ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Democracy and Judicial Review

S P Sathe Judicial and Constitutional Democracy in India by T R Andhyarujina, N M Tripathi, 1992; Rs 65. LEGITIMACY of judicial review in democratic polity has always been debated. Judicial review means power of the courts to decide the legality of the actions of the other organs of government. In England, where parliament is supreme, the courts have to be content with judicial review of the executive action whereas in the US and in India, where there are written constitutions, the courts have to undertake scrutiny of the legislative actions also. Judicial review is doubtless a counter-majoritarian device. It is justified on the ground that the courts exercising such power are enforcing the will of the permanent majority as against the temporary majority in the legislature. The permanent majority is supposed to have made the constitution. In fact, such counter-majoritarianism is implicit in a written constitution and more so if it contains guarantees of certain fundamental rights. Freedom of speech and expression is essentially a right to dissent and is an anti-majoritarian right. Therefore justice Jackson of the US Supreme Court had remarked that such rights do not depend upon any vote.' Andhyarujina in this lucid monograph observes that the Indian Supreme Court has transcended the legitimate bounds of such counter majoritarianism and has usurped power which ought to vest in the sovereign legislature. He has in mind the decision of the supreme court in Keshava- nand Bharati case2 where the court has held that the power of constitutional amendment given to parliament by Article 168 of the constitution could not extend 10 the destruction of its basic structure. Since what was the basic structure was not mentioned in the constitution, it became an inarticulate premise of the apex court. This decision, according to the author, vests in the court a power which is totally "inconsistent with constitutional democracy" (p 10).

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