Strengthening Democracy through a Re-Evaluation of Constitutional Review
The judicial review of state action requires judges to make choices to determine the content and application of legal tests and to balance individual rights against competing government interests. Such choices raise questions about the role of the courts in constitutional adjudication: when is a robust judicial review warranted and when do rights deserve special protection against unjustified infringement? The powerful Indian Supreme Court has been subject to widespread scholarly criticism of the overlapping and contradictory approaches to developing review standards for rights limitations. The panel will address (1) consequences of inconsistent judicial interpretation for legitimacy and effectiveness of judgments (2) proposed changes to the existing standards of rights review through a comparative study of the US, Sri Lanka, and South Africa – and (3) proposed structural changes to address issues of democratic legitimacy and lack of transparency in the adjudicative process.