The author, Barkha Batra, is a third-year undergraduate at Ashoka University, majoring in Political Science with a minor in International Relations.
In Defence of Judicial Review
This paper essentially seeks to defend the practice of Judicial Review against the claim that it is undemocratic. At the outset, it must be noted that the legislature cannot be hailed as being democratic in an absolute sense simply by virtue of it being a representative body. Within the legislature do lie certain tendencies to overstep even the fundamental rights and principles outlined in constitutions.
From this ensues the first argument: if these rights and principles are overstepped, democracy itself is in danger - as those in power can ultimately use their positions to further consolidate power for themselves. In such a situation, there is a need for an external review or striking down of certain legislation. It can therefore be argued that judicial review in fact creates a more democratic environment by forcing the Parliament to be more perceptive of their limitations than they would without such a system.
Second, judicial review acts as a barrier against minority oppression. Democracy often runs on the ‘majority principle’ - ie, legislative representation and legislation itself embody the demands of majority social groups - endangering the desires, demands, and even lives of those in the minority. Hence, judicial review in fact enhances the spirit of democracy by ensuring safeguards against the tyranny of the majority, and theoretically ensuring that the rights of all people are respected.
The final argument is one made by Ronald Dworkin, on the deliberative function of judicial review. Two factors are at play here. First, the fact that judicial review involves a second democratic institution in reflecting upon enacted or possible laws takes away from the excessive power the legislature has, making the system itself more democratic. Moreover, the act of judicial review also sparks public deliberation which is essential for a democracy.
It can thus be concluded that Judicial Review is in no way antidemocratic: in fact, it only serves to strengthen the spirit and roots of democracy.
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