A RESPONSIVE THEORY OF JUDICIAL REVIEW
DOI:
https://doi.org/10.29121/shodhkosh.v5.i4.2024.6078Keywords:
Judicial Review, Responsive, Constitutional Rights, Political Process, LawmakersAbstract [English]
As used in India, the Responsive Theory of Judicial Review stresses how important it is for judicial review to be aware of the Indian court’s unique institutional position and abilities, as well as the Indian legal system’s specific conditions and constraints. This way of thinking goes beyond the strict Indian perspective of judicial supremacy and calls for a more nuanced and careful use of judicial review. It requires thinking about the subtleties of public interest litigation in India and the possibility of legislative dysfunction. According to a responsive approach, judicial review in India is complicated and needs to take into account the courts’ institutional limits and how it can affect other branches of government, all while still following democratic values and constitutional norms.
References
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
Shayara Bano v. Union of India, (2017) 9SCC 1.
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
Dissenting opinion of Justice Chandrachud in K.S. Puttaswamy v Union of India (n 27) [1066-8, 1076] examining the commitment of judicial review in the Indian Constitution.
Kyritsis, ‘Constitutional Review in a Representative Democracy’ (2012) 32(2) Oxford JLS; Ely, Democracy and Distrust (n 5) 102-3. 48 The judiciary will also be free to consider the law on substantive grounds once the law is passed in a procedurally sound manner.
Discussion in negative and positive rights in Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton UP 2009).
V. Narayan and J. Sindhu (n 4) 44 for an explanation of these steps that constitute the proportionality test, see D. Grimm, ‘Proportionality in Canadian and German Constitutional Jurisprudence’ (2007) 57(2) Univ of Toronto LJ. DOI: https://doi.org/10.1353/tlj.2007.0014
Ashish Selar v Maharashtra Legislative Assembly (n 35).
V. Narayan and J. Sindhu (n 25) 394-99.
Charanjit Lal Chowdhuri v Union of India (n 14) [Mukherjea J]; State of Bombay v F.N. Balsara AIR 1951 SC 318.
V. Narayan and J. Sindhu (n 25) 397-9.
V. Narayan and J. Sindhu (n 4); A. Chandra (n 4); T. Khaitan (n 4).
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Copyright (c) 2024 Niki Rajendrakumar Astik, Dr. Daxa B. Paramar
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