Judicial Stability During Regime Change: Apex Courts in India 1937–1960

Abstract

In this chapter, Alfred Darnell and Sunita Parikh examine the conflictual relationship of two apex courts with the executive branches of India under British colonial rule and after Independence. One, the Federal Court of India, existed in the closing decades of British colonial rule, the other, the Supreme Court of India, replaced the Federal Court in independent India. Little changed between the two courts institutionally or organizationally. However, each court has been characterized quite differently: the former as weak and ineffectual, the latter as elitist and obstructionist. Why has this been the case? In order to answer this question the authors examine major rulings of each court that involved the executive branch and assess each court’s decisions according to two prevailing theories of judicial decision making: those that emphasize preferences over policy and those that emphasize decisions based on “black letter law.” They find both explanations lacking because of evidence that each court was concerned not only with issues of law and policy, but also with the stability and security of the institution of each Court.