Journal of Indian School of Political Economy

S. P. Sathe ¹

Affiliations
1 Institute of Advanced Legal Studies, lLS Law College, Law College Road, Pune-411004, IN

Abstract

In the paper published in the last issue of this Journal. the author had traced the evolution of judicial activism of the Indian Supreme Court from 1950 till 1973. when the Court laid down the basic structure doctrine as a limitation upon the constituent power of Parliament. In Judicial Activism (II), the author analyses the experience during the post-emergency period. During emergency, the Court did not acquit itself well at the bar of the people. It projected itself as a helpless witness to the demise of individual liberty and the rule of law. The emergency regime was rejected by the electorate but the scars it left on the face of the Supreme Court remained. During the post-emergency period. the Court had to regain its lost social legitimacy, which it did by liberally interpreting the Constitution so as to expand the rights of the people and facilitating access for the common man. In this paper, the author deals with the Court's contribution to the doctrinal law during the last twenty-four years and points out how the Court has assumed the function of judging the rightness of the political decisions of the legislature and the executive. The Court has. therefore, become a political institution in the sense that it has to take political decisions though political decision-making by the Court follows different criteria from those followed by the other organs of government in taking political decisions. The Paper traces how the Court undertook 'intensive scrutiny of the political decisions of the executive including those taken in the name of the President and what parameters it applied jar such evaluation. The subject of access which would require an in-depth analysis of what is popularly known as public interest litigation will be covered in the forthcoming paper. We shall also undertake an analysis of why judicial activism and public interest litigation have received such overwhelming public support. At the end, it will be necessary to point out the dangers of activism running riot and disregarding the borders which the doctrine of separation of powers has drawn.

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S. P. Sathe ¹

Affiliations
1 Institute of Advanced Legal Studies, ILS Law College, Law College Road, Pune-411004, IN

Abstract

This Paper is about judicial review and its role ill democracy. The makers of the Indian COnstitution had envisioned a limited scope for judicial review. They did not cherish the idea of an unelected, elitist Court sitting in judgment over the wisdom of the Legislature which represented the people. But the Constitution provided for a bill of rights which was essentially counter-majoritarian. A constitutional Court cannot interpret a Constitution merely with the help of a dictionary. Constitutional interpretation has to sustain the ideals of a democracy in which minority opinion and individual liberty are protected even against the majority. This Paper traces the evolution of the Supreme Court of India from a passive, positivistic Court into an activist Court articulating counter-majoritarian checks on democracy. The Paper also refutes the claim that judicial review is undemocratic. The Court has to continuously sustain the legitimacy of its power through its principled decisions.

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S. P. Sathe ¹

Affiliations
1 Institute of Advanced Legal Studies, Pune, IN

Abstract

Equality is one of the cherished aims of any society that wants to be just. Equality is, however, not understood by every one in the same sense. There are different meanings of equality and different ways of achieving it. In societies that are pluralistic, equality also means absence of discrimination on grounds such as ethnicity, religion, language or gender. A formal concept of equality means equal treatment to all and equal protection of law without any regard to inequalities that exist in life and which stem from unequal power relations.

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