its actions. Before the basic structure was developed, the parliament could amend the constitution as it wished, due to the majority situation. This instrument was mostly used to promote the social politics around which most of the cases evolved. With the basic structure, the S.C. ‘locked’ the Indian constitution up and protected it from further amending. Some scholars go as far as to argue that it was the basic structure which saved the Indian constitution and even the Indian democracy during the emergency. One thing is especially worth mentioning: The S.C. can deliver a judgement but before doing so, it has to be activated by an appellant. Like every highest court, the S.C. cannot activate itself to decide in a case. The S.C., thus, merely reacts to appellants’ needs. The events around the basic structure have pointed out one problem which has arisen out of the S.C.’s decision: The S.C. defines what the basic structure is but this definition is not uniform. The S.C.’s decision has shown that every judge who was involved into the decision had his own view on what the structure of the Indian constitution really is. Some general opinions were shared by two or more judges but still differed in details. Even if the other political institutions obviously held other views on the S.C.’s role, one can state that by developing the basic structure doctrine, the S.C. clearly fulfilled its role as the safeguard of the constitution. Even if the intentions behind an uncontrolled amending of a constitution are totally unbiased and only aiming at the citizens’ welfare, a constitution has no purpose if there is no coherence. A constant amending of the constitution by the parliament due to merely political reasons can damage a democracy sustainably. The Congress party was dominant in the parliament and, thus, with its majority, it was able to amend the constitution as it liked. This is not a very common situation in pluralistic democracies. Even 4.4. Political role 89 in countries like the U.S., where power is divided between two political parties only, the amending of the constitution is neither easy nor common. The majorities necessary for an important step like this have to be constructed, which can only be reached by consent. The introduction of the basic structure doctrine by the S.C. was justified to correct the habit of the uncontrolled amending power. Thus, the S.C. really may have secured the Indian democracy. Thus, one can state that the ‘invention’ of the basic structure doctrine marks a critical juncture not only for the development of the S.C. but for the whole Indian democracy. Even more controversial than the invention of the basic structure doctrine was the introduction of the PIL. The PIL was an invention born out of the S.C.’s capitulation towards the parliament during the emergency. The PIL can be seen as a development by the S.C. to redeem itself for its actions during the emergency. Numbers have shown – 153.731 letter petitions in only three years (2015 till October 2017) – that people have accepted the S.C.’s redemption and make use of this ‘new’ instrument extensively (Annual Report 16– 2017: 63). 90 5. The German Bundesverfassungsgericht The BVerfG is the highest court of the Federal Republic of Germany (FRG, hereafter). When comparing the German to the Indian court system, one has to point out that the BVerfG is not the only highest court on the federal level. The German court system also includes federal courts like the Bundesgerichtshof (federal court of justice), the Bundesarbeitsgericht (federal labor court) or the Bundessozialgericht (federal social court). In contrast to the BVerfG, those courts deal with civil rights cases. In the last few years, for example, the Bundesgerichtshof has decided upon several cases concerning rights and duties of landlords and tenants. Every citizen can approach these courts. The premise to call these courts is that the case has been handled by those courts who are lower in hierarchy than the federal courts. When internationally compared, the BVerfG is seen as one of the politcally most influential courts (Kneip 2009: 173, Sturm 2012). It is often called a “surrogate legislator” (Blasberg 2003) or a “side” or “antigovernment” (Kneip 2009: 173). Its power is derived from two sources: its institutional equipment and its factual acting (Kneip 2009: 173). The BVerfG has been located in Karlsruhe since it was established in 1951 (BVerfG 2013d). Its presidents were: Hermann Höpker-Aschoff (1951–1954), Josef Wintrich (1954–1958), Gebhard Müller (1959–1971), Ernst Benda (1971– 1983), Wolfgang Zeidler (1983–1987), Roman Herzog (1987–1994), Jutta Limbach (1994–2002), Hans-Jürgen Papier (2002–2010) and Andreas Voßkuhle (since 2010) (Grau et al. 2016). The legal basis of the BVerfG is the Grundgesetz and the Bundesverfassungsgerichtsgesetz from March 12, 1951, last changed by the law of July 16, 1998 (Andersen/Woyke 2003). The BVerfG calls itself a constitutional body. This means that it is on the same level as, for example, the Bundestag (federal parliament) or the federal government. Originally, it was not intended to be on the same level as the other bodies. In 1952, Gerhard Leibholz wrote a memorandum on the status of the BVerfG which was directed to the political institutional bodies (Vorländer 2015: 300). There, he declared that the BVerfG should be on the same level as the other constitutional bodies (Vorländer 2015: 300). This does not mean 5.1. Structure and organization 91 that the BVerfG stands outside of the GG, and the phrase that it is the guardian of the constitution could be easily misinterpreted (Jarass/Pieroth 2007: 903). It is part of the public authority and, thus, shares the purpose of protecting the GG with the other organs (Jarass/Pieroth 2007: 903). Even if it calls itself a constitutional body, Art. 92 GG defines it as a court (Jarass/Pieroth 2007: 902). Since the BVerfG is a constitutional body, it is not supervised by any ministry (BVerfG 2013c). The BVerfG enjoys high trust among people, which is a source of power (Vorländer 2011). Empirical analyzes have shown that only one out of ten persons has a negative opinion about the BVerfG (Patzelt 2015: 314). This positive record forms, besides its constitutional legitimization, its democratic legitimization and the basis of its authority (Patzelt 2015: 314). The people trust the BVerfG as it is not part of the party system or the institutions characterized by them (Patzelt 2015: 314). An analysis by Werner J. Patzelt shows that the people only trust the police more than the BVerfG (Patzelt 2015: 315). Interestingly, in India, the police is less trusted by the people. Legitimization does not only need a constitutional basis but also the trust and legitimization by the people whose rights the BVerfG has to defend. 5.1. Structure and organization The BVerfG “consists of sixteen judges” (BVerfG 2013c), half of which – creating federal balance – are elected by the Bundestag (federal parliament) and half of which by the Bundesrat (federal assembly), by a twothirds majority (BVerfG 2013c).2 The election of the judges by the Bundestag does not go without doubts. §6 BVerfGG regulates that the judges elected by the Bundestag have to be elected by two thirds of its members; however, this does not correspond to reality (§6 BVerfGG, Voigt 2015: 82). In the Bundestag, the election process is handled by an electoral college whose composition is determined by fraction strength of the parties in the Bundestag (Voigt 2015: 82). It is problematic that the largest fractions in the Bundestag inherit most of the seats in the electoral college and, thus, ‘divide’ the elections between them (Landfried 2015: 375). The problems of this system became visible in the case about the Grundlagenvertrag (ba- 2 In contrast to this, the Indian judges are appointed and not elected. 5. The German Bundesverfassungsgericht 92 sic treaty) in 1973, which will be elaborated on in more detail later. The judges must be at least 40 years old, while at the same time not older than 68 (Bundestag 2018a). They act independently of party politics (Kaufmann/Ziegler 2013). The judges stay in office for 12 years and cannot be re-elected (BVerfG 2013c). The age limit ensures that judges are elected at least every 12 years and can, thus, not be too ‘far away from reality’ (Andersen/Woyke 2003). The possibility of re-election was cancelled in 1970 in order to avoid bribery (Voigt 2015: 82). The president and the vice president are elected by the Bundestag and the Bundesrat in turns (Voigt 2015: 82). During the discussions of the Herrenchiemsee Conference and the Parlamentarischer Rat (parliamentary council), one of the main questions was which criteria a judge of the BVerfG had to fulfill, which will be elaborated on in more detail below. Officially, no proposals are made when it comes to the election of the BVerfG judges (Voigt 2015: 82). Yet, it is common practice that the government of the union and the federal states and the fractions within the parliament keep lists with names of prospective candidates (Voigt 2015: 82). The ministry of justice keeps those lists together with another list of all judges electable from the specialized courts like the Bundesgerichtshof or the Bundessozialgericht (Voigt 2015: 82). The election of the judges is a politically delicate matter. In order to become elected a judge, the respective person has to win two thirds of the votes in the Bundestag (Voigt 2015: 82). In the Bundestag, the judges are not voted by the plenum but by an electoral college consisting of 12 members; thus, the candidate needs a least eight votes (Voigt 2015: 82). As the composition of the electoral college is determined by the strength of the Bundestag fractions, the elections in the past decades were always influenced by the two biggest fractions of Christlich Demokratisch Union Deutschlands (CDU, hereafter)/Christlich-Soziale Union Deutschlands (CSU, hereafter) and the Sozialdemokratische Partei Deutschlands (SPD, hereafter) (Voigt 2015: 82, see also above). This situation does not automatically imply that one of the party’s candidates will be elected because of the two third ratio (Voigt 2015: 83). Mostly, the judges are elected in ‘packages’; thus, every side gets the candidates it wants; but there is an agreement that at least two judges of each senate should not be related to any political party at all (Voigt 2015: 83). 5.1. Structure and organization 93 If a judge retires or is discharged, their successor has to be elected no later than two months after the withdrawal (§7a Abs. 1 BVerfGG). If the Bundestag or the Bundesrat cannot agree on a successor, the plenum of the BVerfG can recommend one (§7a Abs. 2 I BVerfGG). If there is only one judge to be elected, three candidates have to be suggested (§7a Abs. 2 II BVerfGG). If more than one judge is to be elected, at least twice the number has to be suggested (§7a Abs. 2 II BVerfGG). Thus, the only way the BVerfG can exert influence on the choice of candidates is via the suggesting procedure. The judges of the BVerfG are organized in two senates with eight members each (BVerfG 2013c). The vice-president is chair of the first, the president chair of the second senate (BVerfG 2013c). The second senate decides exclusively in all procedures apart from constitutional complaints and review of statues, which is divided between the first and the second senate (BVerfG 2013c). The plenum can decide upon a deviating distribution of tasks (Andersen/Woyke 2003). Each senate consists of three chambers, with three members each (BVerfG 2013c). The main task of the chambers is to decide whether a constitutional complaint will be decided upon or not (BVerfG 2013c). The chambers are also the place where most of the workload of the BVerfG is handled (Zuck 2015: 444). When a chamber decides to dismiss a constitutional complaint, this decision cannot be contested by an appellant (§93d Abs. 1 BVerfGG). Furthermore, those decisions do not have to be substantiated by the chamber (§93d Abs. 1 BVerfGG). As long as the superior senate has not decided in the matter of a constitutional complaint, the chamber is empowered to make all decisions regarding the proceeding of the constitutional complaint (§93 Abs. 2 I BVerfGG). This does normally not include provisional orders as they can only be ordered by the senate (§93 Abs. 2 II BVerfGG). All decisions of a chamber have to be concordant (§93 Abs. 3 I BVerfGG). When the two senates diverge in their opinion, the plenum – consisting of all sixteen judges – decides (BVerfG 2013c). Furthermore, the plenum assigns the competences and the budget to the two senates prior to each business year (BVerfG 2013c). Before the chambers or the senate get any constitutional complaints to examine, they are filtered by the court’s administrative body (Kranenpohl 2015: 432). The administration then forwards the complaint to one of the correspondents of the BVerfG (Kranenpohl 2015: 432). The correspondent 5. The German Bundesverfassungsgericht 94 and their three research assistants then forward the case to the appropriate senate or chamber (Kranenpohl 2015: 432). The high autonomy the correspondents have in processing the incoming proceedings can become problematic (Kranenpohl 2015: 432). They are not subject to pressure on the question of how long it takes them to work on the proceedings before forwarding it to the judges (Krahnenpohl 2015: 432). This situation often leads to a long delay in processing the incoming tasks, which is only avoided if the handled proceeding is of strong public interest (Kranenpohl 2015: 432). The correspondent can also decide whether the constitutional complaint should be directly forwarded to the senate if it is very important in its nature as the chamber could dismiss the complaint if it is not justified (Kranenpohl 2015: 432). The correspondent has the purpose to preformulate a vote for the chamber when forwarding the complaint (Kranenpohl 2015: 433). When this draft does not help to reach a concordance in the chamber, the case has to be discussed in the senate (Kranenpohl 2015: 432–433). The correspondent also prepares all the materials important for the complaint; thus, the judges have all the necessary materials ready for their discussions (Kranenpohl 2015: 433). The judges are responsible to use all the material and, if necessary, collect more information on the matter (Kranenpohl 2015: 433). Afterwards, the chamber or the senate can decide. For making a decision in a matter, at least six of the eight judges have to be present or part of the proceeding (Schlaich/Korioth 2015: 33). If, in some cases, less than six judges are available, the chairman of the respective senate can appoint judges from the other senate by lottery until the minimum number of judges is available (Schlaich/Korioth 2015: 33). If there is a voting parity, a judgement against an unconstitutionality of a matter cannot be declared (Schlaich/Korioth 2015: 34). In order to declare the unconstitutionality of a matter, more than half of the judges have to vote for it (Schlaich/Korioth 2015: 34). Figure 8 gives an overview of the German court system. 5.1. Structure and organization 95 Figure 8: Court system in Germany (source: author’s own) B un de sv er fa ss un gs ge ri ch t 2 se na te s( 8 ju dg es ea ch ) B un de sg er ic ht sh of (F ed er al C ou rt o f J us tic e) B un de sv er w al tu ng sg er ic ht (F ed er al A dm in is tr at iv e C ou rt ) B un de sf in an zh of (F ed er al F in an ce C ou rt ) B un de sa rb ei ts ge ri ch t (F ed er al L ab or C ou rt ) B un de ss oz ia lg er ic ht (F ed er al S oc ia lC ou rt ) C om bi ne d se na te of th e hi gh es tF ed er al C ou rt s o f G er m an y O be rl an de sg er ic ht (H ig he r St at e C ou rt ) L an dg er ic ht (D is tr ic tC ou rt ) A m ts ge ri ch t (L oc al C ou rt ) H ig he r A dm in st ra tiv e C ou rt Se na te s w ith 3 or 5 ju dg es H ig he r So ci al C ou rt Se na te w ith 3 ju dg es 2 ho no ra bl e ju dg es H ig he r L ab ou r C ou rt C ha m be rs w ith 1 ju dg e 2 ho no ra bl e ju dg es Fi na nc e C ou rt Se na te s w ith 3 or si ng le ju dg es 2 ho no ra bl e ju dg es V er w al tu ng sg er ic ht (A dm in is tr at iv e C ou rt ) Fi na nz ge ri ch t (F in an ce C ou rt ) A rb ei ts ge ri ch t (L ab ou r C ou rt ) So zi al ge ri ch t (S oc ia lC ou rt ) R ev is io n in st an ce C ou rt o fa pp ea l Fi rs t i ns ta nc e 5. The German Bundesverfassungsgericht 96 5.2. Tasks and competences The BVerfG’s task is to control all the branches of the state, i.e. the executive, the judiciary and the legislative; in order to exert this control function, it has a lot of competences (Schlaich/Korioth 2015: 5). In order to control the executive, citizens can appear in front of the BVerfG if they think that the public administration or the government has violated any of their fundamental rights by a decision or law (Schlaich/Korioth 2015: 5).3 In this case the citizens make use of a so-called constitutional complaint, which can be directly addressed to the BVerfG but only if the appellant can prove that their fundamental rights are violated (Schlaich/Korioth 2015: 5). In contrast to the Indian PIL, the appellant cannot start a proceding for another person or group. It is the only type of complaint that can be directly addressed. In other cases of administrational misbehavior, the respective citizen has to exhaust all other parts of the legal process defined by Art. 19 IV GG (Schlaich/Korioth 2015: 5).The kind of complaint described above is called constitutional complaint against a judgement (Urteilsverfassungsbeschwerde); which primarily concerns the judgement, but secondly also the administrative act (Schlaich/Korioth 2015: 5). The constitutional complaint against a judgement is a way to control the judiciary. If a citizen thinks that the last resort’s judgement was not correct, they can ask the BVerfG to review the judgement (Schlaich/Korioth 2015: 5). This does not mean that the BVerfG itself will deliver a new judgement in this case as a last resort; instead, it examines whether the other court did violate any fundamental rights or did not take them into account in its decision (Schlaich/Korioth 2015: 5). This concerns any type of jurisdiction, such as civil jurisdiction, criminal jurisdiction, finance jurisdiction, administrational jurisdiction, employment jurisdiction and social jurisdiction (Schlaich/Korioth 2015: 5). If the BVerfG decides that the judgement of a court is not in line with the constitution or it has violated the fundamental rights of a citizen, it can void this court’s judgement (Schlaich/Korioth 2015: 5). In this case, the court which delivered the judgement has do decide again in this case (Schlaich/Korioth 2015: 5). The control of the legislative is attained through judicial review (Normenkontrolle) (Schlaich/Korioth 2015: 6). Judicial review allows the 3 This is similar to the Indian writ petition. 5.2. Tasks and competences 97 BVerfG to review legal acts by the legislature (Schlaich/Korioth 2015: 6). It is similar to the administrative jurisdiction of the administrative court which reviews acts of the lower administration (Schlaich/Korioth 2015: 6). It is one of the most important procedures in the GG; and the options to initiate a judicial review by the BVerfG are multifarious (Schlaich/Korioth 2015: 6). Citizens can induce it by filing a constitutional complaint while courts can file a concrete judicial review that is only limited to courts (BVerfG 2018a, Schlaich/Korioth 2015: 6). The concrete judicial review is initiated when a court considers a law it has to use to issue its judgement as unconstitutional and it has to be reviewed by the BVerfG (BVerfG 2018a, Schlaich/Korioth 2015: 6). Another way is the abstract judicial review which can be initiated by the government, one quarter of the members of the Bundestag or a federal government (BVerfG 2018a, Schlaich/Korioth 2015: 6). The abstract judicial review allows the BVerfG to review union state law or federal state law regarding its constitutionality (BVerfG 2018a). Furthermore, the BVerfG can decide in disputes between constitutional bodies, between the union state and one or more federal states and between federal states (Schlaich/Korioth 2015: 6). The BVerfG is not only limited to these competences. It is also called upon to decide in cases of party-ban procedures or impeachments cases against the Bundespräsident (federal president) (Schlaich/Korioth 2015: 6). This is only a rough summary of the BVerfG’s competences. All of its competences help making it a strong court with great influence on daily and political life. In order to be able to better understand the importance of its competences, one has to examine some of them in detail, i.e. the constitutional complaint by citizens of Germany and the abstract and concrete judicial review. 5.2.1. Constitutional complaint The constitutional complaint is guaranteed by Art. 93 I Nr. 4a GG and also by §13 Nr. 8a 90ff. BVerfGG. Art. 93 I Nr. 4a GG allows every citizen to file a constitutional complaint with the allegation that their fundamental rights have been violated by public authority (Schlaich/Korioth 2015: 145). The constitutional complaint has not been part of the GG from the beginning on. The Parlamentarischer Rat did not want to include it into the 5. The German Bundesverfassungsgericht 98 GG at its debates unlike the prime ministers at the Herrenchiemsee Conference (Gusy 2015: 334, Schlaich/Korioth 2015: 148,). The constitutional complaint was first included into the BVerfGG in 1951 and was finally added to the GG in 1969 (Schlaich/Korioth 2015: 148). Since its establishment in 1951, the constitutional complaint has been a very successful instrument and the one used most often. From 1951 till 2016 226.107 constitutional complaints were opened at the BVerfG (BVerfG 2018c). Constitutional complaints constitute 96.61% of all proceedings the BVerfG deals with (BVerfG 2018c). This does not mean that every single one was successful. Only 4.989 (2.3%) were accepted by the court and were successful; 3.077 complaints are still pending (BVerfG 2018c). The constitutional complaint is open to everyone to whom the fundamental rights in the GG apply (Schlaich/Korioth 2015: 151). This also includes foreigners as far as they refer to a fundamental right applicable to them (Schlaich/Korioth 2015: 151). It is also possible for juristic persons – as far as a fundamental right concerns them – or political parties to open a complaint (Schlaich/Korioth 2015: 152). The appellant must claim that a violation of the fundamental rights is caused through public authorities; these are not limited to one of the three powers (Schlaich/Korioth 2015: 155). The act causing the fundamental rights violation must have national impact (Schlaich/Korioth 2015: 155). Consequently, acts by organs of the EU cannot be reviewed by the BVerfG even if they have an impact on German citizens (Schlaich/Korioth 2015: 156). It is important to stress that the appellant has to claim that their fundamental rights are violated and their claim has to be verified (Schlaich/Korioth 2015: 157). A factual report must prove that the violation is at least possible (Schlaich/Korioth 2015: 157). A judicial decision or an act that has to be challenged in front of the BVerfG has to be presented to the court in a way that the court can review its consistency with the GG (Schlaich/Korioth 2015: 158). The appellant has to be actually affected; it is not enough if they can prove that they might be affected in the future (BVerfG, Beschluss vom 18. Mai 1982 – 1 BvR 602/78). Contrary to India, where a proceeding can be opened as a PIL, the German judiciary and especially the BVerfG do not allow a person to start a proceeding without being affected personally (BVerfG, Beschluss vom 18. Mai 1982 – 1 BvR 602/78). Thus, when a law concerning all citizens 5.2. Tasks and competences 99 is challenged in front of the BVerfG, the decision upon it does have an impact on sometimes millions of individuals; but even then, the appellant has to prove that their own rights are violated currently and immediately (BVerfG, Beschluss vom 07. Juli 1975 – 1 BvR 274/72 –, BVerfGE 40, 141–179, BVerfG, Beschluss vom 18. Mai 1982 – 1 BvR 602/78, BVerfG, Gusy 2015: 338). In order to initiate a constitutional complaint, the appellant has to go through the complete legal process, which is especially important when the complaint concerns a court decision (BVerfG 2013b, Schlaich/Korioth 2015: 173). Thus, when an appellant commences a legal process against a decision by the public administration or they appeal against a court decision, they always have to follow the legal process and defend their case in front of one of the special courts or the next higher court (Schlaich/Korioth 2015: 173). If the constitutional complaint concerns a law, it is not necessary to follow the legal process as there is no process against laws made by the government (Schlaich/Korioth 2015: 181). When this is the case, the appellant has to prove that the law violates their rights currently and immediately (Schlaich/Korioth 2015: 181). In its more recent jurisdiction, the BVerfG asked the appellants to make use of the normal legal process first even if it is not necessarily possible for laws (Schlaich/Korioth 2015: 181– 182). This procedure is not without self-interest as the BVerfG tries to reduce its workload (Schlaich/Korioth 2015: 181). The BVerfG also wants to give the specialized courts the opportunity to review laws in their own case practice (Schlaich/Korioth 2015: 181). If the specialized court is not able to solve the case with its given possibilities, it can still call to the BVerfG and request it to decide upon the question whether a law is in consistency with the GG in a concrete judicial review (Schlaich/Korioth 2015: 182). Numbers have shown that the chance of a constitutional complaint being accepted is very little. In the year 2016, only 109 out of 5.610 constitutional complaints were accepted by the BVerfG for review (BVerfG 2018d). But even with the high number of case rejections, the BVerfG still has a huge workload consisting of constitutional complaints to deal with (Gusy 2015: 335, Schlaich/Korioth 2015: 186). The acceptance of proceedings by the BVerfG may follow clear lines but experts describe it as a lottery (Schlaich/Korioth 2015: 186). In some cases, proceedings were accepted without the necessity to check their consistency with the GG, while 5. The German Bundesverfassungsgericht 100 at the same time, the BVerfG has the authority to dismiss complaints (Gusy 2015: 344). The accepting or dismissing of appeals must not be justified by the BVerfG, which undermines the lottery-like character (Schlaich/Korioth 2015: 186). The constitutional complaint cannot be described as a political instrument used by citizens or the BVerfG; nevertheless, it is an important instrument for Germany’s democratization (Gusy 2015: 344). The constitutional complaint is an instrument that allows the citizens to actively be a part of the state (Gusy 2015: 344–345). It also allows them to be part of the constitutional process, which is usually limited to the state organs (Gusy 2015: 345). Via constitutional complaint, citizens can enable the BVerfG to fulfill its institutional purpose of interpreting the constitution (Gusy 2015: 345). 5.2.2. The abstract and concrete judicial review The abstract and concrete judicial review are important instruments for the legislative and the judiciary to have the BVerfG review laws according to their constitutionality. In contrast to the constitutional complaint, they are instruments not used very often. Since the creation of the BVerfG, there were only 3.807 abstract and concrete judicial reviews (BVerfG 2018c). The abstract judicial review is regulated by Art. 93 Abs. 1 Nr. 2 and 2a GG and by §76 BVerfGG (BVerfG 2018b). In contrast to the constitutional complaint, it is only open to a small circle of appellants (BVerfG 2018b). It is independent of any litigation and consternation of an appellant’s rights (BVerfG 2018b). An abstract judicial review can be initiated by the union government, a federal state government or by one fourth of the members of the parliament (BVerfG 2018b). It allows the BVerfG to review whether a law is valid or invalid concerning the GG (Schlaich/Korioth 2015: 93). It allows the BVerfG to go on with the review process even if the appellant withdraws their petition of reviewing a specific law; thus, the outcome of the court’s decision can have significant impact (Schlaich/Korioth 2015: 94). The BVerfG can review a wide variety of laws, like constitution changing laws, budget laws, international laws, which need to be voted upon by the Bundesrat as well, parliamentary decrees and, in some cases, determinations of EU law (Schlaich/Korioth 2015: 96–97). To review EU law, it is necessary that it allows the national states a space of interpretati- 5.2. Tasks and competences 101 on by implementing the union law into national law (Schlaich/Korioth 2015: 97). It can also be used to review the distributiom of competences between the union state and the federal states (BVerfG 2018b). This especially includes areas of competitive lawmaking (BVerfG 2018b). Such proceedings can be initiated by the Bundesrat, a federal government or by one of the federal state government embassies (BVerfG 2018b). It is important that federal states can only challenge union state laws (BVerfG 2018b). This is the reason why it also has a political dimension. The abstract judicial review allows a law’s constitutionality being checked, which makes it vulnerable for attacks by federal state governments or the opposition in the parliament as they could try to use this instrument to promote their own political goals (Voigt 2015: 80). As a consequence, the government always considers whether its law initiatives would be consistent with the GG first (Voigt 2015: 80). Even if it is not one of the proceedings used most often, the cases which were treated by the BVerfG were always very important ones (BVerfG 2018b). Judgements in these cases have the same legitimization as common laws and are published in the law gazette (Gesetzblatt) (BVerfG, Urteil vom 27. Mai 1992 – 2 BvF 1/88 –, BVerfGE 86, 148–279, Schlaich/Korioth 2015: 92). The BVerfG itself lists the most important decisions of the past few years like the ZDF-Staatsvertrag or the inter-state fiscal adjustment (BVerfG 2018b). In the case of the inter-state fiscal adjustments, the BVerfG declared parts of the law as unconstitutional (BVerfG, Urteil vom 27. Mai 1992 – 2 BvF 1/88 –, BVerfGE 86, 148–279). Several federal states had initiated the litigation against the inter-state fiscal adjustments, which led to a complete review of the union state system of financial adjustments (Schlaich/Korioth 2015: 95). In the past 15 years, the BVerfG had to decide several cases concerning the inter-state fiscal adjustments, which, for the federal states, are very important and have a strong impact on the whole country (Schlaich/Korioth 2015: 95). The concrete judicial review is regulated by Art 100 I GG and §13 Nr. 11, 80ff. BVerfGG and can be initiated by specialized courts if they consider a law important for their judgement as not constitutional (BVerfG 2018a). The concrete judicial review can be initiated by every German court of every instance, which includes all specialized federal courts (Schlaich/Korioth 2015: 115). Statistically seen, the concrete judicial review is initiated second most often in the initiated proceedings after 5. The German Bundesverfassungsgericht 102 the constitutional complaint (Schlaich/Korioth 2015: 114). But even if it ranks second, the number of proceedings is far behind that of the constitutional complaints. The BVerfG also interprets the proceeding in Art 100 I GG as a safeguard of the government (Schlaich/Korioth 2015: 112). In order to initiate the proceeding, the judge has to prove why they think that the law is unconstitutional; a mere belief is not sufficient (BVerfG 2018a, Schlaich/Korioth 2015: 120). In contrast to the constitutional complaint against judgements, the concrete judicial review allows the BVerfG only to review the law in question and not the judgement of a specialized court (BVerfG 2018a). Despite its importance, the concrete judicial review does not have political relevance in the German political scene. In contrast to the abstract judicial review, it cannot be used by the opposition to control the government. Furthermore, academic data on the success of the concrete judicial is very thin (Gawron/Rogowski 2015: 155). 5.2.3. Other proceedings Besides the two main proceedings, the BVerfG also decides upon in other cases, which will be sketched in the following. Especially the party-ban proceeding is of political brisance; it is regulated in Art. 21 Abs. 2 GG and §§43ff. BVerfGG (BVerfG 2018e). It allows the BVerfG to examine whether a political party acts against the GG and therefore has to be banned (BVerfG 2018e). The proceeding can be initialized by the Bundestag, the Bundesrat and the Bundesregierung (BVerfG 2018e). The requirements for initiating this kind of proceeding are very high. The appellants have to justify why they think that the party has to be banned (BVerfG 2018e). The BVerfG has to review whether the main proceeding is justified and, thus, whether the party ban process shall start or whether the proceeding will be dismissed (BVerfG 2018e). The BVerfG defines several points for a proceeding to succeed. First, the party and its supporters must seek to impair or eliminate the democratic basic order of the FRG and by that endanger its existence (BVerfG 2018e). The actual jurisprudence of the BVerfG narrows down this definition. It is not enough that the party and its supporters propagate anti-constitutional ideas (BVerfG 2018e). It is necessary that they actively try to eliminate the democratic basic structure through an aggressive and combative position with concrete indications that these goals do not appear to be completely 5.2. Tasks and competences 103 hopeless (BVerfG 2018e). The political impact of this proceeding is immense; however, in the history of the Federal Republic of Germany, only two proceedings were successful (BVerfG 2018e). In 1952, the Sozialistische Reichspartei (SRP, hereafter) and in 1956, the Kommunistische Partei Deutschlands (KPD, hereafter) were banned by the BVerfG (BVerfG 2018e). In 2017, the BVerfG reviewed whether the Nationaldemokratische Partei Deutschlands (NPD, hereafter) should be banned and came to the conclusion that the party pursued unconstitutional goals (BVerfG 2018e). Despite its unconstitutional behavior, the BVerfG did not ban the party on the grounds that it was politically too irrelevant to fulfill its goals (BVerfG, Urteil des Zweiten Senats vom 17. Januar 2017 - 2 BvB 1/13 - Rn. (1-1010)). Currently, there are no other party-ban proceedings pending at the BVerfG. Disputes between state organs are also part of the BVerfG proceedings. This proceeding is relevant since the highest state organs are not authorized to issue directives to each other (BVerfG 2018f). In this type of proceeding, there is a petitioner versus a defendant, e.g. the Bundesrat versus the Bundestag (BVerfG 2018f). It is one of the sparsely handled proceedings; nevertheless, it is important because decisions have a great impact on basic questions of political order (BVerfG 2018f). Its political dimension unfolds when there is a strong difference in the shift of political majorities in the federal states and the union state (Voigt 2015: 80). The BVerfG decision in these disputes is not binding; however, all parts are expected to accept and implement the judgement (BVerfG 2018f). The proceeding for disputes between the union state and the federal states is similar to the state organ dispute (BVerfG 2018g). The number of these proceedings are very small as most cases are already handled in judicial review cases by the BVerfG (BVerfG 2018g). The proceeding is regulated by Art. 93 Abs. 1 Nr. 3 GG and §§68ff. BVerfGG (BVerfG 2018g). The appellant has to prove that the federal rights appointed to him have been violated by the other side (BVerfG 2018g). The last proceeding concerns the review of elections of the Bundestag, it is regulated by Art. 93 Abs. 1 Nr. 4c GG and §§96aff. GG for disallowance of a party to the election and by Art. 41 Abs. 2 GG and §48 BVerfGG for reviewing the validity of the election or the acquisition and loss of the status as a parliament member (BVerfG 2018h). Until today, the BVerfG never had to declare an election invalid (BVerfG 2018h). 5. The German Bundesverfassungsgericht 104 5.3. Historical development 5.3.1. If there is law there shall be justice: The creation of the Bundesverfassungsgericht The BVerfG started its work on September 7, 1951, i.e. two years after the FRG was constituted (Schlaich/Korioth 2015: 1).4 The idea of constitutional jurisdiction had already developed in the 19th century; one can even claim that its tradition reaches back to the old supreme court of the Holy Roman Empire of the German Nation (Schlaich/Korioth 2015: 1). The idea of a full constitutional jurisdiction was already framed in the Paulskirchen constitution of 1849 (Schlaich/Korioth 2015: 2). This constitution had planned to equip the supreme court of the Reich with competences to decide in matters of disputes between state organs, federal disputes and even in cases of constitutional complaints (Schlaich/Korioth 2015: 2). Unfortunately, the constitution was never implemented, and, thus, the court was never provided with these competences. The Weimar Republic created a state constitutional court which could only decide in matters of disputes between state organs and federal disputes between the Reich and the federal states (Schlaich/Korioth 2015: 2). During the Weimar Republic, the court was most active during the emergency laws (Schlaich/Korioth 2015: 2). After the formulation of Paulskirchen constitution, it took one century before a new constitution and a court with the postulated competences were created at last (Schlaich/Korioth 2015: 2). It was the creation of the GG and with it that of the BVerfG, which gave Germany its first constitutional court (Schlaich/Korioth 2015: 2). During its inauguration, its first president Hermann Höpker-Aschoff remarked that the BVerfG had no predecessor; regarding the historical context, this statement is valid (Schlaich/Korioth 2015: 2). The discussions in the Parlamentarischer Rat marked a very crucial phase in the creation of BVerfG, even if they constituted only an interim stage (Niclauß 2015: 193). During their consultations, the members of the 4 During the Third Reich, there was no direct predecessor to the BVerfG, which is why this period is not taken into account when tracking down the BVerfG’s historical development. Only the Bundesgerichtshof has a predecessor in the Third Reich period. 5.3. Historical development 105 Parlamentarischer Rat could already draw on the constitutions of the federal states and the constitutional courts and the state courts established in these states (Niclauß 2015: 193). Creating a constitutional court or a state constitutional court had already been considered very early after the end of World War II (Niclauß 2015: 193). The first consultations did not focus on competences or the possible organization of the court (Niclauß 2015: 193). The first problem that had to be solved was how this institution could be created considering the judicial weakness of the Weimar Republic and the Third Reich (Niclauß 2015: 193). One of the first discussions in the constitutional convent focused on the composition of the desired court. It was proposed that the Bundestag and the Bundesrat should each elect half the judges of the court (Niclauß 2015: 194). Furthermore, there was the consensus that a judge at a constitutional court could not be a member of any other constitutional body of the union state or one of the federal states at the same time (Niclauß 2015: 194). Controversially discussed, however, were the necessary skills of judges of the court. It was discussed that at least half of the judges should not only be formally qualified to be a judge but also should be judges by profession (Niclauß 2015: 194). Hans Berger, a judge at the highest court in the British occupation zone, argued that all judges of the court should be judges by profession (Niclauß 2015: 194). He argued that judges should only concentrate on judicial matters and that political considerations should not influence them (Niclauß 2015: 195). This was opposed by Josef Beyerle of the CDU and Carlo Schmid of the SPD, who both argued that the constitutional court would not only decide in judicial matters but would also have to consider the political circumstances in their decisions (Niclauß 2015: 195). Schmid argued that a professional judge could only see legal aspects of a matter without considering its political importance (Niclauß 2015: 195). He also argued that judges had a constitutive function with their decisions and, thus, the inclusion of members focusing on the political background would be very helpful (Niclauß 2015: 195). The convent desisted from determining the qualification of the other half of the nonprofessional judges but it was argued that at least the selection of the professional judges should be limited in oder to make it impossible to elect a district court judge to the constitutional court (Niclauß 2015: 195). The organizational construction of the court was not discussed at all and was completely left open (Niclauß 2015: 195). This also included the question whether the constitutional court would be created additionally to 5. The German Bundesverfassungsgericht 106 the other state courts or whether it was to be included in one of them (Kneip 2009: 173). The real debate on creating a constitutional court or a state court began in the Parlamentarischer Rat in September 1948. The CDU politician and minister of justice and cultural affairs of the federal state Rheinland-Pfalz Adolf Süsterhenn argued that the federal structure of Germany would need a constitutional court (Niclauß 2015: 196). As a constitutional safeguard it should decide in disputes between union state and federal states first and protect the civil and human rights second (Niclauß 2015: 196). The court should examine laws for their consistency with the natural human fundamental rights of the constitution (Niclauß 2015: 196). He stressed the importance of a functioning system of checks and balances because the possibility of a parliamentary dictatorship could cause as much damage to a country and its people as a dictatorship lead by one person only (Niclauß 2015: 196). He was opposed by the SPD politician Walter Menzel. Menzel was not against the creation of a constitutional court but had concerns regarding the judiciary in Germany in general (Niclauß 2015: 196–197). His argument was the anti-democratic attitude of judges during the Weimar Republic and the Third Reich (Niclauß 2015: 196). He also quoted some judgements of the post-war era, which would not be acceptable in a constitutional democracy (Niclauß 2015: 196). In his opinion, the independency of the judges was necessary in a state with checks and balances, but together with this independency, mechanisms had to exist in order to make it impossible for it to be misused as it had happened in the political systems before a democratic Germany (Niclauß 2015: 196–7). The main discussion on creating a constitutional court started in October 1948 (Niclauß 2015: 197). It was discussed to create a federal court which should decide in matters of abstract judicial review in a specialized chamber for constitutional matters (Kneip 2009: 173, Niclauß 2015: 198). On the other side, the planned constitutional court should decide in matters of disputes between political bodies and civil rights (Niclauß 2015: 198). This idea was based on the belief that the abstract judicial review should lie in the hands of professional judges whereas the constitutional court would also consist of laymen judges, who were believed to lack experience with abstract judicial review (Niclauß 2015: 198). August Zinn from the SPD argued that legal aspects concerning domestic and foreign politics would often be highly political and, thus, laymen judges would be needed capable of evaluating their political meaning (Niclauß 2015: 199). 5.3. Historical development 107 In further discussions it was decided to separate the constitutional court from a possible federal court and not to assign the discussed jurisdictions to it (Niclauß 2015: 198–199). Later, it was also decided to place the constitutional court on top of the pyramid comprising all courts (Niclauß 2015: 199). Further discussions focused on the personal composition, especially in the light of the decision not to split some matters of jurisdiction between the constitutional court and the federal court (Niclauß 2015: 200). One decided to leave the composition of the court to the discussions on the implementation law (Niclauß 2015: 200). It was only decided that half of the judges had to be voted by the Bundestag and the other half by the Bundesrat (Niclauß 2015: 203). A few years later, in 1950 and 1951, the consultations of the Parlamentarischer Rat were followed by the discussions on the law on the BVerfG (Niclauß 2015: 203). Until this time, the background of the discussions had changed, especially on the political character of the BVerfG (Niclauß 2015: 203). This was mainly because the political concerns regarding the judiciary of the Weimar Republic and the Third Reich had almost vanished (Niclauß 2015: 203). A first draft on the law was presented by the SPD, which was the biggest opposition party after the elections of 1949 and had a deep desire to create the BVerfG as fast as possible (Niclauß 2015: 204). The discussions on the law began with a topic well-known, i.e. the composition of the BVerfG (Niclauß 2015: 204). The government parties proposed that half of the BVerfG should consist of federal judges and the other half should consist of other members who should be qualified to become judges in general (Niclauß 2015: 204). A tradeoff between the two sides was reached. The government achieved that all judges had to had legal training and had to have the qualification as a judge in general while the opposition reached that all judges voted by the Bundestag would be voted in a smaller electoral college (Niclauß 2015: 204). Following an SPD initiative, the constitutional complaint was also added to the BVerfG’s competences (Niclauß 2015: 204). On February 01, 1951, the Bundestag decided on the law on creating the BVerfG with the votes of all fractions except those of the communist party (Niclauß 2015: 204). It is especially notable that with Art. 92 and 95 of the GG, the installation of a federal court was still planned; this could have challenged the position of the BVerfG but it was never installed; at last, the passage was deleted from the articles (Kneip 2009: 174). 5. The German Bundesverfassungsgericht 108 5.3.2. The first decades The creation of the BVerfG marked the beginning of an era which was not essentially characterized by conflict between the court and the government. In the first few years of its existence, the BVerfG had to struggle for its position among the constitutional bodies. This struggle became visible through the creation of the Statusdenkschrift (status memorandum) written by Gerhard Leibholz; it stated that the BVerfG was a constitutional body like the Bundestag or the Bundesrat (Lembcke 2015: 232). The BVerfG wanted the government and the specialized courts to stop their – in its opinion – unconstitutional behavior towards the BVerfG and formulated three postulates (Lembcke 2015: 233):5 First, the BVerfG should have the status of a constitutional body, second, the BVerfG was to be responsible for its own budget, and third, judges of the BVerfG were to be judges by title only and not part of the normal judiciary controlled by the ministry of justice (Lembcke 2015: 232). The government commissioned Richard Thoma, a prestigious lawyer, to write down a legal opinion of its own; Thoma came to the conclusion that the postulates were not conform to the GG (Lembcke 2015: 234). The BVerfG disagreed with Thoma’s legal opinion and made clear that the postulates were not only proposals but facts that the BVerfG as the safeguard and final interpreter of the constitution demanded (Lembcke 2015: 235). In mid 1953, the government had to change its behavior towards the BVerfG after it had lost the parliament’s majority in its politics against it (Lembcke 2015: 235). The BVerfG emerged as the winner out of this conflict. A few years later, the personal composition of the court was again object of discussion. Originally, the BVerfG wanted to achieve some relief regarding its workload (Lembcke 2015: 240). The Adenauer government planned to use this debate to change the court’s composition and, thus, to gain more influence on its jurisdiction (Lembcke 2015: 240). The government planned to reduce the number of judges, with the U.S. Supreme Court as its model, to nine judges who should all be judges by profession (Lembcke 2015: 240). The opposition feared to lose the voice that it had by voting the BVerfG judges, and even the court feared that its independence would be threatened and with it its political independence 5 As far as the literature on the S.C. suggests, there has never been a written legal opinion in India similar to this. 5.3. Historical development 109 (Lembcke 2015: 240). Gerhard Leibholz went as far as to argue that this could lead to a government court (Lembcke 2015: 240). Gebhard Müller, at this time prime minister of the federal state Baden-Württemberg, suggested to reduce the number of judges per senate to eight and the number of votes in the electoral college to two thirds (Lembcke 2015: 240–241). The BVerfG was given a tentative nomination power (Lembcke 2015: 241). Admittedly, this led to a small shift in voting power in favor of the government; this system exists until today (Lembcke 2015: 241). The first decade of the BVerfG’s existence was not only marked by conflict. In 1958, the BVerfG had to decide in important fundamental right cases like the Lüth case. This was a paramount example for the BVerfG’s role as a safeguard of the people’s fundamental rights. The case evolved around Erich Lüth and Veit Harlan. Harlan was director of propaganda movies during the Third Reich; one of it was the movie “Jud Süß” (Henne 2015: 219). Lüth was a member of the SPD and part of the federal government of Hamburg (Henne 2015: 222). After the war, Harlan wanted to present his new movie (Lepsius 2015: 130). Lüth, who felt guilty because of his having remained silent during the war, called for a boycott of Harlan’s new movie (Henne 2015: 222). Harlan’s publisher sued him for a cease-and-desist order to not call for boycott (Henne 2015: 220). The district court followed Harlan’s publisher and forbade Lüth to protest (Lepsius 2015: 130). Dissatisfied with this decision, Lüth brought the case to the BVerfG (Henne 2015: 220). The BVerfG defended Lüth’s right for calling a boycott of Harlan’s movie (Höreth 2015: 881). This decision was important because the BVerfG saw the fundamental right of freedom of expression in Art. 5 GG not only as a right which could be defended against the state but also against other private persons – in this case Harlan and his publisher (Höreth 2015: 881). With its decision, the BVerfG strengthened all fundamental rights (Höreth 2015: 881). Furthermore, the BVerfG made clear that it was able to review all judgements of district courts (and even those of the specialized courts like the Bundesgerichtshof) regarding their conformity with the constitution and, thus, strengthened its position in the judicial system (Höreth 2015: 881–882). At the end of the first decade of its existence, the BVerfG again had to defend its status against the Adenauer government. In 1959, the government had drafted the plans for creating a new government-near TV station, the so-called “Deutschland Fernsehen” (Lembcke 2015: 239). Some of the federal states (Hamburg, Bremen, Hessen and Niedersachsen) appealed to 5. The German Bundesverfassungsgericht 110 the BVerfG complaining against the creation of the TV station as they regarded it as unconstitutional (Lembcke 2015: 239). The BVerfG followed the argumentation of the federal states and decided that the creation of TV stations was not part of the federal states’ competences (Lembcke 2015: 239). The government was very unhappy with this decision and declared that the whole cabinet was of the opinion that this decision was wrong (Lembcke 2015: 239). Then president Gebhard Müller made clear that no other constitutional body had the right to call a decision of the BVerfG wrong as the BVerfG was the ultimate interpretor of the constitution (Vorländer 2015: 301). The next conflict arose when the first social liberal government came into power after two and a half decades, which lead to a shift in politics. Most problematic was the case of the Grundlagenvertrag, which nearly created a crisis which could have damaged the BVerfG for many years. 5.3.3. Battle Royale: The Bundesverfassungericht as a constitutional body Right after the BVerfG started working, the court saw itself in a conflict with the government in which it had to defend its role and to strengthen its authority (Lembcke 2015: 232). During his inauguration speech, the first president of the BVerfG argued that the court had no paragon as an institution (Lembcke 2015: 232). On July 22, 1952, the president of the BVerfG handed over the Statusdenkschrift to the highest federal bodies (Lembcke 2015: 232). With the Statusdenkschrift the BVerfG wanted to clarify its status as a constitutional body and its rank in contrast to the other highest courts in Germany (Lembcke 2015: 232). At this time, the question of where the BVerfG was located in the hierarchy of the other specialized courts like the Bundesgerichtshof had not been answered yet (Vorländer 2015: 306, Menzel 2011: 16). Whenever it was not clear whether a law was constitutional, the specialized court would forward the case to the BVerfG while, at the same time, providing the BVerfG with its own expert opinion which left only a small window for review to the BVerfG (Vorländer 2015: 306). The Statusdenkschrift started with the statement that the BVerfG was the highest safeguard of the constitution and that it was a constitutional body with highest authority (Lembcke 2015: 232–233). Thus, there were three consequences: First, the BVerfG could not be treated as some kind 5.3. Historical development 111 of federal agency (Lembcke 2015: 233). This meant that the BVerfG could not be subordinate to another constitutional body, e.g. the ministry of justice (Lembcke 2015: 233). This also included the administration of justice which should only be managed by the BVerfG (Lembcke 2015: 233). Second, it demanded its own budgeting (Lembcke 2015: 233). Third, judges of the BVerfG were not civil servants like judges of other high courts (Lembcke 2015: 233). They neither had supremacy nor authority above themselves; they were only subordinate to the procedural rules, practice and conscience developed at the BVerfG (Lembcke 2015: 233). The judges were only judges by function in contrast to judges of other courts (Lembcke 2015: 233). They saw themselves as representatives of a constitutional body (Lembcke 2015: 233). For the court, it was clear that the government had to eliminate these nuisances (Lembcke 2015: 233). It was not the BVerfG’s intention to fight for these ‘rights’ as it already saw their realization as naturally given (Lembcke 2015: 233). The Stadusdenkschrift was merely a way to express something that the BVerfG already saw as a given fact and that did not allow any clarification by the other constitutional bodies (Lembcke 2015: 233). The government under chancelor Konrad Adenauer had another opinion in this case and tried to challenge the Statusdenkschrift (Lembcke 2015: 234). The ministry of justice commissioned a legal opinion drafted by Richard Thoma, a renowned expert in constitutional law (Lembcke 2015: 234). He denied the unconstitutional practice towards the BVerfG and the reform proposals postulated by the BVerfG (Lembcke 2015: 234). He had a more traditional view on the status of the BVerfG in a constitutionality system, while the court saw itself as a political body in a constitutional state (Lembcke 2015: 234). Thoma’s view on the status was in line with the ministry of justice’s view. Walter Strauss, state secretary in the ministry of justice, was one of the defendants of a ‘weaker’ constitutional judiciary (Lembcke 2015: 234). During the debates of the Parlamentarischer Rat, Strauss had been one of the more prominent advocates of a constitutional court which should be on the same level as the other specialized courts (Lembcke 2015: 234). Contrary to this, there was the idea of a ‘strong’ constitutional judiciary with the status as a constitutional body which should stand above the other specialized courts (Lembcke 2015: 234–235). The BVerfG’s answer to the legal opinion was clear. It did not want to renew the debate on its status but made clear that the status of the court 5. The German Bundesverfassungsgericht 112 decided on the status of the Statusdenkschrift (Lembcke 2015: 235). The BVerfG argued against the government’s legal opinion by stating that the constitution’s guardian had not made suggestions proposal but had decided in its function as the only interpreter of the constitution and demands the implementation of the three postulates formulated in the Statusdenkschrift (Lembcke 2015: 235). This statement made clear that the BVerfG would not deviate from its opinion and further demanded the government to implement the postulated demands (Lembcke 2015: 235). After their politics against the BVerfG in mid 1953 lacked of majority, chancellor Adenauer and his minister of justice Thomas Dehler had to retreat and slowly fulfill all the demands of the BVerfG (Lembcke 2015: 235). This change did not mean that Adenauer was ready to accept the status of the BVerfG, which again led to confrontations in the years to come, in which the BVerfG had to defend its status against the government (Lembcke 2015: 236). The dispute between the Adenauer government and the BVerfG reached its pinnacle six years later with the decision in the case of a TV station that was close to the state. The case developed around the matter of the creation of another TV program the so-called “Deutschland-Fernsehen” (Lembcke 2015: 239, see also above). After its creation, the federal states Bremen, Hamburg, Hessen and Niedersachsen questioned the constitutionality of the creation of the Deutschland-Fernsehen in front of the BVerfG (Lembcke 2015: 239). The government disagreed and saw its creation legitimized by the constitution and part of the federal government’s responsibility (Lembcke 2015: 239). The BVerfG decided in favour of the federal states and made clear that the federal government had no constitutional basis for creating a new TV station and running it by itself (BVerfG, Urteil vom 28. Februar 1961 – 2 BvG 1/60 –, BVerfGE 12, 205–264). It argued that the federal government and the federal post office could be responsible for the provision of technical equipment and make contracts with the federal state for its usage but not create and run a TV station as it was part of the federal states’ competences (BVerfG, Urteil vom 28. Februar 1961 – 2 BvG 1/60 –, BVerfGE 12, 205–264). With this decision, the BVerfG entered a confrontational course against the government and its chancellor Adenauer. After the decision, the chancellor announced that he and the whole cabinet decided that the BVerfG decision was “wrong” (Vorländer 2015: 301). To counter this announcement, the president of the BVerfG declared that no constitutional body was allowed to decide that a 5.3. Historical development 113 decision by the BVerfG was not in conformity with constitutional law (Vorländer 2015: 301). This marked an end to the debate about the BVerfG’s status and on the TV station case. One reason for the end of the debate were the upcoming elections, which hindered Adenauer to further push the conflict with the BVerfG (Boulanger 2015: 923). The developments in the 1950s and the early 1960s marked a critical juncture in the development of the BVerfG. It was then the BVerfG defined its constitutional status and purpose until today. By declaring itself as a constitutional body it cleared the path of development to the powerful court we know nowadays. The Statusdenkschrift is an excellent example of a critical juncture and how a fight for authority – especially in the very short period of only a few weeks – could shape the role of an institution until today (Lembcke 2015: 243). Before the development of the Statusdenkschrift, the exact role and position of the BVerfG had not been clear, apart from its purpose as a constitutional court. At the beginning, the BVerfG was on the same level as all the other specialized courts like the Bundesgerichtshof or the Bundesfinanzhof (Menzel 2011: 16). Often, the specialized courts forwarded cases for judicial review to the BVerfG; however mostly together with expert assessment, sometimes even published in the official collection of Budesgerichtshof judgements before the BVerfG made its own decision in the respective matter (Menzel 2011: 16). At this time, the BVerfG also promoted this practice rendering itself some kind of useless because the expert assessments often left only a small window of interpretation for the BVerfG (Menzel 2011: 16, Vorländer 2015: 306). The Bundesgerichtshof even tried to establish a senate for constitutional matters (Menzel 2011: 16). If the court had accepted this, according to its opinion, unconstitutional behavior by the other constitutional bodies, it would have left the BVerfG without significant authority in constitutional matters. Why should the court’s decisions in matters of judicial review forwarded to it by the specialized courts even been taken into consideration or taken seriously ll if they were already decided upon. This would not have touched other competences of the BVerfG in deciding on institutional matters between, e.g. government and opposition. However, its position would have been weakened. Furthermore, the government would have had a more difficult – or for itself more easy – relationship to the BVerfG. A weaker court meant 5. The German Bundesverfassungsgericht 114 less ‘danger’ for day-to-day business in governing a country (Lembcke 2015: 232). If the government would have won this ‘fight’ over the status and the authority of the BVerfG, many following decisions would have not been made, or would have had a completely different outcome. This means we would live in a completely different Germany than the one we know today. If the BVerfG had not written the Statusdenkschrift and thus, defined its position in the political arena, it would not be the strong court we know today. Rather, it would be subordinate to the government and probably be used as a mere instrument without power of its own. However, history has shown that this scenario did not take place. With composing the Statusdenkschrift, the BVerfG strengthened its position and its authority. The concept of a functioning constitutional court was new to Germany, and the Bundesgerichtshof saw itself as the successor of the Reichsgerichtshof, the highest court of the German Reich (Menzel 2011: 16). The position of the BVerfG and its real status was not clear yet as there had never been this kind of court; it did not have a direct predecessor (Schlaich/Korioth 2015: 2).6 Because of this new situation, the BVerfG had to establish itself and find its place between the other constitutional bodies. This was not reached by introducing a special law or by the will of the government or other constitutional bodies. It was the BVerfG itself which defined its status among the other role players (Lembcke 2015: 243). It started out by confronting the constitutional bodies with the fact that the BVerfG defined itself as the safeguard of the constitution and putting itself on the same level as all the other constitutional bodies (Lembcke 2015: 243). The Statusdenkschrift changed the institution BVerfG permanently but did not change all the other institutions in Germany. The specialized courts did keep their authority and competences regarding everything law attributed to them. But with the Statusdenkschrift and the decision in the government TV station case, it made clear that the government had to accept the fact that the BVerfG was the 6 The problems the government could have avoided did not only become evident in the case of the government-run TV station but also in the case of the German rearmament. In the rearmament, the government showed that it was ‘scared’ by the possibility of a ‘wrong’ decision by the wrong senate and, thus, tried to legally manipulate the working process, by which cases were allotted to the appropriate senate (Lembcke 2015: 237–238). The government was afraid to have the rearmament issue to be decided upon by the first senate and tried to have it decied by the second senate as it hoped for a better outcome (Lembcke 2015: 237–238). 5.3. Historical development 115 last instance in all matters regarding the constitution. This early phase shaped and strengthened the BVerfG as the institution we know nowadays. Figure 9 summarizes the development of the BVerfG as a constitutional body as a critical juncture. Event Actors Goals of actors Further actors Outcome The Statusdenkschrift was issued (June 27, 1952) BVerfG The BVerfG wanted to make clear that it was a constitutional body and that several practices had to be stopped The Adenauer government tried to challenge the Statusdenkschrift by issuing its own legal opinion (1952) Adenauer government, BVerfG The Adenauer government tried to nullify the Statusdenkschrift and keep the BVerfG small The BVerfG ignored the legal opinion and stated that the Satusdenkschrift was not a collection of demands but a collection of instructions. The Adenauer government had to accept these instructions and began implementing them. Law on the creation of a close to the government TV station (July 1960) Adenauer government The Adenauer wanted to create a new TV station. TV stations were part of the federal state jurisdiction. The federal states Some federal states Some federal states filed a suit in front of the BVerfG to deny the government the creation of the new TV Station 5. The German Bundesverfassungsgericht 116 Event Actors Goals of actors Further actors Outcome did not join the government in the station’s creation. Thus, the government did it by itself. The BVerfG decided against the Adenauer government and denied it the creation of the TV station (February 28, 1961) BVerfG, Adenauer government The BVerfG tried to cement its status as a constitutional body by making its decision and made clear that it was the safeguard of the constitution The Adenauer government declared that it accepted the BVerfG decision but had the opinion that it was not right. Nevertheless, the BVerfG emerged as victorius. Overall Outcome: This period cemented the BVerfG’s position as a constitutional body and as the safeguard of the constitution. The government had to accept that the BVerfG was not just an ordinary court but a constitutional body on the same level as the parliament or the government. Figure 9: Summary: The BVerfG as a constitutional body (source: author’s own) 5.3.4. The new Eastern politics of Willy Brandt and the BVerfG During the era of Willy Brandt, there was a change at the top position of the BVerfG. In 1971, a new president and deputy were elected. The successor of the president Gebhard Müller was Ernst Benda, a member of the CDU, former home secretary from 1968–1969 for the first senate and former lawyer. President of the second senate was the newly elected Martin Hirsch following Gerhard Leibholz. Having voted Hirsch into the second senate and Benda into the first was a politically motivated move by the government (Grigoleit 2015: 245). The idea was to achieve a shift of power in favor of the new government (Grigoleit 2015: 245–246). The coalition under chancellor Willy Brandt brought a shift in politics, i.e. a rapprochement towards the German Democratic Republic (GDR, hereafter) (Grigoleit 2015: 247–248). On November 8, 1972, the so-called 5.3. Historical development 117 Grundlagenvertrag (basic treaty) was initiated and published (Grigoleit 2015: 248). With this treaty, several basics rules were laid down between the two states, e.g. the inviolableness of their borders or good neighborly relations based on equality and permanent representations (Grigoleit 2015: 248). The opposition saw these polity as an obstacle to the goal of a reunited Germany (Grigoleit 2015: 248). Especially the Bavarian state government tried to torpedo the government’s Eastern politics by appealing to the BVerfG (Grigoleit 2015: 248). Shortly before the first decision of the second senate, the Bavarian state government issued a challenge on grounds of bias against judge Joachim Rottmann (Grigoleit 2015: 249). The state government tried to get rid of judge Rottmann because he had spoken in a positive way about the Eastern politics of the Willy Brandt government in a lecture (Grigoleit 2015: 249). The issue was dismissed by the court on the ground that lectures, which are not directly linked to the case, do not justify a request to exclude the judge because of bias (Grigoleit 2015: 249). Four of the judges argued that suspending the judge from this case would lead to a possible change in the majority situation in the senate (BVerfG, 2 BvQ 1/73 – BVerfGE 35, 171–177). A suspended judged could not be replaced and, thus, his seat would stay vacant for the current proceeding (BVerfG, 2 BvQ 1/73 –, BVerfGE 35, 171–177). In the case of the Grundlagenvertrag, they argued that a decision made under the special circumstances – which would not be the same with a full bench – could lose its binding nature in the public discussion (BVerfG, 2 BvQ 1/73 – , BVerfGE 35, 171–177). They thought that a few challenges on ground of bias could manipulate or render a whole senate to a lack of quorum (BVerfG, 2 BvQ 1/73 –, BVerfGE 35, 171–177). The other four judges rejected the issue of the Bavarian government but had a different opinion on the case of lack of quorum. They argued that the bench needed at least six judges to constitute a quorum and that it was very unlikely that two judges would face absence on ground of bias at the same time (BVerfG, 2 BvQ 1/73 –, BVerfGE 35, 171–177). With its decision to issue a bias against Rottmann, the Bavarian government could have changed the majority circumstances in the senate (Grigoleit 2015: 249). The decision on this matter was a tie where four judges did not see any necessity to issue an injunction against the ratification process of the Grundlagenvertrag (BVerfGE 35, 193). The other four, more conservative minded judges also did not deem an injunction necessa- 5. The German Bundesverfassungsgericht 118 ry – also because there was enough time before the ratification process would start – but saw the necessity to make sure whether the Grundlagenvertrag was in line with the GG as given (BVerfGE 35, 193, Grigoleit 2015: 249). The Bavarian government was not willing to give up so quickly. On July 16, 1973, the second senate approved another issue on the grounds of bias against judge Rottmann filed by the Bavarian government with four votes against and three in favour of him (BVerfG, 2 BvF 1/73 –, BVerfGE 35, 246–257). The issue was filed because of a letter written by Rottmann and published by the newspaper “Badische Neueste Nachrichten” where he argued that the continuance of the Reich was an illusion and disproved by reality (Grigoleit 2015: 250). The four judges who voted against Rottmann argued that his statements in this letter and the speech he had delivered having lead to the discussion earlier combined could make an observer think that he had been against the legal opinion about the Grundlagenvertrag of the Bavarian government from the beginning on (BVerfG, 2 BvF 1/73 –, BVerfGE 35, 246–257). So far, this was the first and only time when two political blocks formed and stood opposite each other, SPD against CDU and CSU (Jäger 1987: 363). With this decision, the BVerfG was maneuvered into a political dilemma. The decision on the injunction of the Grundlagenvertrag was yet to be made and with the changed bench a huge political challenge. A decision based on four compared to three judges would have had only little judicial power and with the elections coming up it would have seemed as judicial coup d’état (Grigoleit 2015: 250). For the whole court, it was necessary to find a compromise between the conflicting party positions in order to save the court’s reputation (Grigoleit 2015: 250). Despite the majority of the conservative judges, the court rejected the injunction (Grigoleit 2015: 250). Six weeks after the senate had rejected the injunction, it decided upon the principal matter with the Grundlagenvertrag (Grigoleit 2015: 251). The political dilemma in the senate was still present, and the Grundlagenvertrag was already coming into effect leaving the judgement without any effect on international law (Grigoleit 2015: 251). In its core, the judgement was not opposed to the social-liberal government’s Eastern politics (Grigoleit 2015: 252). In its judgement, the senate accepted the reality of two German states but also underlined the upcoming reunification of the two states prescribed by the constitution (Grigoleit 2015: 252). The senate 5.3. Historical development 119 declared the GDR not to be a foreign country and the border between the two states not as an international one but as being similar to the various boarders of the federal FRG states (Grigoleit 2015: 252, BVerfGE 36, 1). The senate went further and focused on the matter of citizenship which would have an impact on all following treaties between the two states (Grigoleit 2015: 253). The senate declared that the government was not allowed to negotiate any treaties which were to restrict the constitutional rights of a German from the GDR who entered the save area of the FRG (Grigoleit 2015: 253, BVerfGE 36, 1). This meant that every German would have access to all the courts and the safeguard of the jurisdiction when entering the FRG (Grigoleit 2015: 254, BVerfGE 36, 1). This also included the fundamental rights. Thus, the senate pointed out that the planned agreement on mail and telecommunication could not restrict any guarantees given by Art. 5 and 10 of the GG (Grigoleit 2015: 255). This part of the judgement was special not only because the Grundlagenvertrag did not concern any matters regarding citizenship (Grigoleit 2015: 252–253). The line of argumentation concerning citizenship helped the senate in its previously created dilemma regarding the political shift in the senate’s majority (Grigoleit 2015: 254). Matters regarding citizenship and agreements following the Grundlagenvertrag were not ratified yet and, thus, not safeguarded by the treaty (Grigoleit 2015: 255). For the BVerfG, this meant that all treaties and laws regarding citizenship between the two countries could be challenged in front the court (Grigoleit 2015: 255). Through this move, the BVerfG managed to limit the access of the other political bodies by simultaneously strengthening its own (Grigoleit 2015: 254). It was argued that this step was necessary because the government could have interfered with the competence of the BVerfG of safeguarding the fundamental rights (Grigoleit 2015: 254). Beside all these considerations, the judgement was a compromise. The FRG government was able to acknowledge the GDR as a state, and the BVerfG could keep its face (Grigoleit 2015: 254–255). In its judgement, the BVerfG also defined the concept of “judicial self-restaint” (BVerfGE 36, 1). The BVerfG argued that this was not a limitation of its own competences but a self-denial of making politics and not to interfere into the realm of for making politics by the other constitutional bodies laid down in the constitution (BVerfGE 36, 1). Because of the political shift in the senate and the political brisance of the topic, the BVerfG was on the brink of 5. The German Bundesverfassungsgericht 120 losing its juristic legitimization by deciding directly against the Grundlagenvertrag (Grigoleit 2015: 255). The case evolving around the Grundlagenvertrag was called a constitutional crisis and by some seen as evidence that the BVerfG was a factor of power in political development in Germany (Grigoleit 2015: 246; 256). The proclaimed crisis did not happen but it marked an important point in the development of the court and its relations to politics. Thus, we can describe it as a critical juncture in our case. During this period, the BVerfG tried to strengthen its own position on the one hand while, on the other hand, it had to deal with its legitimization as a judicial body. A decision by the conservative majority in the senate would have politicized the decision on the Grundlagenvertrag in an extreme manner (Grigoleit 2015: 258). Klaus Joachim Grigoleit describes the political composition of the BVerfG as an effective way to prevent the politicization of its judgements (Grigoleit 2015: 259). For some parts, the second senate has realized this by itself. The judgement did not hinder the newly elected government to pursue its policy towards the GDR but it provided for some influence in the future, should any treaty restrict the fundamental rights of German citizens. In this case, a treaty could be challenged in front of the BVerfG. With its proclaimed non-interference through judicial self-restraint, the BVerfG made clear that it would not interfere in political matters – even if this was not possible when it has to decide in disputes between government and opposition – and leave this sphere to the other constitutional bodies. This was the only time since the BVerfG’s existence that judiciary and government openly fought against each other (Grigoleit 2015: 246). This is maybe because of Germany’s balanced governmental system (Grigoleit 2015: 246). The decision in the Grundlagenvertrag case shaped the role of the court as a political role player for the next decades and still does. As a critical juncture, this event marked a point in which the BVerfG had two options to choose from with two maybe not so extremely different outcomes. The first one was the obvious and the option which was finally chosen. In its full power – not only considering manpower but also the political balance between social and conservative judges –, the second senate rejected both injunctions made by the Bavarian government. At first, all judges rejected with divergent opinions, ranging from conservative to socialist (Fischbach 2011: 36). The Bavarian government’s second attempt was al- 5.3. Historical development 121 so dismissed but this time concordantly (Fischbach 2011: 37). Those two decisions were not based on political decisions. In the first decision, the senate was divided in the question why the injunction had to be dismissed (Fischbach 2011: 36). One half of the judges argued, among other things, that the political impact of this topic could not be measured by the judges because of their lack of expertise in international political matters; they furthermore stated that deciding in favour of an injunction would impair the government’s competences in the area of the contract formation (BVerfG, Beschluss vom 04. Juni 1973 – 2 BvQ 1/73 –, BVerfGE 35, 193–202). The other four judges also argued that the injunction could damage the government’s reputation regarding international treaties but this should not and could not hinder the BVerfG from reviewing the matter (BVerfG, Beschluss vom 04. Juni 1973 – 2 BvQ 1/73 –, BVerfGE 35, 193–202). They also saw time as an aspect as the ratification was not to happen in the near future and the senate would have enough time to deal with the Grundlagenvertrag and its conformity with the constitution in the principal matter (BVerfG, Beschluss vom 04. Juni 1973 – 2 BvQ 1/73 –, BVerfGE 35, 193–202). The second attempt of the Bavarian government was also rejected. This time, the line of argumentation of the first four judges on political grounds was adopted and this time happened concordantly (BVerfG, Urteil vom 18. Juni 1973 – 2 BvQ 1/73 –, BVerfGE 35, 257–263). It was the first time the senate spoke of judicial selfrestraint (BVerfG, Urteil vom 18. Juni 1973 – 2 BvQ 1/73 –, BVerfGE 35, 257–263). One can state that this phase was not the most problematic on the road to the final judgement. The senate came into real trouble only after dismissing one of the socialist judges. Considerung the senate, this marked a shift in majority in favor of conservative judges whose judgement was to be directed against the new social-liberal government and its Eastern politics. Considering that the government was newly elected, it reflected the voters’ wish for a change in politics. As already shown, people have a high opinion of the BVerfG, also on grounds of its neutral stand as guardian of the constitution and fundamental rights. With a decision based on the conservative majority, the senate would have damaged this reputation and even its judicial legitimization (Grigoleit 2015: 255). To avert this dilemma, it was necessary to again point towards judicial self-restraint. In this case, especially the arguments concerning judicial self-restraint and, thus, political non-interference are important for the further develop- 5. The German Bundesverfassungsgericht 122 ment of the BVerfG’s position as a constitutional court. In the struggle about supremacy, the BVerfG retreated into the realm of the constitution and its role as safeguard of the fundamental rights (Grigoleit 2015: 258). It has maintained this position until today and will most likely do so in the future as well. Since then there have not been any struggles between the BVerfG and the government worth mentioning (Grigoleit 2015: 246). The second option would have been the direct confrontation with the socialliberal government. Most certainly, this would have led to a total different outcome for the senate and the whole BVerfG. If the senate had dismissed all political problems and come to the conclusion that the Grundlagenvertrag was not conform to the constitution, and all this based on the conservative majory of four to three, it could have scattered the people’s trust and would have shown that it could be manipulated in favor of one political side. The open battle against a newly elected government would have been disastrous. Because of the possible loss of reputation, it would have been likely for the BVerfG to act against future governments as well. It is more likely that the BVerfG would have adopted a similar way as in its original decision, not only to maintain its judicial legitimization but to regain the trust of the people. Nevertheless, it would have damaged the BVerfG and, thus, future conflicts could not have been solved. Figure 10 summarizes the Grundlagenvertrag as a critical juncture. 5.3. Historical development 123 Event Actors Goals of actors Further actors Outcome The social-liberal government under Willy Brandt started working (October 22, 1969). Willy Brandt government The Willy Brandt government wanted to bring a shift in politics towards the GDR. The Grundlagenvertrag was developed. The Grundlagenvertrag was challenged in front of the BVerfG (May, 28, 1973). Bavarian state government, BVerfG The Bavarian state government wanted to challenge the Grundlagenvertrag as they believed it could avert Germany’s unification. The Bavarian state government tried to get rid of a judge because of bias. Bavarian state government The Bavarian state government wanted to reach a conservative shift in the BVerfG senates’ bench in favor of their suit. Joachim Rottmann After some attempts, judge Rottman was no longer part of the bench, which lead to a shift towards conservatism at the bench. The Willy Brandt government speeded up the process of political shift by signing the Grundlagenvertrag. (December 21, 1972). BVerfG, Willy Brandt government The government wanted to speed up the ratification process to prevent the BVerfG from making a decision against the Grundlagenvertrag. The BVerfG decided that the Grundlagenvertrag was conform to the constitution but also remarked that international treaties concerning citizenship in some cases could violate the constitution. (July 31, 1973). 5. The German Bundesverfassungsgericht 124 Overall Outcome: The BVerfG was in a special situation which could have led to a constitutional crisis. Political parties tried to use the BVerfG to enforce their own agenda by manipulating it.7 The BVerfG was in a dilemma as it had to decide in the matter but without getting political. Here, the BVerfG used the term of judicial self-restraint to make clear that it would not interfere in political matters and that its decisions were only made from a juristic point of view. It made clear that it was the safeguard of the constitution but not a political body and after that, similar cases did not occur. Figure 10: Summary: Critical juncture: The BVerfG and the Grundlagenvertrag (source: author’s own) 5.4. Political role The competences of the BVerfG define its political role in the German political scenery. The BVerfG itself states that most of the proceedings it decides upon are of great political impact. This is the case in disputes between state bodies, the abstract judicial review or disputes between federal states and the union state. Constitutional jurisdiction is always political jurisdiction as all decisions can change the course of a government’s development, e.g. making a reform oriented government put its reforms on hold (Voigt 2015: 69). The proceedings especially enable the opposition in the parliament and the federal state governments to change politics with the help of the BVerfG to their favor (Voigt 2015: 69). But the case of the Grundlagenvertrag has shown where these attempts can lead to. The Bavarian government’s attempt to create a shift in the second senate bench and, thus, to create a conservative majority nearly led to a crisis, which could have damaged the BVerfG permanently. It was then the BVerfG actively decided to stay out of the political sphere speaking about judicial self-restraint. This can be interpreted as some sort of self-defense. The BVerfG must have realized that political interference could damage its reputation as the neutral safeguard of the constitution. Especially in this time, the people voted for a political change in Germany with electing a SPD government under Willy Brandt and his Eastern politics and the reconciliation with the Eastern countries. Indeed, a decision of the BVerfG torpedoing his policy could have been viewed as a judicial coup d’etat by the voters. 7 This had happened similarily in India during Indira Gandhi’s emergency rule. 5.4. Political role 125 But even with judicial self-restraint, the BVerfG will always be a part of the political system and exert huge influence with its decisions, directly as well as indirectly.8 The high reputation of the BVerfG creates a special situation for the government and the opposition. As their reputation is lower than that of the BVerfG, they try to come out as the winner in the competition about the question who is ‘more constitutional’ in its decisions (Voigt 2015: 77). No one wants to be branded as the one violating any fundamental rights or acting unconstitutionally (Voigt 2015: 77). This can be a paradox. In many decisions made by the BVerfG, the defendants saw their politics confirmed by parts of the judgement (Voigt 2015: 77). One example is the dispute about the commuting allowance (Pendlerpauschale) in 2007. The BVerfG declared the law, which had been introduced by the great coalition in 2006, as unconstitutional (BVerfG, Urteil des Zweiten Senats vom 09. Dezember 2008 - 2 BvL 1/07 - Rn. (1–91)). Before the law was enacted, it was possible for commuters to get an allowance from the tax office covering the entire time they spend commuting starting the minute they left their home (BVerfG, Urteil des Zweiten Senats vom 09. Dezember 2008 - 2 BvL 1/07 - Rn. (1–91)). The law stated that the allowance was only applicable after a commuter had already traveled 21 kilometers and, thus, the commuter could only receive tax deductions from kilometer 21 onwards (BVerfG, Urteil des Zweiten Senats vom 09. Dezember 2008 - 2 BvL 1/07 - Rn. (1–91)). The specialized court did not want to decide in this matter and forwarded the case to the BVerfG in a concrete judicial review proceeding (sam/ddp/dpa/Reuters 2018a). The BVerfG’s decision, which, in a judicial review proceeding, declared the law as unconstitutional, created a special situation for the government. The ministry of finance reacted instantly and declared that until 2009, the old system would be implemented and that all commuters would receive a tax refund from 2007 to 2009 (sam/ddp/dpa/Reuters 2018a). The ministry estimated that this would cost the state around 7.5 billion Euros but it did not want to make cuts on other expenses to fill the gap in the federal budget that was created by the tax refunding (sam/ddp/dpa/Reuters 8 In contrast, the Indian judges never used the term “judicial self-restraint”. With their decision in the Kesavananda and Minerva Mills cases, they indirectly strengthened their position and restrained the legislative rather than the judiciary. Even if they allowed the parliament to amend the constitution, they had the last word on what was allowed. 5. The German Bundesverfassungsgericht 126 2018a). This situation shows that in some cases, the government tries to view losing in front of the BVerfG as a success. In this case, the loss of the government had a positive effect on its reputation: The coalition had not planned to introduce a tax reform which would have positive effects for German households. In fact, this law had a negative effect on the taxes of 16 million commuters, who had lost a lot of money on taxes with the law’s introduction (sam/ddp/dpa/Reuters 2018a). After the decision, the government and the ministry held out the non-bureaucratic tax returns in prospect and, thus, tried to appear as the good guys who wanted to give something back to the commuters – despite the fact that it was the government who had ‘taken’ the money from the commuters in the first place (sam/ddp/dpa/Reuters 2018a). The status of its decisions is another factor that makes the BVerfG a political player even if it was not intended to deliver political decisions. The power to make laws usually lies in the hands of the executive and the legislative, i.e. in the hands of the government and the parliament. Being a judicial body, the BVerfG has the power to make decisions by the status of laws. Decisions by the BVerfG on constitutionality always have the status of laws and are published in the law gazette and are valid not only for the respective law (BVerfG 2018i). Besides its legal competences, which render the BVerfG a player in the political sphere, one can argue that it is part of the political system. Due to its comprehensive competences, the BVerfG is consulted in almost all controversial decisions in Germany (Andersen/Woyke 2003). Thus, it can influence the political process (Andersen/Woyke 2003). Rüdiger Voigt tries to locate the BVerfG in all three levels polity, policy and politics (Voigt 2015: 73). He defines polity as “political structures and forms of legislation” (Voigt 2015: 73). Policy is defined as “political functions and contents of legislation” (Voigt 2015: 73), and politics are“political processes or procedures of legal development, application of law, and interpretation of law” (Voigt 2015: 73). In the light of these definitions, one can locate the BVerfG in the different spheres, as will be elaborated on below. With its larger decisions regarding the GG, the BVerfG has stabilized the political system over a long period especially if with its decisions on the economic system, the transfer of competences from the executive and legislative to the EU and for the relationship between the union state and the federal states (Voigt 2015: 73). This was also the case in foreign mat- 5.4. Political role 127 ters concerning the GDR till the reunion (Voigt 2015: 73). The BVerfG is also responsible for the judicialization and the judicialization of the FRG (Voigt 2015: 74). The aspect of policy is marked by the political dimension of the BVerfG judgements (Voigt 2015: 74). Thus, law has to be defined “as a decision between political alternatives” (Voigt 2015: 74). Politics, understood as political processes, manifests itself in various ways, e.g. laws, administration acts or court decisions (Voigt 2015: 74). Laws can calm down political conflicts, which could otherwise, endanger the stability of the system (Voigt 2015: 74). This is only possible for a defined period whilst a decision is declared mandatory but only temporary (Voigt 2015: 74). This does not mean that the conflict the law tried to solve is finally solved and could be fought in another arena by the rivals (Voigt 2015: 74). In order to solve these conflicts, the BVerfG acts as an arbitrator, which is comparable to India. Its decisions, i.e. its judgements, often shape the political future of Germany; furthermore, the BVerfG has a conciliating role between union and federal states in order to maintain the balance and stability between them (Voigt 2015: 77). However, the BVerfG does not act individually on its own but is called upon by the people, the government, the opposition or the bodies of the federal states (Voigt 2015: 77). Even considering that it acts only if it is called upon by an appellant, the sheer amount of its judgements creates a difficult situation for the other political bodies (Voigt 2015: 77). The judgements constrain the other bodies because every judgement closes an opportunity for the government, the opposition or the whole parliament to act and make laws; this situation is not only applicable to the union but also the federal states (Voigt 2015: 77). This sometimes leads to the paradox situation that the union and federal states have to call upon the BVerfG to change its jurisdiction in a new proceeding (Voigt 2015: 77–78). As an arbitrator the BVerfG also has an integrating function. The BVerfG is an integrating factor for a pluralistic society while, at the same time, limiting conflicts in this society, which is comparable to India (Voigt 2015: 78). This is the case between political parties and also between political interest groups and, of course, also between these two (Voigt 2015: 78). In a democratic system, there is always conflict between the governing parties and those in the parliament opposition about how politics should be shaped; one could say it is a fight about right or wrong (Voigt 5. The German Bundesverfassungsgericht 128 2015: 78). The democratic system can only function if conflicts like these do not end in a friend- or enemy-like relationship (Voigt 2015: 78). It is the BVerfG’s purpose to function as the referee to avert these kinds of situations and to help the opponents to keep their face in case of a defeat (Voigt 2015: 78). In order to accomplish this task and to be taken seriously, the BVerfG judges need to be politically neutral and must be professionally qualified (Voigt 2015: 79). The neutrality and the expertise can be reached through the election process of the judges. Admittedly, this process is influenced by political interests, which was already described above; this, however, does not mean that the judges designated by the political parties will always decide in favour of their respective “patrons” (Voigt 2015: 83). History has shown that the expectations of the political parties towards judges and judgements were often not satisfied; many of the presidents designated by the CDU/CSU fraction backed some decisions which displeased the members of the fraction (Voigt 2015: 83). 6.1. Historical development and critical junctures 129 6. Comparison and contrast of the two courts The German BVerfG and the Indian S.C. are both described as very powerful courts, not only in their respective countries but also compared to other highest courts in the world. It was shown that both courts had a similar history in their struggle with the other institutions of a democratic constitutional state. They are both equipped with a great variety of jurisdictions and competences. In the following, the similarities and differences shall be elaborated on. 6.1. Historical development and critical junctures There is a great distance between Germany and India, not only geographically but also in the development of both countries. In this light, it is very interesting that both courts share a similar history of creation. The BVerfG was created in the aftermath of the Third Reich. West Germany was only a few years old and the democratic system, which was not completely unfamiliar, was young and fragile. Many of the newly elected politicians knew of the problems with the judiciary which had been prevalent during the Nazi regime and the injustice exerted by it. To them, it was clear that the newly created highest court would have to fulfill the purpose of a safeguard of the new democratic freedom and that the court should stabilize the fragile beginning of the FRG. India, on the other side, was a newly created nation and for the first time ‘on its own’ in the history of the sub-continent. To India, it was important to keep the newly won democratic freedom alive and not to let it drift into an uncertain political future. At this time, both countries had had their own experience with court systems. Germany had already dealt with the unfruitful idea of constitutional courts while India already had a federal court as a highest court in the country. It was only logical for India not to adopt the British court system as it was not apt for a country with a written constitution. On the other side, it was remarkable that India did not simply choose the easy way by adopting a system it was already familiar with at this time. 6. Comparison and contrast of the two courts 130 The similarity in the courts’ development most noteworthy is the long discussions about the judges of the courts. In both constitutional assemblies, more discussions evolved around the judges than around the planned jurisdiction of the courts. In Germany, many of the active judges shared a common history with the former regimes. For the members of the Parlamentarischer Rat, it was clear that the judges of the BVerfG should not have any connections to the regime. Luckily, there still was a great number of well-trained lawyers with high reputations capable of doing this job. This, on the other side, was the problem in India. Even after the creation of the S.C., one argued that India lacked remarkable lawyers who could have been considered as judges for the S.C.. This did not mean that the country did not have a great number of judges. Historically seen, most of them were lawyers with a British education. While India created a system of courts of appeal, Germany focused on the creation of a detached constitutional jurisdiction whose sole task should be to rule in cases of constitutional law. Unlike the S.C., the BVerfG first had to fight for its recognition as a constitutional body. While the S.C. as successor of the Federal Court already had its position in the Indian system of institutions, the BVerfG had to present it first through the Statusdenkschrift. This inevitably led to conflicts with the then Adenauer government, which did not want to recognize the status of the BVerfG as a constitutional body. For both courts, the next decades were marked by conflicts with their respective governments. In the case of the S.C., these conflicts were somewhat more severe, as the government tried to withdraw constitutional amendments from access by the S.C. and thus deprive it of the possibility of reviewing laws. With regard to conflicts to which the two courts have been exposed, it is useful to compare the events of these critical junctures in time. Year India Germany 1950 Creation of the S.C. - 1951 Introduction of the 1st amendment to the Indian constitution Creation of the BVerfG 1952 Kameshwar Singh vs. State of Bihar The Statusdenkschrift is published. The BVerfG fights for its position. 1953/54 Different decisions in land reform cases - 6.1. Historical development and critical junctures 131 Year India Germany 1955 Introduction of the 4th amendment to the Indian constitution - 1961 - The BVerfG strikes down the law on the government TV station. 1967 The S.C. rules in the case of Golak Nath 1969 - Beginning of Willy Brandt government 1973 Golak Nath is overruled by the Kesavananda case. The S.C. postulates the basic structure doctrine. The Grundlagenvertrag is challenged in front of the BVerfG. The BVerfG confirms the constitutionality of the Grundlagenvertrag and thus, avoids a constitutional crisis. 1975 Indira Gandhi’s election is challenged in front of the S.C. Beginning of the emergency - 1975 – 77 Transfer of high judges during the emergency. - 1976 Habeas Corpus cases First PIL with Mumbai Kamgar Sabha, Bombay vs. M/S Abdulbhai Faizullabhai & Ors. - Figure 11: Comparison of critical junctures in Germany and India (source: author’s own) This table shows that both courts had to deal with completely different cases during their development despite their identical basic function in their respective countries. The historical development of the two courts differs greatly after their foundation and shows that the S.C. had to struggle with other cases than the BVerfG. It can be said that during its development, the S.C. had to struggle with harder bandages and cases involving more crucial issues like fundamental rights. 6. Comparison and contrast of the two courts 132 6.2. Jurisdiction Both courts were equipped with a great variety of original jurisdictions written down in the constitutions of the two countries. In both cases, there was some controversy around these jurisdictions but the debates never escalated and did not really culminate in questioning the existence of the two institutions. Another similarity is the option of expanding the jurisdiction of the two courts. While the constitutions of Germany and India describe the original jurisdiction of the courts, the parliament of each country has the possibility to expand it through simple laws. The Indian constitution, for example, describes that the parliament could confer powers to the S.C. to exercise its jurisdiction more effectively (Art. 140 INC) or expand its jurisdiction (Art. 138 INC). A similar approach applies to the BVerfG. While the GG defines a great number of jurisdictions in Art. 93 GG, the provisions in Art. 93 III GG grant the possibility of expanding its jurisdiction through simple state laws. The constitutional complaint, for example, as described above, was first introduced by a simple law in the Bundesverfassungsgerichtsgesetz and later added to the GG. The jurisdictions of the courts are very similar concerning the basics of the jurisdiction. They both decide in cases regarding violations of fundamental rights, disputes between the central government and the state governments and disputes between state governments. While the Indian system knows cases where the central and a number of state governments are opposed by a number of state governments, the German system only knows disputes between central and state governments or between state governments (BVerfG 2018g, Art. 131 INC). One of the most important jurisdictions is the option to decide the constitutional validity of central laws (Art. 93 I 2 GG, Art. 131A INC). The Indian constitution correctly describes this as exclusive jurisdiction as it can only be exercised by the S.C., respectively by the BVerfG in Germany. Despite their similarities, there are some differences in jurisdiction and also in the purpose of the courts. This is already evident in the names of the two highest courts. On the one side, there is the BVerfG which can be translated into constitutional court while on the other side, there is the S.C. of India. The BVerfG can only decide in matters where central/state law or state organs are involved. The S.C., on the other hand, is the highest court 6.3 Judges and their appointment 133 in India and is not restricted in its options the way the BVerfG is. It is also an appellate court, which can decide upon in criminal or civil matters. Despite the BVerfG’s decision in the Lüth case, which mainly focuses on the disputes between Harlan, his management and Lüth, the case was not a civil proceeding but rather concerning the fundamental right of free speech. It is also not possible for the BVerfG to decide in any matters which are decided upon by the specialized courts which decide upon civil proceedings. The BVerfG can only decide if a judgement of the respective specialized court violates the fundamental rights of the appellant or if there are any mistakes in the proceeding and, thus, order the specialized court to review its decision. The S.C., on the other hand, can make decisions in these kind of cases and, thus, can be seen as a final appellate court as, e.g. the civil appeal no. 2217 of 2018 shows. It shows that the S.C. has the last word in civil appeals as well while this is not possible for the BVerfG. The biggest difference and the one that maybe makes the S.C. even more powerful than the BVerfG is the PIL, which became even more important with the right to information. The PIL allows third parties to start a litigation even if they are not affected by the matter themselves. The German system does not allow third parties to start a litigation if they are of the opinion that someone else’s rights are violated. Before the introduction of the PIL, the Indian system had been similar to the German one. Only those directly affected could start a litigation. Considering India’s socioeconomic situation, however, many people do not have any knowledge about their fundamental rights, let alone or the possibility to claim them. With the PIL, the S.C. has created an instrument for the poor and illiterate; others can now defend the rights for them. The jurisdiction and especially the power of judicial review make both courts very powerful. Due to the nature of the S.C. as an apex court in a single integrated court system, it has more possibilities of jurisdiction than the BVerfG and is, thus, involved in more different types of cases. The possibilities of the PIL render the S.C. a more reactive court than the BVerfG. 6.3 Judges and their appointment The appointment of judges is handled differently in India and Germany. Both countries have established different appointment systems. Merely the discussion in the constituent assemblies about the appointment of the hig- 6. Comparison and contrast of the two courts 134 hest judges was similar. In Germany and India, it was and still is clear that the qualification for the highest judicial office is subject to certain criteria and high standards. In both countries, the ability to hold a judge's office or legal training is a basic requirement for being considered as a judge. The German discussion about the election of judges was mainly about the political significance of the office and the decisions of the court. However, a possible politicization of judges was also discussed in India. The Indian constitution does not lay down any particular formalities for the appointment of judges. Over the past decades, these requirements have been further refined by the S.C. itself. In Art. 124 IC, the Indian constitution defines some criteria for a judge to be appointed to the S.C.: (3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and – (a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or (c) is, in the opinion of the President, a distinguished jurist. As threre is a great number of people who could possibly be appointed as a S.C. judgde, the more important question is: How are the qualified judges chosen? Unlike the courts of the U.S. or Germany, the S.C. itself is involved in the appointment of judges. The constitution states: (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted: The provisions made in clause 2 of Art. 124 differ extremely from the German system of appointment. Especially the meaning of the term “consulting” was further defined by the S.C. itself. This was done in several cases, the so-called “judge cases”.9 Nowadays, new judges are suggested 9 The first judge case was decided upon in 1981 in S.P. Gupta vs. President Of India And Ors.. In the first judge case the S.C. ruled that the central government had the final word in the judges appointment and could reject the S.C. judges suggestions 6.3 Judges and their appointment 135 by the collegium which consists of the chief justice of India and the next four senior judges of the S.C.. The judge cases have further consolidated the position of the S.C. in the appointment of judges. To this day, the decision on the judges to be appointed lies with the S.C.. The president only fulfills the formal conditions to confirm judges in office. This leads to a situation where the watcher of the other constitutional bodies chooses its own watchmen. The German appointment system is completely different. The judges of the BVerfG are elected by the Bundestag and the Bundesrat in equal parts as stated in Art. 94 (1) GG. The Bundestag created an electoral college for appointing their judges while the judges appointed by the Bundesrat are elected by the whole Bundesrat. Unlike India, this system has never really been the subject of debate and has only been slightly questioned. It has therefore been applied ever since the BVerfG’s establishment. Who gets on the list to be appointed as a judge at the BVerfG stays more or less a mystery as it is not discussed publicly (Landfried 2015: 369). The formal requirements are partially similar to those in India. The judges must have the qualification to work as a jugde and thus, need the necessary legal education. Besides this, they do not need to be judges of one of the higher courts of Germany. Nevertheless, the ministry of justice has to keep a list with all judges of the highest corts and candidates nominated by the Bundestag, who could become judges at the BVerfG. Besides all formalities, their commonalities and differences, the prevention of the politicization of the courts plays one of the greatest roles. In both constitutional assemblies, the possible politicization of the courts by their judges was repeatedly discussed. In both cases, the members of the assemblies agreed to prevent this. But in both cases, it was also clear that the judges' decisions would always have a political character. (1982 2 SCR 365). In 1993, in the second judge case Supreme Court Advocates-on- Record Association and another vs. Union of India the S.C. ruled that the chief justice of India had the primacy when it comes to judges’ appointments (Writ Petition (civil) 1303 of 1987). The S.C. further suggested to create the collegium, including the chief justice and the next two senior judges of the S.C. (Writ Petition (civil) 1303 of 1987). The third judge case Supreme Court of India vs. Civil Advisory Jurisdiction created the present advisory and appointment situation. The S.C. ruled that the collegium had the last word in the judge’s appointment (Special Reference Case 1 of 1998). The composition of the collegium was changed to include two more senior judges (Special Reference Case 1 of 1998). 6. Comparison and contrast of the two courts 136 Germany tries to control this by excluding the re-election of judges. This contrasts with the election of judges in the Bundestag. Since the competent committee is made up of party politicians and thus, tries to take its political agenda into account in the election of judges, the future judges become the ball game of politics. Contrary to the assumption that this could have led to a party-political line of some judges, the BVerfG has repeatedly demonstrated its political independence. Even the decision on the basic treaty did not show an increased party-political orientation of the judges. It can rather be attributed to the conservative nature of the judges involved. In India, the S.C. helps to prevent politicization. This already happens through the selection process of the judges, which happens without the executive. However, the events during the emergency must not be ignored. The interference by Indira Gandhi led to a utilization for some years within the S.C.. However, the S.C. succeeded in breaking this ‘politicization‘ and maintaining its neutral character. Nevertheless, a political decision of both courts cannot be completely ruled out or prevented by their judges. In contrast to their Indian colleagues, the judges of the BVerfG have imposed the principle of judicial self-restraint on themselves. Both courts are urged to maintain their neutrality and to prove it again and again. With regard to the appointment of the judges, however, it should be noted that the two courts follow a very different process which, in the end, aims to achieve the same objective of neutral jurisdiction. 6.4. Legitimization It was already described that both courts receive their formal legitimization by the constitution of India (for the S.C.) and the GG (for the BVerfG) respectively. In both cases, there are other factors which legitimize both institutions. Christine Landfried describes six conditions necessary for the legitimacy of constitutional jurisdiction (Landfried 2015: 371–373): 1. The selection process of judges, which should take place with the greatest possible transparency. 2. A democratic election of judges. 6.4. Legitimization 137 3. The consideration of social, political and professional differences in the selection of the highest judges. 4. Being aware of the difference between a political and lawful decision of a court considering the political role of a supreme court. 5. A moderate division of powers between the Supreme Court and parliament, taking into account the political order of the constitution. 6. Trust of the people in the court. If these principles are applied to the two countries, however, there are also differences. In both countries, the selection process for judges is only partially transparent or even non-existent. The appointment of judges in Germany is a secret and cannot always be traced (Landfried 2015: 374). Looking at the Indian system in which the collegium makes the selection, it can be said that this process is not very transparent either. The election of judges in Germany is only semi-democratic, as it is only carried out by one committee, especially with regard to the Bundestag. This procedure has repeatedly been described as insufficient in various discussions (Landfried 2015: 375). In India, there is no democratic process in the election of judges either. In the end, it is up to the president to confirm the candidates of the college. With regard to the judges' decisions and their legitimacy, the appointment of judges is one of the biggest issues in both countries. As already shown in chapter 6.3., the appointment of judges is not based on democratic principles. In Germany, the judges of the BVerfG can still be regarded as democratically legitimate since they are named by the Bundestag and Bundesrat – two democratically elected chambers. Since the S.C. judges are appointed only by the executive, their democratic legitimacy must be called questionable. Nevertheless, both sides fulfil the tasks given to them by the constitution. In Germany in particular, the discussion about the democratic election of the judges of the BVerfG has come up several times. There is also no professional diversity in either case. At the beginning of the BVerfG’s existence, each of the then 24 judges had a different professional background although all fulfilled the formal criteria (Landfried 2015: 382). However, this has continued to decrease over the decades until today (Landfried 2015: 383). In contrast to Germany, India does not leave so much room for manoeuvre in the selection of judges. In Germany, judges merely have to fulfil the qualifications for holding judicial office and 6. Comparison and contrast of the two courts 138 may very well have an economic background. However, the Indian system already selects its judges among the best of all jurists and judges, which prevents diversity. While the first three conditions are more concerned with the judges themselves, the fourth condition puts a focus on the difference between law and politics. The decisions of each of the two courts must be based on legal considerations and not on political ones. Judges must not act like politicians, while politicians must not think like judges in their decisions (Landfried 2015: 372). In Germany, there is always the danger of a lawsuit in front of the BVerfG which has an impact on lawmaking. Nevertheless, this has not led to a legalization of German politics, even if the bureaucratic system of Germany has repeatedly made the impression. A legalization of political thinking in India cannot be claimed either. Decisions are still taken on a political basis and often stand in contrast to constitutional law (like in Germany). Sometimes the situation is different with the courts themselves. Often, the judges' decisions can be regarded as politically motivated. However, this assumption cannot be supported here. In both countries, the judges of the BVerfG and S.C. base their decisions solely on the nature of constitutional law. It is clear that every decision a person makes is based on a system of action and reaction. Subrata K. Mitra (e.g. 2006) describes this process in his rational choice theory. All judgements are based on rational actions and decisions, but always with a view to constitutional law. Both courts fulfil their task by interpreting law, and this function should not be regarded as anything else. One can attribute a political motivation to an individual or the group, but one should exclude them from the judgements. The fifth point describes the division of competences between the legislative/executive and the judiciary. In a healthy system, there should be a balanced distribution of tasks. However, if the constitutional judges decide on the constitutionality of political processes, the relationship shifts in favour of the court (Landfried 2015: 373). Yet, if the constitutional courts decide on the political content, the distribution of powers shifts in favour of parliament (Landfried 2015: 373). In both countries, this condition can be regarded as fulfilled. Over time, both courts have taken up cases on political processes such as the right to vote and, above all, decisions on the content of laws and their constitutionality. However, especially in India, the introduction of the PIL has led to a shift in legislation towards the S.C.. This is shown, for example, by the decisions in some cases on en- 6.4. Legitimization 139 vironmental pollution, where the S.C. has set certain targets for prevention. The sixth condition deals with trust of the people in the court. Alexander Hamilton argues that courts neither have power over the sword (like the American president over the military) nor purse (like the congress over the budget) (Federalist Papers No. 78). Both courts need the peoples’ trust for the implementation of their rulings through the other state bodies. The following figures show that in both countries the judiciary enjoys a high reputation and trust among the people. In Germany, the BVerfG actually has its own standing in the judicial system and is, thus, rated even higher than the common judiciary.10 Institutions/actors Great deal Somewhat Not at all Election commission 45.9 31.3 23.0 Judiciary 41.6 34.2 24.2 Local government 39.0 37.8 23.2 State government 37.2 43.6 19.2 Central government 35.2 42.5 22.3 Elected representatives 19.9 40.4 39.7 Political parties 17.4 43.6 39.0 Government officials 17.2 40.4 42.3 Police 13.0 29.9 57.1 Figure 12: Trust and confidence in political institutions and actors in India (%) (Mitra 1999: 414) Trust in… Personal trust Suspescted trust by the citizens Police 5 4.9 Bundesverfassungsgericht 4.9 4.9 President 4.7 4.7 Judiciary 4.6 4.6 Television 4.1 4.6 10 Over the years, the BVerfG has repeatedly made controversial decisions, such as in the crucifix or "soldiers are murderers" case. Although this led to a bend in the popularity of the BVerfG, it could not permanently damage its reputation (Patzelt 2015: 319). 6. Comparison and contrast of the two courts 140 Trust in… Personal trust Suspescted trust by the citizens Newspapers 4.1 4.5 Bundesrat 4 4.1 Administration 3.9 4 Unions and lobbies 3.8 4 Bundestag 3.7 3.8 Central Government 3.4 3.5 Political parties 3 3.2 Figure 13: Trust and confidence in political institutions and actors in Germany; Legend: The average values given are from 1 ='no confidence at all' to 7 ='full confidence'; Source: Dresdner SFB-Survey 2004 (Patzelt 2015: 315) In Germany, people only trust the police more than the BVerfG. In contrast to this, the Indian citizens have very little trust in their police (Goswami 2017). Werner J. Patzelt argues that institutions further away from party politics enjoy a higher level of trust among the population (Patzelt 2015: 314). Even if the Indian police is considered corrupt, this leads to the question why it does not have a higher reputation as it is further away from party politics. This could be elaborated in further studies by comparing Germany and India for example. The courts’ decisions would not have any weight without trust in them. Looking at these six conditions, the legitimization of both courts looks rather poor. In both cases, only 50% of the postulated conditions are met, i.e. three out of six. But does this really equal a lack of legitimacy for both courts? However, not only courts themselves but also the constitutional component must be taken into account when evaluating the courts’ legitimization. Both courts are already legitimized by the constitution in their existence and their assigned tasks. In addition, they meet three of the six conditions. Thus, both politically and legally, the two courts can be considered as sufficiently legitimate. However, the prerequisite for all this is that the courts remain within the assigned scope of their intended use and tasks and do not act not beyond. 6.5. Political role 141 6.5. Political role As elaborated in chapter 6.4., judges of the courts should not be political in their decisions or acting. Courts must remain part of the judicial sphere of a state. Their purpose is to interpret the law made by the legislative. A current example is the General Data Protection Regulation which – at this time – is the main regulation for Data Protection in the EU. Since this is a new regulation, it leads to a difficult legal situation for both state institutions and companies. Only the courts can safely fulfil this task and create an interpretation standard for everyone. If this were to be done by state and private institutions, there would be many different interpretations. Regular courts are part of the judicial system and subordinate to a ministry. Constitutional courts, on the other hand, are part of a higher judiciary which itself is part of the checks and balances of a democratic system. This leads to the paradox that constitutional courts are part of political life and also of the political process. The cases analyzed for the critical junctures cannot be regarded as politically motivated from the point of view of the courts and yet, they have a strong political character. Both for the BVerfG and the S.C., these cases caused reactions in the parliaments concerned after they saw themselves constricted in their political sphere. In India, the S.C. prevented a rapid upheaval of zamindari ownership and thus, a delay in the implementation of Nehru's social agenda. At the same time, the BVerfG decided in the case of German television and on its own status as a constitutional body and thus defined itself as an institution equal to the other organs. First and foremost, both courts are arbitrators between the institutions but also between citizens and institutions. They oversee the constitution and interpret it for the further development of a state. Even a constitution that is more than 50 years old must correspond to the conditions of a modern world. This can happen via a constitutional amendment by the judges of the constitutional courts. These kinds of decisions always have a political impact, as they are made taking into account current, and thus, also political, circumstances. However, this does not make them political decisions in themselves. They can be seen as a further development of the constitution. Ever since both courts have existed, their tasks have become more and more clear over the years. The BVerfG has prescribed itself political rest- 6. Comparison and contrast of the two courts 142 raint by using the term “judicial self-restraint”. Cases can be rejected by the BVerfG if they are too politically charged. The S.C., on the other hand, has never made a statement like this directly, but has never justified its decisions politically. When exactly is a case too political not to be decided upon by a constitutional court? Most cases relate to constitutional complaints made by the people. Although it cannot be denied that some individuals follow a political agenda with their case, one should always assume that it is justified. The conflict over Nehru's social policy was mainly based on complaints from private individuals. As a result, the S.C. played a major role in making its policies more difficult to implement. The decisions of the S.C., however, cannot necessarily be considered political. The judges prevented an enormous distribution of wealth even for the benefit of the poorer classes, and thus, they made their decision on the basis of right. Their decisions were based not only on their own experience and thoughts, but also on decisions from other jurisdictions. In this way, the term "compensation" was defined more specifically, and a legal definition was also created for the future. The S.C. only did what it was created for. This is not the case when it comes to organ disputes. Here, the different organs of a state argue with each other. This can be oppostiion against the government or a federal state against the central government. The courts run the risk of annulling or confirming the political decisions and related laws and thus, damaging the political agenda of the other party. For Germany, one of the clearest examples is the basic treaty. Here, the Bavarian government had actively tried to torpedo the political agenda of the Willy Brandt government and to make its political opening towards the East more difficult. The BVerfG would have been almost wiped out in this conflict had it not remembered the judicial self-restraint at the last minute. In the end, both sides emerged victorious, even if the BVerfG was weak. Here, too, the BVerfG decided on the basis of the GG, even if one could regard it as controversial today. Both examples, Nehru's social policy and the basic treaty, can be regarded as highly politicised from certain points of view. It is therefore almost impossible to define when a case is too political to be decided upon by a court. The political role and task of both courts must therefore be defined differently. In their political role, they are not an opponent of the established political bodies but a mediator between the parts of a framework of a state, i.e. its constitution, its organs defined by the constitution and its people. 6.5. Political role 143 Without them, a stable basic democratic order would be impossible. By their decisions, the courts confine politics in its place whenever it threatens the rights of citizens. Even though the S.C. decisions on land reforms can be viewed negatively, they have, nevertheless, helped to show the legislature its limits. The same applies to the decision of the BVerfG in the case of German television. Although the rights of individuals were not affected here, the state was interfering in the affairs of the federal states, which was unacceptable. The BVerfG intervened and showed the federal government its limits. The S.C. was still subject to the stigma of emergency and the associated habeas corpus cases. An example like this shows what can happen if the courts no longer carry out their task as protectors effectively. Unlike the BVerfG, the S.C. had to defend the basis of a democratic India very often and vehemently. The constant attempts of the central government to supplement the constitution and enact laws and then bring them outside the reach of the S.C. forced the S.C. to take a drastic step. With Kesavananda, the S.C. defined the basic structure of the Indian constitution, thereby preventing an uncontrolled change in the constitution. The basic structure doctrine can be seen as the point in the history at which Indian democracy was saved. In Germany, there was never a case like this. The basic democratic order was not really endangered in any of the cases. Although in the case of the Grundlagenvertrag, one could speak of an impending constitutional crisis, it was questionable whether this could actually have happened. Starting with the introduction of the PIL after emergency, however, the S.C. has increasingly developed into a substitute legislator. While the BVerfG tries to restrain itself politically, the S.C. is partly forced to become active in cases where the parliament should act. This is shown, for example, by the PIL cases on environmental pollution and the rulings issued by the S.C.. It should be noted that both courts are not active political players who want to impose their own political agenda. However, both are indispensable for a democratic system and the functioning of politics in it. Both courts have shaped their countries in their own way and influenced the countries’ policies within the framework of history. First and foremost, however, they do what they were created for: They protect the constitution of their countries and they do this, so far, very effectively. 144 7. Conclusion The Indian S.C. and the German BVerfG are so similar and yet so different. They both look back on an almost equally long existence. Both are powerful, however, differ in the forms of power. 7.1. Power of the courts Both courts have an imense number of procedural possibilities in which to decide. But does it really give them power as Lukes describes it? Lukes’ approach presupposes that there is a conflict in which A prevails over B. But can a decision maker whose basis for its decisions is the constitution stand in conflict with an opponent? In this case, the court would have to pursue its own agenda and enforce it against the government. This is where the first challenge in applying Lukes’ approach to our courts arise. Neither one of the two courts can become active itself in its function as constitutional court and pursue its own agenda. The BVerfG has done this once in its history, shortly after its constitution. The Statusdenkschrift was drafted by the BVerfG to show the Adenauer government that it was on the same level as the other constitutional bodies. Lukes’ one-dimensional view can indeed be applied to this event. Here a conflict arose between A, the BVerfG, and B, the Adenauer government. The conflict itself lasted only a short time, but had a very lasting result, i.e. the BVerfG was able to assert and consolidate its position among the constitutional organs until today. In all other cases, there was no conflict. The implied constitutional crisis over the Grundlagenvertrag as the BVerfG by itself realized that a conflict could destroy the court‘s credibility. The Grundlagenvertrag must rather be seen as a conflict between the conservative Bavarian state government and the social-liberal federal government under Willy Brandt. The BVerfG was given the uncomfortable role of having to act as an arbitrator. This situation was aggravated by the fact that the conservative judges were not averse to the arguments of the Bavarian state government. The judges of the BVerfG were and are restricted by the constitution in forming their own agenda. While they can 7.1. Power of the courts 145 and do interpret the constitution, their room for interpretation is not infinite. At the end of this dispute, the BVerfG got away with a black eye and even the federal government could not see itself as the big winner. Since its inception, there have been more conflicts between the S.C. and the parliament than between the BVerfG and the Bundestag. Unlike the BVerfG, however, the S.C. did not have to assert its position among the constitutional bodies, but was what the BVerfG itself believed it should become from its beginning onwards. Here, the S.C. probably benefited from the situation that it was the successor to the Federal Court and, thus, already had a certain position among the organs. The S.C. was often involved in cases in which it directly showed the parliament and the government their limits. However, by allowing amendments, the government was, in most cases, able to reboot the S.C.. The development of the basic structure doctrine may be one of the first cases in which the S.C. was able to gain the upper hand over the parliament. Here, the S.C. set the agenda from scratch by defining a constitutional structure that lay within his room for interpretation. But can one really speak of power in the sense of Lukes? The development of the basic structure doctrine, marked a turning point in Indian constitutional history, but even then, the S.C. did not exercise true power over the parliament. Parts of the verdict in this case, however, proved the government right and did not prevent it from continuing to be able to enact amendments. The PIL can be seen as a game changer as well. The PIL has enabled the population to easily activate the S.C. and, in many cases, force the S.C. to become active. The biggest challenge in applying Lukes’ approach to our study is that, according to him, one actor can exercise power over another by setting the agenda or preventing a discussion about it (two-dimensional). However, constitutional courts can only become active by being activated by others. Even if the judges have a divergent view on an ongoing political or social debate, they cannot become active without outside activation, at least not in their function as constitutional judges, because this would disqualify them in their legal function. At least, the PIL gives the S.C. a greater chance to participate in the agenda formation – again only if it is activated. Since the PIL was established, this instrument has been used extensively by the Indian population, which means that the S.C. can participate very strongly in India’s legislation. The question is, of course, whether this is the way it should be. The 7. Conclusion 146 S.C. could very often set the agenda through PIL cases and ask the parliament to become active and, thus, also contribute in eliminating grievances. Via the PIL, the S.C. can exercise power over the parliament, at least when examined in the one-dimensional view. But one must still ask the question whether the S.C. really exercises power here or if it is not the people exercing power via the S.C.. We have to look at the BVerfG and the S.C. from a different point of view. Both are supreme constitutional organs and yet only instruments in a state. Functioning democratic states give the population the powerful instrument of elections to determine the political agenda and to steer a positive outcome for them. But how can this be ensured between election terms? This is where the constitutional courts come in. They give the population the opportunity to demand their constitutional rights if the government and parliament violate them. This often allows them to interfere with legislation. The political opposition can also use the constitutional courts to pursue its own political goals, if it activates the court to ‘undo’ unpleasant legislation. The same applies, of course, to disputes between states or with the federal government. This makes constitutional courts powerful factors in a democratic state, but also an instrument for the exercise of power by others. To a certain extent, their power is based on acceptance by the population. If this acceptance sinks and the people renounce to appeal to the court, the number of procedures would decline and thereby also the exercise of power by the court. Furthermore, the government, at least in unstable states, would no longer feel obliged to follow by the court's decision. Thus, despite their immense importance for democratic states, constitutional courts must be regarded as an instrument of power of others. This also raises the question of whether the courts really make use of judicial activism. 7.2. Judicial activism Both in India and in Germany, there is repeated talk of a judicialization of politics. As already described, judicial activism can be associated with judicial review. When we talk about the power of courts, judicial review must always be kept in mind. Judicial review is the greatest instrument of power for both our courts. With regard to the S.C., one could argue that the PIL is the greatest in- 7.2. Judicial activism 147 strument of power, but even in a PIL case, the S.C. also uses its possibility of judicial review to decide cases. The question, of course, is whether this instrument is being overused. As described above, both courts can be regarded as instruments of the population and the political opposition. They use the courts, on the one hand, to enforce their rights, but also often to change a policy that has already been implemented. If one takes the number of cases filed since both courts have been founded (BVerfG: 232.089 (BVerfG 2018c); S.C.: currently 54.013 cases pending (Supreme Court of India (2018c)), this instrument has been used extensively. If the number of lawsuits filed is compared to the number of legislative initiatives and passed laws – e.g. in Germany (the German Bundestag (2018a) has passed 3.756 laws since 1990), the number of proceedings far exceeds the number of passed laws. However, the successful lawsuits must be taken into account here. Only 5.088 (BVerfG 2018c) constitutional lawsuits have been successful since the BVerfG’s existence. Nevertheless, this gives the population and the opposition the opportunity to intervene in a, in their opinion, correcting and legislative way. But does this lead to the judicialization of politics? The legislative bodies have to keep their legislative proposals within the framework of the constitution. Of course, they should also pursue the political agenda for which they were elected. But whenever it becomes clear that this agenda is not in line with the constitution, one of the constitutional courts must intervene. If the courts comply with their intended task, then this cannot be regarded as judicial activism. Other political bodies will always see this differently, of course. It becomes dangerous, however, if the courts are called upon too often and the hurdles for appealing to the court are set too low, which results in an inflationary use of the mechanisms. Of course, in functioning democratic states it must be easy to be able to take a case to court. Access to justice is one of the most important mechanisms in a state. In Germany, the public is required to follow the official legal process. Before the BVerfG is invoked, citizens must apply to the ordinary courts first, and only after this route is exhausted should a constitutional complaint should be considered. Over the years, the BVerfG has rejected constitutional complaints, of course also in order to reduce its workload. 7. Conclusion 148 With the PIL, the S.C. has chosen an exactly opposite direction. It even lowered the hurdles for a lawsuit and, thus, decided upon in cases in which it might never have become active under other circumstances. If one compares the two courts, one can state that the S.C. is the more active court and, especially through the instrument of PIL, strongly intervenes in the Indian legislation. If one looks at the cases (critical junctures), it becomes clear that there were decisions that gradually made the courts develop in a certain direction and, thus, become what they are today. While the BVerfG understood, through the Grundlagenvertrag, that too much interference would have a negative effect on its reputation, the S.C. had to recognize, through its poor interference during the emergency, that it had to get more involved again to restore its reputation. But this can be seen as dangerous for the Indian democracy, too. Since the introduction of the PIL, the number of cases has steadily increased and the court has been forced to decide more and more in various matters. In fact, these decisions should have been made by the parliament. Labour law and environmental law should be dealt with by the parliament, and any maladministration should be eliminated by the parliament. However, more and more often, the S.C. was entrusted with this, which led to a postponement of its actual tasks. Courts like the S.C. have a control function, but not the function of eliminating general abuses. As soon as the court acts as the first legislator, it puts the parliament, and also the opposition, into a position often regarded as very pleasant for them. Difficult decisions no longer have to be made by politicians and can, therefore, no lomger be blamed on them (Schlaich/Korioth 2015: 381-382). This can lead to the legislator withdrawing further and further and leaving this field to the court (Schlaich/Korioth 2015: 381–382). For the opposition, it is positive if their plans to enforce a court decision turn out to be negative and can then be passed on to the court (Schlaich/Korioth 2015: 382). Therefore, excessive activity by the court should be avoided. However, the S.C. maneuvred itself into this situation mainly through the PIL and, thus, exerts judicial activism. Despite these arguments, it cannot be said in either case that judicial activism is the actualagenda and that a judicialization of politics takes place. Both courts only decide upon cases when activated from outside. Yet, it can be stated that this activation occurs more and more often. 7.3. Purpose of the courts 149 7.3. Purpose of the courts The idea behind both courts was to create a protector of the constitution, a supreme authority that acts as a mediator in disputes between organs and institutions and whose basis for mediation is the constitution. In order to be able to carry out this task, both courts need to be absolutely neutral. Through their function as arbitrators and guardians of the constitution, they contribute to the stabilization of their respective states and exert power “to make or unmake the Constitution” (Baxi 1980: 12). One could assume that a functioning democratic state would be less dependent on a strong constitutional judiciary than a dysfunctional or weak one. But it is precisely because they have a functioning constitutional judiciary that democratic states can be regarded as successful. Literature speaks of the S.C. as having defended the Indian democracy by developing the basic structure doctrine. If one considers the amount of amendments the parliament has passed to further undermine the constitution, one can understand this argumentation. What is the value of a constitution if it is changed like a simple law again and again in favour of the current politics? The plurality of the party system and the necessary twothirds-majority for a constitutional amendment has prevented a situation like this in Germany so far. In India, however, it was possible due to the one-party-dominance of the Congress party over many years. This has put the S.C. in a special position compared to the BVerfG. The S.C. had to exercise its protective function much more strongly than the BVerfG. Of course, the BVerfG also made many important decisions to protect the rights guaranteed in the constitution, but it never had to defend the basic structure in this drastic way. Constitutional courts also have a much more important task. They protect minorities and their constitutional rights against the political interests of majorities (Schlaich/Korioth 2015: 370). This happened, for example, during the period of land reforms in India. One can argue about whether the zamindars really needed protection. Nevertheless, they formed a minority of their constitutionally guaranteed rights. The problem is that decisions by constitutional courts are equivalent to enacted laws. As a result, the courts are involved into the policy area. Their decisions often close a door to political decisions and the laws accompanying them. The Indian parliament bypassed this circumstance by 7. Conclusion 150 constantly making changes to the constitution in order to keep the door open. Constitutional courts must, therefore, prevent the politicisation of their decisions and, as already stated above, maintain absolute neutrality. Only then can it be guaranteed that their decisions will continue to enjoy a high level of acceptance. The process of electing judges, in particular, can have an enormous influence on this. Both in India and in Germany, this issue was discussed extensively before the creation of both courts. In contrast to the U.S., the two countries may have chosen the better approach for a democracy. In both cases, the terms of office of the judges are limited, especially in India due to very early retirement at age 65. While in Germany, the selection of judges is done by political bodies, in India the judiciary itself is the deciding body. What they have in common is that only professional judges are elected to this highest office, which already guarantees a certain neutrality. The German system is said to have a deficit here, since the decisions are made by parties which, of course, hope for a certain political character among the judges proposed by them and then also elected. However, this hope has generally not been fulfilled. In the U.S., judges are elected for life. Often, U.S. presidents can steer the political orientation of the U.S. Supreme Court over decades by their suggestions of judges and the parliament by electing them and thus hope for decisions in their political favour. The neutrality, as attempted by a limitation of the period of service as in Germany and India, however, does not only have a political dimension. It is also important in order to maintain a functioning system of checks and balances. Only if the judges are independent of party politics, they can fulfill this task. Germany wants to achieve this by prohibiting the reelection of judges, while in India, the retired judges are not allowed to act as lawyers or judges any longer. All decisions, including those of the critical junctures, show that this system has worked so far. Its maintenance is crucial for the continuing existence of the courts and the entire system of both states. Both courts must continue to act as arbitrators whenever the rights of minorities or the basic structure of the constitution are threatened. It is both problematic and positive that they can only do so upon request. A detached judiciary could, in the long run, become a danger to the system of checks and balances, while too little use would, again, lead to the same result. Therefore, both courts must maintain a high level of acceptance 7.4. Suggestions for further research 151 among the population, especially through a high level of neutrality. Therefore, the concept of judicial self restraint-should always be kept in mind. The lack of a functioning constitutional judiciary would permanently damage both states. 7.4. Suggestions for further research Our work does not have the aim of toching upon all questions in the relationship between constitutional jurisdiction and politics. Rather, it is intended to contribute to further opening the field, especially in Germany. During the analysis of the two courts and the cases, further questions arose which should be clarified more intensively in further studies. These questions/theses will be outlined here with the hope that they will be taken up in future work. One example is the question to what extent the fear of a constitutional court influences the political agenda of the current majorities. Does the fear of a negative decision lead to the fact that the policy is already developed close to existing legal norms and thereby new ideas are perhaps obstructed? Furthermore, the question arises how the decisions of the courts influence the actual process of decision formation in the parliaments. The BVerfG, for example, allows the course of the legislative process to influence its decisions time and again and holds itself back in a demonstrably extensive and fair process, while it often passes a judgement that is negative for the government when the legislative process is opaque (Schlaich/Korioth 2015: 377–378). Does this lead to a lengthy legislative process, or does it prevent a strong debate about the content? A new survey among the population concerning the popularity of and trust in the courts would be fruitful. Many new cases and decisions have emerged since the last studies were conducted, e.g. decisions on the financial rescue of individual EU states in Germany. After many years, do both courts still enjoy such a high reputation and if yes or no, what is the reason for this constant or changing? Especially in Germany, political science should be more concerned with constitutional jurisdiction and its significance. Even if the idea that politics and law are independent from one another is prevalent, one must be aware that the one cannot exist without the other and, thus, also has a 7. Conclusion 152 significance in political science. In the Anglo-Saxon academic context insight into these interrelationships has already been provided. This work should be seen as one step into this direction. 153 8. Bibliography 1950 AIR 124, 1950 S.C.R 594 https://indiankanoon.org/doc/456839/; accessed 03/31/2018. 1975 AIR 2299 https://indiankanoon.org/doc/936707/; accessed 03/10/2018. 1975 AIR 2092, 1976 S.C.R (1) 306 https://indiankanoon.org/doc/1553344/; accessed 03/27/2018. Andersen, Uwe/Woyke, Wichard (2003). „Bundesverfassungsgericht“. Bundeszentrale für politische Bildung. http://www.bpb.de/nachschlagen/lexika/handwoerterbuchpolitisches-system/40254/bundesverfassungsgericht?p=all; accessed 02/12/2013. Annual Report of the Supreme Court of India 2016–17. http://supremecourtofindia.nic.in/pdf/AnnualReports/Annual%20Report%202016- 17.pdf; accessed 03/30/2018. Bassler, Yannick (2012). “Die versunkene ‘Insel der Demokratie’. Eine historischinstitutionalistische Analyse des politischen Systems Kirgistans“. In: Münchner Beiträge zur Politikwissenschaft, herausgegeben vom Geschwister-Scholl-Institut für Politikwissenschaft der Ludwig-Maximilians-Universität München. http://epub.ub.uni-muenchen.de/12778/1/BAA_Bassler.pdf; accessed 10/28/2013. Baxi, Upendra (1980). The Indian Supreme Court and Politics. Lucknow: Eastern Book Company. Bell, Stephen (2011). “Do we really need a new ‘constructivist institutionalism’ to explain institutional change?” British Journal of Political Science, vol. 41, issue 4, pp. 883–906. Bell, Stephen (2012). “Where Are the Institutions? The Limits of Vivien Schmidt's Constructivism”. British Journal of Political Science, vol. 42, issue 3, pp. 714–719. Betz, Joachim (2007). “Politisches System”. Bundeszentrale für politische Bildung. http://www.bpb.de/izpb/9306/politisches-system?p=all; accessed 02/12/2013. Blasberg, Georg (2003). Verfassungsgerichte als Ersatzgesetzgeber. Bern: Peter Lang. Boulanger, Christian (2015). “Vergleichende Verfassungsgerichtsforschung”. In: van Ooyen, Robert Chr./Wöllers, Martin H.W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 911–926. Böcher, Michael (2012). “A theoretical framework for explaining the choice of instruments in environmental policy”. Policy and Economics, vol. 16, pp. 14–22. Britannica Academic (2018a). https://academic-eb-com.ubproxy.ub.uniheidelberg.de/levels/collegiate/article/Cornwallis-Code/26365 accessed 07/12/2018. Britannica Academic (2018b). https://academic-eb-com.ubproxy.ub.uniheidelberg.de/levels/collegiate/article/zamindar/78226 accessed 07/21/2018. 8. Bibliography 154 Burgess, Susan R. (1993). “Beyond Instrumental Politics. The New Institutionalism, Legal Rhetoric & Judicial Supremacy”. Polity, vol. 25, no. 3, pp. 445–459. Bundestag (2018a). “Wahl der Richter des Bundesverfassungsgerichts”. https://www.bundestag.de/blob/493592/bafe230e7b592f30de4761f1dcc3df5d/wd-3- 258-16-pdf-data.pdf; accessed 01/30/2018. BVerfG (2013a). “The Task“. http://www.bundesverfassungsgericht.de/en/organization/task.html; accessed 02/12/2013. BVerfG (2013b). “Constitutional Complaint“. http://www.bundesverfassungsgericht.de/en/organization/verfassungsbeschwerde.ht ml; accessed 02/12/2013. BVerfG (2013c). “Organization“. http://www.bundesverfassungsgericht.de/en/organization/organization.html; accessed 02/12/2013. BVerfG (2013d). “The Building”. http://www.bundesverfassungsgericht.de/en/organization/building.html; accessed 02/12/2013. BVerfG (2018a). “Concrete Judicial Review”. http://www.bundesverfassungsgericht.de/DE/Verfahren/Wichtige- Verfahrensarten/Konkrete-Normenkontrolle/konkrete-normenkontrolle_node.html; accessed 01/18/2018. BVerfG (2018b). “Abstract Judicial Review”. http://www.bundesverfassungsgericht.de/DE/Verfahren/Wichtige- Verfahrensarten/Abstrakte-Normenkontrolle/abstrakte-normenkontrolle_node.html; accessed 01/18/2018. BVerfG (2018c). “Verfahren seit 7. September 1951 bis 31. Dezember 2016“. http://www.bundesverfassungsgericht.de/DE/Verfahren/Jahresstatistiken/2016/gb20 16/A-I-1.pdf?__blob=publicationFile&v=2; accessed 01/23/2018. BVerfG (2018d). “Verfahrenserledigungen von Verfassungsbeschwerden (einschließlich mitentschiedene Verfahren) der letzten fünf Geschäftsjahre“. http://www.bundesverfassungsgericht.de/DE/Verfahren/Jahresstatistiken/2016/gb20 16/A-IV-1.pdf?__blob=publicationFile&v=2; accessed 01/27/2018. BVerfG (2018e). “Parteiverbotsverfahren”. http://www.bundesverfassungsgericht.de/DE/Verfahren/Wichtige- Verfahrensarten/Parteiverbotsverfahren/parteiverbotsverfahren_node.html; accessed 01/28/2018. BVerfG (2018f). “Organstreitverfahren”. http://www.bundesverfassungsgericht.de/DE/Verfahren/Wichtige- Verfahrensarten/Organstreitverfahren/organstreitverfahren_node.html; accessed 01/28/2018. BVerfG (2018g). „Bund-Länder-Streit“. http://www.bundesverfassungsgericht.de/DE/Verfahren/Wichtige- 155 Verfahrensarten/Bund-Laender-Streit/bund-laender-streit_node.html; accessed 01/28/2018. BVerfG (2018h). “Wahlprüfungsbeschwerde”. http://www.bundesverfassungsgericht.de/DE/Verfahren/Wichtige- Verfahrensarten/Wahlpruefungsbeschwerde/wahlpruefungsbeschwerde_node.html accessed 01/28/2018. BVerfG (2018i). „Wirkung der Entscheidung“. http://www.bundesverfassungsgericht.de/DE/Verfahren/Wichtige- Verfahrensarten/Wirkung-der-Entscheidung/wirkung-der-entscheidung_node.html; accessed 01/30/2018. BVerfG, Beschluss vom 29. Mai 1973 – 2 BvQ 1/73 –, BVerfGE 35, 171–177. BVerfG, Beschluss vom 04. Juni 1973 – 2 BvQ 1/73 –, BVerfGE 35, 193–202. BVerfG, Beschluss vom 07. Juli 1975 – 1 BvR 274/72 –, BVerfGE 40, 141–179. BVerfG, Beschluss vom 18. Mai 1982 – 1 BvR 602/78. BVerfG, Urteil des Zweiten Senats vom 09. Dezember 2008 - 2 BvL 1/07 - Rn. (1– 91). BVerfG, Urteil des Zweiten Senats vom 17. Januar 2017 - 2 BvB 1/13 - Rn. (1-1010). BVerfG, Urteil vom 28. Februar 1961 – 2 BvG 1/60 –, BVerfGE 12, 205–264. BVerfG, Urteil vom 18. Juni 1973 – 2 BvQ 1/73 –, BVerfGE 35, 257–263. BVerfG, Urteil vom 31. Juli 1973 – 2 BvF 1/73 –, BVerfGE 36, 1–37. BVerfG, Urteil vom 27. Mai 1992 – 2 BvF 1/88 –, BVerfGE 86, 148–279. Capoccia, Giovanni/Kelemen, R. Daniel Kelemen (2007). “The Study of Critical Junctures: Theory, Narrative, and Counterfactuals in Historical Institutionalism”. World Politics, vol. 59, no. 3, pp. 341–369. Chandhoke, Neera (2005). “'Seeing' the State in India”. Economic and Political Weekly, vol. 40, no. 11, pp. 1033–1039. Chaudhary, Pawan (2004). “Indian Judicial System: Its Nature & Structure and Distinction between Law and Justice“. In: Verma, S.P. (ed.). Indian Judicial System. Need and Directions of Reforms. Delhi: Kanishka Publishers Distributors, pp. 23– 37. Chopra, Pran (ed.) (2006). The Supreme Court versus the Constitution. A Challenge to Federalism. New Delhi: Sage. Chopra, Pran (2004). “The Constitution and Supreme Court”. Economic and Political Weekly, vol. 39, no. 30, pp. 3355–3359. Clayton, Cornell/May, David A. (1999). “A Political Regimes Approach to the Analysis of Legal Decisions” Polity, vol. 32, no. 2, pp. 233–252. Comparato, Scott A./McClurg, Scott D. (2007). “A Neo-Institutional Explanation of State Supreme Court Responses in Search and Seizure Cases”. American Politics Research, vol. 35, no. 5, pp. 726–754. 8. Bibliography 156 Conrad, Dieter (1995). “Rechtssystem und Verfassung“. In: Rothermund, Dietmar (ed.). Indien. Kultur, Geschichte, Politik, Wirtschaft, Umwelt. Ein Handbuch. München: C.H. Beck, pp. 409–426. Constitution of India. https://www.india.gov.in/my-government/constitutionindia/constitution-india-full-text; accessed 03/04/2015. Constituent Assembly Debates on 24 May, 1949 Part Ii. https://indiankanoon.org/doc/798115/; accessed 03/30/2018. Dahl, Robert (1957). “Decision-Making in a Democracy. The Supreme Court as a National Policy-Maker”. In: Journal of Public Law 6, pp. 279–295. Deutscher Bundestag (2018a). https://www.bundestag.de/blob/196202/ee30d500ea94ebf8146d0ed7b12a8972/kapi tel_10_01_statistik_zur_gesetzgebung-data.pdf; accessed 10/09/2018 Dhavan, R. (2007). “Governance by Judiciary. Into the Next Millenium [sic]”. In: Dua, B.D., Sing, M.P., Saxena, R. Saxena (eds.). Indian Judiciary and Politics. The Changing Landscape. New Delhi: Manohar, pp. 73–105. Dohrmann, Jona/Fischer, Alexander (2001). Public Interest Litigation in Indien. Hamburg: GIGA German Institute of Global and Area Studies, Institut für Asien- Studien. https://crossasia-journals.ub.uni-heidelberg.de/index.php/ijb/article/view /1251; accessed 03/04/2015. Dua, B.D./Sing, M.P./Saxena, R. Saxena (eds.) (2007). Indian Judiciary and Politics. The Changing Landscape. New Delhi: Manohar. Dua, B.D. 2007. “Introduction”. In: Dua, B.D./Singh, M.P./Saxena, R. (eds.). Indian Judiciary and Politics. The Changing Landscape. New Delhi: Manohar, pp. 15–40. Dua, B.D. 2007. “India: A Study in Executive-Judicial Relations Revisited”. In: Dua, B.D./Singh, M.P./Saxena, R. (eds.). Indian Judiciary and Politics. The Changing Landscape. New Delhi: Manohar, pp. 357–414. Dwarkadas Shrinivas Of Bombay vs. The Sholapur Spinning & Weaving 1954 SCR 674. https://www.sci.gov.in/jonew/judis/980.pdf; accessed 07/22/2018. Ernst, Daniel R. (1998). „Law and American Political Development, 1877–1938”. Reviews in American History, vol. 26, no. 1, pp. 205–219. Ethington, Philip/McDonagh, Eileen (1995). The Eclectic Center of the New Institutionalism. Axes of Analysis in Comparative Perspective. Social Science History, vol. 19, no. 4, pp. 467–477. Federalist Papers No. 78. http://avalon.law.yale.edu/18th_century/fed78.asp; accessed 03/22/2018. Fischbach, Sven (2011). Die verfassungsgerichtliche Kontrolle der Bundesregierung bei der Ausübung der Auswärtigen Gewalt. Möglichkeiten einer funktionellrechtlichen Kontrollreduktion. Baden-Baden: Nomos. Gadbois, George Harald (2017). Supreme Court of India. The Beginnings. New Delhi: Oxford University Press. 157 Garoupa, Nuno (2016): “Comparing Judicial Activism - Can we Say that the US Supreme Court is more Activist than the German Constitutional Court?”. In: Revista Portuguesa de Filosofia, T. 72, Fasc. 4, Política e Filosofia I: A Democraciaem Questão / Politics and Philosophy I: Democracy in Question, pp. 1089–1105. Gawron, Thomas/Rogowski, Ralf (2015). “Die Wirkung des Bundesverfassungsgerichts”. In: van Ooyen, Robert Chr./Wöllers, Martin H.W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 153–168. Gesetz über das Bundesverfassungsgericht (Bundesverfassungsgerichtsgesetz – BVerfGG). https://www.gesetze-im-internet.de/bverfgg/; accessed 10/11/2016. Ginsburg, Tom/Dixon, Rosalind (eds.) (2011). Comparative Constitutional law. Cheltenham: Edward Elgar Publishing. Goswami, Suparna (2017) “Study Finds India Is Asia's Most Corrupt Country, While Japan Comes In Last“. https://www.forbes.com/sites/suparnagoswami/2017/03/08/study-finds-india-isasias-most-corrupt-country-while-japan-comes-in-last/#7db260be1201; accessed 08/08/2018. Grau, Andreas/Haunhorst, Regina/Würz, Markus (2016). Nachkriegsjahre, in: Lebendiges Museum Online, Stiftung Haus der Geschichte der Bundesrepublik Deutschland, „1949–55. Parlamentarische Demokratie: Bundesverfassungsgericht.“ http://www.hdg.de/lemo/html/DasGeteilteDeutschland/JahreDesAufbausInOstUnd West/ParlamentarischeDemokratie/bundesverfassungsgericht.html; accessed 02/12/ 2013. Grigoleit, Klaus Joachim (2015). “Bundesverfassungsgericht und die sozialliberale Koalition unter Willy Brandt”. In: van Ooyen, Robert Chr./Wöllers, Martin H.W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 231–243. Grundgesetz für die Bundesrepublik Deutschland (GG). https://www.gesetze-iminternet.de/gg/BJNR000010949.html; accessed 02/26/2015. Gusy, Christoph (2015). “Die Verfassungsbeschwerde”. In: van Ooyen, Robert Chr., Wöllers, Martin H.W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 333–348. Hall, Peter A. (2010). “Historical Institutionalism in Rationalist and Sociological Perspective“. In: Mahoney, James/Thelen, Kathleen (eds.). Explaining Institutional Change. Ambiguity, Agency and Power. Cambridge: Cambridge University Press, pp. 204–223. Henne, Thomas (2015). “‘Smend oder Hennis‘ Bedeutung, Rezeption und Problematik der ,Lüth-Entscheidung‘ des Bundesverfassungsgerichts von 1958”. In: van Ooyen, Robert Chr./Wöllers, Martin H. W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 875–887. Hira, Anil/Hira, Ron (2003). „The New Institutionalism.Contradictory Notions of Change“. In: The American Journal of Economics and Sociology, vol. 59, issue 2, pp. 267–282. 8. Bibliography 158 Höreth, Marcus (2015). “Wenn Richter mitregieren wollen: Selbstautorisierung beim BVerfG und dem EuGH im Vergleich”. In: van Ooyen, Robert Chr./Wöllers, Martin H.W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 231–243. I.C. Golaknath & Ors vs. State Of Punjab & Anrs. (With Connected Petitions) 1967 SCR (2) 762 https://www.sci.gov.in/jonew/judis/2449.pdf; accessed 07/23/2018. Indira Nehru Gandhi vs. Raj Narain. https://indiankanoon.org/doc/936707/; accessed 03/10/2018. Jansen, Dorothea (2000). Der neue Institutionalismus. Antrittsvorlesung an der Deutschen Hochschule für Verwaltungswissenschaften Speyer. 27. Juni 2000. http://www.dhv-speyer.de/jansen/download/SpeyererVortr%C3% A4geInstitutionalismus.pdf; accessed 10/28/2013. Jarass, Hans D./Pieroth, Bodo (2007). Grundgesetz für die Bundesrepublik Deutschland Kommentar. München: C.H. Beck. Jäger, York (1987). “Entscheidungsverhalten und Hintergrundfaktoren der Bundesverfassungsrichter.“ In: Zeitschrift für Rechtspolitik, vol. 20., no. 10, pp. 360–363. Jestaedt, Matthias/Lepsius, Oliver/Möllers, Christoph/Schöneberger, Christoph (2011). Das entgrenzte Gericht. Eine kritische Bilanz nach sechzig Jahren Bundesverfassungsgericht. Berlin: Suhrkamp. Karimbil Kunhikoman vs. State Of Kerala. 1962 SCR Supl. (1) 829 https://www.sci.gov.in/jonew/judis/4051.pdf; accessed 07/22/2018 Kato, Junko. (1996). “Institutions and Rationality in Politics - Three Varieties of Neo- Institutionalists”. British Journal of Political Science, vol. 26, no. 4, pp. 553–582. Kaufmann, Sabine/Ziegler, Wiebke (2013). “Geschichte des Bundesverfassungsgerichts“. Planet Wissen. http://www.planet-wissen.de/politik_geschichte/ menschenrechte/verfassung_in_deutschland/geschichte_des_bvg.jsp; accessed 12/02/2013. Kesavananda Sripadagalvaru and Ors vs. State Of Kerala And Anr Writ Petition (civil) 135 of 1970 https://www.sci.gov.in/jonew/judis/29981.pdf; accessed 04/08/2018. Khosla, Sunil (2008). Judicial Activism in India. Problems and Prospects. Chandigarh: Arun Publishing House Pvt. Ltd. Kneip, Sascha (2009). Verfassungsgerichte als demokratische Akteure. Der Beitrag des Bundesverfassungsgerichts zur Qualität der bundesdeutschen Demokratie. Recht und Politik. Baden-Baden: Nomos. Koch, Sascha/Schemmann, Michael (eds.). 2009. Neo-Institutionalismus in der Erziehungswissenschaft. Grundlegende Texte und empirische Studien. Wiesbaden: VS. Kranenpohl, Uwe (2010). Hinter dem Schleier des Beratungsgeheimnisses. Der Willensbildungs- und Entscheidungsprozess des Bundesverfassungsgerichts. Wiesbaden: VS. 159 Kranenpohl, Uwe (2015). “Interne Einflussfaktoren auf Entscheidungen des Bundesverfassungsgerichts”. In: van Ooyen, Robert Chr./Wöllers, Martin H.W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 431–442. Landfried, Christine (2015). “Die Wahl der Bundesverfassungsrichter und ihre Folgen für die Legitimität der Verfassungsgerichtsbarkeit”. In: van Ooyen, Robert Chr./Wöllers, Martin H.W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 369–388. Lecours, André (2000). “Theorizing Cultural Identities: Historical Institutionalism as a Challenge to the Culturalists”. Canadian Journal of Political Science, vol. 33, no. 3, pp. 499–522. Lembcke, Oliver W. (2013). “Autorität der Verfassungsgerichtsbarkeit – eine Skizze in vergleichender Absicht“. In: Wrase, Michael/Boulanger, Christian (eds.). Die Politik des Verfassungsrechts. Interdisziplinäre und vergleichende Perspektiven auf die Rolle und Funktion von Verfassungsgerichten. Baden-Baden: Nomos, pp. 37–65. Lembcke, Oliver W. (2015). “Das Bundesverfassungsgericht und die Regierung Adenauer”. In: van Ooyen, Robert Chr./Wöllers, Martin H.W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 231–243. Lepsius, Oliver (2015). “Entscheiden durch Maßstabsbildung”. In: van Ooyen, Robert Chr./Wöllers, Martin H.W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 119–135. Lhotta, Roland (2003). “Das Bundesverfassungsgericht als politischer Akteur: Plädoyer für eine neo-institutionalistische Ergänzung der Forschung”. Schweizerische Zeitschrift für Politikwissenschaft, vol. 9, no. 3, pp. 142–153. Lhotta, Roland (2006). “Der antiliberale Kern des neuen Institutionalismus in der Politikwissenschaft. Überlegungen zum aktuellen Erscheinungsbild der Disziplin.“ Zeitschrift für Politikwissenschaft, vol. 16, no. 1, pp. 7–28. Luhmann, Niklas (2011). Organisation und Entscheidung. Wiesbaden: VS. Lukes, Steven (2005). Power. A Radical View. Second Edition. Houndmills et al.: Palgrave Macmillan. Ma, Shu-Yun (2007). “Political Science at the Edge of Chaos? The Paradigmatic Implications of Historical Institutionalism”. International Political Science Review, vol.28, no. 1, pp. 57–78. Mahoney, James (2004). “Comparative-Historical Methodology”. Annual Review of Sociology, vol. 30, pp. 81–101. Mahoney, James/Thelen, Kathleen (eds.) (2010). Explaining Institutional Change. Ambiguity, Agency and Power. Cambridge: Cambridge University Press. Mahoney, James/Thelen, Kathleen (2010). “A Theory of Gradual Institutional Change”. In: Mahoney, James/Thelen, Kathleen (eds.). Explaining Institutional Change. Ambiguity, Agency and Power. Cambridge: Cambridge University Press, pp. 1–37. 8. Bibliography 160 Melville, Gert/Rehberg, Karl-Siegbert (eds.) (2012). Dimensionen institutioneller Macht. Fallstudien von der Antike bis zur Gegenwart. Köln/Weimar/Wien: Böhlau. Menon, N.R. Madhava (2006). “Basic Structure: After 30 Years”. In: Chopra, Pran (ed.). The Supreme Court versus the Constitution. A Challenge to Federalism. New Delhi: Sage, pp. 59–69. Menzel, Jörg/Müller-Terpitz, Ralf (eds.) (2011). Verfassungsrechtsprechung. Tübingen: Mohr Siebeck. Menzel, Jörg (2011). “Sechzig Jahre Verfassungsrechtsprechung. Einführende Überlegungen zur Verfassungsgerichtsbarkeit, zum Bundesverfassungsgericht und zur Bedeutung seiner Judikate”. In: Menzel, Jörg/Müller-Terpitz, Ralf (eds.). Verfassungsrechtsprechung. Tübingen: Mohr Siebeck, pp. 1–44. Mitra, Subrata K. (1999). “Effects of institutional arrangements on political stability in South Asia”. Annual Review of Political Science, vol. 2, pp. 405–428. Mitra, Subrata K. (2006). The Puzzle of India’s Governance: Culture, Context and Comparative Theory. London: Routledge. Mitra, Subrata K. (2017). Politics in India. Structure, Process and Policy. Oxon: Routledge. Mody, Zia (2013). 10 Judgements that changed India. London: Penguin Books Ltd. Mitra, Subrata K./Liebig, Michael (2016). Kautilya’s Arthashastra: An Intellectual Portrait. The Classical Roots of Modern Politics in India. Baden-Baden: Nomos. Niclauß, Karlheinz (2015). “Der Parlamentarische Rat und das Bundesverfassungsgericht”. In: van Ooyen, Robert Chr./Wöllers, Martin H. W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 192–204 North, Douglass (1990). Institutions, Institutional Change and Economic Performance. Cambridge: Cambridge University Press. Padhy, Sanghamitra (2004). A Review of Indian Supreme Court Judgements. Economic and Political Weekly, vol. 39, no. 46/47, pp. 5027–5032. Patzelt, Werner J. (2015). “Die Wirkung des Bundesverfassungsgerichts”. In: van Ooyen, Robert Chr./Wöllers, Martin H.W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 313–332 Perry, Barbara A. (2001). The Israeli and United States Supreme Courts: A Comparative Reflection on their Symbols, Images, and Functions. The Review of Politics, vol. 63, no. 2, pp. 317–339. Peters, Guy B./Pierre, Jon/King, Desmond S. (2005). “The Politics of Path Dependency: Political Conflict in Historical Institutionalism”. The Journal of Politics, vol. 67, no. 4, pp. 1275–1300. Quint, Peter E. (2006). Leading a Constitutional Court: Perspectives from the Federal Republic of Germany. University of Pennsylvania Law Review, vol. 154, no. 6, Symposium: The Chief Justice and the Institutional Judiciary, pp. 1853–1878. 161 Radaelli, Claudio M./Dente, Bruno/Dossi, Samuele (2012). “Recasting institutionalism: institutional analysis and public policy”. European Political Science, vol. 11, pp. 537–550. Rath, Christian (2013). Der Schiedsrichterstaat. Die Macht des Bundesverfassungsgerichts. Berlin: Klaus Wagenbach. Rogowski, Ralf (2013). “Constitutional courts as autopoetic organisations“. In: Wrase, Michael/Boulanger, Christian (eds.). Die Politik des Verfassungsrechts. Interdisziplinäre und vergleichende Perspektiven auf die Rolle und Funktion von Verfassungsgerichten. Baden-Baden: Nomos, pp. 123–136. Rothermund, Dietmar (ed.) (1995). Indien. Kultur, Geschichte, Politik, Wirtschaft, Umwelt. Ein Handbuch. München: C.H. Beck. Saghir Ahmad vs. The State of U.P. and Others 1955 SCR 707 https://www.sci.gov.in/jonew/judis/890.pdf accessed 07/22/2018. sam/ddp/dpa/Reuters. Spiegel 2018a. “Bundesverfassungsgericht: Millionen Berufstätige bekommen alte Pendlerpauschale zurück”. http://www.spiegel.de/wirtschaft/bundesverfassungsgericht-millionen-berufstaetigebekommen-alte-pendlerpauschale-zurueck-a-595285.html; accessed 01/29/2018. Sathe, S.P. (2002). Judicial Activism in India. Transgressing Borders and Enforcing Limits. New Delhi: Oxford University Press, 2002. Schlaich, Klaus/Korioth, Stefan (2015). Das Bundesverfassungsgericht. Stellung, Verfahren, Entscheidungen. München: C.H. Beck. Schmidt, Vivien A. (2010). “Taking ideas and discourse seriously: explaining change through discursive institutionalism as the fourth ‘new institutionalism’”. European Political Science Review, vol. 2, no. 1, pp. 1–25. Schmidt, Rainer/da Silva, Virgílio Afonso (eds.) (2012). Verfassung und Verfassungsgericht. Deutschland und Brasilien im Vergleich. Baden-Baden. Nomos. Schöttli, Jivanta (2009). Strategy and Vision in Politics. Jawaharlal Nehru‘s policy choices and the designing of political institutions. Dissertation. http://www.ub.uniheidelberg.de/archiv/9977; accessed 10/26/2017. Schulze, Holger (1997). “Neo-Institutionalismus. Ein analytisches Instrument zur Erklärung gesellschaftlicher Transformationsprozesse“. Osteuropa-Institut der Freien Universität Berlin. Arbeitspapiere des Bereichs Politik und Gesellschaft. Klaus Segbers (ed.). no 4/1997; http://www.oei.fu-berlin.de/politik/publikationen/AP04.pdf, accessed 10/28/2013. Senge, Konstanze (2011). Das Neue am Neo-InstitutionaIismus. Der Neo- Institutionalismus im Kontext der Organisationswissenschaft. Wiesbaden: VS. Sieckmann, Jan (2012). „Zum Verhältnis von Verfassung, Recht und Politik“. In: Schmidt, Rainer/ da Silva, Virgílio Afonso (eds.). Verfassung und Verfassungsgericht. Deutschland und Brasilien im Vergleich. Baden-Baden. Nomos, pp. 43–58. Singh, Mahendra Lal (2007). “Inconclusive Overview of Judicial Activism in India“. In: Dua, B.D./Singh, M.P./Saxena, R. (eds.). 2007. Indian Judiciary and Politics. The Changing Landscape. New Delhi: Manohar, pp. 121–139. 8. Bibliography 162 S.S. Rana & Co. Advocates http://www.ssrana.in/Intellectual%20Property/IP- Enforcement-And-Litigation/IP-Indian-Courts-Structure-in-India.aspx; accessed 08/28/2018. State of Bihar vs. Maharajadhiraja Sir Kameshwar Singh of Darbangha and Others 1952 1 SCR 889 https://indiankanoon.org/doc/49043/; accessed 07/21/2018 Sturm, Roland (2012). Das Bundesverfassungsgericht: Politik mit Richtern. Bundeszentrale für politische Bildung. http://www.bpb.de/politik/grundfragen/deutscheverhaeltnisse-eine-sozialkunde/138730/das-bundesverfassungsgericht-politik-mitrichtern; accessed 02/12/2013. S.P. Gupta vs. President Of India And Ors. 1982 2 SCR 365 https://indiankanoon.org/doc/1294854/; accessed 02/09/2018. Supreme Court Advocates-on-Record Association and another vs. Union of India Writ Petition (civil) 1303 of 1987 https://www.sci.gov.in/jonew/judis/29918.pdf; accessed 02/09/2018. Supreme Court of India (2017). Handbook on Practice and Procedure and Office Procedure. https://www.sci.gov.in/practice-and-procedure; accessed 09/04/2018. Supreme Court of India (2018a). http://supremecourtofindia.nic.in/jurisdiction; accessed 03/03/2018. Supreme Court of India (2018b) http://www.supremecourtofindia.nic.in/chief-justicejudges; accessed 05/13/2018. Supreme Court of India (2018c). http://www.supremecourtofindia.nic.in/statistics; accessed 05/13/2018. Supreme Court of India. Civil Appeal No. 2217 of 2018. https://www.sci.gov.in/supremecourt/2017/7075/7075_2017_Judgement_06-Mar- 2018.pdf, accessed 04/04/2018. Supreme Court of India vs. Civil Advisory Jurisdiction Special Reference Case 1 of 1998 https://www.sci.gov.in/jonew/judis/12948.pdf; accessed 02/09/2018. The State of West Bengal vs. Mrs. Bela Banerjee and Others 1954 SCR 558 https://indiankanoon.org/doc/1890860/; accessed 07/21/2018. The State of West Bengal vs. Subodh Gopal Bose and Others 1954 SCR 587 https://www.sci.gov.in/jonew/judis/984.pdf; accessed 07/22/2018. van Ooyen, Robert Chr./Wöllers, Martin H.W. (eds.) (2015): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS. van Ooyen, Robert Chr./Wöllers, Martin H.W (2015). “Einführung zur 1. Auflage: Recht gegen Politik – politik- und rechtswissenschaftliche Versäumnisse bei der Erforschung des Bundesverfassungsgericht”. In: van Ooyen, Robert Chr./Wöllers, Martin H.W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 3–11. Verma, S.P. (ed.) (2004). Indian Judicial System. Need and Directions of Reforms. Delhi: Kanishka Publishers Distributors. 163 Verney, Douglas S. (2007). “The struggle over Judicial Review: Supreme Court and Limited Government“. In: Dua, B.D./Singh, M.P./Saxena, R. (eds.). Indian Judiciary and Politics. The Changing Landscape. New Delhi: Manohar, pp. 41–72. Vorländer, Hans (2012a). “Macht als Deutungsmacht. Das Bundesverfassungsgericht”. In: Schmidt, Rainer/da Silva, Virgilio Afonso (eds.). Verfassung und Verfassungsgericht: Deutschland und Brasilien im Vergleich. Baden-Baden: Nomos, pp. 13–24. Vorländer, Hans (2012b). “Macht als Deutungsmacht. Das Bundesverfassungsgericht”. In: Melville, Gert/Rehberg, Karl-Siegbert (eds.). Dimensionen institutioneller Macht. Fallstudien von der Antike bis zur Gegenwart. Köln/Weimar/Wien: Böhlau, pp. 197–216. Voigt, Rüdiger (2015). “Das Bundesverfassungsgericht in rechtspolitologischer Sicht”. In: van Ooyen, Robert Chr./Wöllers, Martin H.W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 69–94. Vorländer, Hans (2011). „Regiert Karlsruhe mit? Das Bundesverfassungsgericht zwischen Recht und Politik“. Aus Politik und Zeitgeschichte (APUZ), 35– 36/2011. http://www.bpb.de/apuz/33164/regiert-karlsruhe-mit-das-bundesverfassungsgericht-zwischen-recht-und-politik?p=all; accessed 02/12/2013. Vorländer, Hans (2015). “Die Deutungsmacht des Bundesverfassungsgerichts”. In: van Ooyen, Robert Chr./Wöllers, Martin H.W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 299–312. Wrase, Michael/Boulanger, Christian (eds.) (2013). Die Politik des Verfassungsrechts. Interdisziplinäre und vergleichende Perspektiven auf die Rolle und Funktion von Verfassungsgerichten. Baden-Baden: Nomos. Wrase, Michael (2013). “Verfassungsgerichtsforschung auf der Schnittstelle zwischen Rechts- und Politikwissenschaften – Überlegungen am Beispiel des Bundesverfassungsgerichts“. In: Wrase, Michael/Boulanger, Christian (eds.). Die Politik des Verfassungsrechts. Interdisziplinäre und vergleichende Perspektiven auf die Rolle und Funktion von Verfassungsgerichten. Baden-Baden: Nomos, pp. 21–36. Zuck, Rüdiger (2015). “Die Wissenschaftlichen Mitarbeiter des Bundesverfassungsgerichts”. In: van Ooyen, Robert Chr./Wöllers, Martin H.W. (eds.): Handbuch Bundesverfassungsgericht im politischen System. Wiesbaden: VS, pp. 443–458. 165 Index Index of Persons Adams, John 43 Adenauer, Konrad 28, 108, 109, 111, 112, 113 Ambedkar, Bhimrao Ramji 62 Benda, Ernst 90, 116 Berger, Hans 105 Beyerle, Josef 105 Brandt, Willy 116, 117, 123, 124, 131, 142, 144 Dattu, Handyala Lakshminarayanaswamy 48 Dicey, Albert Venn 43 Gandhi, Indira 71, 75, 76, 77, 78, 80, 86, 87, 131, 136 Harlan, Veit 109, 133 Herzog, Roman 90 Hirsch, Martin 116 Höpker-Aschoff, Hermann 90, 104 Jefferson, Thomas 44 Kania, Harilal Jekisundas 48 Leibholz, Gerhard 90, 108, 109, 116 Limbach, Jutta 90 Lodha, Rajendra Mal 48 Lüth, Erich 109, 133 Madison, James 43, 44, 74 Marbury, William 43, 44, 74 Marshall, John 43, 44 Menzel, Walter 106 Müller, Gebhard 90, 109, 110, 116 Nehru, Jawaharlal 27, 61, 62, 63, 64, 65, 67, 69, 70, 75, 76, 141, 142 Papier, Hans-Jürgen 90 Ray, Ajit Nath 75, 76, 80 Reddy, Jagmohan 75, 85 Rottmann, Joachim 117, 118, 123 Schmid, Carlo 105 Singh Khehar, Jagdish 48 Singh, Keshav 57, 58 Strauss, Walter 111 Süsterhenn, Adolf 106 Thoma, Richard 108, 111 Voßkuhle, Andreas 90 Wintrich, Josef 90 Zeidler, Wolfgang 90 Zinn, August 106 Index 166 Index of Cases A.D.M. Jabalpur vs. Shukla 82, 86 Bank Nationalization 72 Bar Council of Maharashtra vs M.V. Dabholkar 83 Bommai case 45 Bonham’s case 43 Dwarkadas Shrinivas of Bombay vs. The Sholapur Spinning and Weaving Co. Ltd., and Others 66, 70 Golak Nath vs. State of Punjab 45, 71, 72, 73, 74, 78, 79, 82, 131 Habeas Corpus case 58, 78, 81, 82, 85, 86, 87, 131, 143 Indira Nehru Gandhi vs. Raj Narain 75, 76 Kalavappara Kottarathil Kochunni Moopil Nayar vs. the State of Madras and Others 54 Kameshwar Singh vs. State of Bihar 63, 69, 130 Kesavananda Bharati vs. State of Kerala 28, 45, 71, 73, 74, 75, 76, 77, 78, 79, 82, 131, 143 Lüth case 109, 133 Marbury vs. Madison 43 Minerva Mills vs. Union of India 45, 77, 78, 81 Mumbai Kamgar Sabha, Bombay vs. M/S Abdulbhai Faizullabhai & Ors. 131 Privy Purses case 72 Romesh Thappar vs. The State of Madras 53 S.P. Gupta vs. President Of India And Ors. 134 Saghir Ahmad vs. The State of U.P. and Others 66, 67, 70 State of Bihar vs. Maharajadhiraja Sir Kameshwar Singh of Darbangha and Others 64 State of Rajasthan vs. Union of India 45 State of West Bengal vs. Union of India 52 Supreme Court Advocates-on-Record Association and another vs. Union of India 135 Supreme Court of India vs. Civil Advisory Jurisdiction 135 The State of West Bengal vs. Mrs. Bela Banerjee and Others 65, 70 The State of West Bengal vs. Subodh Gopal Bose and Others 65, 67, 70 167 Subject Index abstract judicial review 97, 100, 101, 102, 106, 124 ad hoc committee 61 Adenauer government 108, 109, 112, 115, 130, 144 advisory jurisdiction 51, 56, 59 amendment 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 76, 77, 78, 79, 80, 81, 130, 131, 141, 149 American PIL 83 analytic narrative 27, 38, 39 apex court 87, 133 appellant 55, 59, 83, 84, 88, 93, 98, 99, 100, 102, 103, 127, 133 appellate court 133 appellate jurisdiction 51, 54, 56, 60, 61 appointment 43, 48, 50, 60, 61, 62, 133, 134, 135, 136, 137 arbitrator 127, 141, 144, 149, 150 basic structure doctrine 45, 71, 75, 76, 77, 78, 80, 82, 85, 87, 88, 89, 131, 143, 145, 149 Basic structure doctrine 81 bench 44, 49, 50, 57, 58, 73, 76, 82, 117, 118, 123, 124 British occupation 105 British Raj 39 Bundesarbeitsgericht 90 Bundesgerichtshof 90, 92, 109, 110, 113, 114 Bundesrat 91, 92, 93, 100, 101, 102, 103, 105, 107, 108, 135, 137, 140 Bundessozialgericht 90, 92 Bundestag 90, 91, 92, 93, 97, 102, 103, 105, 107, 108, 135, 136, 137, 140, 145, 154 CDU 92, 105, 106, 116, 118, 128 chief justice 44, 48, 49, 50, 59, 60, 61, 62, 74, 75, 76, 80, 82, 135 citizen 49, 58, 59, 74, 76, 78, 82, 84, 85, 87, 88, 90, 96, 97, 98, 100, 119, 120, 123, 139, 140, 141, 143, 147 civil appeal 54, 55, 133 concrete judicial review 97, 99, 100, 101, 102, 125 constituent assembly 60, 61, 62 constitution 26, 33, 40, 41, 42, 43, 44, 45, 47, 48, 49, 51, 53, 54, 55, 57, 58, 60, 61, 62, 64, 65, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 83, 87, 88, 91, 96, 100, 104, 106, 108, 109, 110, 112, 114, 116, 118, 119, 121, 122, 123, 124, 125, 129, 130, 131, 132, 134, 136, 137, 140, 141, 142, 143, 144, 147, 149, 150, 156 constitutional complaint 93, 94, 96, 97, 98, 99, 100, 102, 104, 107, 132, 142, 147 Constitutional Provisions Act 48 contract 112, 121 coup d’état 118 Court of Common Pleas 43 court system 50, 51, 90, 94, 95, 129, 133 creation 23, 24, 41, 78, 85, 100, 104, 106, 108, 110, 112, 115, 129, 130, 150 crisis 110, 120, 124, 131, 143, 144 CSU 92, 118, 128 defendant 103, 111, 125 democracy 36, 46, 75, 78, 88, 89, 106, 143, 148, 149, 150 Deutschland Fernsehen 109 directive principles of state policy 72, 74 discursive institutionalism 26, 36 draft constitution of 1948 61 electoral college 91, 92, 107, 109, 135 emergency 28, 45, 75, 76, 78, 81, 82, 84, 85, 86, 87, 88, 89, 104, 131, 136, 143, 148 EU 26, 43, 98, 100, 126, 141 federal court 60, 61, 87, 90, 101, 106, 107, 129, 130, 145 fundamental right 51, 53, 54, 58, 59, 60, 64, 68, 71, 72, 73, 74, 75, 78, Index 168 79, 84, 87, 88, 96, 97, 98, 106, 109, 119, 120, 121, 122, 125, 131, 132, 133 GDR 116, 119, 120, 123, 127 GG 46, 91, 97, 98, 99, 100, 101, 102, 104, 108, 109, 118, 119, 126, 132, 136 Grundlagenvertrag 91, 110, 117, 118, 119, 120, 121, 122, 123, 124, 131, 143, 144, 148 Herrenchiemsee Conference 92, 98 high court 48, 49, 50, 53, 54, 55, 56, 57, 58, 59, 61, 62, 63, 64, 69, 71, 75, 76, 80, 82, 83, 86, 111 historical neo-institutionalism 33, 34, 35 Holy Roman Empire of the German Nation 104 household 126 illiteracy 60 INC 63, 69, 87, 88 Indira Gandhi government 71, 75, 77, 78, 80, 86, 87 inter-state 101 Judge 85, 134 judgement 44, 45, 55, 56, 65, 72, 73, 74, 76, 82, 83, 85, 88, 94, 96, 97, 101, 103, 118, 119, 120, 121, 125, 127, 133, 151 judges 43, 44, 47, 48, 49, 50, 57, 58, 60, 61, 68, 73, 74, 75, 76, 77, 80, 82, 85, 86, 87, 88, 91, 92, 93, 94, 105, 106, 107, 108, 111, 117, 118, 120, 121, 125, 128, 130, 131, 133, 134, 135, 136, 137, 138, 141, 142, 144, 145, 150, 162 judicial activism 26, 27, 28, 42, 46, 85, 146, 147, 148 judicial review 31, 42, 43, 45, 46, 58, 67, 68, 72, 74, 76, 77, 96, 103, 113, 125, 133, 146, 147 judicial self-restraint 120, 121, 124, 125, 136, 142 judicialization 42, 127, 146, 147, 148 land reforms 62, 63, 64, 67, 68, 69, 71, 73, 143, 149 landlord 71, 78, 79, 90 lawyer 23, 57, 58, 60, 76, 83, 84, 108, 130, 150 legacy 24, 34, 35, 39 legislature 57, 58, 61, 62, 68, 69, 71, 97, 143 ministry of justice 49, 92, 108, 111, 135 Nazi Regime 129 Nehru committee 61, 62 Nehru government 71 neo-institutionalism 24, 26, 27, 32, 33, 34, 35 neo-Institutionalism 32 NPD 103 Parlamentarischer Rat 92, 97, 104, 105, 106, 107, 111, 130 parliament 42, 43, 45, 51, 60, 64, 65, 66, 68, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 86, 87, 88, 89, 90, 91, 92, 100, 101, 103, 108, 116, 124, 125, 126, 127, 132, 137, 138, 143, 145, 146, 148, 149, 150 path dependency 24, 34, 36 PIL 21, 28, 46, 51, 59, 60, 81, 83, 84, 85, 86, 87, 89, 98, 131, 133, 138, 143, 145, 146, 147, 148 post-war era 106 power 24, 26, 28, 30, 31, 35, 41, 42, 45, 48, 49, 53, 54, 55, 64, 72, 73, 74, 76, 77, 78, 79, 81, 89, 90, 91, 109, 110, 114, 116, 118, 120, 126, 133, 139, 144, 145, 146 president’s rule 82 prime minister 76, 80, 81, 98, 109 prisoner 84 proceeding 44, 48, 50, 51, 53, 55, 56, 58, 59, 60, 83, 93, 94, 98, 99, 101, 102, 103, 117, 124, 125, 127, 133, 147 public administration 96, 99 Rajasthan law reform committee 86 rational choice 36, 138 rational choice neo-institutionalism 33 registrar 50 registry office 50 reunion 127 169 senate 49, 92, 93, 94, 109, 113, 114, 116, 117, 118, 119, 120, 121, 122, 124 social liberal government 28, 110 social policy 68, 142 social status 60, 63 sociological neo-institutionalism 33 SPD 92, 105, 106, 107, 109, 118, 124 Staatsvertrag 101 Statusdenkschrift 108, 110, 111, 112, 113, 114, 115, 130, 144 Third Reich 105, 106, 107, 109, 129 U.S. Supreme Court 26, 41, 42, 43, 44, 46, 108 union law 100, 101 union state 97, 101, 103, 105, 106, 124, 126 Weimar Republic 104, 105, 106, 107 Willy Brandt government 123, 131, 142 zamindar 63, 64, 65, 149 zamindari enactment 65 ZDF 101

References