COMPARATIVE PUBLIC LAW PROJECT

CRITICAL ANAYSIS OF JUDICIAL ACTIVISM FOR PROTECTING HUMAN

RIGHTS (INDIA & USA)

NATIONAL LAW UNIVERSITY, JODHPUR

LLM (2016-17) SUMMER SESSION

I SEMESTER

SUBMITTED TO: SUBMITTED BY:

Prof. (Dr.) I. P. Massey Madhulika Singh(854)
Mr. S.K. Kaushik Zinnea Mehta (872)

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 TABLE OF CONTENTS
INTRODUCTION ................................................................................................................. 6

INTERPRETATIVE DISTINCTION BETWEEN JUDICIAL ACTIVISM AND

JUDICIAL REVIEW.................................................................................................................... 7

Text interpretation v/s value judgment.......................................................................................... 8

Justifications for judicial activism................................................................................................. 8

A. LEGITIMACY ISSUES AGAINST JUDICIAL ACTIVISM ............................. 9

(i) Issue of legitimacy due to extra constitutional interpretation ............................................... 9

(ii) Issue of legitimacy due to contra constitutional interpretation ......................................... 9

B. JUDICIAL REVIEW AND HUMAN RIGHTS ............................................... 10

(i) Moral Bases of Human Rights ............................................................................................ 10

(ii) Human Rights Indeterminacy ......................................................................................... 11

(iii) Interpretation of Indeterminate human rights norms....................................................... 12

C. ROLE OF JUDICIARYIN PROTECTING HUMAN RIGHTS ........................... 13

(i) Process of textual analysis .................................................................................................. 14

D. JUSTIFICATION FOR EMPOWERING COURTS TO PROTECT HUMAN RIGHTS

15

EVOLUTION OF HUMAN RIGHTS BY JUDICIAL DECISIONS IN UNITED

STATES OF AMERICA ............................................................................................................ 16

EVOLUTION OF HUMAN RIGHTS BY JUDICIAL DECISION IN INDIA ............. 19

A. WIDENING THE AMBIT OF PERSONAL LIBERTY ...................................... 19

(i) A. K Gopalan v. State of Madras ........................................................................................... 19

(ii) Maneka Gandhi v. Union of India .................................................................................. 20

B. VICTIMOLOGY AND VICTIM JUSTICE.......................................................... 21

C. HUMAN RIGHTS & VIOLENCE AGAINST WOMEN .................................... 22

D. HUMAN RIGHTS AND ENVIRONMENTAL WRONGS.................................... 23

 Conclusion ............................................................................................................................ 25

BIBLIOGRAPHY ................................................................................................................ 27

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 SYNOPSIS

SCOPE OF STUDY

This paper would trace the protectionist regime of human rights developed by the tool of
judicial review within the Indian and American Jurisdictions. This paper would further analyze
what amounts to judicial review and what not amounts to the judicial review done by the
judiciary. This paper further elaborates the concept and meaning of human rights .

RESEARCH OBJECTIVES

1. To understand the conceptual distinction between the Judicial Review and Judicial
Activism.
2. To determine the Issue of legitimacy of the Judicial Activism due to extra constitutional
interpretation and due to contra constitutional interpretation
3. To trace the Jurisprudence of Human Rights.
4. To outline the role of judiciary in protecting Human Rights through comparative study

RESEARCH QUESTIONS

1. What is the scope of power of the Judicial Review and Judicial Activism?
2. What is the legitimacy of the Judicial Activism due to extra constitutional interpretation
and due to contra constitutional interpretation?
3. What is the difference between Human Rights and the Legal Rights?
4. Why is the need for the protection of the Human Rights through the Judicial Activism?
5. What should be the criteria which acts determining element courts to interpret the text as
to balance competing interest of activism and constitutional retrain?

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 RESEARCH METHODOLGY

A recommendatory approach would be used for the purpose of this project.

SOURCES OF DATA:

The following secondary sources of data have been used in the project:

1. Articles/ /Journals

2. Books

3. Websites

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 INTRODUCTION

Nature and characteristics of judicial review changes into judicial activism as soon as court
deviate from interpretation of constitution. This deviation can happen in two forms, firstly,
court can interpret provisions beyond the constitutional mandate and secondly, court can go
contrary to constitutional mandate.1Protection of human right needs interpretation
constitutional principles broadly. Some scholars may state those interpretation as beyond
constitutional mandate or contravention of constitutional mandate as court are interpreting
which is not stated text of document. In United States enforcement of European convention on
human rights is applicable to legislative. There was not requirement of ratification by state
legislatures. Then there was amendment in constitution of united stated which require
ratification of these international conventions which required provisions of human rights been
applicable to signatories.

There is requirement of creation of interpretative process to develop administrative laws of

nationals to give more substantial public law jurisdiction to courts. Only this creation of
interpretation process shall progress the translation of the provisions of the European
Convention on human rights into principles of domestic laws2 There shall be a challenge on
legitimacy of interpretation process because courts will face with an instrument that enumerates
the fundamental rights of people in expansive form at international level in universal language.3

In this project we would first establish the sense in which we are using the term judicial
activism on the basis of which the entire scope our project would be defined. For this first I am
explaining the term judicial review to understand as to what is it that lies beyond judicial
reviews to enter into the domain of judicial activism.

1See, M. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS: AN INQUIRY INTO
THE LEGITIMACY OF CONSTITUTIONAL POLICYMAKING BY THE JUDICIARY ( 1 sted, 1982);
2
See, M.PERRY,Interpretivism,Freedom of Expression, and Equal Protection, 42 OHIO ST. L.J. 261(1981)
3
See, LORD IRVINE OF LAIRG, Activism And Restraint: Human Rights And The Interpretative Process,
K.C.L.J. 177 178-179 (1999)
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 INTERPRETATIVE DISTINCTION BETWEEN JUDICIAL ACTIVISM AND
JUDICIAL REVIEW

In the broadest possible way the term judicial activism has been defined to mean a
situation wherein the court strikes down a legislation passed by the duly elected legislature.
This is considered to be an activism because it renders a decision otherwise subject to political
discourse to a judicial discourse.4

However, if we were to narrow down the ambit of judicial activism we would inevitably
arrive at a conclusion that there in fact exists a distinction between judicial review and judicial
activism. Judicial review is being referred to as the conduct of the courts to question and even
reject at times the actions of the legislature.5 In this sense a restraint exists in terms of obliging
the courts to remain within the ambit of constitutional provisions for the purposes of reviewing
the acts of legislation. Therefore, the term judicial activism would inevitably go on to imply the
aspect of not being confined at all by provision in the constitution.6

This is to say that the judicial activism would involve a conduct on the part of the court of
questioning even those aspects of a legislative act which the drafters also must have never
brought into question or for that matter would have had no reason to reject such legislative acts.
This however, does not mean that judicial activism is not a controversial debate. Take for
instance the debate of whether the case Brown v. Board of Education7 was an instance of
judicial activism or not has been controversial.

The most general possible way of defending a case against the accusation of judicial
activism is to argue back by saying that the court has in fact interpreted the constitution. It is

4
See,David L. Anderson, Note, When Restraint Requires Activism: Partisan Gerrymandering and the Status
Quo Ante, 42 STAN. L. REV. 1549, 1559 (1990).
5
SeeSaphire, Making Noninterpretivism Respectable: Michael J. Perry's Contributions to Constitutional
Theory, 81 MICH. L. REV. 782, 800 (1983).
6
See,Sunstein, In Defense of the Hard Look: Judicial Activism and Administrative Law, 7 HARV. J.L.
&PUB.POL'Y 51 (1984).
7
Brown v. Board of Education, 347 U.S §.483.
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 just that the interpretation so provided is of a meaning that drafters had implied through their
language.

Text interpretation v/s value judgment

The only way to resolve this debate is to decipher the true meaning of interpretation at the
first place. In general, there can very well exist two ways of defining what the process of
interpretation involves. One way could be to interpret a text by inquiring into the meaning that
the author intends to communicate. The second way of defining interpreting a text can go on to
mean to define the meaning that we as interpreters would want to attach. This is to say that in
this second sense we are not concerned with finding the author’s meaning but only concerned
with the sense that we are willing to impose.8This would hence imply that there does exist a
sense of interpretation which would allow the language of the constitution to be interpreted the
way it means to us and not in the manner as the drafters would have meant while using the
language. This latter sense in which the term interpretation is being must be considered as
activism.

Now before moving on judicial activism in human right issues we would first ponder over
the possible justifications that exists for the two concepts of judicial review and judicial
activism.

Justifications for judicial activism.

The concept of judicial review recognizes the importance of having a judicial restraint
even when the judiciary goes on to reject a piece of legislation. This view emphasizes on the
fact the ultimate power to formulate policies must remain with the legislature. As far as the
function of the court is concerned it is only confined to the task of putting a check on the vires
of the legislature and thus ensuring that the legislature functions within the defined ambit or
scope.9 It is on the other hand the propounders of judicial activism state that ultimately law is a
matter of policy and hence judges must emphasize upon bringing up a good society of his or

8
Nichol, Giving Substance Its Due,93 YALE L.J. 171 (1983).
9
See,WILLIAM EATON, WHO KILLED THE CONSTITUTION: THE JUDGES V. THE LAW, 3( 1st
ed,1988)
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her own vision. 10
It is in this context that Justice William Wayne emphasized, “the duty of a
judge is simply not restricted to find out the constitutional validity of a legislation formulated
by legislature. The force of law and judiciary is to lie in actions and not lie in mere
pronouncements.”11Often such type of judicial activism is said to imbibe the concept of serving
the conscience.12

A. LEGITIMACY ISSUES AGAINST JUDICIAL ACTIVISM

With the kind of understanding that we have developed on judicial activism there arise two
important issues with respect to legitimacy of judicial activism. However, before moving on to
the two issues we must first understand that as long as the value judgment so rendered by the
judiciary is endorsed by the constitution there lies no legitimacy issue as such.

(i) Issue of legitimacy due to extra constitutional interpretation

The issue of legitimacy arises when firstly, that the value judgment so enforced by the
judiciary is although beyond the text of the constitution but still is not in contradiction to the
framers of the constitution. This can be considered as the problem of extra constitutional
judicial review.13 The legitimacy issue is in respect to how can such unaccountable judges be
given the mandate to impose their own values upon the majority elected. Therefore it is in this
sense that it can be said that any society which, (i) adopts a democratic structure to constitute
governance and (ii) has an institution of judiciary which although is not accountable but still
opposes or rejects the acts of those which are accountable to the public, would inevitably have
a legitimacy problem with judicial activism.14

(ii) Issue of legitimacy due to contra constitutional interpretation

10
See,Archibald Cox, The Role of the Supreme Court: Judicial Activism or Self-Restraint, 47 MD. L. REV.
118, 121-22 (1987).
11
See,William Wayne Justice, The Two Faces of Judicial Activism, 61 GEO. WASH.L.REV. 1, 10 (1992).
12
See,J.Skelly Wright, The Judicial Right and the Rhetoric of Restraint: A Defense of Judicial Activism in an
Age of Conservative Judges, 14 HASTINGS CONST. L.Q. 487,489 (1987).
13
See,Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96
HARv. L. REv. 781, 788 n.18 (1983).
14
See,R.Berger, Government By Judiciary: The Transformation Of The Fourteenth Amendment 1023, 1043
(1977).
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 A second legitimacy issue arises with respect to value based judgments of courts which
do not only go only go beyond the constitution but also in fact contrary to the constitution in
name of safeguarding rights, this can be considered as being contra-constitutional.15 Where on
the one hand extra- constitution is an issue in a democratic set up, when it contra-constitutional
activism on the part of the judiciary the legitimacy issue gets reformulated. Herein the
legitimacy issue does not arise from a question of how an unaccountable judiciary can have an
authority over the acts of accountable body but instead arises due to a concern over how any
institution for that matter can have the authority to go contradictory to the fundamental
constitution itself.16

B. JUDICIAL REVIEW AND HUMAN RIGHTS

In the field of human rights there has been significant expansion of the role of judiciary in
protecting the constitutional provisions to safeguard certain rights. 17 Such expansion has been
referred to as some as the process of judicialization of the institution of politics itself.18

It is in the context of human rights that a central issue arises with respect to whether such
protection of human rights must confer on the courts the power to intervene within the domain
of the legislature.19

(i) Moral Bases of Human Rights

When we ponder over the issue of human rights it becomes essential for us to understand
there exists a distinction between human rights and legal rights. The distinction in its broadest
possible sense can be stated that human rights are distinct set of moral rights which unlike other
legal rights do not depend on the act of conferment by a legal process to be considered to be in

15
See,Bennett, "Mere" Rationality in Constitutional Law: Judicial Review and Democratic Theory, 67
CALIF. L. REV. 1049, 1089 (1979)
16
See,Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. I(1971).
17
See,StephenGardbaum, The New Commonwealth Model of Constitutionalism, 49 AM. J. COMP. L. 707,
711-18 (2001)
18
See,C. Neal Tate &TorbjornVallinder, The Global Expansion of Judicial Power: The Judicialization of
Politics, in The Global Expansion Of JudicialPower (C. Neal Tate &TorbjornVallinder eds., 1995), at 1, 5
19
See Michael J. Perry, The Constitution, The Courts, And Human Rights: An Inquiry Into The Legitimacy
Of Constitutional Policymaking By The Judiciary 9 (1982).
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 existence.20 This in turn leads us to two implications. The first being that since human beings
are inviolable there are few things which should not be done to them and at the same time there
are few obligations that need to be fulfilled towards human beings in general. 21 It is precisely
this ambition to maintain such inviolability that a democratic set up is forced upon to recognize
(and not create) certain basic rights which are also commonly understood as human rights. 22

(ii) Human Rights Indeterminacy

Human rights when enumerated under a text are generally indeterminate in the sense that
they do not go on to provide for a clear decision in a case.23 Take for instance the rights
provided under the bill of rights have been limited to instances wherein the limitations are
reasonable and justifiable in nature.24

In such a context a question arises with respect to whether an authority should be imposed
on an independent judicial body to protect such indeterminate rights. This becomes a serious
concern because what this would effectively go on to mean is that the judiciary would be as a
result empowered to express the meaning of the norm in a concretisized sense.25 Therefore at
the time of invocation of human right norm the court is entrusted upon the responsibility to
make a judgment of what the indeterminate norm implies in the particular given facts of the
case.

For instance, if we were to talk about the right of an individual to religious freedom 26 the
court in such a scenario is under an obligation to determine whether the limitation so
challenged has been authorized by law, whether it is necessary in name of public order, public
moral to impose such limitation.This has been further explained by James Madison as “laws

20
See Berger,Michael Perry's Functional Justification for Judicial Activism, 8 U. DAYTON L. REV. 465,
471 n.40 (1983);
21
See,Cynthia Price Cohen, United Nations Convention on the Rights of the Child: Introductory Note, 44
INT'L COMMISSION JURIST REV. 36, 39 (1990).
22
See,CharlesLarmore, The Moral Basis of Political Liberalism, 96 J. PHIL. 599, 625 (1999)
23
See,Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. CHI. L. REV.
462, 473 (1987.
24
S. AFR. CONST. ch. 2 (Bill of Rights), § 36.
25
See,Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARv. L. REV. 1, 2-5 (1959)
26
The constitution of India, § 25.
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 are generally of such nature that even though they have been expressly stated they still remain
ambiguous till the time their content has not been adjudicated upon and ascertained as such.”27

(iii) Interpretation of Indeterminate human rights norms

One more distinction that needs to be understood is that where on the one hand
application of deterministic rule involves a process of deductive reasoning, application
indeterminate human right values force the courts to apply non-deductive reasoning in arriving at
decisions.28

It is important to note herein that-

“a process of applying or specifying a particular principle, from an indeterminate norm,

for a particular class of facts cannot be considered as discovering some inherent meaning of a
particular of the norm as such creation of principle is not a deductive creation of the principle
from the norm. Such application of the principle involves the process of fixing a concrete
requirement in the norm which otherwise was not in existence. When a court does go on to
specify a principle in this manner it is basically governed by its own understanding of what in
the particular case must be realized and also an understanding of the possible danger of a
conflict with other principles that a certain application of a principle involves. This hence
involves a certain element of rationalization of various consequences that an application of
particular principle in a particular class of cases can result into.”29

The challenge in applying such indeterminate principles lies in the question of how to fix
an appropriate political value to the norm for the purpose of applying the principle so involved
to the facts of the case and hence the key to this challenge lies in discovering the best possible
way of achieving a value.30 Understood the problem of indeterminate nature of human rights in
this sense leads us to an unavoidable question relating to legitimacy of the conduct of a court

27
See,Chemerinsky, The Price of Asking the Wrong Question: An Essay on Constitutional Scholarship and
Judicial Review, 62 TEx. L REv. 1207 (1984)
28
See,NeilMacCormick, Reconstruction after Deconstruction: A Response to CLS, 10 OXFORD J. LEGAL
STUD. 539, 548 (1990).
29
See,Anthony T. Kronman, Living in the Law, 54 U. CHI. L. REV. 835, 847-48 (1987).
30
See,J.M.Finnis, On "The Critical Legal Studies Movement," 30 AM. J. JURIS. 21, 23-25 (1985)
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 and thereby raising a question with respect to whether it is legitimate for a court to be
empowered to apply such indeterminate norms in such a manner that the court in the process
goes on to use a discretion to weigh certain consequences of the norm so concerned to create a
judgment which otherwise could not be deductively culled out from the norm itself and thereby
involving an element of creating a legislative judgment by the court for the case before it. 31It is
because of such indeterminate nature of human rights that often the courts are left with no other
option but create a judgment and hence imbibe a certain element of activism in their judgment.

C. ROLE OF JUDICIARY IN PROTECTING HUMAN RIGHTS

There is challenge for court to interpret the text as to balance competing interest of
activism and constitutional restrain. Role of court is to determine the human rights of nationals
and to fulfill this duty, court have to interpret the text with broader legal and constitutional
order. Judges are guardian of individual rights and minority rights against majority will and
enactments of legislature respectively. In the historic judgment of the United States Supreme
Court in Marbury v Madison32, stated that judiciary can interpret the text of constitution to
fulfill the gaps remain in constitution text and declare a statue unconstitutional if they violate
fundamental or human rights. It shall not be called that these decisions were beyond the
constitutional mandate. It is part of doctrine of separation of power that judiciary shall check
the acts of legislature to protect the rights of nationals.33

Although, firstly, courts are not absolutely free to interpret human rights text, there are
limitation which is of principles of constitutionalism and scope of judicial review. Human
rights provisions, generally, does not have set parameters or set definitions, henceforth,
judgments to determine these rights must be referred to national fundamental rights provisions
or follow principles generally accepted.34 Secondly, doctrine of precedent is significant
limitation on judges with respect to their interpretative freedom because these precedents have

31
Richard A. Posner, What am I? A Potted Plant?,NEW REPUBLIC, Sept.
28, 1987, at 24.
32
(1803) 1 Cranch 137.
33
LORD IRVINE OF LAIRG,Judges and Decsion-Maker: The Theory and Practice of Wednesbury Review'
11 (1961).
34
See, M. Perry, Interpretivism, Freedom of Expression, and Equal Protection, 42 OHIO ST. L.J.
261 (1981)
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 followed certain procedure and reasoning. To decide against such precedent, judges have to
give reasoning and refer to constitutional principles or other parameters to justify their point of
interpretation.35

It is stated that interpretation of any statute need to done according to present law or
principle which are present at time of interpretation not according the time on which it was
enacted.36 This principle must be applicable to human rights instruments. This is reason that the
European convention on human rights is considered as living instrument which need to
consider at time of interpretation. Moreover, these instruments need to consider as living
because concept of rights and discrimination of marginalized groups evolve with time and, their
nature and atrocities change with time.

(i) Process of textual analysis

Process of textual analysis is stated to be primary nature of interpretation. It is, therefore,

provision of bare text of these bills of rights need to be analyzed by courts considering the
primary norms engaged in these provisions. Although, many jurist states that courts shall not
interpret the text beyond or against the constitutional mandate of nationals, they should only
interpret the bare text only.37 This is known as declaratory theory, which state that primary role
of judge is to declare the law within constitutional limits.38Any other interpretation shall be
stated as judicial activism. Although, the declarative theory recognition to law making by
judges as they could declare a law by interpreting legal text but within certain limits. In
interpretation process, judges have to decide between competing meaning and they decide by
referring to underlying rationale of the legislative scheme. This nature of interpretation,
generally, applicable to human right instruments because like constitution text, “a bill of rights
state general principles and expresses purposes without condescending to particularity and
definition of terms. Gaps and ambiguities are bound to arise”.39

35
Ibid
36
See, Jack Beatson, Has the Common Law a Future, 56 Cambridge LJ 291, 302 (1997).
37
Scruttons v Midland Silicones Ltd 119621 AC 446. 467-469. Lord Simonds was a forceful exponent of the
declaratory theory of the judge's role.
38
See, Lord Reid, 'The Judge as Law Maker' ,(1972) 12 Journal of the Society of Public Teachers of La22.
39
Ng Ka Ling v Director of Immigration [19991 1 HKLRD 315. 339-340,
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 Courts while interpreting human rights instruments need to focus that they do not give that
broadest interpretation that takes away citizens fundamental entitlements. Moreover, it is
necessary not to stretch human right so as to make them as distorted caricatures. Interpretation
shall be done with good sense and realism. Bill of rights must be interpreted proportional to its
own scope and scope of citizens’ national fundamental rights; it shall state justice for human
rights.40

D. JUSTIFICATION FOR EMPOWERING COURTS TO PROTECT HUMAN

RIGHTS

As has already been established the role of courts has always been to give a concrete
structure to otherwise indeterminate human right norms. It is important to mention herein that
the justification for protection of human right does not necessarily imply that no non-judicial
organ of the government should be entrusted upon the task to protect human rights but only to
argue that irrespective of which other institution is entrusted upon this task, the judiciary must
also be given the mandate to protect human rights.41

A very strong and a general argument that exists in favor of protecting human rights
through the judiciary system states that unlike other governmental officials who are under an
obligation to represent the voice of their electoral constituency the judges are not in any
pressure to pass such popular decisions. Therefore, even if protection of human rights entail
passing of controversial decisions the court is better suited to perform such task.42 It might just
be so that human rights may very well entail the protection of the rights of the marginal
minority and the judiciary is appropriate to protect such minority interest.43

Henceforth, if at all the aim is to protect the rights of even those who do not muster
political power or for that matter the aim is to protect the right of the minority groups and their
religious faith then it is futile to do so in the parliament and expect from the majority to protect

40
Attomey-General of Hong Kong v Lee Kwong-kut (19931 AC 951, 975.
41
See, Michael C. Dorf, The Paths to Legal Equality: A Reply to Dean Sullivan, 90 CALIF. L. REV. 791,
807 (2002).
42
Paula Dwyer & Douglas Harbrecht, Congress: It Doesn't Work. Let's Fix It," Bus. WEEK, Apr. 16, 1990, at
54,56
43
See, Keith E. Whittington, In Defense of Legislatures, 28 POL. THEORY 690, 699 (2000)
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 such rights. Therefore if such rights need to be protected then it is got to be done by the courts
only.44

EVOLUTION OF HUMAN RIGHTS BY JUDICIAL DECISIONS IN UNITED

STATES OF AMERICA

This part shall analyze the trend of judicial decision for protection of human rights in two
jurisdictions namely united stated of America and India, and also provide different interpretation
doctrine followed by these court to analyze whether judicial decision can be qualified as judicial
activism.

At the world war, tendency of supreme court was to provide weak protection to right of
individuals and marginalized groups with respect to their civil rights and civil liberties.45 The
Sedition Act, President Lincoln's suspension of habeas corpus, the Red Scare of the World War
I era, the internment of Japanese Americans during World War II, is few instances of the same.
Supreme court judges followed a “instinct of herd” in deciding Abrams v. United States46 and
Korematsu v. United States47. This is stated considering historical development of equal
protection doctrine where court have recognized claims based on race and then recognized
claims of sex discrimination.

Thereafter, recognized claims of sexual orientation, henceforth, it can be stated that judges
followed the movements which society started and in order it has started. Larger society has
first started civil rights movements, the women’s movement and then the gay rights movement
in United States of America.48 By this we can conclude that there is influence of public opinion
on identification and determination of claims of individual rights and marginalized groups.
44
See, Lord Scarman, Protection of Human Rights, 1948 N.Z. L.J. 175, 177 (1948)
45
See GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME (2004)
46
250 U.S. 616 (1919) (holding that the Sedition Act of 1918, which restricted antiAmerican
speech, does not violate the First Amendment of the U.S. Constitution).
47
323 U.S. 214 (1944) (holding that Executive Order 9066, authorizing the use of internment camps for
Americans ofJapanese descent, does not violate the U.S. Constitutio
48
See, Michael C. Dorf, The Paths to Legal Equality: A Reply to Dean Sullivan, 90 CALIF. L. REV. 791, 807
(2002).
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 Although, it can equally be concluded that there is presence of majoritarian difficulty, which
state that majority can influence the decisions of judiciary and to counter the majority court
have to device an approach to interpret the text.

In America the concept of human right emerged in the post World War II era and it is in
this period that even the judiciary system (especially the federal courts) started experiencing a
change in their behavior with respect to various enactments. It is in this era that the courts
started playing a proactive role in protecting basic rights of individuals. It is in this context that
it was observed “any individual whose life, liberty and property gets interfered with would any
day prefer to get his or her case referred to a judicial institution.”49

In the modern democracy of United States preferred to constitute a system of constitutional

democracy and entrust upon the courts to protect the spirit of the constitution. In Marbury v.
Madision50 the court did the same when it decided to strike down a piece of legislation on
account of being violative of the constitution.

It is from here that a distinction between the concept of judicial review and judicial review
started becoming clear in political discourse. The American constitution therefore permitted
striking down of legislations on account of being in violation of certain basic human rights.
Therefore, what this essentially means is that the concept of judicial review broadened up to
authorize the courts to strike down legislation however, the only limitation was to do the same
within the permissive limits of the constitution. Concurrently, the two elements of extra
constitutional and contra constitutional decisions fell outside the ambit of judicial review to
become a part of judicial activism. Consequently, each constitutional case went on to create a
debate on whether it was a part of judicial review or judicial activism among the scholar. Each
of these constitutional case went on to create a debate on whether it was a part of judicial
review or judicial activism among the scholar depending upon whether the decision so rendered
was out of an interpretation of the constitution or not.

49
See, WILLIAM G. Ross, A MUTED FURY: POPULISTS, PROGRESSIVES, AND LABOR UNIONS
CONFRONT THE COURTS, 1890-1937, at 203 (1994).
50
Marbury v.Madison5 U.S.(1Cranch) 137 (1803).
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 In Engel vs Vitale51 when the court condemned the NewYork state law for permitting state
sponsored prayers in public schools. This judgment cited the constitution as a basis for
rejecting such legislation. Still the judgment created a debate among the scholars with respect
to whether the judgment was rendered out of an interpretation of the constitution or was an
instance of going beyond the text of the constitution and hence a case of judicial activism.

Similar was the fate of decisions holding legislations violative on account of

discrimination against women52, decisions rejecting a legislation on account of discriminating
between public schools53, decisions regarding abortion laws54. The controversy so created in all
these cases was with respect to whether the court had in these cases imposed their own value
judgments or merely interpreted the provisions of the constitution while rejecting such
legislations passed by the legislature.

51
Engel v. Vitale, 370 U.S. 421 (1962).
52
County of Washington v. Gunther, 452 U.S. 161 (1981)
53
Brown v. Board of Education, 347 U.S. 483 (1954)
54
Roe v wade 410 U.S. 113 (1973)
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 EVOLUTION OF HUMAN RIGHTS BY JUDICIAL DECISION ININDIA

A. WIDENING THE AMBIT OF PERSONAL LIBERTY

Article 21 guarantees that no person shall be deprived of his life and personal liberty
except according to procedure established by law, lies at the heart of all the Fundamental rights
guaranteed by our Constitution. This vast expanse of Article 21 has expanded from time to time
interpretation by the judiciary. Mathew J. stated that the Fundamental Rights themselves have
no fixed content; most of them are empty vessels into which each generation must pour its
content in the light of its experience.55 There is development of Constitutional jurisprudence by
judicial activism from case of A K Gopalan to Maneka Gandhi.

(i) A. K Gopalan v. State of Madras

A. K Gopalan v. State of Madras56 was a case of preventive detention, where a communist

leader was put in custody under the Preventive Detention Act, 1950. The counsel on behalf of
the detenu contended that element of requirement of reasonableness was inherent in Article 21,
and when Article 19 & 21 read together, it is found that only reasonable restriction could be
imposed under Article 19. Supreme Court with a majority of 5:1 discarded this contention and
ruled that ‘procedure established by law’ was deliberately substituted for ‘due process of law’,
further Mukherjea, J. held that law in Article 21 meant the state enacted law and did not carry
with it the abstract idea of justice of fairness. 57 Das, J. further provided that subject to
limitations enforced upon by the constitution, legislature was supreme, so if within its scope the
legislature was abusing the power, the courts should not provide a remedy, the ‘court must take
the constitution as it finds it’.58 The bench was insistent that article 19 & 21 could not be read
together. Fazl Ali. J, entirely differed from the above approach of interpretation and gave
dissenting opinion, held that Article 19, 21 and 22 were not mutually exclusive, and overlapped
considerably.

55
Kesavananda Bharti v State of Kerala (1973) 4 SCC 225)
56
A.K. Gopalan v. State of Madras (1950) SCR 88
57
Ibid
58
See Udai Raj Rai, Fundamental Rights and Their Enforcement, 218-19, 2011.
19 | P a g e
 The interpretation by the judiciary in A.K. Gopalan Case was not progressive; the personal
liberty could have been more expansively and liberally interpreted. Another case which came
up before the hon’ble court was Kharak Singh v. State of UP59, the question which came up
before the court here was whether the activities authorized under the Regulation 236 of the UP
Police Regulation, allowed police official to execute actions which infringed the fundamental
rights. Ayyangar, J. speaking for the majority referred the case of Munn v. Illinois60 of the US
Supreme Court to the effect that “liberty in the context of the XIV Amendment of the US
constitution did not mean mere freedom from physical restraint or the bonds of prison.”61 The
majority in this case opined that the term Personal liberty in article 21 was employed as a
“compendious term to include within itself all the variety of rights which go to make up the
personal liberties of man other than the rights separately guaranteed under several clauses of
Article 19(1)”.62 Thus even with this decision interpretation of the concept of personal liberty
was not take much far from what was held in the A.K Gopalan case.

(ii) Maneka Gandhi v. Union of India

The decision of the court in Maneka Gandhi v. Union of India63 ushered an era of liberal
interpretation of the constitution. In this case the passport of Mrs. Maneka Gandhi was
impounded by the authorities and the same was asked to be surrendered, further the reasons of
such impoundment were not disclosed to her in the interest of the general public. Supreme
Court while giving the decision, developed upon what is covered in the concept of personal
liberty, held that the fundamental rights were not exclusive of each other and did overlap. Also
that the procedure established by law under Article 21 meant fair and reasonable procedure and
not an arbitrary procedure.

Justice PN Bhagwati is the champion of Human rights and with the judgment of Maneka
Gandhi the cherished principle of personal liberty was extensively interpreted. “He traced the
roots of the rights in freedom struggle and quoted Granville Austin from his book The Indian
Constitution: Cornerstone of a Nation that the rights were included in the constitution in the
59
(1964) 1 SCR 332
60
94 US 113 (1877)
61
Udai Raj Rai, Fundamental Rights and Their Enforcement, 225, 2011.
62
Ibid
63
AIR 1950 SC 27
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 hope that one day the tree of true liberty would bloom in India.”64 During the era of Gopalan
Case the judiciary gave the decisions on the theme that courts must take Constitution as it finds
it, but with the Maneka Gandhi case it widened its ambit, that judiciary’s role is to give proper
shape to the constitution through interpretation.

B. VICTIMOLOGY AND VICTIM JUSTICE

The frequency of crime and violence against person and property is on a rise across the
globe, the probability of becoming a victim of crime has tripled over the past thirty years. This
constant fear in the mind of becoming a possible victim has several severe physiological,
psychological and physical implications; the victims of crime suffer undying scars and
psychological suffering.

Before the development of any formal criminal justice system, the punishments were based
upon the lines of retributive justice, where proportional punishments were regarded as best
answer to crime and criminal. With the development of the concept of state, when crime started
to be considered as against the society and it became the responsibility of the state to preserve
peace and safeguard the society, victim of crime become a forgotten person and was merely the
principle witness of the case.

The higher judiciary has played a very crucial role in development of victim justice
through catena of cases, despite of not having any special legislation regarding the same. The
court has focused on the concept of restorative justice which focuses on rehabilitation of the
victim through repairing the consequence, at the same stage as he was before the commission
of crime, by awarding appropriate compensation. Due to lack of any special legislation
regarding the same, the judiciary using the tools of interpretation and its inherent powers has
come to the salvage of the victims65. In the case of Sukhdev Singh v. State of Punjab66Supreme
Court enhanced the fine imposed from Rs. 2000 to Rs. 10,000, without discriminating on their
right to claim damages for the death of the victim. Further the court in Balraj v. State of

64
See Granville Austin, The Indian Constitution: Cornerstone of A Nation: Cornerstone of A Nation, 1999.
65
C. RAJ KUMAR K. CHOCKALINGAM, HUMAN RIGHTS, JUSTICE AND CONSTITUTIONAL
EMPOWERMENT, 447-48,( 2ND ED. 2010)
66
1982 SCC (Cr.)467
21 | P a g e
 UP67while deciding upon the compensation held that the power of awarding compensation is
not ancillary to other sentences but is in addition to them.

The Supreme Court in its celebrated judgment of Bodhisattwa Gautam v. Subhra

Chakraborty68, adhering to the guidelines set forth in the Principles of UN Declaration on
Justice for Victims of Crime and Abuse of Power69, after having contented on the culpability of
the offender,awarded interim compensation of Rs. 1000 per month to the victim to assist her in
the medical legal and psychological way.

Another crucial case before the Supreme Court came in 1983 of Rudal Shah v. State of
Bihar70 , wherein Rudal Shah was kept in illegal detention for period of 14 years even after his
acquittal in murder case. Court awarded compensation of Rs. 35,000 and opined that violation
of rights by the state authorities can reasonably be prevented by mandatory imposition of
compensation to be paid. In another path breaking judgment of Saheli v. Commissioner of
Police, New Delhi71where a child of 9 years succumbed to his injuries after being beaten up by
police. The apex court awarded compensation Rs. 75,000 to be given to the mother as
compensation for death of her child72. It is very obvious nothing can actually put the victim
back to the previous position or in any compensate the loss occurred to him, but by providing
compensation to the victim of crime for medical, legal, loss of employment is a welcoming step
in development of human right.

C. HUMAN RIGHTS & VIOLENCE AGAINST WOMEN

Sexual harassment and violence against women is seen as perpetration of discrimination

against women. If the frequencies of sexual harassment cases are to be taken into account,
seven out of ten women have been a victim of such harassment. An overwhelming majority of
women (90%) who experience sexual harassment do not register a police complaint.73 The

67
1994 SCC (Cr.)823
68
AIR 1996 SC 922
69
See Principles of UN Declaration on Justice for Victims of Crime and Abuse of Power, 1985, United
Nation. http://www.un.org/documents/ga/res/40/a40r034.htm (Last accessed on September 9, 2016)
70
AIR 1983 SC 1086
71
AIR 1990 SC 513
72
Supra note 65
73
Rema Nagarajan, 'Seven out of ten women sexually harassed', The Times of India. Dec 21, 2012.
22 | P a g e
 Constitution of India through its various provisions in Article 14, 19, 21, 51A (e) protects
women against such harassment. In the case of Chairman Railway Board &Ors. v. Chandrima
Das &Ors.74, where a foreign national was gang raped by employees of railway. Compensation
of Rs. 1 million was awarded to the victim. Another case where the Supreme Court liberally
interpreted constitution and embarked upon the path of providing restorative justice to women
was in Delhi Domestic Working Women Forum v. Union of India75 where six domestic
servants were gang raped by army personnel. The Supreme Court directed through this
judgment to the National Commission for Women to evolve a compensation scheme for
rehabilitation of such rape victims.

The Supreme Court in its celebrated judgment Vishakha v. State of Rajasthan76 looked into
various international conventions, the chief being the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW)77 and laid down law on sexual harassment
of women at work place, but 19 years have passed and we still this has not taken the shape of
law. Further the Supreme Court opined that the basic human right enshrined in Universal
Declaration of Human Rights and the principles set out there in could be read into domestic
jurisprudence.78 Supreme Court observed that because of having legislative void in this area of
law need of the hour is to find effectual alternate mechanism. It is a very welcoming step in
development of human rights through judicial activism, that Supreme Court has read
international convention into domestic legislation to achieve gender equality and protection.

D. HUMAN RIGHTS AND ENVIRONMENTAL WRONGS

More than 2 million annual deaths and billions of cases of diseases are attributed to
pollution.79 This clearly gives an idea of how much environment affect the enjoyment of human
rights. A healthy, clean and ecologically-balanced environment is pre-requisite for the

74
(2000) 2 LRI 273
75
(1995)1 SCC14
76
(1997)6 SCC 241
77
See, Convention on the Elimination of All Forms of Discrimination Against Women, United Nations
http://www.un.org/womenwatch/daw/cedaw/ (Last accessed on September 7, 2016)
78
Supra note 65
79
Human Rights and the Environment, United Nation Environment Program.
http://www.unep.org/delc/HumanRightsandTheEnvironment/tabid/54409/Default.aspx (Last accessed on
September 7, 2016)
23 | P a g e
 enjoyment of human rights. There are several legislations regarding the same in our country
but, unfortunately even being so fundament in our existence it does not find place as
Fundamental rights in our Constitution. Thus the courts through judicial activism have read
along the directive principles and fundamental duties into the fundamental rights to develop
upon the intricately severe matter of human rights and environmental degradation.

The Supreme Court in cases like M.C Mehta v. Kamal Nath80 and Hinch Lal Tiwari v.
Kamala Devi and Ors.81 held that “resources of the community maintain delicate ecological
balance. Thus they need to be protected for a proper and healthy environment which enables
people to enjoy a quality of life which is essence of the guaranteed rights under Article 21 of
the constitution.”82 The Vellore Citizens Welfare Forum v. Union of India83is a landmark
judgment delivered by the Apex Court wherein the court opined that precautionary principle
and the polluter pays principle have been received as part of the law of the land and are
essential features of "Sustainable Development".84 Further with several other cases the hon’ble
Supreme Court developed the principle that the one who pollute must pay the damage to
reverse the harm done.

Thus through these cases the Supreme Court explores the crucial link between human
rights and environmental justice. Initially the cases for environmental damages mostly came
under writ petition under Article 32 and 226. Environmental law is one such field where
Supreme Court has excelled itself, also in cases of environmental damage the rule of locus
standi has also been relaxed and anyone can approach the gates of justice through Public
Interest litigation. “But it was with the judicial innovation notably of Justice Bhagwati and
Justice Krishna Iyer that the tool of public interest litigation was creatively uses to ameliorate
the conditions of those who’s Fundamental Rights had been affected due to various actors
including state agencies.”85

80
(1997) 1 SCC 388
81
(2001) 6 SCC 496
82
O Chinnappa Reddy, The Court and the Constitution of India, 250-51, 1st Ed. 2008.
83
AIR 1996 SC 2715
84
See Indian Council for Enviro-Legal Action v. Union of India AIR 1996SC 1446
85
See for Example PUDR v. Union of India (AIR 1982SC 1473); BandhuaMuktiMorch v. Union of India
(AIR 1984 SC 802); Dr. UpendraBaxi v. State of UP (1983) 2 SCC 308
24 | P a g e
 CONCLUSION

Protection of human rights and implementations of international instruments require court

to interpret the constitutional principles and statutes broadly. Broad interpretation requires to
consider the scheme of the statute or constitutional mandate in present era and also considering
the rights of individual and marginalized group. Court are not required to go against the
mandate of constitution or contravene the constitution but to recognized the rights by
understanding stated principles of equality, justice and fairness. Process of textual analysis is
stated to be primary nature of interpretation. It is, therefore, provision of bare text of these bills
of rights need to be analyzed by courts considering the primary norms engaged in these
provisions. The role of courts has always been to give a concrete structure to otherwise
indeterminate human right norms. A process of applying or specifying a particular principle,
from an indeterminate norm, for a particular class of facts cannot be considered as discovering
some inherent meaning of a particular of the norm as such creation of principle is not a
deductive creation of the principle from the norm The judiciary system states that unlike other
governmental officials who are under an obligation to represent the voice of their electoral
constituency the judges are not in any pressure to pass such popular decisions.

Therefore, even if protection of human rights entail passing of a controversial decisions the
court is better suited to perform such task. Henceforth, if at all the aim is to protect the rights of
even those who do not muster political power or for that matter the aim is to protect the right of
the minority groups and their religious faith then it is futile to do so in the parliament and
expect from the majority to protect such rights. Therefore, if such rights need to be protected
then it is got to be done by the courts only. A process of applying or specifying a particular
principle, from an indeterminate norm, for a particular class of facts cannot be considered as
discovering some inherent meaning of a particular of the norm as such creation of principle is
not a deductive creation of the principle from the norm.

There are many situations or circumstance in with there was requirement of existence of
right to protect individuals and marginzed groups and there was presence of human right. There
might be a situation where a particular nation has not recognized those rights, in these
25 | P a g e
 circumstances, circumstances of hard cases where there is dispute regarding the recognition of
human right. Courts are required to interpret the constitutional mandate broadly and apply
international instruments in domestic laws. These interpretations shall be legitimate till the time
they are under the scope of constitutionalism.

26 | P a g e
 BIBLIOGRAPHY

ARTICLES

1. Archibald Cox, The Role of the Supreme Court: Judicial Activism or Self-Restraint, 47 MD. L.
REV. 118, 121-22 (1987). ................................................................................................................ 7
2. Charles Larmore, The Moral Basis of Political Liberalism, 96 J. PHIL. 599, 625 (1999) .............. 9
3. David L. Anderson, Note, When Restraint Requires Activism: Partisan Gerrymandering and the
Status Quo Ante, 42 STAN. L. REV. 1549, 1559 (1990). ............................................................... 5
4. LORD IRVINE OF LAIRG,Judges and Decsion-Maker: The Theory and Practice of Wednesbury
Review' 119961.............................................................................................................................. 11
5. M. Perry, Interpretivism, Freedom of Expression, and Equal Protection, 42 OHIO ST. L. ......... 12
6. Nichol, Giving Substance Its Due,93 YALE L.J. 171 (1983). ......................................................... 6
7. Paula Dwyer & Douglas Harbrecht, Congress: It Doesn't Work. Let's Fix It," Bus. WEEK, Apr.
16, 1990, at 54,56........................................................................................................................... 13
8. See Berger,Michael Perry's Functional Justification for Judicial Activism, 8 U. DAYTON L.
REV. 465, 471 n.40 (1983); ............................................................................................................. 9
9. See Granville Austin, The Indian Constitution: Cornerstone of A Nation: Cornerstone of A
Nation, 1999................................................................................................................................... 18
10. See Saphire, Making Noninterpretivism Respectable: Michael J. Perry's Contributions to
Constitutional Theory, 81 MICH. L. REV. 782, 800 (1983). .......................................................... 5
11. See Udai Raj Rai, Fundamental Rights and Their Enforcement, 218-19, 2011. ........................... 17
12. See, Keith E. Whittington, In Defense of Legislatures, 28 POL. THEORY 690, 699 (2000) ...... 14
13. See, Lord Reid, 'The Judge as Law Maker' ,(1972) 12 Journal of the Society of Public Teachers
of La22 ........................................................................................................................................... 12
14. See, M. PERRY,Interpretivism,Freedom of Expression, and Equal Protection, 42 OHIO ST. L.J.
261(1981) ......................................................................................................................................... 4
15. See, Jack Beatson, Has the Common Law a Future, 56 Cambridge LJ 291, 302 (1997). ............. 12
16. See, LORD IRVINE OF LAIRG, Activism And Restraint: Human Rights And The Interpretative
Process, K.C.L.J. 177 178-179 (1999) ............................................................................................ 4
17. See, Lord Scarman, Protection of Human Rights, 1948 N.Z. L.J. 175, 177 (1948) ...................... 14
18. See, Michael C. Dorf, The Paths to Legal Equality: A Reply to Dean Sullivan, 90 CALIF. L.
REV. 791, ...................................................................................................................................... 13

27 | P a g e
 19. See, Michael C. Dorf, The Paths to Legal Equality: A Reply to Dean Sullivan, 90 CALIF. L.
REV. 791, 807 (2002). ................................................................................................................... 15
20. See,Bennett, "Mere" Rationality in Constitutional Law: Judicial Review and Democratic Theory,
67 CALIF. L. REV. 1049, 1089 (1979) ......................................................................................... 8
21. See,Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. I...................... 8
22. See,Chemerinsky, The Price of Asking the Wrong Question: An Essay on Constitutional
Scholarship and Judicial Review, 62 TEx. L REv. 1207 (1984) ................................................... 10
23. See,Cynthia Price Cohen, United Nations Convention on the Rights of the Child: Introductory
Note, 44 INT'L COMMISSION JURIST REV. 36, 39 (1990). ....................................................... 9
24. See,J.Skelly Wright, The Judicial Right and the Rhetoric of Restraint: A Defense of Judicial
Activism in an Age of Conservative Judges, 14 HASTINGS CONST. L.Q. 487,489 (1987).......... 7
25. See,J.M. Finnis, On "The Critical Legal Studies Movement," 30 AM. J. JURIS. 21, 23-25 (1985)
....................................................................................................................................................... 11
26. See,Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. CHI. L.
REV. 462, 473 (1987. ...................................................................................................................... 9
27. See,Neil MacCormick, Reconstruction after Deconstruction: A Response to CLS, 10 OXFORD J.
LEGAL STUD. 539, 548 (1990). .............................................................................................. 10
28. See,R. Berger, Government By Judiciary: The Transformation Of The Fourteenth Amendment
1023, 1043 (1977). ........................................................................................................................... 8
29. See,Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 AM. J. COMP.
L. 707, 711-18 (2001 ....................................................................................................................... 8
30. See,Sunstein, In Defense of the Hard Look: Judicial Activism and Administrative Law, 7 HARV.
J.L. &PUB.POL'Y 51 (1984). .......................................................................................................... 5
31. See,Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral
Principles, 96 HARv. L. REv. 781, 788 n.18 (1983)....................................................................... 7
32. See,Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARv. L. REV. 1, 2-5
(1959) ............................................................................................................................................... 9

33. See,William Wayne Justice, The Two Faces of Judicial Activism, 61 GEO. WASH.
L.REV. 1, 10 (1992). .......................................................................................................... 7

CASES

34. 1964) 1 SCR 332............................................................................................................................ 17

28 | P a g e
 35. 1994 SCC (Cr.)823 ........................................................................................................................ 19
36. 250 U.S. 616 (1919) ....................................................................................................................... 14
37. 982 SCC (Cr.)467 .......................................................................................................................... 19
38. A.K. Gopalan v. State of Madras (1950) SCR 88 .......................................................................... 17
39. AIR 1996 SC 922 ........................................................................................................................... 19
40. Attomey-General of Hong Kong v Lee Kwong-kut (19931 AC 951, 975..................................... 13
41. Brown v. Board of Education, 347 U.S §.483. ................................................................................ 6
42. Brown v. Board of Education, 347 U.S. 483 (1954 ....................................................................... 16
43. County of Washington v. Gunther, 452 U.S. 161 (1981) .............................................................. 16
44. Engel v. Vitale, 370 U.S. 421 (1962). ............................................................................................ 16
45. Kesavananda Bharti v State of Kerala (1973) 4 SCC 225) ............................................................ 16
46. Marbury v Madison........................................................................................................................ 11
47. Ng Ka Ling v Director of Immigration [19991 1 HKLRD 315. 339-340,..................................... 13
48. Roe v wade 410 U.S. 113 (1973) ................................................................................................... 16

TREATIES

49. See Principles of UN Declaration on Justice for Victims of Crime and Abuse of Power, 1985,
United Nation. http://www.un.org/documents/ga/res/40/a40r034.htm (Last accessed on
September 9, 2016) ........................................................................................................................ 20
50. See, Convention on the Elimination of All Forms of Discrimination Against Women, United
Nations http://www.un.org/womenwatch/daw/cedaw/ (Last accessed on September 7, 2016 ...... 21

BOOKS

51. C. RAJ KUMAR K. CHOCKALINGAM, HUMAN RIGHTS, JUSTICE AND

CONSTITUTIONAL EMPOWERMENT, 447-48,( 2ND ED. 2010) ............................................. 19
52. See Michael J. Perry, The Constitution, The Courts, And Human Rights: An Inquiry Into The
Legitimacy Of Constitutional Policymaking By The Judiciary 9 (1982). ....................................... 8
53. See Udai Raj Rai, Fundamental Rights and Their Enforcement, 218-19, 2011 ............................ 17
54. See, M. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS: AN
INQUIRY INTO THE LEGITIMACY OF CONSTITUTIONAL POLICYMAKING BY THE
JUDICIARY ( 1st ed, 1982); ............................................................................................................ 4
55. See, WILLIAM G. Ross, A MUTED FURY: POPULISTS, PROGRESSIVES, AND LABOR
UNIONS CONFRONT THE COURTS, 1890-1937, at 203 (1994).............................................. 15
29 | P a g e
 56. See,C. Neal Tate & Torbjorn Vallinder, The Global Expansion of Judicial Power: The
Judicialization of Politics, in The Global Expansion Of JudicialPower (C. Neal Tate & Torbjorn
Vallinder eds., 1995), at 1, 5 ............................................................................................................ 8
57. WILLIAM EATON, WHO KILLED THE CONSTITUTION: THE JUDGES V. THE LAW, 3(
1st ed,1988)....................................................................................................................................... 7

CONSTITUTIONAL PROVISIONS

58. S. AFR. CONST. ch. 2 (Bill of Rights), § 36. ................................................................................. 9

59. The Constitution of India, § 25 ...................................................................................................... 10

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