[1] See David Landau and Rosalind Dixon, ‘Abusive Judicial Review: Courts Against Democracy’ (2020) 53 UC Davis L Rev 1313; Tom Ginsburg and Aziz Z Huq, How to Save a Constitutional Democracy (Univ Chicago P 2018); Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge UP 2013). See also Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton UP 2009); Katherine Young, ‘A Typology of Economic and Social Rights Adjudication: Exploring the Catalytic Function of Judicial Review’ [2010] Int’l J Const L 385.
[2] E. Delaney, ‘The Federal Case for Judicial Review’ [2022] Oxford Journal of Legal Studies; Giuliano Amato, Benedetta Barbisan, and Cesare Pinelli (eds), Rule of Law vs. Majoritarian Democracy (Bloomsbury 2021).
[3] See pt II of this article; Nick Robinson, ‘Expanding Judiciaries: India and the Rise of the Good Governance Court’ (2009) 8 Washington University Global Studies Law Review 1.
[4] V. Narayan and J. Sindhu, ‘A Historical Argument for Proportionality under the Indian Constitution’ (2018) 2 (1) Indian Law Review; A. Chandra, ‘Proportionality in India: A Bridge to Nowhere’ (2020) 3(2) University of Oxford Human Rights Hub Journal; T. Khaitan, ‘Beyond Reasonableness’ (2008) 50(2) Journal of India Law Institute.
[5] J.H. Ely, Democracy and Distrust (Harvard UP 1980) 102.
[6] R. Dixon, Responsive Judicial Review—Democracy and Dysfunction in the Modern Age.
[7] P. Bobbitt, Constitutional Fate: Theory of the Constitution (Oxford UP 1982).
[8] Dixon (n 6) Introduction.
[9] See Dixon (n 6) ch 2.
[10] See Dixon (n 6) ch 7.
[11] See Dixon (n 6) ch 8.
[12] J.H. Ely (n 5) 102.
[13] S. Gardbaum, ‘Comparative Political Process Theory’ (2020) 18(4) ICON; Ittai Bar-Siman- Tav, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’ (2011) 91 Boston UnivLR 1915; SR Ackerman, Stefanie Egidy, and James Fowkes, Due Process of Lawmaking: The United States, South Africa, Germany and the European Union (Cambridge UP 2015).
[14] See pt III of this article; Charanjit Lal Chowdhuri v Union of India AIR 1951 SC 41; Ram Krishna Dalmia v S.R. Tendolkar AIR 1958 SC 538 (on reasonable classification and presump- tion of constitutionality); A.K. Roy v Union of India, AIR 1982 SC 710 (upholding preven- tive detention even after the recognition of the due process under art 21 in Maneka Gandhi v Union of India (1978) 1 SCC 248 : AIR 1978 SC 597); N.B. Khare v State of Delhi AIR 1950 SC 211 (upholding externment on grounds of subjective satisfaction); Babulal Parate v State of Maharashtra AIR 1961 SC 884 : (1961) 3 SCR 423; Madhu Limaye v SDM, Monghyr (1970) 3 SCC 746 : AIR 1971 SC 2486 (upholding s 144 of the CrPC giving broad discretion to the Executive to determine when prohibitory orders on gatherings should be imposed). See also See P.K. Tripathi, Some Insights into Fundamental Rights (University of Bombay, 1972) where he critiques the reasonable classification test; K.G. Kannabiran, Wages of Impunity: Power, Justice and Human Rights, (Orient Longman 2004); S. Shankar, Scaling Justice: India’s Supreme Court, Anti-Terror Laws, and Social Rights (OUP India 2012).
[15] Subhash C. Kashyap, Our Parliament (2001); M.R. Madhavan, Parliament’ in Rethinking India’s Public Institutions (OUP 2017) 81; Kaushiki Sanyal, ‘Who Gains from Parliamentary Disruption’ (2015) 50(35) Economic and Political Weekly.
[16] M. Verma, ‘Diminishing the Role of Parliament: The Case of the Jammu and Kashmir Reorganisation Bill,’ (2019) 54(45) Economic and Political Weekly.
[17] See art 110 of the Constitution. When a Bill is passed as a Money Bill, the Upper House can only recommend amendments that may or may not be accepted by the Lower House; Arvind
P. Datar and Rahul Unnikrishnan, ‘Making a Money Bill of It’ Indian Express (Delhi, 12 January 2016); S. Parthasarathy, ‘Trickeries of the Money Bill’ The Hindu (Delhi, 11 April 2019).
[18] See rr 252–54 of the Rules of Procedure and Conduct of Business in the Council of States, which together provide that once a member asks for actual counting, the Chairman shall pro- ceed with the same. It is pertinent to note that the Parliament was forced to repeal these laws following concerted protests by for farmers more than a year on the outskirts of Delhi.
[19] ‘Election Laws (Amendment) Bill Passed in Lok Sabha Amid Din’ Indian Express (Delhi, 20 December 2021).
[20] See for instance, V. Bhandari, ‘Why the Electoral Reforms Bill is a Problem’ The Hindu
(Delhi, 21 December 2021).
[21] Art 122 states “[t]he validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure” See notes 28 to 31 and accompanying text.
[22] David Landau, ‘A Dynamic Theory of Judicial Role’ (2014) 55 BCL Rev 1501.
[23] See generally, A. Kavanagh, ‘The Constitutional Separation of Powers’ in D. Dyzenhaus & M. Thorburn (eds), Philosophical Foundations of Constitutional Law (OUP 2016).
[24] Mattias Kumm, ‘Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review’ (2007) 1(2) European Journal of Legal Studies.
[25] V. Narayan and J. Sindhu, ‘A Case for Judicial Review of Legislative Process in India?’ (2020) 53 VRÜ/World Comparative Law 358, 383-401.
[26] V. Narayan and J. Sindhu (n 25) 383.
[27] Indeed, the dissenting opinion in K.S. Puttaswamy v Union of India (2019) 1 SCC 1 found such a violation. It is pertinent to note that the majority ruling on this point, finding that the law satisfied the definition of a Money Bill, has been doubted in Roger Mathew v South Indian Bank Ltd (2020) 6 SCC 1 and has been referred to a larger bench for reconsideration.
[28] See references to constitutional construction in Dixon (n 6).
[29] See arts 32, 131-9, 143, 225-8 of the Constitution of India.
[30] For instance, arts 243-O, 262, 363. See the opinion of Justice Chandrachud in K.S. Puttaswamy v Union of India (n 27) [1069]; V. Narayan and J. Sindhu (n 4) 70-73.
[31] Art 118(1) states, “Each House of Parliament may make rules for regulations, subject to the provisions of this Constitution, its procedure and the conduct of its business.”
[32] See arts 110, 190, and 194 of the Constitution of India as illustrations.
[33] It is pertinent to note that the provision for a voice vote provided for in parliamentary rules cannot override constitutional provisions as art 118 stipulates that procedural rules devised by Parliament are subject to the provisions of the Constitution. In fact, the rules of procedure also provide that when a member asks for a division of the votes following a voice vote, the chairman and speaker are obligated to ensure the counting of votes. See V. Narayan and J. Sindhu (n 25) 393–94.
[34] Raja Ram Pal v The Speaker, Lok Sabha (2007) 3 SCC 184.
[35] Ashish Selar v Maharashtra Legislative Assembly 2022 SCC OnLine SC 105.
[36] Ashish Selar v Maharashtra Legislative Assembly (n 35).
[37] Ashish Selar v Maharashtra Legislative Assembly (n 35).
[38] V. Narayan and J. Sindhu (n 25) 394-99.
[39] Charanjit Lal Chowdhuri v Union of India (n 14) [Mukherjea J]; State of Bombay v F.N. Balsara AIR 1951 SC 318.
[40] See V. Narayan and J. Sindhu (n 25) 397-9.
[41] See V. Narayan and J. Sindhu (n 4); A. Chandra (n 4); T. Khaitan (n 4).
[42] In this regard, see for instance Malpe Vishwanath Acharya v State of Maharashtra (1998) 2 SCC 1 : AIR 1998 SC 602 (“Social Legislation is treated with deference by the Courts not merely because the Legislature represents the people but also because in representing them the entire spectrum of views is expected to be taken into account. The Legislature is not shackled by the same constraints as the courts of law. But its [sic] power is coupled with a responsibility.”) In fact, one of the crucial arguments against judicial review in the United States is based on the premise that there is an obligation on the Legislature in the American Constitution to evaluate the constitutionality of legislation which the Court cannot interfere with. See JB Thayer, ‘The Original and Scope of Judicial Review’ (1893) 7(3) Harvard L R 129135. Thayer’s seminal albeit dated work is often cited by the Indian Supreme Court to jus- tify judicial restraint. For a recent example see Rajeev Suri v DDA 2021 SCC OnLine SC 7 .
[43] See 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.
[45] However, the Law Minister did not explain how the proportionality test was satisfied and this instance therefore cannot qualify as deliberation meriting deference.
[46] See the 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.
[47] D. 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.
[49] See 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).
[50] See for instance, B.N. Rau, ‘Preliminary Notes on the Fundamental Rights’ in Shiva Rao, The Framing of India’s Constitution, Select Documents II 33 (Indian Institute of Public Administration 1966). See Sindhu and Narayan, ‘A “Weak” Justification for Justiciability of Socio-Economic Rights’ (unpublished, on file with the author).
[51] Constituent Assembly Debates, 19 November 1948; See Sindhu and Narayan (n 50).
[52] Olga Tellis v Bombay Municipal Corpn (1985) 3 SCC 545; Narmada Bachao Andolan v Union of India (2002) 10 SCC 408 : AIR 2000 SC 3751, People’s Union for Civil Liberties v Union of India (2011) 12 SCC 675.
[53] Francis Coralie Mullin v UT of Delhi (1981) 1 SCC 608 : AIR 1981 SC 746
[54] See orders passed in People’s Union for Civil Liberties v Union of India (2011) 12 SCC 675 over the course of 16 years.
[55] Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161.
[56] Olga Tellis v Bombay Municipal Corpn (1985) 3 SCC 545.
[57] U. Baxi, The Indian Supreme Court and Politics (Eastern Book Company 1985).
[58] For the phases of the PIL movement see Shyam Divan ‘Public Interest Litigation’ in S. Choudhry, M. Khosla and P.B. Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press 2016).
[59] See Lawyer’s Voice v Union of India, Writ Petition (Criminal) 142/2019 order dated May 8, 2019 where the Supreme Court issued notice in a petition seeking criminal investigation into funding activities of an NGO; Wildlife First v Ministry of Forest & Environment WP (Civil) 109/2008, order dated 13.02.2019 where the Court directed the eviction of tribal persons from forest land; MC Mehta v Union of India, Writ Petition (Civil) 10329/2015, order dated 2.9.2019, where the Court laid down guidelines on parking.
[60] Shyam Narayan Chouskey v Union of India 2016 SCC OnLine SC 1411 which the court later walked back.
[61] See orders in Harsh Mander v Union of India, Writ Petition (Civil) 1045 of 2018. See also G. Bhatia, ‘The NRC Case and the Parchment Barrier of Article 21’ (Indian Constitutional Law And Philosophy, 26 April 2019) accessed 10 January 2021.
[62] Amit Sahni v Commr. of Police (2020) 10 SCC 439 : 2020 SCC OnLine SC 808.
[63] P. Chitlakar and V. Gauri, ‘The Recent Evolution of Public Interest Litigation in the Indian Supreme Court’ in S. Krishnaswamy and others (eds), A Qualified Hope: The Indian Supreme Court and Progressive Social Change (Cambridge UP 2019) 77–91, 85.
[64] The approach of the Court in the midday meal case was notably not followed in Swaraj Abhiyan v Union of India (2018) 12 SCC 170. In this case, the Court dealt with a petition seeking relief of rations in states where there were drought-like conditions. The Petitioner also sought the appointment of court commissioners to monitor the implementation of the Court’s orders. The Court refrained from granting this prayer on the ground that the State had pro- vided for such authorities to ensure implementation under the National Food Security Act 2014 but these positions remained vacant. The Court passed orders to ensure that these vacan- cies were filled.
[65] J. Sindhu and V. Narayan, ‘The Supreme Court Has Failed in Its Duty in Handling of Migrant Cases’ (The Quint 18 May 2020) www.thequint.com/voices/opinion/supreme-court- migrant-workers-crisis-no-judicial-review-high-courts-show-way-coronavirus-lockdown> accessed 10 January 2021.
[66] On how constitutional interpretation can support such a position, see J. Balkin, Living Originalism (Harvard UP 2011).
[67] See Distribution of Essential Supplies and Services During the Pandemic, In re (2021) 7 SCC 772 the Supreme Court’s order with respect to the Government’s COVID-19 vaccine policy, where the Court sought data from the Government about the Government’s purchase orders and persons vaccinated till date, which led the Government to modify its vaccination policy to make it more equitable, serves as an important illustration of how the Court can respond to democratic inertia in matters of individual rights without transgressing its own limitations of legitimacy and competence.
[68] See, generally, Katherine Young, ‘A Typology of Economic and Social Rights Adjudication: Exploring the Catalytic Function of Judicial Review’ [2010] Int’l J Const L 385.
[69] See orders passed in Swaraj Abhiyan v Union of India (2018) 12 SCC 170. Sindhu and Narayan (n 50).
[70] M. Tushnet, ‘Thayer’s Target: Judicial Review or Democracy’ (1993) 88 Nw U L Rev 9, 17.
[71] Indeed, there is copious scholarship on the counter-majoritarian difficulty posed by judicial review in the United States. For a survey of this scholarship see, S.B. Prakash & J.C. Yoo,‘The Origins of Judicial Review’ (2003) 70(3) 887, 894-898.
[72] See R.A. Dahl, Democracy and its Critics (Yale UP 1989). Terri Peretti, ‘An Empirical Analysis of Alexander Bickel’s The Least Dangerous Branch’ in Kenneth Ward and Cecilia Castillo (eds), The Judiciary and American Democracy (State University of New York Press 2006).
[73] See the rights provided in pt III of the Indian Constitution.
[74] Art 32.
[75] State of Madras v V.G. Row AIR 1952 SC 196; State of Punjab v Khan Chand AIR 1974 SC 543; Om Kumar v Union of India (2001) 2 SCC 386; Shayara Bano v Union of India (2017) 9SCC 1.
[76] See G Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (Harper Collins 2019).
[77] Navtej Singh Johar v Union of India (2018) 10 SCC 1 : AIR 2018 SC 4321.
[78] K.S. Puttaswamy v Union of India (2017) 10 SCC 1; State of Maharashtra v Indian Hotel & Restaurants Assn (2013) 8 SCC 519 : AIR 2013 SC 2582.
[79] See Chiranjit Lal Chowdhuri v Union of India AIR 1951 SC 41; Ram Krishna Dalmia v S.R. Tendolkar AIR 1958 SC 538.
[80] See Narayan & Sindhu (n 4) 52-55.
[81] Kantaru Rajeevaru v Indian Young Lawyers Assn (2020) 2 SCC 1.
[82] On how this precedent made it to India see Narayan & Sindhu (n 4) 57-62.
[83] On the method of constitutional interpretation see P. Bobbitt, (n 7); C. Chandrachud, ‘Constitutional Interpretation’ in S. Choudhry, M. Khosla and P.B. Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press 2016).
[84] Art 32(2); In fact, the provision was amended to ensure discretion of remedies to the Supreme Court, see Constituent Assembly Debates, 9 December 1948.
[85] For instance, in Anuradha Bhasin v Union of India (2020) 3 SCC 637 : AIR 2020 SC 1308, the Court failed to strike down the internet shutdown imposed in Jammu and Kashmir, which became the longest internet shutdown in a democracy, despite finding that the Government was wrong to not produce the orders before court and that strict standards of proportionality had to be applied. Instead of striking down the measure, the Court, without explanation, passed a direction to the Government to produce the orders and review the situation. The internet in the region was only restored a year after the Court’s decision.
[86] This technique ought to have been applied in the face of protests against the decision of the Court in Indian Young Lawyers Assn v State of Kerala (2019) 11 SCC 1 allowing the entry of women into the Sabarimala Temple. Instead, the Court agreed to review its decision, See Kantaru Rajeevaru v Indian Young Lawyers Assn (n 82).
[87] A good example of a considered approach to standards of review is the Court’s decision in State of Gujarat v Shri Ambica Mills Ltd. (1974) 4 SCC 656 : AIR 1974 SC 1300, where the Court held that in matters of economic decisions promoting welfare (unlike identity-based classifications) the State government should have more leeway to make classifications so as to first determine the success of the welfare measure.
[88] See notes 38 to 45 and accompanying text.
[89] Aharon Barak, Proportionality Constitutional Rights and their Limitations (Cambridge UP 2012), 396–99.
[90] Cora Chan, ‘Proportionality and Invariable Baseline Intensity of Review’ (2013) 33 Leg Stud 1.
