The Indian judiciary, has recognised a long list of constitutional rights beyond those explicit in the Constitution. This expansion of rights over time has resulted in the constitutionalisation of a wide range of norms, and has significantly blurred the line between constitutional text and doctrine. While this expansive approach has sometimes been viewed favourably as a model of transformative constitutionalism in CCL, it comes with certain risks and unintended consequences. I focus on one such aspect – the SCI’s flawed approach in cases involving balancing or a clash of rights. I critique the way the SCI frames cases as involving a clash of rights even where there is no opposing right, the way it asserts the primacy of certain rights over others without explanation; and the Court’s justifications for choosing “public interest” as the meta-criteria for balancing. I then offer an alternative judicial framework for such cases which can also be useful for jurisdictions beyond India.
We look forward to welcoming you on July 3-5, 2023 for our Annual Conference entitled "Islands and Ocean: Public Law in a Plural World." The conference will take place at the Victoria University of Wellington, in New Zealand. We will be announcing more details about the conference soon, including financial support to early career and global south scholars!