i 2011 & 12 Volume 5 PATRONS VEER SINGH FAIZAN MUSTAFA K. K. VENUGOPAL ADVISORY BOARD JUSTICE P.C. RAO JUSTICE ZAKERIA M. YACOOB JUSTICE B.P. JEEVAN REDDY GRANVILLE AUSTIN M.P. SINGH MARC GALANTER VEPA P. S ARATHI P.P. C RAIG A. LAKSHMINATH UPENDRA BAXI AMITA DHANDA S.L. DESHPANDE BOARD OF EDITORS ARANI CHAKRABARTY DANISH SHEIKH FAIZA RAHMAN MALAVIKA PRASAD MYTHILI VIJAYKUMAR SRISHTI KALRO FACULTY ADVISOR N. VASANTHI ii Indian J. Const. L. Published by The Registrar NALSAR University of Law 3-5-874/18, Hyderguda, Hyderabad – 500 029, India This Journal is NOT FOR SALE Cite this Volume as: 5 INDIAN J. CONST. L. <PAGE NO.> (2011) Contents iii Vice-Chancellor’s Message v Editorial vii-xi In Retrospect Suchindran B.N. Vivian Bose and The Living Constitution : A Tribute 1 Articles and Essays Nuno Garoupa Empirical Legal Studies and Constitutional Courts 26 Gautam Swarup Why Indian Judges would Rather be Originalist : Debunking Practices of Comparative Constitutional Law in India 55 David Pimentel Judicial Independence at the Crossroads: Grappling with Ideology and History in the New Nepali Constitution 77 Arghya Sengupta Judicial Independence and the Appointment of Judges to the Higher Judiciary in India: A Conceptual Enquiry 99 Manmeet Singh Rai Tracing a Meaningful Right to Vote 127 Archana Parashar Right to Have Rights: Supreme Court as the Guarantor of Rights of Persons with Mental/Intellectual Disability 160 M. Jashim Ali Chowdhury Claiming a ‘Fundamental Right to Basic Necessities of Life’: Problems and Prospects of Adjudication in Bangladesh 184 iv Indian J. Const. L. Case Comments Karishma D Dodeja Indian Medical Association v. Union of India : The Tablet of Aspir(in)ation 209 Rishabh Shah and C. Nageshwaran Union of India v. R Gandhi : Hard Case, Soft Law 219 Notes for Contributors xiii-xiv NALSAR UNIVERSITY OF LAW HYDERABADv Prof. (Dr.) Veer Singh Vice-Chancellor Vice Chancellor’s Message It gives me great pleasure to present the fifth volume of the Indian Journal of Constitutional Law, a publication conceived by the Constitutional Law Society, NALSAR, and published by it in collaboration with the M.K. Nambyar SAARCLAW Chair in Comparative Constitutional Studies. The Constitutional Law Society is an initiative of the students of NALSAR, with the goal of promoting interest in the field of Constitutional Law through varied activities which include lectures by eminent scholars, discussions and competitions. The Journal was conceived in 2006 with the aim of making a lasting contribution to constitutional law scholarship and remedying the lack of authoritative academic writing on the same. The Journal is the first of its kind in India, the only Journal devoted wholly to the study and analysis of Indian and Comparative Constitutional issues. Its previous editions have been a resounding success: trendsetters, both in terms of their significance to the field of study as well as the direction they provide for future initiatives. The Journal, now in its fifth year of publication, strives to emulate as well as further the heights attained by the inaugural issue released in 2007, which was furthered by the second, third, fourth and fifth volumes in 2008, 2009, 2010 and 2011. I have no doubt that the fifth volume of the Journal, which includes contributions from scholars across the globe, covering a wide range of issues, will live up to the high standards set by the previous volumes and will prove invaluable to academics and practitioners alike. I wish the Journal and the Board of Editors success in all their endeavours and hope that they will keep up their good work. On behalf of the students and faculty of NALSAR, I wish to express my sincere gratitude to Mr. K.K. Venugopal, Senior Advocate, Supreme Court of India, the M.K. Nambyar SAARCLAW Charitable Trust and Professor Upendra Baxi, Chair-Professor, M.K. Nambyar SAARCLAW Chair in Comparative Constitutional Studies for wholeheartedly supporting this student initiative. Prof. (Dr.) Veer Singh VICE-CHANCELLOR vi Indian J. Const. L. vii EDITORIAL The importance of comparative constitutional law cannot be overstated, given the constant and inevitable migration of constitutional ideas across jurisdictions and their influence on domestic constitutional law. Legal scholarship in this area has, over the years, emerged from its narrow preoccupation with jurisdictions like the United States and the United Kingdom to attain a wider focus, with increasing comparativist analyses of the constitutional activity in the European Union and SAARC nations. In fact, constitutional courts of developed nations are increasingly recognising constitutional principles from newer democracies and attributing them through their judgments as such. The impact of such a migration of ideas, specifically in areas such as rights jurisprudence, is so significant that modern post-war constitutions have in some cases expressly permitted cross- constitutional borrowing. Scholarship on the issue of migration of ideas was one of the primary aims that The Indian Journal of Constitutional Law accorded to itself. The four editions of the journal released so far have strived to serve as a platform for encouraging debate and discourse on developments in the field of comparative constitutional law and jurisprudence; the fifth volume endeavours to continue this trend with a special focus on developments in the South Asian jurisdictions. This edition attempts to speak to not only the conventional rights jurisprudence but also other questions of modern constitutionalism, both of intrinsic and instrumental value, ranging from the institutional to the doctrinal aspects of constitutional law. Contributions In keeping with the tradition paved by the past four volumes, the fifth volume of the IJCL aims to present research and analyses in the conversation between comparative constitutional theory and practice. As always, the individual citation styles of various authors have been retained in order to reflect the diversity of writing styles of authors from various backgrounds. In Retrospect The volume opens with a tribute to Justice Vivian Bose (June 9, 1891 - November 29, 1983), former judge of the Supreme Court of India in viii Indian J. Const. L. Vivian Bose and the Living Constitution written by Mr. Suchindran B. N., advocate at the Madras High Court. In arguing that Justice Bose was the first ‘activist’ judge of the apex court, the author traverses several of Justice Bose’s judgments to exemplify Justice Bose’s predisposition towards reading the constitution “with a liberal spirit” as a living document, while simultaneously respecting the constitutional text in discouraging the import of foreign doctrines such as “police power” into Indian constitutional jurisprudence. Articles In Empirical Legal Studies and Constitutional Courts, Prof. Nuno Garoupa, Professor of Law at the University of Illinois College of Law, argues that the function of the Kelsenian constitutional court, while theoretically limited to the rejection of legislation as a “negative legislator”, has inevitably assumed a larger ambit in conformity with local conditions in various countries. Prof. Garoupa has examined the politicization of the constitutional courts by examining the empirical evidence in the cases of Germany, France, Italy, Spain and Portugal, to conclude that these wider competences of the constitutional court have rendered it inevitably political and yet not politicised, as “judicial politics” inevitably curtails the effects of “partisan politics”. Gautam Swarup, in Why Indian Judges Would Rather be Originalist, presents arguments against the trend of constitutional comparativism that Indian courts are engaging in. He argues that such a practice in India is not just constitutionally impermissible, but also seriously distorts the role of a constitutional court judge. He demonstrates constitutional impermissibility using theories of constitutional interpretation, illustrating how comparativism by the court in rights adjudication may be a fraud upon the Constitution. On the other hand, Gautam exposes the role of the judge in constitutional interpretation and elaboarates on how the distinction between what the judge ought to do and what he actually does in practice is widening, the former being confused with what ought to be done. David Pimentel, Fulbright Scholar, University of Sarajevo, Bosnia and Herzegovina in Judicial Independence at the Crossroads: Grappling with Ideology and History in the New Nepali Constitution, demonstrates how universal concepts like ‘separation of powers’ and ‘independence of the judiciary’ can be differently understood when viewed in the Editorial ix background of alternate ideology and political context, creating a lack of political consensus, as evidenced by the problems encountered by the Nepal Constituent Assembly as they seek to establish a judicial governance model within their Constitution. Premised on the debate between judicial accountability and judicial independence, given the historical and ideological forces at play, the author proposes a less independent but more accountable judiciary for Nepal. Arghya Sengupta in his piece Judicial Independence and the Appointment of Judges to the Higher Judiciary in India: A Conceptual Enquiry, offers to conceptualise an enquiry into judicial independence in India, and outlining its precise relevance to judicial appointments. He does this through a narrative on judicial appointments in India, and through such a narrative exposes the theoretical and constitutional underpinnings