PublicationsIncreasing Legalization of Politics results in the Politicization of the law itself – A Constitutional Analysis

September 24, 20200

Politics and ideologies are inherently intertwined in the laws made by the Legislature in India to isolate the Law and Politics which can happen only in an ideal world. This paper aims to analyze the role and relation between Politics and Law. Through the course of this paper, the author will discuss the constitutional analysis of the implications of the law being of a political nature. In the Indian scenario, Judicial Review determines the validity of laws with the scheme of the constitution, to prevent the violation of the citizens. The Judiciary does address the political aspect that is inherently present in the very design of the law. Whether the judiciary is independent, and can its independence only be attributed by not dwelling into political questions? Whether by its power of Judicial Review, the Judiciary is actually legalizing politics itself? These are some questions that this paper seems to analyze.


In the current world and in the Indian national scenario, a situation is created wherein increasing the legalization of politics has paradoxically resulted in the politicization of law. Hans Kelsen’s idea of law in his book, Pure Theory of Law can be understood in this light. Kelsen stated a theory namely, the pure theory of law wherein law is purified of all political ideologies, natural and scientific elements. Through his theory, Kelsen attempts to define and describe the law that it must be pure and does not contain impurities. He eliminated from its definition everything that wasn’t strictly law.

It is important to note that since Kelsen was a positivist, he believed that law didn’t derive its authority from non-legal factors such as politics, religion, and morality. Kelsen tried to create a definition of law such that if all impurities and external non-law factors are removed from it, the residue is the science of law and not the politics of law. The real question that needs to be asked is that is it possible to have a law in isolation to that of politics, or is the law in itself political in nature? Law in most countries exists in two forms. The first one is the law made by the parliament, and the second is judge-made law, through judicial review.

In understanding the phrase, ‘politicization of law’ it is first imperative to understand what issues are justiciable or can be prone to judicial review. It is common knowledge that certain matters such as purely religious, or purely political matters aren’t under the purview and scope of powers of the judiciary. But what if the law itself is political in nature? What if the source of the law of the land i.e. the constitution itself is political? It is interesting to note that The Constituent Assembly of India’s members served as India’s first parliament, attributing evidence to the political character of the constitution itself.

To understand these questions, the relationship between law and politics, accurately put forth by Martin Loughlin must be analyzed. In his book, Sword, and Scales, Loughlin sketches out three conceptions of law. The first conception ‘Law as Custom.’ In this conception, the law has been built up over generations through decisions and practices.[1] Judges act as guardians of such practices and the legislators make the law and these two do not exist in isolation. Therefore, there is a creation of a political venture, and judges are participants of this venture too by being interpreters of the political constitution.[2]

Contempt of courts

It can be said that law isn’t apart from a political discourse due to the special roles and responsibilities of the judiciary due to which the spheres of the legal and the political are related models of discourse.[3] It is true that there is an inherent interaction between the judiciary and politics. The second conception is that of ‘Law as Command.’  According to this conception, the law is an instrument of rule, and judges, as guardians of the law and the constitution, become functionaries of the same.[4]

Therefore, the law is code conceived by human will due to this, the law becomes the outcome of a political process. The third conception is that of Law as a Right. Now that the relation between law and politics is established, it can be said that law and politics are intertwined and cannot exist in isolation with each other. Therefore, the judiciary’s claim that it doesn’t interfere in political matters and merely interprets and guards the constitution, is a faulty statement as the constitution which is the law of the land itself is of a political nature. Law is not autonomous as, in its regulation of politics, it has become political and this can be understood through the way Indian courts have legalized politics through judicial review.


 Judicial review is an important facet of the idea of being a guardian of the constitution, through the power of judicial review. An important question to ask is whether the judiciary is supposed to exercise its power of judicial review, to such an extent that it can render not just legislative, but executive action as legitimate or not?

The power of judicial review traces its existence to the landmark case of Marbury v. Madison[5]. In this case, the learned judge admitted to the fact that the court wasn’t the appropriate forum for the resolving of the tussle in this case. However, this question of jurisdiction was answered only after determining whether there was a right; and if yes, the remedy for such right. Therefore, through a new positivist understanding of the constitution, an entirely new facet of judicial review was introduced. Through this case, more actions could be legalized or politicized. It came from an understanding of the supremacy of the constitution itself. Anything in contravention of the supreme law, whether it is a statute or a government action, could be struck down by the doctrine of judicial review through this interpretation.

The way that legalization of politics has led to the politicization of the law itself can be explained through a few cases decided by the courts pertaining to legislative and executive action. In the case of S.R Bommai v. Union of India[6], president’s rule in the state of Nagaland, Karnataka, and Meghalaya was said to be unconstitutional, but the president’s rule was upheld in the state of Madhya Pradesh, Himachal Pradesh, and Rajasthan. This was because they were in line with the secular character of the constitution which is a part of its basic structure.

The basic structure itself is an illustration of the extensive working of judicial review according to which, certain fundamentals of the constitution such as Part III, cannot be violated and anything in contravention to this, would be declared as unconstitutional. In the case of the Association of Natural Gas v. State of West Bengal,[7] there was a conflict between the entry of ‘petroleum’ in List 1 and ‘gas and gas works’ in list 2. The court, in this case, sided with the centre i.e. that the natural gas comes under the purview of petroleum in list 1 as it is a natural resource. The power of the centre is being preserved.

Whereas in a prior case of Calcutta Gas Co. v. State of West Bengal[8] the words ‘gas and gas works’ of list 2 were given a wider connotation as, it was a specific term as opposed to a general item ‘industry.’ In the Doctrine of Intended Occupation, there is a high chance of central law prevailing over the state law just because the parliament intended to enact it for that purpose, which is seen in the State of Kerala v. Mar Apparel Kuri[9] case.

Therefore, it is seen through these cases that how when there is a conflict between the state and centre, the courts have sided constantly with the centre, thereby using its power of judicial review in the furtherance of aspirations of the central government and thereby making judge-made law political in nature. In the case of R.C. Poudyal v. Union of India[10],there was a challenge to the reservation of 12 seats for the ‘Bhutia-Lepchas’ and one seat for ‘Sangha’ during the integration of Sikkim. In this case, the courts said that the 12 seats could be reserved due to the political transition from the monarchy, and the one seat for Sangha could be reserved as well as it was not a purely religious organization. Through this, the court essentially went into a strictly political matter and legalized it by taking cognizance over it.

In the case of Kartar Singh v. State of Punjab[11], where the constitutional validity of Terrorist and Disruptive Activities (Prevention) Act (hereinafter TADA) was challenged, certain guidelines were issued for the misuse of the provisions of TADA. It was said that in order to ensure a higher level of scrutiny and applicability of TADA Act, a screening Committee or a Review Committee constituted by the Central Government which would comprise of the Home Secretary, Law Secretary and other secretaries would review all the TADA cases instituted by the Central Government.[12] If the act wasn’t rendered unconstitutional, then how could the court by overreaching its power of judicial review, provide such extensive procedures which were a part of the executive’s authority? And even if guidelines were to be provided, all the court could’ve done was requested the central government to make such guidelines and not make it themselves.

By doing this, the courts dwelled into an entirely political question, thereby legalizing it. In the case of Indra Sawhney v. Union of India[13], the judges stated that they were dealing with questions that could’ve been dealt with more satisfactorily through political processes but since that wasn’t done, the issue was relegated to the judiciary, which is an illustration of the legalization of politics by courts.


Through the aforementioned cases, it has become common for the judiciary to intervene in the political sphere, which has thereby led to the politicization of the law itself when in reality, the judge made law was never supposed to be political. If there is a continuance in the increased legalization of politics through judicial review, it will soon be difficult to ascertain a setup of division of powers. The whole idea of the judiciary remains political, may get tarnished and a paradox of politicization of law will be further developed if the judiciary doesn’t stop the legalization of politics. Therefore, to maintain such a division of power and to limit the scope of power of the judiciary as a check and balance, there must be an extent to which the judiciary can legalize politics through judicial review.


  1. M (2000). Sword and Scales.
  2. H. Pure Theory of Law
  3. Marbury v. Madison. 5 U.S. (1 Cranch) 137 (1803)
  4. R Bommai v. Union of India. (1994) 3 SCC 1
  5. Association of Natural Gas v. State of West Bengal. (2004) 4 SCC 489
  6. Calcutta Gas Co. v. State of West Bengal. AIR 1962 SC 1044
  7. State of Kerala v. Mar Apparem Kuri. AIR 2012 SC 2375
  8. C. Poudyal v. Union of India. AIR (1993) SC 1804
  9. Kartar Singh v. the State of Punjab. (1994) 3 SCC 569
  10. Indra Sawhney v. Union of India. AIR (1993) SC 477

[1] (Loughlin,2000)

[2] (Loughlin, 2000)

[3] (Loughlin,2000)

[4] (Loughlin,2000)

[5] 5 U.S. (1 Cranch) 137 (1803)

[6] (1994) 3 SCC 1

[7] (2004) 4 SCC 489

[8] AIR 1962 SC 1044

[9] AIR 2012 SC 2375

[10] AIR (1993) SC 1804

[11] (1994) 3 SCC 569

[12] (1994) 3 SCC 569

[13] AIR (1993) SC 477


Legal Maxim (October 26, 2020) Increasing Legalization of Politics results in the Politicization of the law itself – A Constitutional Analysis. Retrieved from
Increasing Legalization of Politics results in the Politicization of the law itself – A Constitutional Analysis.” Legal Maxim – October 26, 2020,
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Increasing Legalization of Politics results in the Politicization of the law itself – A Constitutional Analysis.” Legal Maxim – Accessed October 26, 2020.
Increasing Legalization of Politics results in the Politicization of the law itself – A Constitutional Analysis.” Legal Maxim [Online]. Available: [Accessed: October 26, 2020]

Name: Anshu Maheswari

Affiliation: Jindal Global Law School

Year: 4th

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