Strengthening Democracy through a Re-Evaluation of Constitutional Review

The Indian Supreme Court has developed and applied certain standards of review to constitutional rights. These standards have had a significant impact in assessing the validity of limitations on the right to equality, and the right to life and personal liberty. The Court has crafted tests for these rights by referring to concepts of “rationality,“ “balancing“ and elements of the proportionality test. This paper will examine relevant Supreme Court case law to determine the judicial reasoning behind the evolution of these tests and concepts underlying them. It will (1) examine whether these tests represent an over zealous protection of rights or a deferential acceptance of legislative decisions (2) determine if the court‘s jurisprudence represents the adoption of a formalistic/doctrinal jurisprudence or a move towards an antiformal legal philosophy - and (3) analyze the consequences of application of such tests on the definition of these rights.

Through a close reading of major judgments from the Indian Supreme Court, this paper examines how review standards can be defined to fit within other constitutional considerations such as preserving fundamental values embodied in the rights provisions - the balance of power between the branches - keeping the court within bounds of institutional propriety and the limits of its institutional capacity - ensuring a legal culture based on transparent judicial reasoning to reach its decisions and preserving a balance in the state-citizen relationship. It will examine the reasoning used in these judgments to examine how the inconsistent application of review standards, and the lack of focus on developing a coherent jurisprudence by the Supreme Court has consequences for the institutional and popular legitimacy of the judiciary - and the importance of transparency and accountability in the exercise of judicial functions, particularly by powerful courts like the Indian Supreme Court.

The Indian Supreme Court has been influenced by foreign jurisprudence as evidenced by recent judgments relating to the right to equality and other negative rights. Through an examination of standards of review for these rights in Sri Lanka, the USA, and South Africa, this paper examine whether there should there be different standards of review for different fundamental rights based on their significance in the constitution especially in the context of the expansive definition of ‘life‘ and ‘personal liberty‘? This paper also examines whether the way forward for constitutional rights lies not only in doctrinal rethinking but also by creating avenues for constitutional dialogue between institutions to encourage political branches of government to legislate in a more rights-conscious way, while also democratizing access to constitutional rights. It analyzes structural changes that can address flaws in existing review standards and also result in a more efficient model of law-making.