New Delhi: The legal world has been abuzz since the Supreme Court, in a ruling on whether timelines can be imposed on governors and the President for assent to bills, said that, unlike the English experience of an unwritten Constitution, India has a written text which is “truly swadeshi”.
Parochial. Political. Progressive. Unique. These are some of the words lawyers and constitutional experts have used to describe the “swadeshi” interpretation of law, a term coined last week by a five-judge Supreme Court bench led by the newly retired Chief Justice of India, B.R. Gavai.
The unanimous ruling by the former CJI-led bench of incumbent CJI Surya Kant, and Justices Vikram Nath, P.S. Narasimha and Atul Chandurkar held that imposition of timelines would be contrary to the “elasticity that the Constitution carefully preserves for constitutional authorities.
The court said lawyers used comparative law and precedents in this case, and noted the extensive use of arguments on the Westminster parliamentary model in the United Kingdom, but India’s constitutional truth lies in its successful working for over three-quarters of a century.
“They sought to draw parallels on the discretionary powers of the Crown and the limitations thereon. On the other hand, arguments were advanced on the Presidential system prevalent in the United States of America, and the strict separation of powers practiced there,” the court said in a 111-page reference delivered Friday.
“While our Constitutional text may have been inspired by comparative outlook, its interpretation and working, we believe is truly swadeshi,” it added.
Differentiating between England and India because the former had an unwritten Constitution, the court noted that while the latter had a written text, the Supreme Court noted that English constitutional law “did not have to grapple with vital questions of federalism and an inherently diverse country”.
“It did not have to deal with distribution of legislative powers between the Union and the States, questions of shared natural resources, inter State trade, commerce and taxation, Union control over foreign relations and the not so infrequent, yet healthy contestations of constitutional spaces between the Union and States,” the court added.
The court said the American experience was also significantly different due to the separation of powers between the Executive and Legislature, and the necessity of the Presidential veto.
“The point that is being made is this- the Indian Constitution is not just transformative in its adoption, it has been and continues to be transformative in its practice and interpretation, shedding its colonial vestiges for a vibrant and evolving swadeshi foundation,” the court said.
How experts & legal fraternity see this
The ruling sparked intense debate within the legal fraternity.
Some lawyers hailed this new “swadeshi” outlook as progressive and encouraging, while others said it was “political” and “parochial”.
Former Lok Sabha General Secretary P.D. Thankappan Achary told ThePrint that “swadeshi constitutionalism” is a new concept.
“If this means that we will not refer to any foreign rulings in our judgment, then it does not make a lot of sense, as India has always followed the Anglo-Saxon law and jurisprudence. Everything is based on that,” Achary said.
He added that since time immemorial, Indian courts have considered precedents established by the courts of the United States of America, Canada and the UK.
Achary said that historically, there was no “desi jurisprudence”, as Indian law was based on the Dharmashastras and the Manusmriti.
“I have never heard something like this coming from a judge. Sometime back, Prime Minister Narender Modi had made a reference about ‘liberation’ from Lord Thomas Macaulay and his legacy. So the judges could have thought to join him in this school of thought,” he told ThePrint.
On the other hand, senior advocate Mahesh Jethmalani told ThePrint that the former CJI’s words cannot be understood to mean that foreign precedents will not be used by Indian courts.
“The CJI was simply saying that if foreign judgments are not available on a particular issue, we can refer to Indian judgments. That’s all,” he said.
Senior advocate Gopal Sankaranarayanan disagreed, saying knowledge is not a place to be “parochial”.
“India’s Constitution itself is evidence of how fine international norms were adopted and incorporated for the republic, by all minds who had fought for Swaraj. Judicial wisdom comes from accepting that good ideas and interpretations come from anywhere in the universe of human conduct,” he said.
Senior advocate Mohan Katarki termed the ruling a “judicial misstep”. “The former CJI’s remark that the Supreme Court’s judgment on overturning timelines for gubernatorial assent being ‘swadeshi’ sounds more like a political comment than a judicial observation,” he said.
Others, like Advocate-on-Record (AOR) Paras Nath Singh, said there was nothing wrong with referring to foreign judgments, as the Indian Constitution has borrowed many provisions from other countries.
“To be honest, I don’t understand what it means. Why can’t we refer to remarkable judgments on human rights, governance or foreign jurisprudence? After all, many provisions in the Indian Constitution have been borrowed from other countries,” he said.
AOR Talha Abdul Rahman said that interpretation by itself is an “acrobatic exercise and a post-facto rationalisation exercise of a decision already arrived at”.
“Refusing to look at the global march of law and justice isn’t in the interest of justice,” Rahman told ThePrint.
“In my experience, the Central government’s stand on relying on foreign precedents has been varied and selective. They rely on foreign cases when it suits them and discard them when inconvenient,” he added.
To drive home his point, Rahman cited the example of the case of the Uttar Pradesh government’s posters and hoardings in 2019. He said in that case, the government relied on a 2015 UK court ruling, which held that child rioters’ photos can be published by the police, disregarding privacy laws.
‘Foreign judgments can enrich outcomes’
Echoing a similar sentiment, advocate Aamir Zafar Khan said that the categorical exclusion of comparative jurisprudence invites reflection.
“Foreign judgments need not dictate outcomes, but they can enrich them. A swadeshi approach shouldn’t translate into intellectual insulation; rather it should represent interpretative leadership guided by the Indian experience, yet open to learning from the global constitutional evolution,” he said.
Terming the whole idea of “swadeshi” versus “videshi” jurisprudence a “bit gimmicky”, Supreme Court lawyer Soutik Banerjee said the whole idea is far from the real driver of Indian jurisprudence—the Indian Constitution.
He added that while “Make in India” should be a policy for the economy, it should not be brought to the courts.
“The Indian Constitution has never tried to define the idea of India, nor has it placed on a pedestal principles that are indigenous or homegrown,” Banerjee said while adding that adherence to constitutional ideas cannot be marketed as swadeshi jurisprudence, especially when the Constitution itself is a metamorphosis of global jurisprudence.
On the other hand, senior advocate Vibha Datta Makhija told ThePrint that while some may quarrel about the terminology used by the court, a judgment like 1973 Kesavananda Bharati or the Public Interest Litigation (PIL) jurisdiction are unique to the development of Indian jurisprudence.
The concept of PIL refers to cases filed by public-spirited citizens in the interests of the general public before higher courts, on a range of issues like pollution or climate change. The landmark 1973 Supreme Court decision led to the development of the basic structure doctrine.
“The PIL jurisdiction gives a go-by to the doctrine of locus for the oppressed classes, which is unique to the development of Indian jurisprudence,” she said.
Advocates Abhikalp Pratap Singh and Vineet Jindal told ThePrint they were positive about the ruling, saying that the Supreme Court had rightly invoked the swadeshi interpretation by underlining that the governor’s powers must be understood through India’s own constitutional scheme and democratic traditions.
“The court has clarified that these powers cannot be assessed using Western or foreign standards as the Indian Constitution has its own distinct history, structure and principles,” said Jindal, who practices at the Supreme Court.
Singh said he agreed with the court’s perspective of adopting a swadeshi interpretation of the Constitution, rather than blindly replicating Western models.
“You throw the concepts of separation of powers, and the sui generis nature of assenting powers of the President and Governor in the mix, and you will be presented with a uniquely mystifying dish that is our democracy,” he said.
Delhi-based lawyer Shashank Pandey, who founded the Politics and Disability Forum, told ThePrint that outgoing CJI Gavai’s own judicial record sits uneasily with his invocation of constitutional swaraj.
“His concurrence in the Article 370 judgment on Kashmir affirmed sweeping executive powers in a matter which altered the federal balance, while his position in the electoral bonds case accepted a regime which restricted political transparency until the majority struck it down. These positions dilute the core of citizen-centred self-rule that constitutional swaraj demands,” Pandey said.
Constitutional law experts like Dr Swapnil Tripathi, who heads the Charkha Constitutional Law Centre at the Vidhi Centre for Legal Policy, said that while a “swadeshi” interpretation of the Constitution is important, it should not be reduced to mere lip service.
“Such an interpretation should be rooted in our constitutional and political realities, our history, culture and constitutional values,” Tripathi said while pointing out that previously, courts in cases like the 2014 National Legal Services Authority (NALSA) judgment adopted a swadeshi approach by recognising the third gender by drawing on the Mahabharata.
“Unfortunately, CJI Gavai’s remarks in the Governor’s case reflect a missed opportunity to apply such a swadeshi approach. Ultimately, the court adopted a Westminster approach by trusting the executive to act in good faith, and within constitutional bounds, while Indian federal practice has repeatedly shown that Governors and the President have exercised their discretion in ways that impede the functioning of the elected state governments,” Tripathi added.
Milon K. Banerji, Senior Resident Fellow, Charkha (Vidhi Centre for Legal Policy), said that the court’s point was important in this context, and it was encouraging to see the court explore Indian jurisprudence as long as it remained open to the universal values anchored in it.
“It is true that we drew on global ideas for drafting the Constitution, but the way we interpreted this text has been shaped by our own history and challenges,” Banerji said.
(Edited by Sugita Katyal)
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