Constitutional Courts as 'Positive Legislators': The Indian Experience

11 Pages Posted: 5 Jun 2010

See all articles by Surya Deva

Surya Deva

City University of Hong Kong

Date Written: June 4, 2010


This paper - the National Report for India prepared for the XVIII International Congress of Comparative Law - seeks to review the way in which the courts in India have employed and expanded the power of judicial review and in that process ended up legislating on many occasions. It will first highlight how the Indian constitutional courts have not only vigorously guarded their power of judicial review but have also self-empowered themselves through a series of decisions. It will then show, with the help of a few illustrative cases, the extent to which the Indian courts have acted as ‘positive legislators’. The paper will conclude with a brief critique of this trend.

Keywords: Indian Constitutional Law. Judicial Review, Courts as Legislatures, Public Interest Litigation

Suggested Citation

Deva, Surya, Constitutional Courts as 'Positive Legislators': The Indian Experience (June 4, 2010). Available at SSRN: or

Surya Deva (Contact Author)

City University of Hong Kong ( email )

School of Law
83 Tat Chee Avenue
Kowloon Tong
Hong Kong

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