Discovering Dworkin in the supreme court of India: a comparative excursus

Sudhir, Abhishek (2014) Discovering Dworkin in the supreme court of India: a comparative excursus. NUJS Law Review, 7 (1). pp. 13-35. ISSN 0975-0207

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This paper sets out to ascertain whether Ronald Dworkin’s jurisprudence has had an influence on the Supreme Court of India. Dworkin’s approach to constitutional adjudication is characterised by judges exercising a more judgmental and less mechanical role in interpreting the Constitution. This paper undertakes a comparative excursus by looking at a few landmark Indian cases where reliance has been placed on judgments from the United States of America that have been the subject of Dworkinian exposition. With the aid of Dworkin’s critique of legal pragmatism, a theory of constitutional adjudication that several judges relied on in crafting the ‘basic structure’ doctrine, the paper demonstrates that what the judges did was to substitute their own moral convictions for that of the legislature. In order to bolster this contention, the paper also discusses Dworkin’s critique of originalism and demonstrates how originalism alone does not support the ‘basic structure’ limitation on the amending power of Parliament. It is argued that what does lend support to the conclusion reached in the ‘basic structure’ case, is what Dworkin calls ‘the moral reading of the Constitution’. This conception allows judges to make fundamental moral judgments about conflicting political values. The paper then situates Dworkinian virtues like ‘equal concern and respect’ and a ‘constitutional conception of democracy’ in the larger context of the basic structure doctrine, thereby concluding that Dworkin’s philosophy has found, and will continue to find, expression in the theories and practices of the Indian Supreme Court.

Item Type: Article
Keywords: India | Supreme Court | Comparative Excursus
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Gena Veineithem
Date Deposited: 14 Apr 2022 10:51
Last Modified: 14 Apr 2022 10:51
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