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Although the power of judicial review does not require an express recognition in a constitutional text, Article 13(2) of the Indian Constitution provides such recognition by laying down that the state 'shall not make any law which takes away or abridges' the fundamental rights. The remedy to approach the Supreme Court for violation of fundamental rights under Article 32 is in itself a fundamental right. (A similar - in fact wider - power is vested with the High Courts under Article 226.) The Court has widened the scope of this power over the years by 
(i) implying many new rights within the ambit of Article 21; (ii) chartering the course of public interest litigation as a tool of deepening justice to the masses; (iii) declaring judicial review a 'basic feature' of the Constitution and thus putting this beyond the Parliament's amendment power; and (iv) conferring on itself the power to review the validity of even constitutional amendments.
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On a brief overview of the constitutional provisions and judicial decisions, it can be safely concluded that the Indian Constitution enshrines the rule of law as a fundamental governance principle, though the term is not mentioned expressly in the text of the Constitution. Having said this, there are several challenges that pose threat to building a society based on robust rule of law framework. Continued socio-economic inequalities (despite affirmative active provisions and programmes), large population, pervasive corruption (including in judiciary), judicial delays, law and order problems in view of regionalism and Naxalism, and the general apathy of people towards the rule of law are matters of serious concern. Despite these challenges, there is no doubt about the constitutional mandate or government's commitment to establishing a rule of law society.
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Further ReadingGranville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford: Clarendon Press, 1966). Granville Austin, Working a Democratic Constitution - The Indian Experience (New Delhi: Oxford University Press, 1999). Upendra Baxi, 'The Rule of Law in India', (2007) 6 Sur - Revista Internacional de Derechos Humanos 7, <socialsciences.scielo.org/pdf/s_sur/v3nse/scs_a01.pdf>. Surya Deva, 'Public Interest Litigation in India: A Critical Review' (2009) 28 Civil Justice Quarterly 19. B N Kirpal et al (eds.), Supreme but not Infallible - Essays in Honour of the Supreme Court of India (New Delhi: Oxford University Press, 2000). Randall Peerenboom (ed.), Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US (London: RoutledgeCurzon, 2004). Victor V Ramraj & Arun K Thiruvengadam (ed.), Emergency Powers in Asia: Exploring the Limits of Legality *(Cambridge: Cambridge University Press, 2010).* S P Sathe, Judicial Activism in India - Transgressing Borders and Enforcing Limits (New Delhi: Oxford University Press, 2002). Mahendra P Singh, 'The Constitutional Principle of Reasonableness' (1987) 3 Supreme Court Cases (Journal) 31. Mahendra P Singh, 'Securing the Independence of the Judiciary - The Indian Experience' (2000) 10 Indiana International & Comparative Law Review 245. Mahendra P Singh 2008: 'Shukla's Constitution of India', 11thedn., (Lucknow: Eastern Book Co.)
Vijayashri Sripati, 'Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950-2000)' (1998) 14 American University International Law Review 413. S K Verma and Kusum (eds.), Fifty Years of the Supreme Court of India - Its Grasp and Reach(New Delhi: Oxford University Press, 2000). |
