Constitutional Courts as 'Positive Legislators': The Indian Experience

Abstract

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.