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Constitutional Rights, Judicial Review and Parliamentary Democracy

Ashwani Kumar (drashwanikumaroffice@gmail.com) is a senior advocate at the Supreme Court and former union minister of law and justice.

While the contribution of the Supreme Court towards asserting the inviolability of constitutional rights is undeniable, the rightful limits of judicial intervention in the executive and legislative domains need to be questioned. In this context, the debate on related jurisprudential issues in the framework of a functioning parliamentary democracy is taken forward, and the principles defining the philosophy of judicial review have been discussed towards a holistic appreciation of the larger politico-constitutional issues.

In the 70th year of the Republic and 72nd year into freedom, we find ourselves engaged in a heightened debate on the imperatives of preserving the constitutionally ordained jurisdictional equ­ilibrium between the legislative, executive and judicial branches of the Indian state even as we celebrate the expansion of fundamental freedoms and the resilience of our democracy. The issue in question is at the heart of our democracy. It is about the reach of judicial review power exercised by the Supreme Court and the high courts, often extended through the agency of what is popularly known in India as public interest litigation (PIL) or social action litigation. The sterling contribution of the apex court in asserting the inviolability of constitutional rights, particularly the right to dignity as the core constitutional value notwithstanding, pertinent questions about the rightful limits of judicial intervention in the executive and legislative domains need to be addressed. This article seeks to advance the debate on related jurisprudential issues in the larger framework of a functioning parliamentary democracy. The principles defining the philosophy of judicial review have been discussed towards a holistic appreciation of the larger politico-constitutional issues.

Instrument of Judicial Review

The original rationale and justification of PIL which has emerged as a primary instrument in the expansion of judicial review is best summed up in the words of its principal and early propounders, Justices P N Bhagwati and V R Krishna Iyer, as:

A strategic arm of the legal aid movement which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity. PIL is brought before the Court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest, which demands that violation of constitutional or legal rights of a large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed.1

In D C Wadhwa v State of Bihar (1987),2 the Court, expounding the philosophy of limited government, declared that the exercise of executive power has to be within the parameters of constitutional restraint failing which any member of the public has sufficient interest in the subject matter to impugn the practice by means of a writ petition, which the Court is bound to entertain and adjudicate. Through an expansive interpretation of Article 21 of the Constitution in Maneka Gandhi v Union of India (1978),3 the Court held that the “procedure established by law” envisaged in the said article had to be just, reasonable and fair to pass the test of constitutionality. Most significantly, through a conjoint reading of Articles 14, 19 and 21, the Court read the right to life under Article 21 as a right to live with dignity. In M Nagaraj v Union of India,4 the Court declared profoundly that fundamental rights in Articles 14, 19 and 21 “stand at the pinnacle of the hierarchy of constitutional value” in a fulsome recognition that “human dignity, equality and freedom were conjoined, reciprocal and covalent values” (Liebenberg 2005).5 Earlier in Board of Trustees of the Port of Bombay v Dilipkumar Raghvendranath Nadkarni,6 the Court had reiterated that “life” in Article 21 must encompass “the graces of human civilization that makes life worth living.”

The Court’s expanding human rights jurisprudence recognised as fundamental, the citizens’ right to food,7 health,8 and education.9 Instances of the Court’s intervention to expand the frontiers of these rights to include redressal for the killing of innocent people in false encounters10 and relief to the victims of custodial violence,11 etc, can be multiplied. In closing the cycle of expansive interpretation, the Court recognised the Directive Principles of State Policy as “the conscience of the Constitution”12 which give shape and meaning to fundamental rights. Imparting a dynamic dimension to the right to equality under Article 14, the Court has read the absence of arbitrariness as integral to the guarantee of equality and non-­discrimination.13

Constituent Power

Having thus entrenched an expansive approach in articulating constitutional philosophy, the Court established the foundational principles for the exercise of its judicial review jurisdiction traceable to Articles 13, 32, 136, 142 and 147 of the Constitution. (The high court’s judicial review jurisdiction is anchored in Article 226 of the Constitution.) It proceeded to hold that judicial review was a “constituent power,” and an integral component of the unalterable basic structure of the Constitution.14 The seeds of transformational jurisprudence aimed at the empowerment of disadvantaged citizens and governance accountable to the discipline of the Constitution were thus sown.

Moving beyond ensuring basic rights for citizens, the Court decisively extended its review jurisdiction to what are ex facie functions assigned originally and exclusively to the executive branch under the constitutional scheme.15 Petitions to the Court have invoked judicial review in “public interest” to question major policy decisions of the government concerning policy choices, for example, in what are now known as the 2G spectrum and coal mines allocation cases.16 Challenge to proceedings of legislative assemblies and decisions of the speaker have also been entertained by the Court.17 Decisions of the Court voiding a constitutional amendment approved by Parliament to alter the procedure for appointment of judges,18 exercising review powers in what is popularly known as the Armed Forces (Special Powers) Act (AFSPA) case19 following the constitution bench decision in the Naga People’s Movement of Human Rights v Union of India (1982)20 —to hold that the use of excessive force by the Manipur police or the armed forces of the union was not permissible and that a writ petition under Article 32 of the Constitution against such impermissible use of force was admissible—has extended the Courts’ review jurisdiction to cover not only administrative decisions but to domains hitherto regarded as the exclusive preserve of legislatures. Relaxed rules of locus standi, enabling a “public-spirited citizen” to knock at the doors of superior judiciary for redressal of a public wrong and vindication of a public duty by addressing the Court even through a letter/postcard, has created what is known as the “epistolary”21
jurisdiction which has extended the Court’s access to virtually every citizen who can show an infraction of a constitutional right as articulated in the Court’s pronouncements.

Thus, in Swami Achyutanand Tirth v Union of India (2016),22 the Court directed the Union of India and the state governments to “take appropriate steps to implement the Food Safety and Standards Act, 2006 in a more effective manner.” Exercising judicial review in the Board of Control for Cricket in India (BCCI) v Cricket Association of Bihar (2015),23 the Court, speaking through Chief Justice T S Thakur held, that even though the BCCI was not a “state” under Article 12 of the Constitution, it was amenable to writ jurisdiction because the “government allows BCCI to exist and discharge public functions relating to the game of cricket in India.”

The long arm of judicial power has been extended to advising Parliament to “create a separate offence for lynching and provide adequate punishment for the same”24 to “frame a law for disqualification of political candidates facing criminal charges to cure the malignancy,”25 “to bring about a law to regulate street hawkers,”26 and “to bring law appositely to cover the field of honour killing.”27 Also, to “consider the need for an appropriate legislation on the pattern of Sarbanes Oxley Act, 2002 and Dodd-Frank Wall Street Reform and Consumer Protection Act, 2010 in the United States or any other appropriate mechanism for oversight of profession of the auditors.”28 These cases are illustrative of the Court’s activist role located in the “living tree” constitutionalism and often in the silences and interstices of the Republican charter.

Expansive Judicial Review

Protagonists of a wide judicial review jurisdiction argue that it subserves the rule of law (Dicey 1956). They reject it as being anti-majoritarian or anti-democratic by locating its sanction in the Constitution itself—the social contract that reflects the will of the people. It has also been suggested that the separation of legislative and judicial space is premised on the sometimes misplaced assumption that the legislature “is responsive to the popular will, [is] attuned to constitutional values and has greater capacity than the judiciary” (Abeyratne 2014).29 The judge, it is argued is “the bridge between life and law,” that judicial adjudication actualises the Constitution and is an “unescapable tremor in the landscape of constitutional jurisprudence” (Bingham 2000). Scholars argue that “[T]he constitution functions as a basis and framework of legitimate power. Subjection of rulers to the condition laid down by the people is the explicit function of the constitution” (Grimm 2016: 125).

Another justification for an expansive judicial review jurisdiction is that it advances the cause of justice, human rights, reasonableness, tolerance and the basic principles of morality and good faith, all of which constitute the substantive aspect of democracy and rules out only those choices that are ex-facie unreasonable and inconsistent with democracy (Barak 2006; Dworkin 1988). Human rights are seen as an ethical force to provide “inspiration for legislation” and are strong ethical pronouncements as to what should be done (Sen 2009). Hence, the rise of the judiciary as a political and policymaking institution (Baxi 1979).

Distrust in concentrated and centralised power as the original philosophical basis of judicial review remains the central pillar of its edifice. Indeed,

[P]ower may justly be compared to a great river, which kept within its bounds, it is both beautiful and useful but when it overflows its banks it is then too impetuous to be stemmed, it bears down all before it brings destruction and devastation wherever it comes. (Hamilton 2012)

Leo Strauss’ (1968) reminder of Socrates condemnation to death by Athenian democracy is recalled to argue that liberal democracy needs to protect itself against “the rule of the mob.” James Madison’s felicity resonates as the inspiring clincher of the justification of judicial review: “In framing a Government which is to be administered by men over men,” argued Madison (1987),

the great difficulty lies in this: You must first enable the Government to control the governed and in the next place oblige it to control itself. A dependence on the people is no doubt the primary control on the Government but experience has taught mankind the necessity of auxiliary protections.

Edmund Burke famously articulated the rationale of judicial review. “It is in the nature of despotism” he warned, “to abhor power held by any means but its own momentary pleasure; and to annihilate any intermediate solution between boundless strength on its part and total debility on the part of the people” (Espada 2016). John Adams expressed a similar sentiment stating that “despotism or unlimited sovereignty or absolute power is the same in a majority of a popular assembly, an aristocratic council, an oligarchical junto and a single emperor” (in a letter to Thomas Jefferson on 13 November 1815). “The judgment of the voter is not a substitute for the judgment of the law,” argued Judge Aharon Barak in his dissenting judgment in a case of corruption and fraud brought before the Supreme Court of Israel.30

No Concentration of Authority

The Constituent Assembly debates that led to the framing of our Constitution demonstrated likewise, a clear disapproval of concentration of authority, in favour of dispersal and accountable power through institutional balances. It is in this framework of history and philosophy of limited government that the rationale of judicial review power has been repeatedly reiterated by the Court. Thus, in I R Coelho v State of Tamil Nadu (2007),31 the Court, referring to Articles 14, 19 and 21, articulated judicial review as “the principles of constitutionality … apart from the rule of law and separation of powers,” reasoning that “the principle of constitutionalism is now a legal principle which requires control over the exercise of Government power.”

The contrarians persist with a view in favour of restraint, arguing that in a democracy, people exercise their sovereignty through elected representatives and not through the unelected judges who must defer to the wisdom of parliamentary majorities. Questions are raised not so much about the advisability of review jurisdiction itself but with its perceived overreach to encompass areas of governance considered outside its purview and about the finality of judicial wisdom. “Judicial supremacy,” “judicial excessivism,” or “despotism of an oligarchy” are seen as antithetical to democracy and contrary to its first principles (Noveck 2008; Waldron 2006). It is contended that the failings of democracy and inadequacies of the democratic process cannot be invoked to negate the core of the democratic principle, namely that ultimate sovereignty vests in the people. Thus, arrangements of governance embodied in the Constitution resulting from the exercise of their free will cannot be used to deprive the ultimate masters of the right of final decision over their destiny. It is argued that “juridification of politics and politization of the judiciary” would be a loss for both the legislature and judiciary (Grimm 2016: 215) and that judiciary cannot act as a “censor of all governmental action” (Currie 1994 cited in Grimm 2016: 223).

The essence of the philosophy of civil government flowing from the will of the people as propounded by John Locke (1986) retains its appeal.32 Activism of the Court towards a progressive expansion of judicial review has been criticised also on the basis of “institutional competence” (Fredman 1998)33 and for running the risk of taking on a policy role “to a degree characteristic of political authority and being mistaken for one.”34 It is suggested that “most dangerous is the power given to judges to find their own direction, a power for which they have neither the competence nor the legitimacy” (Noveck 2008: 447). “Without the comforting cloak of parliamentary intent, what democratic credentials can judges claim for judicial lawmaking” (Noveck 2008: 428). is a question that begs itself. The Court has been blamed for re-writing the Constitution and of judicial legislation in the guise of interpretation.

The effect of these objections to a vastly enlarged judicial remit has had a restraining effect on the Court which has acknowledged its “institutional limitations” and cautioned against ever-increasing expectations from it. In an eloquent and substantive judgment in Santosh Singh v Union of India (2016)35 a division bench of the Court comprising Chief Justice Thakur and Justice D Y Chandrachud declined to entertain a PIL seeking a mandamus for the inclusion of moral science as a compulsory subject in the syllabus of school education from Classes 1 to 11 on the ground that it “significantly lacks the expertise to do so” and that the matter “cannot be resolved by applying settled norms of judicial review.” The fate of the Court’s majority decision in the Sabarimala case36 is a resounding affirmation of the logic of the Court’s limited institutional competence and judicial restraint proposed by Justice Indu Malhotra in her minority judgment and by Justice Chandrachud as above.

In an eloquent exposition in the National Judicial Appointments Commission (NJAC) case,37 Justice Chelameshwar in his eloquent minority judgment rejected a distrust of the legislators in securing the constitutional fundamental and argued that:

[T]o assume or assert that judiciary alone is concerned with the preservation of liberties and does that job well, is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved…

Our experience is not dissimilar, Judgments in A K Gopalan v State of Madras (AIR 1950 SC 27), Union of India v Sankalchand Himatlal Sheth & Anr (1977 (4) SCC 193), ADM Jabalpur V S S Shukla Etc. Etc. (AIR 1976 SC 1207) (to mention a few) should lead to an identical inference that in difficult times when political branches cannot be counted upon, neither can the judiciary. The point sought to be highlighted is that judiciary is not the only constitutional organ which protects liberties of the people.

In an opinion on a presidential reference, the Court opined:

Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds viz (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety.38

In Manohar Lal Sharma v Union of India,39 the Court declined to entertain a PIL seeking the Court’s directions to restrain the union government from incurring security and other expenses with respect to certain individuals in the state of Jammu and Kashmir, holding that “nationally sensitive issues concerning the security of the nation ...should be left to the executive … and that these writs are judicially unmanageable.” In another decision, the Court reiterated the need to respect constitutional boundaries and cautioned against “judicial valour.”40 A decision of the apex Court which invoked “essentiality” to test the freedom of religion has been criticised as an “obscure exercise [that] draws the court into an area which is arguably beyond its competence [and] gives power to judges to decide on matters of religion. In a way, the Court takes over the role of a clergy” (Mustafa 2016). The majority decision of the Court in Abhiram Singh v C D Commachen (Dead) By Lrs (2017),41 seeking to expansively define the scope of Section 123 of the Representation of the People Act that prohibits appeals to religion, caste, etc, in elections has been questioned as an example of “high moral principle but dubious law.” In another case, the Court declined a petition seeking an independent probe into the death of a judge42 and in its majority judgment refused to question the arrest of human rights activists43 citing procedural constraints.

Questioning the expansion of judicial power, it has been argued that democracy cannot “look for survivors outside the democratic process” (Mehta 2017).44 Benjamin Cardozo’s (2008: 168) caution is eloquent. “There is no assurance,” he wrote, “that the rule of majority will be the expression of perfect reason when embodied in the Constitution or in statute. We ought not to expect more of it when embodied in the judgment of the Courts.” Nor can we forget his celebrated wisdom that “the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.” Judicial infallibility has been disclaimed by the Court itself,45 even as judicial detachment is a myth. John Hart Ely (1996), while supporting limited judicial review as a “platonic” guardian of democracy, suggests that

it is entirely incompatible with democracy for courts to define their mission as one of correcting elected officials who have strayed too far either from what the judges think is right or from what they claim they know (and the legislators do not) that the people really think is right.

The burgeoning judicial power has been criticised as “little more than an incantation and vehicle for judicial ideologies to masquerade as constitutional evolution,” and “academicians substituting an ideal of justice for the concrete articulation of justice actually in the Constitution” (Bhatia 2019).

Pertinent Questions

In the premises aforesaid, pertinent questions at the core of the debate recur to confront the given assumptions on either side. These include the following:

(i) Can the original justification for the Court’s anti-majoritarian role be used to equate supremacy of the Constitution and judicial independence with “judicial supremacy”? Does the Indian Constitution envisage for the judges, the role of “republican school masters”? (Lerner 1967 cited in Mehta 2007)

(ii) Can judicial review be a means to “energise the moral order” (Barron 1970) considering that “courts cannot declare a limitation or constitutional requirement under the notion of having discovered some ideal norm”46

(iii) Is an express mandate that makes the Court the “supreme arbiter” of the boundaries of judicial power to be found in the Constitution, outside the inferential deductions of the basic structure doctrine expounded by the Court?

(iv) Is “judicial oligarchy” and “aristocracy of the robe”47 a substitute for the failings of the legislative and executive branches in a parliamentary democracy?

(v)  When and under what circumstances can “legislative lassitude” and “executive inertia” justify judicial intervention?

(vi) Assuming a decline of the democratic order, can the judiciary act as “chemotherapy for a carcinogenic body politics”? (Baxi 2001 cited in Mehta 2007). Can the Court become “co-governor of the nation,” reading the Constitution as an open-ended text, providing it with new powers to invent new rights” (Baxi 2016). Can Courts be allowed to second guess the legislative values or moral judgments?48

(vii) Is judicial activism a response to the charge of “limited capacity of institutions to respond to expanding participation and rapidly increasing demands?” (Hardgrave and Kochanek 1986).

(viii) Can a general doctrine of deference to other branches serve to tame the power of judicial review?49

(ix) Does an expansive judicial review jurisdiction that promotes judicial veto over legislation decrease the autonomy of the individual and in the process, negate democracy itself?

(x) Can the exercise of judicial discretion in the matter of judicial review be subjected to an objective standard binding on the Court, sitting as it does, in different benches and not en banc?

(xi) Where do we locate the “equilibrium between the Scylla of insensitive detachment suggesting indifference and the Charybdis of unwarranted intrusion” (Peiris 1991) to fix the frontiers of judicial power in a democracy that recognises the dispersal of power as a guarantee of liberty, without being on the wrong side of the “democratic faith?”

(xii) Does the expansive correctional jurisdiction and exercise of judicial review through the instrumentality of PIL carry within itself the seeds of its own destruction and expose the Court to the charge of arbitrariness and of being a judge in its own cause?

(xiii) How can the abuse of PIL, increasingly seen as “political interest litigation,” “private inquisitive legislation,” and “publicity interest litigation,” be prevented in the absence of established and enforceable standards?

(xiv) What is the rightful role of amicus and intervention in aid of policy outcomes, consistent with the theory of representative government?

Conclusions

The challenge to “reconcile constitutional authority with popular sovereignty” raises larger questions about the quality of democratic representation, the primacy of individual choice and protection against the state’s oppressive power as a guarantee of the inviolability of human rights. While the Court’s jurisdiction as sentinel on the qui vive for protection and advancement of fundamental rights merits loud affirmation on first principles of constitutionalism, in the articulation of constitutional principles, the Court ought not to be seen as dismissive or disdainful of the processes of democratic governance. It may wish to ask
itself “whether and for how long, the people will maintain their confidence in a Court that has lost its confidence in them and in their leaders” (Karlan 2012). Lok Sabha debates suggest “parliament’s role to offer competing interpretation of the Constitution,” and record the views of parliamentarians that “the Indian Parliament did not conceive of the Supreme Court and High Courts as being the exclusive or final interpreters of constitutional rights.”50 It is submitted that the primacy of Parliament as reflecting the will of the people is implicit in the design of the Constitution and is not inconsistent with constitutional supremacy.

The presumption that the legislature understands the needs of its people and that even its discrimination and classifications are based on adequate grounds has been acknowledged by the Supreme Court itself.51 In working out a compromise, the exercise of constituent power could be limited by a compelling necessity to intervene for the advancement of human rights, for example. Pascal’s spirit of “self-search and self-reproach” referred to by Cardozo (2008: 172) and reflected in recent judgments of the Court will subserve to strengthen the institutions of India’s liberal democracy and sustain, over time, the otherwise wide ambit of judicial review. The Court can thus, “be a light unto the nations” even if it cannot be a “sheriff unto the nations” (Cabranes 2015). Justice Frankfurter’s wisdom articulated in his dissenting judgment in Trop v Dulles (1958),52 makes the point: “Judicial power,” he declared, “is not immune against human weakness …

it must observe a fastidious regard for limitation on its own power and this precludes the Court’s giving effect to its own notions of what is wise or politic … Self-restraint is of the essence of judicial oath.” While reiterating that “abnegation in a matter where power is conferred to protect the interests of others against measures which are violative of the Constitution is fraught with serious consequences,”53 the Supreme Court of India has affirmed that “restraint stabilises the judiciary in a system of inter-branch equality.”54

The logic of balanced exercise of judicial power as an assurance of institutional stability and recognition of the boundaries of power is implicit in the constitutional arrangement and the Court’s fulsome acceptance of judicial fallibility. Evidently, interpretative finality vested in the Supreme Court cannot supplant constitutional supremacy with judicial supremacy. Also, the exercise of jurisdiction intended to actualise the Constitution representing accommodation of competing interests must itself rest upon a moderated exercise of power between the three organs of the state. The imperative of a restrained constituent power is indeed anchored in the virtues of moderation and accommodation— “the most difficult lesson of wisdom” (according to Tacitus), but implicit in the definition of bounded power. While refusing to be constrained by apprehensions of institutional conflict in the discharge of its role as custodian of the constitutional principle, the Court must guard against debilitating intra-institutional conflict. We need a vocabulary of constitutional discourse that navigates the extremes of “judicial submission” and “judicial despotism” remembering always that in a democracy the three branches cannot be adversaries and that “we are all in the justice business, together” (McLachlin 1999).55

The Courts’ authority and acceptance of the extensive reach of its judicial imprimatur, it is widely believed, is best explained in terms of popular trust in its moral and intellectual integrity rather than in any stretched philosophy of constitutionalism. Indeed, the Court’s ability to enlist for its decisions, an “uncoerced allegiance” of the community rooted in a responsive chord implying consent of the governed, accounts for its legitimacy as the constitutional arbiter. The diminishing credibility of the political executive, the decline of Parliament as the highest forum of Indian democracy, the disappointing quality of political discourse, perceived insensitivity on the part of bureaucracy to the pressing priorities of the people at large, a general distrust of executive power and loss of faith in the moral and ideological integrity of the political class collectively account for the Court’s expanded remit. Because the defence of power rooted in moral authority is a permanent project, the Court’s judgments must stand out for their objectivity, consistency and intellectual integrity. Above all, the highest Court cannot be seen as usurper of power, willed for itself through interpretation.

Judges, wisened by experience, consistent by training, disciplined by law and elevated by knowledge are presumed to be equipped to weigh and balance competing values and principles—a function central to their role, and thereby establish “a diffusion of power which is characteristic of the whole” (Oakeshot 1991). Hopefully, the search for the “intermediate” will guide the superior judiciary in sculpting a harmonious and consistent construct of constitutionalism that would advance the nation’s ideals. Vagaries and subjectivity discernible in the Court’s judgments ill serve its purpose. We know that power has reasoned in every age and it is in the wisdom of the wise that enduring answers to some of the most profound questions of our time will be found. The challenge, therefore, is to find the wisest amongst us to nurture and invigorate institutions designed to serve the ideals of the Republic.56

Notes

1 People’s Union for Democratic Republic v Union of India, (1982) 3 SCC 235 at 240; Also, the Constitution Bench Opinion in Re: Special Reference No 1 of 2012, (2012), 10 SCC 1, Justice Khehar in a separate but concurring opinion held that PIL “brings into focus the rights of the plurality (as against individual’s right) especially when the plurality is, for one or the other reason, not in a position to seek redress of its grievances.”

2 D C Wadhwa v State of Bihar, (1987) 1 SCC 378.

3 Maneka Gandhi v Union of India, (1978) 1 SCC 248; Francis Coralie Mullin v Union Territory of Delhi, (1981) 1 SCC 608; National Legal Services Authority v Union of India, (2014) 5 SCC 438.

4 M Nagaraj v Union of India, (2006) 8 SCC 212.

5 Also see Dawood v Minister of Home Affairs, 2003 (3) SA 936 (CC) and Government of South Africa v Grootboom, 2001 (1) SA 46 (cc), p 41, para 38 wherein the Constitutional Court of South Africa has held that the value of human dignity informs the interpretation of all other rights. The judgments of the Indian Supreme Court interpreting the scope and nature of fundamental rights proceed upon a similar premise.

6 Board of Trustees of the Port of Bombay v Dilipkumar Raghvendranath Nadkarni, (1983) 1 SCC 124.

7 Shantistar Builders v Narayan K Totame, (1990) 1 SCC 520.

8 Vincent Pani Kurlangara v Union of India, (1987) 2 SCC 165.

9 Mohini Jain v State of Karnataka, (1992) 3 SCC 666.

10 Chaitanya Kalbagh v State of Uttar Pradesh, (1989) 2 SCC 314.

11 Khatri v State of Bihar, (1981) 1 SCC 623.

12 V Markandeya v State of Andhra Pradesh, (1989) 3 SCC 191; Bandhua Mukti Morcha v Union of India, (1984) 2 SCR 67.

13 State of Punjab v Brijeshwar Singh and Anr, (2016) 6 SCC 1; Ramana Shetty v Airport Authority of India, (1979) 3 SCC 489; Also, see Fredman (2009) which argues for “dignity as a facet of substantive equality” and “at the centre of the equality principle” in the context of gender based discrimination.

14 S R Bommai v Union of India, (1994) 3 SCC 1; Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225; Kihoto Hollolian v Zachillhu, (1992) Supp (2) SCC 151; Supra Note 3.

15 Common Cause v Union of India, (1996) 6 SCC 593 (allotment of petrol pumps); Union of India v Association of Democratic Reforms, (2002) 5 SCC 294 (directions to Election Commission); Vishaka v State of Rajasthan: (1997) 6 SCC 241; Vineet Narain v CBI, (1998) 1 SCC 226.

16 Center for Public Interest Litigation v Union of India, (2012) 3 SCC 1; Manohar Lal Sharma v Principal Secretary, (2014) 9 SCC 614.

17 Nabam Rebia and Bamang Felix v Deputy Speaker (2016) 8 SCC 1; Anil Kumar Jha v Union of India (2005) 3 SCC 150; Union of India v Harish S Rawat, dated 9 May 2016.

18 Supreme Court Advocate on Record Association v Union of India, (2016) 5 SCC 1.

19 Extrajudicial Execution Victim Families Association (EEVFAM) & Anr v Union of India & Anr, (2016) 14 SCC 536.

20 Naga People’s Movement of Human Rights v Union of India, (1982) 2 SCC 109.

21 S P Gupta v Union of India (1981) Supp SCC 87.

22 Swami Achyutanand Tirth & Ors v Union of India & Ors, (2016) 9 SCC 699.

23 BCCI v Cricket Association of Bihar (and connected matters), (2015) 3 SCC 251.

24 Tehseen S Poonawalla v Union of India, 2018 SCCOnline SC 696, para 43.

25 Public Interest Foundation & Ors v Union of India & Anr, 2018 SCCOnline SC 1617, para 125–26.

26 Gainda Ram v Muncipal Coroporation of Delhi, (2010) 10 SCC 715, p 739–40, para 69–70.

27 Shakti Vahini v Union of India, 2018(7) SCC 192, para 53.

28 S Sukumar v Institute of Chartered Accountants of India, 2018 SCCOnline SC 158, para 53.

29 See also Landau (2010: 319) as cited in Abeyratne, Rehan (2014:58).

30 Amitai—Citizens for Proper Administration and Integrity v Prime Minister of Israel, 47(5) P D 441; See: Supra Note 31 at pp 242–43.

31 I R Coelho v State of Tamil Nadu, (2007) 2 SCC 1, p 79, para 43.

32 “If a controversy arise betwixt a prince and some of the people in a matter where the law is silent or doubtful, and the thing be of great consequence, I should think the proper umpire in such a case should be the body of the people (who at first lodged that trust in him) how far they meant it should extend? ... The power that every individual gave the society when he entered into it can never revert to the individuals again, as long as the society lasts, but will always remain in the community” (Locke 1986).

33 Also see in T R S Allan (2010: 55), “Judges alone cannot claim to be more faithful to the general moral commitments of the legal order …”

34 Per Patak J, in Bandhua Mukti Morcha v Union of India, (1984) 3 SCC 161; Also see, Balco Employees Union v Union of India, (2002) 2 SCC 336.

35 Santosh Singh v Union of India, (2016) 8 SCC 253.

36 Indian Young Lawyers Association v State of Kerala, 2018 SCCOnline SC 1690.

37 Supreme Court Advocate on Record Association v Union of India, (2016) 5 SCC 1, paras 518–19.

38 Constitution Bench Opinion in Re: Special Reference No 1 of 2012, (2012), 10 SCC 1

39 (2016) 13 SCC 710.

40 State of Uttar Pradesh v Subhash Chandra Jaiswal, (2017) 5 SCC 163.

41 (2017) 2 SCC 629.

42 Tehseen S Poonawalla v Union of India, (2018) 6 SCC 72.

43 Romila Thapar v Union of India, (2018) 10 SCC 802.

44 Also, per Thayer (1893: 144 as cited in Ely 1996: 8) “the court can only disregard the Act [of legislature] where those who have the right to make laws have not merely made a mistake but have made a very clear one—so clear that it is not open to rational argument.”

45 Per Justice Pathak in Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161—“… And we must remember that we wear the mantle of infallibility only because our decisions are final;” Also, per Justice Jackson in Brown v Allen: 344 US 443 (1953), “We are not final because we are infallible, but we are infallible only because we are final.”

46 Santosh Singh v Union of India, (2016) 8 SCC 253. at p 510.

47 Per Khanna J, Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225.

48 “We cannot neatly distinguish between what Parliament has done and what we think it ought morally to do” (Fuller 1969).

49 It has been argued that since all cases exhibit a degree of polycentricity, courts cannot abdicate their role in deference to judgments of other branches (Allan 2010).

50 Excerpts from Nehru’s Lok Sabha Speech in 1951 suggesting that Members of Parliament reflected the “real intention” of the framers of the Constitution and “have a good general broad idea of what we intended” is apposite; See: Chandrachud (2017: 108–15).

51 Constitution Bench Opinion in Re: Special Reference No 1 of 2012, (2012), 10 SCC 1; State of Kerala v M N Thomas, AIR 1976 SC 490; Chandrachud (2017: 127).

52 Trop v Dulles, (1958) 356 US 86 as cited in (2008) 3 SCC 221 at pp 227–28.

53 Khanna, J in State of Madras v Khanchand, (1974) 1 SCC 549, cited with approval in Shayara Bano v Union of India, (2017) 9 SCC 1, pp 89–90.

54 Divisional Manager, Aravalli Golf Club v Chander Hass, 2008 1 SCC 683, per A K Mathew and Markandey Katju J J.

55 Further, courts and legislators are “joint and supplementary rather than alternative exclusive protectors and promoter of rights” (Gardbaum 2013 cited in Chandrachud 2017: 13).

56 In writing this paper, I have benefited from the incisive views expressed, inter alia, in the article “The Unique Judicial Activism of the Supreme Court of India,” by T R Andhyarjuna
(Law Quarterly Review, January 2014), “Growth of Public Interest Litigation in India” by K G Balakrishnan, which was the 15th Annual Lecture at Singapore Academy of Law (October 2008), and the “MC Bhandari Memorial Lecture Public Interest Litigation as Aid to Protection of Human Rights” delivered by A S Anand in 2001.

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Updated On : 12th Apr, 2019

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