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Role Of The Judiciary In Upholding Constitutionalism

The Constitution of India provide a shape for political, economic, and social democracy. It provides the dedication of the human beings of India for asserting, ensuring, and reaching the diverse countrywide desires without violent and democratic and equal ways. It isn't simply a prison manuscript; rather, it's far a car that steers the country to comprehend the goals and aspirations of the human beings through accommodating and adapting to the transferring desires and realities of the times.

Making India, as a Union of States, equality earlier than the regulation and same safety of the legal guidelines is the essence of the Constitution. At the equal time, the Constitution is touchy to the desires and issues of the underprivileged and deprived segments of society too.

Indian constitution is based on the ideals of liberalism, welfare state, parliamentary federal government with a strong Centre, electoral and multi-party democracy. These ideals are enshrined in our Preamble, Fundamental Rights and Directive Principles of State Policy.

Concept Of The Constitutionalism

For the implementation of the constitution there is a concept of constitutionalism. And this Constitutionalism is a political spirit or philosophy, so it isn't essential that the states who have a charter should be embodied with the idea of constitutionalism.

The concept of constitutionalism is that of a form governed by or under a constitution that ordains essentially limited government and rule of law as hostile to arbitrary authoritarian or totalitarian rule. Constitutional government, therefore, should necessarily be democratic government. In other words, Constitutionalism is a political philosophy in which the functions of government of a state must be in accordance with the provisions of the constitution meaning thereby the actions of government must reflect constitutionality.

There is a some of person whom are says about the constitutionalism.

And According to Douglas Greenberg,

Constitutionalism is a dedication to boundaries on normal political energy, it revolves around a political process, one which overlaps with democracy in looking for to stability kingdom energy and person and collective rights, it attracts on precise cultural and historic contexts from which it emanates and it is living with inside the public consciousness.

According to Justice Subbarao,

Preamble is the soul of the constitution, without which a body in the form of state cannot be survived. The objectives of constitution ensure the dignified conditions for the people of India and provide them all rights and liberties within ambit of fundamental spirit of constitutionalism embodied in entire body of the constitution.

Now to pick out whether or not constitutionalism is found in India or not. It may be analyzed with the assist of numerous provisions of the charter that are:
  • Preamble
  • Judicial Review
  • Rule of law
  • Separation of power
  • Checks and balances and so on.
There isn't any exhaustive listing of capabilities with the aid of using which the validity or life of constitutionalism may be tested, however, each function which limits the authorities and proves useful to set up a role of sovereignty beneath neat essential standards of constitutional jurisprudence can be a huge factor for constitutionalism.

Role Of Judiciary In The Matter Of Upholding Constitutionalism

According to the assist of the numerous provisions of the constitutionalism role of the judiciary are:

Preamble and responsibility of the judiciary for the upholding constitutionalism:

Reiterating what I have emphasized in the previous paragraphs that judicial interpretation and judicial legislation has a very thin line of difference; one could easily face confusion while discerning or interpreting the same. Judicial Activism is also alleged to have taken a form of judicial legislation. But it is through this tool, the judiciary has also taken up the responsibility to fill up the legislative vacuum in order to uphold the preamble.

The silence of the Constitution and the abeyances left to be filled by the growth of conventions within the meaning of the enacted provisions and under the ground of preamble. This exercise has been performed by the Supreme Court of India in consonance with the constitutional preamble and scheme.

The Preamble expressly states that the Constitution of India is the product of “WE THE PEOPLE OF INDIA” who adopted, enacted and gave to themselves this Constitution on 26 November 1949. The people “resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC”. Thus, India is a sovereign country with a socialist, secular, democratic and republican polity. The words ‘socialist' and ‘secular' were introduced by an amendment in 1976. India's sovereignty, secularism, democracy and republican form of government have been recognized as basic features of the Constitution and as such beyond the power of amendment.[1]

All these goals of the Constitution have been comprehensively incorporated into its provisions. It is worth noting that unlike the Preamble of the statutes the Preamble of the Constitution is part of it and can be invoked just like any other provision for direct application. Therefore, any change in the Preamble may also be the subject matter of litigation on the ground of violation of basic structure of the Constitution.[2] And this is the case Kesavananda Bharati v State of Kerala where court is tried to implement the concept of the constitutionalism. And this is one of the role of the judiciary upholding constitutionalism on the basis of preamble of the India.

Judicial Review by the judiciary for the upholding constitutionalism:

Judicial Review refers to supervising the exercise of power by the judiciary of other government coordinating bodies with a view to ensuring that they remain within the limits set by the Constitution on their powers.

It is the court's right to review legislative and executive decisions, and even review judicial acts. It is the power to scrutinize the validity of legislation, or any practice, whether or not it is legitimate. Judicial review doctrine is based on the principle of rule of law and separation of powers. Judicial review is the process for testing and balancing the separation of powers.

Judicial Review's key purposes are as follows:

  • to determine the unconstitutionality of Legislative Acts
  • to maintain supremacy of the Constitutional Law
  • to protect the Fundamental Rights
  • to maintain federal equilibrium between Centre and the States
  • to check arbitrariness, unjust harassing and unconstitutional laws
In India, judicial power is a power given to the court to create a mechanism of regulation and balance between the legislature and the executive.
There are various provisions in the Indian Constitution explicitly laying down the power of judicial review to the courts, such as Articles 13, 32, 131-136, 141, 143, 226, 227, 245, 246 and 372.

The Supreme Court of India has declared it as Supreme Court's and High Court's power as a fundamental constitutional structure which cannot be taken away by a Constitutional amendment.

If any legislative act / executive order of either state government or central government is found to be in violation of the Constitution, it will be declared unconstitutional during the judicial review.

In the article 13 of the Indian constitution, the law explicitly mentioned about the power of Judicial Review to be endowed to the high court and Supreme Court. Chief Justice Kania in the landmark case of A.K.Gopalan vs. State of Madras,[3] stated that:
“it was only through caution and care that the framers of our constitution added the specific provisions mentioned in Art 13. In a country like India, it is the constitution which is the most supreme and hence all statute laws should be in conformity with it and it should be for the interpreters to decide whether any law is constitutional or not”.

The doctrine was further brought into confidence through several landmark cases which would be discussed in the article further.

Landmark judgements for the implement of the constitutionalism are:
After the A.K Gopalan case, in another case of L. Chandra vs. Union of India,[4] the court gave certain facets to the Judicial Review and also claimed that while interpreting the legislation, it must be made sure that the law is in coherence with the constitution. This case emphasizing on the need of coherence.

In the case of Shankari Prasad vs. Union of India,[5] the amendment was challenged on the reason that it is violating the Part-III of the Indian constitution and hence, the amendment should be considered not valid. The Supreme Court claimed that the legislative organ, under Article 368, has the power to change any part of the constitution including the fundamental rights. Here the court used its power of Judicial Review.

Similarly, in the case of Sajjan Singh vs. State of Rajasthan,[6] where the validity of the 17th Amendment Act of 1964 was in question, the court followed the provision laid in the Shankari Prasad vs. Union of India[7], under article 368, the parliament has the power to amend the constitution.

But in case of Golakhnaath Vs. state of Punjab,[8] the courts changed its decision when, amendment in question in the case of Sajjan Singh vs. State of Rajasthan [9]was again challenged. The court this time stated that under article 368 there is only the procedure to amend laid down but not the power for the parliament.

With time the doctrine of Judicial review came more into application by the courts the deeper its roots were embedded in the law. In the case of Ramesh Thapper vs. State of Madras,[10] the Supreme Court under its power of Judicial review struck down the Madras Maintenance of Public Safety Act 1949, on the fact that unless any certain law which is restricting freedom of speech and expression is pointed against eroding the security of the state or to topple it, any such law will not fall within the reservation of clause mentioned in Article 19(2) of the Indian Constitution.

In the year 1972, the honourable Supreme Court was summoned to check on the validity of the 24th, 25th and 29th Amendment in the Keshvananda Baharti's case.[11] The Supreme Court asserted its power of Judicial Review through the doctrine of basic structure. It was since then that the doctrine of basic feature became an inseparable power of the constitution.
In a very popular case of Minnerva Mills Ltd vs. Union of India,[12] the Supreme Court struck down clauses (4) and (5) of Article 368 which was inserted through the 42nd Amendment of the year 1976, stating the ground that these certain clauses damage and do not follow the essential features of the basic structure of the constitution.

One could witness the power of basic structure in the constitution through the case of I.R. Coelho vs. State of Tamil Nadu,[13] in which the Supreme Court affirmed that any certain law which is placed in the 9th schedule (subject after April 1974) will be open to challenge under the judicial review. The Court claimed that even though this act is under the 9th schedule of the constitutional Amendment yet its provisions would be open to challenge in case they damage the basic structure/feature of the constitution.

All these cases either broadened the feathers of the doctrine or bought certain limitations to it. Through these case one could witness that how with pace the doctrine was taking its place for the implementation of the constitutionalism by judiciary.

Rule of law by the judiciary for the upholding constitutionalism:

Responding to the changing times and aspirations of the people, the judiciary, with a view to see that the fundamental rights embodied in the Constitution of India have a meaning for the down-trodden and the under-privileged classes, pronounced in Madhav Haskot's case[14] that providing free legal service to the poor and needy was an essential element of Indra Sawhney v. Union of India,[15]

Rule Of Law & Access to Justice the ‘reasonable, fair and just procedure'. Again, in Hussainara Khatoon's case[16]while considering the plight of the undertrials in jail, speedy trial was held to be an integral and essential part of the right to life and liberty contained in Article 21 of the Constitution.

In Nandini Satpathy v. D.L. Dani[17], the Supreme Court held that an accused has the right to consult a lawyer during interrogation and that the right not to make self-incriminatory statements should be widely interpreted to cover the pre-trial stage also. Again, in Sheela Barse v. State of Maharashtra[18], the Supreme Court laid down certain safeguards for arrested persons.

In Bandhua Mukti Morcha's case,[19] the Supreme Court held that right to life guaranteed by Article 21 included the right to live with human dignity, free from exploitation. The courts have, thus, been making judicial intervention in cases concerning violation of Human Rights as an ongoing judicial process. Decisions on such matters as the right to protection against solitary confinement as in Sunil Batra v. Delhi Administration,[20] and Apparel Export Promotion Council v. A.K. Chopra[21] are just a few pointers in that directions and can be referred to by the members themselves.

In Indian Constitution, Rule of Law has been adopted under the Preamble where the ideals of justice, liberty and equality are enshrined. The Constitution has been made the supreme law of the country and other laws are required to be in conformity with the Constitution. Nonetheless, the courts have the onus to declare any law invalid, which is found in violation of any provision of the Constitution.

In India, the meaning of rule of law has been much expanded and applied differently in different cases by the judiciary. It is regarded as a basic structure of the constitution and therefore, it cannot be abrogated or destroyed even by parliament.[22] The principle of natural justice is also considered as the basic corollary of rule of law.

The Supreme Court of India has held that in order to satisfy a challenge under Article 14, the impugned State act (enactment in the form of law passed by parliament) must not only be nondiscriminatory, but also be immune from arbitrariness.[23] unreasonableness or unfairness (substantively or procedurally)[24] and also consonant with public interest.[25]

In A.D.M Jabalpur v Shivakant Shukla,[26] the question before the apex court was, whether there was any rule of law in India apart from Article 21 of the Indian Constitution. The court by majority held that there is no rule of law other than the constitutional rule of law. However, Justice Khanna did not agree with the above view.

He rightly said:
Even in the absence of Article 21 of the constitution, the State has no power to deprive a person of his life or liberty without the authority of law.

Similarly, the Supreme Court while explaining the rule of law in K.T. Plantation Pvt. Ltd. v. State of Karnataka,[27] held as follows; “The rule of law as a principle contains no explicit substantive component like eminent domain but has many shades and colours. Violation of principle of natural justice may undermine the rule of law resulting in arbitrariness, unreasonableness, etc. but such violations may not undermine the rule of law of law so as to invalidate a statue.

Violation must be of such a serious nature which undermines the very basic structure of the constitution and the democratic principles of India. But once the court finds, a statue undermines the rule of law which has the status of a constitutional principle like the basic structure, the said grounds are also available and not vice versa.

Any law which in the opinion of the court is not just, fair and reasonable is not a ground to strike down a statute because such an approach would always be subjective not the will of the people because there is always a presumption of constitutionality for a statue. The rule of law as a principle is not an absolute means of achieving equity, human rights, justice, freedom and even democracy and it all depends upon the nature of the legislation and the seriousness of the violation.

The rule of the law as an overarching principle can be applied by the constitutional courts, in the rarest of rare cases and the courts can undo laws, which are tyrannical, violate the basic structure of the constitution and norms of law and justice.” For the constitutionalism in this field judiciary also played a vital role on the basis of the constitution.

Separation of power by the judiciary for the upholding constitutionalism:

In India, a separation of functions rather than of powers is followed. Unlike in the US, in India, the concept of separation of powers is not adhered to strictly. However, a system of checks and balances have been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature.

Today, most of the constitutional systems do not have a strict separation of powers between the various organs in the classical sense because it is impractical. In the following sections, we will see the prevailing system in India, what the relationship between each organ is, and the constitutional provisions thereof.

Judicial Pronouncements Upholding constitutionalism of the Separation of Powers Doctrine:

Kesavananda Bharati Case (1973): In this case, the SC held that the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic features will be declared unconstitutional.

Swaran Singh Case (1998):
In this case, the SC held the UP Governor's pardon of a convict unconstitutional.

Other SC Judgements:
The Honourable Supreme Court in Ram Jawaya Kapoor V State of Punjab held that the Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution does not contemplate assumption by one organ or part of the state of functions that essentially belong to another.

In Indira Nehru Gandhi V Raj Narain, Ray, CJ observed that in the Indian Constitution there is a separation of powers in a broad sense only. A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India. The Court further held that adjudication of a specific dispute is a judicial function which Parliament even acting under a constitutional amending power cannot exercise. Apart from difficulties inherent in the enforcement of the strict doctrine of separation of powers in the functioning of the modern government, there is also an inherent difficulty in defining, in workable terms, the division of powers into executive, legislative and judicial.

In P Kannadasan V State of Tamil Nadu, it was held, “the Constitution has invested the Constitutional Courts with the power to invalidate laws made by Parliament and the state legislatures transgressing Constitutional limitations. Where an Act made by the legislature is invalidated by the Courts on the basis of legislative incompetence, the legislature cannot enact a law declaring that the judgement of the Court shall not operate; it cannot overrule or annul the decision of the Court.

But this does not mean that the legislature which is competent to enact the law cannot re-enact the law. Similarly, it is open to the legislature to alter the basis of the judgement. The new law or the amended law can be challenged on other grounds but not on the ground that it seeks to in effectuate or circumvent the decision of the court. This is what is meant by “checks and balance” inherent in a system of government incorporating separation of powers.

Checks and Balances by the judiciary for the upholding constitutionalism:

The strict separation of powers that was envisaged in the classical sense is not practicable anymore, but the logic behind this doctrine is still valid. The logic behind this doctrine is of polarity rather than strict classification meaning thereby that the center of authority must be dispersed to avoid absolutism. Hence, the doctrine can be better appreciated as a doctrine of checks and balances.

In the early years, the Supreme Court held twice, in Sankari Prasad (1951) and Sajjan Singh (1965), that there were no restrictions in amending powers of Parliament. As a result, all official reviews of the Constitution – First Amendment (1951), Fourth Amendment (1954), and Forty Second Amendment (1976) – were ways governments found to get around the original Constitution. It was only in the 1973 Kesavananda case that the court began to enforce the doctrine of basic structure, limiting the powers of government. As for limiting the power of government over appointment of judges, in 1993 the court presumed that role as well. But now India has a system of judges appointing judges behind a veil of secrecy. There is no public scrutiny of their appointment or their performance.

In Indira Nehru Gandhi's case, Chandrachud J. observed:
No Constitution can survive without a conscious adherence to its fine checks and balances. Just as courts ought not to enter into problems intertwined in the political thicket, Parliament must also respect the preserve of the courts. The principle of separation of powers is a principle of restraint which “has in it the precept, inmate in the prudence of self-preservation; that discretion is the better part of valour”.

The doctrine of separation of powers in today's context of liberalization, privatization and globalization cannot be interpreted to mean either “separation of powers” or “checks and balance” or “principles of restraint”, but “community of powers” exercised in the spirit of cooperation by various organs of the state in the best interest of the people.

Challenges faces by the court in upholding constitutionalism:

Judges have the ultimate responsibility for decisions regarding freedoms, rights and duties of natural and legal persons within their jurisdiction. The independence of each individual judge safeguards every person's right to have their case decided solely on the basis of the law, the evidence and facts, without any improper influence. A well-functioning, efficient and independent judiciary is an essential requirement for a fair, consistent and neutral administration of justice.

Consequently, judicial independence is an indispensable element of the right to due process, the rule of law and democracy.

The independence of the judiciary as is clear from the above discussion hold a prominent position as far as the institution of judiciary is concerned. It is clear from the historical overview that judicial independence has faced many obstacles in the past specially in relation to the appointment and the transfer of judges. Courts have always tried to uphold the independence of judiciary and have always said that the independence of the judiciary is a basic feature of the Constitution.

Courts have said so because the independence of judiciary is the pre-requisite for the smooth functioning of the Constitution and for a realization of a democratic society based on the rule of law. The interpretation in the Judges Case giving primacy to the executive, as we have discussed has led to the appointment of at least some Judges against the opinion of the Chief Justice of India. The decision of the Judges Case was could never have been intended by the framers of the Constitution as they always set the task of keeping judiciary free from executive and making it self-competent. The decision of the Second Judges Case and the Third Judges Case is a praiseworthy step by the Court in this regard.

Although the Supreme Court of India has widened its scope of interference in public administration and the policy decisions of the government, it is well aware of the limitations within which it should function. In the case of P Ramachandran Rao v State of Karnataka[28], reported in, has observed that:
The Supreme Court does not consider itself to be an imperium in imperio or would function as a despotic branch of the State.

The Indian Constitution does not envisage a rigid separation of powers, the respective powers of the three wings being well-defined with the object that each wing must function within the field earmarked by the constitution.

The Supreme Court of India took all this into account in the judgment reported in the case of State of Kerala v A Lakshmi Kutty[29], stating that: “Special responsibility devolves upon the judges to avoid an over activist approach and to ensure that they do not trespass within the spheres earmarked for the other two branches of the State.”

Role of the judiciary in the Transformative constitutionalism

The idea of transformative constitutionalism lies in its emancipatory pursuit and in the conviction that large-scale social change within a certain political system is possible through the process and instrumentality of the law. Transformative constitutionalism enjoins a certain reading of the constitutional text that eschews formalism, pure positivism and legalism and advances an interpretation that acknowledges and responds to the reality of hierarchical structures and power relationships within a society.

And judiciary is playing the vital role of the transformative constitutionalism within the constitution. Just to illustrate, the canvass of judicial activism ranged from the protection of historical places to environmental pollution; from sexual harassment at the work place to adoption of children by foreigners; from exposing corruption at high places in the government to granting compensation for violation of FRs; from release of bonded and child labors and under trial prisoners to free legal aid; from the right to free and compulsory primary education to right to information; from criminalization of politics to running of blood banks; and from construction of dams to allotment of government houses and petrol pumps.[30] The effect of all this is that now the judiciary can legitimately claim itself to be ‘an arm of social revolution'.[31]

Sanctity of the judiciary for maintaining constitutionalism

The rule of law doesn't exist unless there is an independent judiciary to help protect it. Independent and impartial judiciary is indisputably believed as one of the hallmarks of a vibrant democracy.

However, the elected governments often perceive an independent and strong judiciary with suspicion. The political class as well as the top brasses desire a weak and obedient judiciary which will scot-free them to implement any policies. Even there are scores of incidents which project that the judges were threatened by the government of the day.

At this background, a potent weapon in the hands of judiciary could be the power of judicial review to establish the supremacy of Constitution. Judicial review is the procedure established in Britain where the courts have been conferred power to supervise the exercise of public power. In US, the Supreme Court can set aside any order pronounced or action taken by the administrative authority if it contravenes with ‘due process' clause of the Constitution. Similarly, in India the concept of judicial review is not championed by a single Article. There are plethoras of Articles which include Articles 13, 32, 131 to 136, 142, 143, 226 or 246 to activate the cause of judicial review in India.

So, The Indian judiciary has always been active in the sense of implementation of the constitution right and that whenever approached it has responded and has hardly decided not to decide. [32] Instead, it denotes a phenomenon when the judiciary departs from its role as a conventional adjudicator and acts in innovative manners by entering into policy issues normally assigned to the other organs of the government.

While assuming this responsibility as a custodian of the Constitution, it has interpreted FRs in the light of DPs, reminded the executive and legislature of their constitutional obligations, issued appropriate directions to concerned authorities, monitored working of government institutions, and has even filled in the legislative gaps by laying down guidelines. In many such cases the judiciary has either acted without being activated, i.e., suo motu, or enabled its activation in simple and speedy manner by relaxing the substantive and procedural requirements of locus standi.[33] This is way judicial authority or judiciary of the India going to implementation of the right of people of India under the concept of constitutionalism.

As judicial activism is primarily a post-emergency – 1977 onwards – phenomenon, it is often providing that the judiciary tried to regain its constitutional place and people's trust through judicial activism. Though this could be one of the reasons, this cannot be sole or even primary reason. The judiciary fought a long struggle for its place in the governance since its initiative. It sustained and strengthened its power to act in activist manner over a period of time through various steps.

Most notable amongst them are: the evolution of basic structure doctrine in Kesavananda Bharati; insistence on due process requirement in post-Maneka Gandhi era; integrated reading of FRs and DPs; liberalization of substantive and procedural requirements of locus standi; vigilant safeguard of the power of judicial review; and establishing legitimacy amongst ‘We, the people of India' by championing the rights of powerless ignorant masses. Besides, the weak executive at the Centre since 1989 and the growing gulf between the constitutional promise and reality has led to the fast growth of judicial activism.

Conclusion
Judiciary have the ultimate responsibility for decisions regarding freedoms, rights and duties of natural and legal persons within their jurisdiction for the upholding constitutionalism. The independence of each individual judge safeguards every person's right to have their case decided solely on the basis of the law, the evidence and facts, without any improper influence. A well-functioning, efficient and independent judiciary is an essential requirement for a fair, consistent and neutral administration of justice.

Consequently, judicial independence is an indispensable element of the right to due process, the rule of law and democracy. judiciary as is clear from the above discussion hold a prominent position as far as the institution of judiciary is concerned. It is clear from the historical overview that judicial independence has faced many obstacles in the past specially in relation to the appointment and the transfer of judges. Courts have always tried to uphold the independence of judiciary a for the uphold constitutionalism and have always said that the independence of the judiciary is a basic feature of the Constitution.

Courts have said so because the independence of judiciary is the pre-requisite for the smooth functioning of the Constitutionalism and for a realization of a democratic society based on the rule of law. The interpretation in the Judges Case giving primacy to the executive, as we have discussed has led to the appointment of at least some Judges against the opinion of the Chief Justice of India. The decision of the Judges Case was could never have been intended by the framers of the Constitution as they always set the task of keeping judiciary free from executive and making it self-competent. The decision of the Second Judges Case and the Third Judges Case is a praiseworthy step by the Court in this regard.

End-Notes:
  1. 4 LRI 647; M P Singh, ‘Constitutionality of Market Economy' (1996) 18 Delhi Law Review 272. See also Balco Employees Union v Union of India AIR 2001 SC 350; Centre for Public Interest Litigation v Union of India AIR 2003 SC 3277
  2. See Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461.
  3. A.K.Gopalan vs. State of Madras AIR 1950 SC 27
  4. L. Chandra vs. Union of India AIR 1997 SC 1125
  5. Shankari Prasad vs. Union of India AIR 1951, SC 455
  6. Sajjan Singh vs. State of Rajasthan AIR 1965 SC 845
  7. Prasad vs. Union of India AIR 1951, SC 455
  8. Golakhnaath Vs. state of Punjab 1967 AIR 1643, 1967 SCR (2) 762
  9. Sajjan Singh vs. State of Rajasthan AIR 1965 SC 845
  10. Ramesh Thapper vs. State of Madras, AIR 1950 SC 124
  11. Keshvananda Baharti's case AIR 1973 SC 1461
  12. Minnerva Mills Ltd vs. Union of India AIR 1980 SC 1789
  13. I.R. Coelho vs. State of Tamil Nadu AIR 2007 SC 8617
  14. Madhav Haskot's case AIR 1978 SC 1548
  15. Indra Sawhney v. Union of India, (2000) 1 SCC 168 1616 AIR 1978 SC 1548 6
  16. Hussainara Khatoon's case AIR 1979 SC 1819
  17. Nandini Satpathy v. D.L. Dani AIR 1978 SC 1025
  18. Sheela Barse v. State of Maharashtra 1983 (2) SCC 96
  19. Bandhua Mukti Morcha's case AIR 1984 SC 802
  20. Sunil Batra v. Delhi Administration 1978 (4) SCC 494
  21. Council v. A.K. Chopra 7JT 1999 (1) SC 1086
  22. Indira Gandhi v Raj Narain, AIR 1975 SC 2299 (2369-71
  23. Nakara v Union of India, (1983) UJSC 217 (Paras. 13, 14)
  24. Maneka Gandhi v Union of India, AIR 1978 SC 597
  25. Kasturi v State of Jammu & Kashmir, AIR 1980 SC 1992 (2000)
  26. A.D.M Jabalpur v Shivakant Shukla (1976) 2 SCC 521, AIR 1976 SC 1207
  27. K.T. Plantation Pvt. Ltd. v. State of Karnataka (2011) 9 SCC 1
  28. P Ramachandran Rao v State of Karnataka (2002) 4 SCC 578
  29. State of Kerala v A Lakshmi Kutty AIR 1973 SC 1461
  30. See, for some of these decisions, Singh, Constitution of India, above n 16, 166-81; Das, above n 208, 38-44; Desai & Muralidhar, above n 228, 168-76; Sathe, above n 228, 116-29, 139-47, 219-29.
  31. See Austin, Cornerstone of a Nation, above n 8, 164.
  32. Hassall and Saunders illustrate the distinction, what they term, between ‘judicial activism' and ‘judicial quietism'; Graham Hassall & Cheryl Saunders, Asia-Pacific Constitutional Systems (Cambridge: Cambridge University Press, 2002), 170-71. Baxi also differentiates between an ‘active' and an ‘activist' judge; Upendra Baxi, ‘The Avatars of Indian Judicial Activism: Explorations in the Geographies of [In]justice' in Verma & Kusum (eds.), Fifty Years of the Supreme Court of India, above n 16, 156, 165-66. Also see M P Singh, ‘Judicial Activism in India' (2002) 5 Waseda Proceedings of Comparative Law 72.
  33. See Ashok H Desai & S Muralidhar, ‘Public Interest Litigation: Potential and Problems' in Kirpal et al (eds.), Supreme but not Infallible' above n 193, 159, 162-67; S P Sathe, Judicial Activism in India – Transgressing Borders and Enforcing Limits (New Delhi: Oxford University Press, 2002), 201-09; Justice P N Bhagwati, ‘Judicial Activism and Public Interest Litigation' (1985) 23 Columbia Journal of Transnational Law 561.

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