Introduction:  A New Frontier In Comparative Judicial Review

Abstract

Indian constitutional democracy has experienced fundamental changes in recent years, both formally and informally. Moreover, the COVID-19 pandemic significantly contributed towards this transformation. As always, the Indian Supreme Court has found itself deeply entangled in these issues. Criticisms of the Supreme Court occur at either end of the spectrum. Some writers have argued that the Supreme Court has gone too far while others have criticised it for not going far enough. In last year’s volume of this law review, an article argued that Indians are too dependent on the Supreme Court for every facet of life and that there is a dire need to change this situation.

 Against this background, the National Law School of India Review decided to publish a special volume on Rosalind Dixon’s forthcoming manuscript, Responsive Judicial Review: Democracy and Dysfunction in the Modern Age. Dixon’s book draws on John Hart Ely’s political process theory devised in the American context. The book charts a normative framework called ‘responsive judicial review’ to guide the working of constitutional or appellate courts (hereinafter ‘courts’) in the comparative context. Dixon’s core argument is that in cases where the meaning of constitutional language is uncertain, courts should interpret that uncertain language to counter three broad risks to democracy: (1) sources of monopoly of power, (2) democratic blind spots, and (3) burdens of inertia. While engaging in such decision-making, Dixon cautions courts to be mindful of their institutional limits and the potential for their decisions to give rise to new threats to democracy.


Through this special volume, the National Law School of India Review invited contributions from ten varied contributors worldwide, including the current Chief Justice of the Indian Supreme Court, to respond to Dixon’s ‘responsive judicial review’. Finally, the volume concludes with a response from Dixon to all ten contributors. Though the individual contributions have been arranged alphabetically, some common threads appear throughout the volume.

Keywords: Rosalind Dixon, Judicial Review, Repsonsive Judicial Review, Comparative Political Process Theory, Justice Chandrachud, Supreme Court of India, Democracy, Judicial Role