Les théories sur l’activisme juridictionnel demeurent incomplètes. Il en va ainsi des explications fournies par Ran Hirschl sur la judiciarisation des questions politiquement sensibles (mega-politics). En effet, ces théories ne résistent pas à un examen rigoureux des doctrines jurisprudentielles mises en œuvre par les juridictions constitutionnelles, comme par exemple les cours constitutionnelles indiennes et sud-africaines. Au contraire, cet article essaie de montrer en quoi les doctrines jurisprudentielles, formulées par les juges constitutionnels en vu de justifier et d’affirmer leurs contrôles, peuvent être interprétées de manière à être conformes aux climats politiques et sociaux considérés. Cette contribution développe ainsi une approche comparative qui lui permet de montrer que la Cour constitutionnelle indienne exerce, contrairement à la perception qu’il est possible d’en avoir, une certaine retenue judiciaire (Judicial restraint). Pourtant, une telle retenue ne signifie pas qu’elle soit déférente à l’égard du pouvoir exécutif – par peur d’un conflit institutionnel –, et ce, contrairement aux analyses de Ran Hirschl.
Understanding Judicialization Of Mega-Politics : The Basic Structure Doctrine And Minimum Core
The present positive theories that explain the rise of activist courts are incomplete. In particular, the assertions made by Ran Hirschl regarding the judicialization of mega-politics do not stand scrutiny when seen from the experience of the Basic Doctrine in India and Minimum Core in South Africa. Instead, this article by tracing the formulation of the basic doctrine and the subsequent utilization of the doctrine by the court attempts to show that a doctrine, which is formulated by the court to assert its power of judicial review, will be interpreted in a variety of ways to suit both the political and social climate. Doing a comparative perspective with South Africa, the article further argues that even though the court may look to be an activist court, it actually exercises restraint, which has nothing to do with deference to the executive branch for fear of backlash against it, contrary to what has been asserted by Hirschl.
Über die Juridifizierung der Mega-Politics : die Basic Structure Doctrine und die Minimum Core Doktrin
Die gegenwärtigen Theorien über den richterlichen ,,Aktivismus" bleiben unvollständig, so z.B. die Thesen von Ran Hirschl über die Juridifizierung der politischen brisanten Fragen (Mega-Politics). Anhand der Beispiele der sog. Basic Structure Doctrine des Supreme Court von Indien bzw. der Minimum Core Doktrin des Verfassungsgerichts von Südafrika, wird gezeigt, dass diese zu ihrer eigenen Rechtfertigung ausgedachten richterlichen Lehren im Sinne der politischen und sozialen Bedingungen des jeweiligen Landes interpretiert werden können. Eine vergleichende Perspektive lässt darauf schliessen, dass das oberste Gericht von Indien, entgegen den verbreiteten Ansichten, eher eine zurückhaltende Position einnimmt.
Judicialization of politics in India began way back in 1951 when the First Prime Minister Pandit Jawaharlal Nehru introduced the First Amendment in the Parliament to insulate the land reform legislations from the purview of judicial scrutiny by the creation of the Ninth Schedule that immunized the land legislations from the purview of judicial review. With new beginnings in the form of a written Constitution, so conferred by “We the People”, in independent India, surely, the founding fathers could not have foreseen a head-on collision between the judiciary and legislature happening the very next year. Beginning therewith, introduction of constitutional amendments in the parliament, and their subsequent challenge in the Supreme Court of India became a common phenomenon. In 1973, with the formulation of the doctrine of Basic Structure by the Supreme Court of India as a threshold for determining the unamendable features of the text, the battle line was clearly drawn.
Thereafter, every “political thicket” question has come to be determined by the court on the basis of this doctrine. The Supreme Court has been accused of “judicial overreach” by the executive and the legislature, and of violating the sacrosanct principle of separation of powers by the other two branches of the state. Judicial review of presidential promulgation of declaration of emergency, determining the existence of the strength of a political party to make a claim for forming the government, setting sexual harassment guidelines in the workplace in the absence of a legislation and determination of the existence of a parliamentary privilege are some of the types of political questions being adjudicated by the Supreme Court of India today.
However, this is not a new pattern. For instance, in the case of South Africa, in the constitutional Certification judgement , the Constitutional Court struck down certain provisions of the post 1996 apartheid constitutional text as being violative of the very equality objective that the Bill sought to promote. In the case of India, the Supreme Court in Kesavananda Bharthi explicitly disapproved the amendment of the Constitution by the executive on the ground that the state had no approval from the people to destroy their “collective identity”.  Judgements involving such political questions have come to be termed as “Judicialization of Mega-Politics”. Positive theorists explain judicialization as the transfer of power from representative institutions to the judiciaries.  For instance, Ran Hirschl defines the phrase to mean the adjudication of “matters of outright and utmost political significance that often define and divide whole polities, such as determination of foundational collective-identity questions, nation-building processes, corroboration of regime change and determination of electoral outcomes.  Israel, South Africa, Canada, Britain, Latin America, New Zealand, Australia, Egypt are counted among those countries that have experienced the expansion of such judicial power.
While doing so, the courts have come up with a general doctrine to adjudicate on such political questions. The doctrines have been framed in a manner, which is pretty vague, thus paving the way for considerable controversy regarding the correct interpretation and application. For instance, in Kesavanada Bharati, the doctrine of Basic Structure was formulated. The court did not lay down decisively what the basic structure was, thereby leaving it to decide at its discretion on a case by case basis. Following this decision, the Supreme Court has utilized the doctrine in at least 345 of its decisions, with yet no clear delineation of the doctrine. On the other hand, in the case of South Africa, the definition of ‘minimum core’ has been the most evasive with the court rejecting the United Nations definition to dictate its adjudication involving socio-economic policies. Simultaneously, the court has come up with its own explanation of how it would adjudicate upon such issues on the basis of the ‘reasonableness’ doctrine, which is again quite vague. The reasonableness doctrine has then been utilized for adjudicating upon water, health and housing policies. This space is what I argue has been the most controversial in terms of understanding the relation between the executive and the judiciary. For Ran Hirschl, support from the political sphere is a necessary pre-condition for the judicialization of pure politics. Thus, according to him social and institutional factors alone without “strategic political deference to the judiciary alongside politically astute judicial behavior”, does not lead to judicialization of mega-politics. Therefore, “courts hand down decisions that favor the powerless primarily when doing so is consistent with elite values and interests.”  In the absence of such political support, the result is a significant political backlash like legislative overrides, interference with the judicial appointments, limiting the scope of judicial review, etc.
I do not agree with Hirschl’s explanation because it does not give a complete account. This paper instead argues that in the context of the Indian scenario, the doctrine of basic structure was the result of judicialization of mega-politics in India. The paper would explain the background against which the court formulated the doctrine. I would argue that judicialization during this period primarily occurred due to the court standing on behalf of the people for resisting any constitutional change, and thus, acting as the opposition party against the passage of amendments in the parliament. The paper would then trace the post-Kesavananda phase to understand the type of cases to which the doctrine was being applied to and the interpretation accorded to the meaning of Basic Structure. It would be argued that the interpretation in IR Coelho  and the subsequent cases show a paradigmatic shift in the utility of the basic structure doctrine. If after Kesavananda the doctrine was being applied in a manner that gave the Supreme Court broad discretion to decide a case which had nothing to do with the application of basic structure doctrine, it will be argued that now the Court has set up a high threshold which needs to be passed before striking a legislation as invalid on the basis of violation of the doctrine. The attribution of the shift will be linked to public mistrust of the executive and also the controversy relating to judicial impropriety. It will be argued that even though the Supreme Court continues to place itself strongly in matters of political controversies and adjudicating on government policies, it does so more cautiously. And this cautious behavior cannot be attributed to the reasons of backlash by political elites that Hirschl has offered. Instead, I argue that it is because the judiciary is sensitive of its public image as also because it precisely understands the limits of constitutional adjudication of public policies and political questions. However, even so given, the judiciary due to lessons learnt post-emergency has always been assertive of its independence, even if that has meant applying the doctrine of basic structure. Building upon this analysis, it would be argued that an explanation more inclusive than being based on political deference and backlash is required to understand judicialization process. The South African decisions on socio-economic rights will also be considered to show that what seems to be a judicially active branch is actually exercising restraint, which cannot be attributed to the explanation advanced by Hirschl.
 Justice Bhagwati, Former Chief Justice of India in State of Rajasthan and Ors. v. Union of India and Ors., AIR 1977 SC 1361.
 Certification of the Constitution of The Republic of South Africa,  CCT 23/96 (S. Afr.)
 AIR 1973 SC 1461
 See generally, Torbjorn Vallinder, “The Judicialization of Politics. A Worldwide Phenomenon : Introduction,” International Political Science Review, Vol. 15, No. 2, Apr. 1994, at 91 ; and Martin Shapiro and Alec Stone Sweet, On Law, Politics, and Judicialization, New York : Oxford University Press, 2002.
 Ran Hirschl, “The Judicialization of Mega-Politics and the Rise of Political Courts,” Annu. Rev. Polit. Sci. , Vol. 11, 2008
 Supra note 5.
 C. Neal Tate, “Why the Expansion of Judicial Power ?,” in The Global Expansion of Judicial Power (C.
Neal Tate and Torbjorn Vallinder, eds.), New York : New York University Press, 1995, at 27-37.
 The decision of Bush v. Gore, has been attempted to be explained by this phenomenon by John Ferehohn & Ran Hirschl in their respective works.
 Alec Stone Sweet, Governing with Judges : Constitutional Politics in Europe, New York : Oxford University Press, 2002
 C. Neal Tate, “Why the Expansion of Judicial Power ?” in The Global Expansion of Judicial Power (Tate and Vallinder, eds.), New York : New York University Press, 1995
 John Ferejohn, “Judicializing Politics, Politicizing Law”, Law & Contemporary Problems, vol. 65, 2002, at 41.
 Supra note 10.
 Speech of Dr. B.R. Ambedkar, Chairman of the Draft Constitution, at the time of introduction of the Draft Constitution on November 4, 1948, before the Constituent Assembly.
 See also the speech of Sri S. Nagappa during the debate on the amendment to the constitution : “The fact is that although we the Congress Party who are a majority in the Assembly did not act as the party in power or treated others as the Opposition, really speaking it is the Congress Party which has given this Constitution.” Available at 22.214.171.124/newls/constituent/vol2p1.pdf.
 Indeed, the members of the Assembly had been elected on the basis of an indirect electorate through the legislative assemblies provinces, which were themselves elected under the Government of India Act, 1935, that did not provide for universal suffrage.
 Objective Resolution, 1947, available at http://parliamentofindia.nic.in/ls/debates/vol4p6b.htm
 Rajeev Bhargava, Politics and Ethics of the Indian Constitution, Oxford University Press, 2008, pp. 374
 B.N. Rau. Speech available at http://parliamentofindia.nic.in/ls/debates/vol7p5b.htm.
 Dr. B.R. Ambedkar, at the meeting of the Constituent Assembly of India Vol. IX (Sep. 17, 1949), available at http://parliament ofindia.nic.in/ls/debates/vol19p37c.htm.
 Constituent Assembly debates, Vol. XI, pp 785-6.
 Abhijit Banerjee and Lakshmi Iyer, “History, Institutions, and Economic Performance : The Legacy of Colonial Land Tenure Systems in India”, The American Economic Review, Vol. 95, No4, September 2005, pp. 1190-1213(24)
 See Ganville Austin, Working a Democratic Constitution, Oxford University Press, pp. 121.
 Sarbani Sen, Popular Sovereignty and Democratic Transformations, The Constitution of India, Oxford University Press, 2007, pp. 81
 Indian Constitution : Property Rights and Social Reform, The Comparative Constitutional Law, Merillat, YCL Ohio St. LJ 1960
 It was called a compromise because in essence the many individuals involved in the Constituent Assembly and the government performed dual functions.
 In essence, the article provided that No person could be deprived of his property except by authority of law, and no property including anyone’s interest in company, commercial, or industrial undertakings) could be acquired for public purposes unless the law provided for compensation and either fixed the amount of , or specified the principles upon which, the compensation would be determined.
 G.C.V. Subbarao, “Fundamental Rights in India Versus Power to Amend the Constitution”, Tex. Int’l L. F., vol. 4, 1968, p. 291.
 Ibid., pp. 88
 Parliamentary debates, Vol. 12, part 2, col. 8832, 16 May, 1951.
 Supra note 26, pp. 99.
 AIR 1951 SC 845
 See Nehru’s letter to the Chief Ministers dated 5th August 1954 : “It came as shock to me that numbers of tenants are still being evicted…It is a fact even now people hold many hundred acres of land, sometimes even a thousand acres or more. This result has not been what we had looked forward to.” Available at supra note 26, pp. 120. Further see, Report of the Subcommittee on Democracy and Socialism : “Nowhere has the gulf between promise and fulfilment been of more serious concern to the material well-being of the common-people than in the rural sector…. And nowhere has this failure been so clearly a result of organizational weakness and inadequacies.”
 Supra note 26, pp. 122
 The Bill was sent to the Joint Committee that had reportedly received extensive public opinion against the passing of the amendment and also the opposition had given extensive oral testimony against the amendment for placing 124 state land laws under the purview of the Ninth Schedule. When the vote on passing the amendment came for consideration before the parliament, the bill was defeated by narrow margin of 206 noes to 19ayes. However, a special session was convened to reintroduce the bill. This was termed by the opposition as ‘contravening the very fundamentals of democracy.’ Critics opposed the Bill on procedural and substantive grounds, and that a caretaker government should not decide on such big policy matters. Despite intense public and opposition criticism, the bill was passed 177 to 9, and received the President’s assent.
 A.I.R. 1967 S.C. 1643.
 Sajjan Singh (1964) and Shankari Prasad (1952)
 In fact, the minority in the decision had rejected the fear argument on the basis of this very reasoning that it was the electorate by voting and not the court by judicial review that could control the abuse of the amendment power.
 See also Sathe, supra note 75, at 67, “Golaknath stirred a great controversy regarding the scope of judicial review. For the first time, the judges had openly taken a political position… The Golaknath decision was an assertion by the court of its role as the protector and preserver of the Constitution. Golak Nath marks a watershed in the history of the Supreme Court of India’s evolution from a positivist court to an activist court.” ; See also Upendra Baxi, Indian Supreme Court and Politics, ‘Prime Minister’s Election case’, Eastern Bok Company, 1980, at 21, “It appeared to many as a conservative decision as it entrenched the right to property, giving rise to an impression that the court might invalidate legislation embodying the ‘progressive’ policies of the ruling party. The issue of social philosophy of judges began to be debated as a matter of considerable national importance.”
 The Supreme Court decision of Cooper, involved a challenge to the Bank Nationalization Act as being violative of the right to equality and the right to hold, dispose and acquire property. The majority (10:1) struck down the Act as providing for unreasonable restriction on the right to carry on business and the absence of a just and appropriate compensation for government acquisition of property. Madhav Rao Scindia case involved a challenge to the abolishment of the right to receive privy purses, that was originally granted by the Government of India to the rulers in consideration for their derecognition. Having failed to introduce the bill as a constitutional amendment, the President passed an Order to derecognize the rulers. Upholding the maintainability of the petitions, the court struck down the President’s order on the ground that the President could not employ the doctrine of paramountancy to abolish the right to receive privy purses, which was a fundamental right to property.
 Supra note 26
 Ibid., pp. 248.
 Paragraph 702
 In 1951, the electoral participation was 44.87% with the Congress winning 44.99% of the votes cast (364 seats). In 1957 the electoral participation was 55.42% with congress winning 47.78% of the votes cast (371 seats). In 1962, the electoral participation was 55.42%, with congress winning 44.72% of the votes cast (361 seats). In 1967, the electoral participation was 61.04% with the congress gaining 40.78% of the votes cast (283 seats), and in 1971, the electoral participation was 55.27% with the congress winning 43.68% of the votes cast (352 seats). In effect, for a constitutional amendment to take effect, 2/3rd of the seats in a parliament comprising of a total number of 545 seats would require 363 parliamentarians to affirm the amendment. In every such amendment that was proposed by the congress, except in the year 1967 after the Golak Nath decision, congress was easily able to muster a majority for passing amendments.
 Richard Albert, “Nonconstitutional Amendments”, 22 Can. J.L. & Juris. 5.
 See, Upendra Baxi, Indian Supreme Court and Politics, ‘Prime Minister’s Election case’, Eastern Bok Company, 1980, pp. 47.
 Supra note 26, 297.
 AIR 1975 SC 2299
 A.D.M. Jabalpur (1976)
 For e.g., See Jain, M.P., Constitutional Law of India, Wadhwa Publication : “The Supreme Court failed to fulfil its role as the saviour of the people’s rights.” ; See also, Baxi , supra note 50, at 79-120.
 See the interview of Justice Chandrachud with Austin, who described the mood as ‘most unpleasant’, and that the court was hard-pressed to maintain its independence., supra note 26, pp. 343.
 Supra note 26, pp. 382.
 Ibid., pp. 389.
 AIR 1980 SC 212
 Supra note 26, pp. 485.
 Supra note 26, pp. 489.
 Ibid., pp. 490.
 Ibid., pp. 517.
 AIR 1982 SC 14.
 The Government had challenged the petition on the ground that the petitioners
 See Report of the National Commission to Review the Working of The Constitution, dated 26th September, 2001 available at http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm: “This decision had the effect of unsettling the balance till then obtaining between the executive and judiciary in the matter of appointment. The balance tilted in favour of the executive. Not only the office of the Chief Justice of India got diminished in importance, the role of judiciary as a whole in the matter of appointments became less and less. After this judgement, certain appointments were made by the Executive over-ruling the advice of the Chief Justice of India. Naturally, this state of affairs developed its own backlash.”
 “Taking Suffering Seriously : Social Action Litigation Before the Supreme Court of India”, in Upendra Baxi (Ed.) Law and Poverty : Critical Essays, Bombay : N.M. Tripathi, pp. 387-415.
 1993 (4) SCC 441.
 1998 (7) SCC 739
 AIR 1994 SC 1918
 (2007) 2 SCC 1
 Article 31B providing for the Ninth Schedule reads as follows : “Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this Part, and notwithstanding any judgement, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.” (“This Part” means Part III of the Constitution providing for Fundamental Rights).
 A PIL that has been filed in the Supreme Court claims that at present about 154 members out of 541 MPs have criminal records and are facing criminal cases pending in various courts as reportedly admitted by them in their own affidavits at the time of filing their nominations. Available at http://expressbuzz.com/nation/pil-in-sc-seeks-suspension-of-tainted-mps-mlas/269177.html.
 At present there are those of Tamil Nadu, Bihar and Punjab.
 A recent survey done conducted by Centre for the Study of Developing Societies (CSDS) from 1,300 locals in 19 states, indicated that 60 percent of those surveyed felt that the UPA was running a “Very corrupt” or “Somewhat corrupt” government, with urban respondents showing an even higher percentage of disgust at 66 percent. Available at http://www.firstpost.com/politics/stench-of-corruption-has-stuck-to-upa-all-india-survey-2-57473.html
 See, “Indian judiciary redeems itself”, Deepak Kumar, observing that by sentencing the former Union Minister and chief of Jharkhand Mukti Morcha (JMM), Shibu Soren along with four of his other associates for conspiracy, kidnapping and murdering his private secretary Sashinath Jha, and the former cricketer turned politician Navjot Singh Sidhu to three years imprisonment for a road rage killing, the court was repsing the faith of the citizenry in itself as against the politicians. Available at : http://www.merinews.com/catFull.jsp?articleID=123882.
 Nick Robinson, “Expanding Judiciaries : India and the rise of the good governance court”, Washington University Global Studies Law Review, Vol. 8, n°1, 2009.
 Justice Krishna Iyer, “Issues raised by l’affaire Dinakaran”, The Hindu, 17th September, 2009,
 For instance, Justices Arijit Pasayat, V.S. Sirupurkar and G S Singhvi’s during the Ghaziabad judiciary scam proceedings observed : “The time has come as people have started categorizing some judges as very honest despite it being the foremost qualification of any judge. It’s the system. We’ve to find a mechanism to stem the existing rot.” (Reported in Dhananjay Mahapatra, “SC Concedes rot in judiciary”, The Times Of India, 10th September, 2008)
 31A. Saving of laws providing for acquisition of estates, etc. (1) Notwithstanding anything contained in article 13, no law providing for (…) (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights (…) shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19.
 Article 15 of the Chapter on Fundamental Rights prohibits the discrimination by the state on grounds of religion, race, caste, sex or place of birth. Article 15(5) is an exception to the Article. It reads as follows : “(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30”. This was introduced by the Amendment in 2006.
 M. Nagaraj and Ors. v. Union of India and Ors. , (2006) 8 SCC 202. This decision as involved with challenging the constitutional validity of amendments made to Article 16 of the constitution of the fundamental rights chapter whereby the same provided reservation in promotion with consequential seniority for the backward classes. The same was held to be constitutional by the five judge bench comprising of both Chief Justices Justice Sabharwal and Justice Kapadia.
 Foundation for Law, Justice and Society, 2009
 Paras 76-78
 1998(1) SA 765
 Ibid., at para 10.
 Thus, the court opines : “The state has to manage its limited resources in order to address all these claims. There will be times when this requires it to adopt a holistic approach to the larger needs of society rather than to focus on the specific needs of particular individuals within society”.
 Cass R Sunstein, “Social and Economic Rights ? Lessons from South Africa”, Constitutional Forum, Vol. 11, 2001.
 Sandra Fredman, Human Rights Transformed, OUP, 2009
 Republic of South Africa v Grootboom (1) 2001 (1) SA 46
 Supra note 93, pp. 119
 “[A] minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every state part. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education, is prima facie, failing to discharge its obligations under the Covenant” (Para 10, General Comment 3, issued 1990.
 Minister of Health v Treatment Action Campaign (No 2) (2002) 5 SA 721
 The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
 The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
 Ibid., at para 38.
 S. Liebenberg Socio-economic rights : adjudication under a transformative constitution (Juta 2010)
 Sandra Fredman, Human Rights Transformed, OUP, 2009, p.171
  ZACC 11
 2009 ZACC 28