INTRODUCTION

This National Report for India seeks to review the way in which the courts in India have employed and expanded the power of judicial review and in that process ended up legislating on many occasions. It first highlights how the Indian constitutional courts have not only vigorously guarded their power of judicial review but also have self-empowered themselves through a series of decisions. It then shows, with the help of a few illustrative cases, the extent to which the Indian courts have acted as positive legislators. The chapter concludes with a brief critique of this trend.

At the outset, it should be noted that, unlike some other countries, in India there are no separate courts to deal exclusively with constitutional issues. Under the Indian Constitution, the power to interpret the Constitution and entertain judicial review petitions is exercised by the Supreme Court and the High Courts. In this report, therefore, the term constitutional courts refers to the Supreme Court and the High Courts taken together. Nevertheless, considering that the Supreme Court has the final say on constitutional interpretations and on judicial review petitions, the report will primarily focus on the constitutional jurisprudence of the Supreme Court.

JUDICIAL REVIEW: CONSTITUTIONAL PROVISIONS AND JUDICIAL INTERPRETATION

The Indian Constitution envisages “the judiciary as a bastion of rights and justice.” The Constitution has made extensive provisions regarding the appointment, tenure, salaries, retirement age, and removal of the judges to secure the independence of judiciary.