'Doctrine Of Political Thicket'- Throwback to Baker v. Carr

The Chief Justice's Court of the Supreme Court witnessed an exchange of fierce arguments on Friday that ultimately led to the 3-judge bench of the Supreme Court to referring the issue to a Constitution Bench.

The matter at hands of the 3-judge bench of the Supreme Court was whether the Speaker of Karnataka Assembly was right in not acting on the resignation of the rebel MLAs swiftly. An argument was advanced by Dr. Rajeev Dhavan, who appeared on behalf of the Chief Minister of Karnataka, that the Court was drawn into a political thicket by the MLAs and made to pass orders on 11th July (directing the Speaker to consider the resignation during the course of the day) on the basis of an inaccurate representation of facts. He further added, "Allegations of scams, maladministration in the state, the working of the government coming to a halt were leveled, but some of these rebel MLAs are themselves involved in the scams...there wasn't enough justification for this court to step in."

Dr. Dhawan's invocation of the doctrine of political thicket was striking as this is only rarely used in Indian legal discourse today.

What is the doctrine of political thicket?

The doctrine of political thicket or the political question doctrine is based on the belief that the courts should abstain or not entertain any political questions. The courts are not to enter the political thicket and lead to a situation where unelected judges of the courts substitute the will of the elected representatives. Justice Felix Frankfurter, who served as an Associate Justice of US Supreme Court for 23 years from 1939 to 1962, shaped the doctrine but saw himself go into minority when the Court decided Baker v. Carr in the year 1962. In India, this doctrine does not hold much ground considering the fact that judicial review is a concept ingrained in Indian Constitution although the Supreme Court has referred and adopted this principle in more than one occasion to delve into areas where the line between the judiciary and the legislature is grey.

The case that broke two Associate Justices of the US Supreme Court – Baker v. Carr

Much before Baker v. Carr (1962), the US Supreme Court had tested the political question doctrine in Colegrove v. Green in the year 1946 where Justice Felix Frankfurter, speaking for the majority, famously remarked:

"Courts ought not to enter this political thicket. … The Constitution has many commands that are not enforceable by courts, because they clearly fall outside the conditions and purposes that circumscribe judicial action. … The Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action, and, ultimately, on the vigilance of the people in exercising their political rights."

When calendar turned to the year 1961, the US Supreme Court had an arduous task on its hand. In the case of Baker v. Carr, the question that was before the Supreme Court was whether to enter the political thicket and to rule on legislative apportionment in the state of Tennessee.

This case emerged from the state of Tennessee where, according to the petitioner in the case, District lines were drawn "unfairly" with most of the representation reflecting rural areas even though majority of people lived in urban areas of the state. This case has a story of racial discrimination because the rural areas that accounted for most of the representation were predominantly white whereas the urban areas were inhabited densely by African-Americans. With white-dominated rural areas accounting for large chunk of representation in the state, African-Americans were left behind. The question was whether the reapportionment should be directed taking into account the high population of African-Americans, to ensure their representation.

This case divided the bench of the US Supreme Court into half with one half led by Justice Felix Frankfurter who argued on behalf of judicial restraint and the other half led by Justice William Douglas who stood for intervention of judiciary even in an overtly political question for ensuring justice. Since both the sides were even in their strength, it was Justice Charles Evans Whittaker who had to now decide the case – whether to exercise restraint or not in a political question. Justice Whittaker who claimed the swing vote had the weight of the Supreme Court on his shoulders. He went through a great deal of tension and stress leading him to a nervous breakdown. In an interview to More Perfect Podcast, his son recollects his father even becoming suicidal at one point. He did not attend the Supreme Court sessions after his health failed and he later retired from the Court without rendering a judgment in Baker v. Carr.

After the retirement of Justice Whittaker, the equations in the bench changed and Justice Felix Frankfurther lost his strength. The 8-member bench of the Supreme Court ruled in favour of the petitioners in Baker v. Carr (6-2) in the year 1962 by discarding the doctrine of political thicket or political question doctrine that Justice Frankfurter stood fort for. Justice Frankfurter marked his dissent stating that it is only within the power of the states' legislation to decide what is best suited for the people based on interests, and traditions of the people, and that the Courts were not designed to interfere with the state's electoral policies.

The fact that Supreme Court considered the case by delving into essentially political questions was not taken well by Justice Frankfurter. He suffered a stroke and never returned to the bench. In a way, this relatively smaller case that dealt with the political question doctrine claimed the careers of two vibrant Supreme Court justices.

Baker v. Carr in Indian judgments

One of the earliest references of Baker v. Carr in an Indian judgment was in Golaknath (1967), the case that preceded historic Kesavananda Bharati (1973). Justice Hidayatullah holds in this case as follows:

"154.Baker v. Carr makes the Court sit in judgment over the possession and distribution of political power which is an essential part of a Constitution. The magical formula of "political question" is losing ground and it is to be hoped that a change may be soon coming. .."

Later, the Indian Supreme Court had referred to Baker v. Carr in many cases to buttress on the aspect that the Courts can indeed enter into political thicket if the constitutional ideals are in peril. Considering the fact that the Supreme Court has referred the Karnataka resignation case to a Constitution Bench, this case will also see a discussion on this ever-relevant topic of separation of powers where Baker v. Carr will probably aid the Court.

(Author is a Contributor to Live Law and an advocate practicing in the Supreme Court)