DSOP1045 | Decoding Separation of Powers: The Scope and Legitimacy of Judicial Review under the Indian Constitution

There is no universal conception of separation of powers. Instead the extent to which the judiciary can and should serve as a check on the legislature and the executive depends on how a Constitution provides for judicial review. Countless pages of legal scholarship have been dedicated all over the world to the legitimacy of judicial review. In India, however, such scholarship has largely been limited to the context of public interest litigation, either to justify or critique the Indian judiciary’s socio-economic rights jurisprudence. While one side recycles a dated notion of separation of powers imported from the United States to criticize the Indian Judiciary, the other typically adopts a teleological approach to justify the Court’s actions focusing on particular outcomes achieved by the Court. Scholars have has rarely tried to answer this question by examining the system of separation of powers created under the Indian Constitution. In all significant constitutional cases in the recent past, including the cases on the validity of the Citizenship Amendment Act, 2019, the internet shutdowns in Jammu and Kashmir, the validity of the electoral bonds scheme, the probing of the Rafale Deal and the monitoring of relief measures during the Lockdown, the Government has persistently argued that the judiciary does not have the power or competence to go into these questions. The question of legitimacy of judicial review is as relevant as ever.

Through this course, we will attempt to understand the kind of system of separation of powers the Indian Framers had envisaged under the Indian Constitution. We will go back to primary sources the Constituent Assembly Debates and undertake a historical, textual, and structural interpretation of the Constitution to construct a theory of judicial review grounded in India’s context. Against this backdrop, we will analyse the Court’s and academia’s position on judicial review of different issues such as civil and political rights, socio-economic rights, political issues such as the declaration of President’s rule, economic and policy decisions such as the allegations of corruption in the procurement of Rafale jets, demonetisation, electoral bonds, etc. In these classes, we will attempt to evaluate whether the Court’s position (and scholarly critique) on these issues is in line with the theory of judicial review envisaged by the Framers, and we shall come up with possible course correction measures that the Court can adopt.

The Course will build on the three compulsory courses on constitutional law but will largely focus on primary materials such as the Constituent Assembly Debates and case law. We will also turn to academic literature to provide context and background but an effort will be made to limit readings to relevant extracts. The readings will be taken as read for the purpose of class discussion.