Adopting weak-form review in India: An invitation to a new constitutionalism

Belle, Anirudh (2020) Adopting weak-form review in India: An invitation to a new constitutionalism. Indian Journal of Constitutional Law, 9. pp. 126-143.

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In systems of judicial supremacy judicial review implies the displacement of legislative or executive decisions. This results in what is called "the counter-majoritarian difficulty ". The counter-majoritarian difficulty highlights the problem of unelected judges exercising exclusive, or near-exclusive, dominion over decisions that ought to be made by democratically elected branches of the State namely, the legislature. In addressing the counter majoritarian difficulty, I examine what Mark Tushnet had referred to as the "weak-form" system of judicial review. The focus of this article is on rights review and on a single jurisdiction India. My effort is to argue for weak-form review in India as a system that breaks away from the traditional contrasts between legislative and judicial supremacy, and which better protects rights by reallocating powers between the legislatures and the courts. This article begins with an introduction to weak form review. I proceed to the opening section of my analysis where I detail the evolution of judicial review in India and justify its present avatar as "strong"; this justification is in response to a scholarly position which holds that Indian judicial review, though strong in design, is, in practice, a "partial substitute" of weak-form review. In the second section, divided into four subthemes, I explore arguments made for weak-form review; in the same vein, I address concerns that are commonly placed against it. In the final section, I summarise and conclude.

Item Type: Article
Keywords: Judicial review | Weak-form review | Constitutional law | Comparative constitutional law
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Mr. Syed Anas
Date Deposited: 29 Mar 2022 06:05
Last Modified: 29 Mar 2022 06:05
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