Law and Political Crisis: An Assessment of the Indian Legal System's Potential Role

Abstract

FOR MANY SOCIETIES, actions similar to the Indian Government's since the declaration in June 1975 might precipitate political debate, but they would probably not suggest law as a topic of much relevance. That India differs in this respect is a reflection of its long tradition of, and conspicuous commitment to, procedures and institutions which are theorized to be distinguishable from the realm of politics. Remember, for example, that the events most closely identified with the onset of this emergency were events of law: first, lower court decisions against the Prime Minister; and then a temporary Supreme Court decision allowing her to serve as Prime Minister but denying her the vote in Parliament. Behind those judicial actions lay a trail of court reversals of government initiatives such as the nationalization of banks (Cooper v. Union of India, 1970). Other important forces and tendencies no doubt contributed to this crisis. Perhaps the legal decisions merely added to the sense of urgency among governmental leaders. Yet, the prominence of the court's role during this most recent period, coupled with the preceding history of court-ordered restraint on governmental policy suggests that an appraisal of the new political situation would be incomplete without an examination of things legal. To make this analysis, we must address three questions if we are to deal adequately with the insights developed by scholars of law and social science. First, perhaps most obvious, is the purely legal question: have the actions taken by the Government of India been consistent with its written law, both statutory and constitutional? Secondly, there is the broader legal question of whether or not the government's actions represent a sharp break with previous legal traditions: has the place of law in the social order been basically altered? Thirdly, and importantly related to the first two questions, we must examine the