16.4 Pravertana Prathan

NUJS Law Review 16 NUJS L. Rev.
4 (2023)
THE MEHNDI OF JUDICIAL REVIEW IN SAME-SEX

MARRIAGES: INFUSING THE HUES OF BASIC STRUCTURE
ON THE JUDICIARY’S PALMS
Pratham Malhotra & Pravertna Sulakshya 
The recent legal vendetta of Supriya Chakraborty v. Union of India (‘Supriya Chakraborty’) yearns for the
recognition of the right to marriage equality through a judicial reinterpretation of various personal and
secular laws. Curiously, the respondents have argued that the Supreme Court’s declaration on this matter
would trespass into the realm of the Legislature, challenging the sacred principle of separation of powers
and endangering the Constitution’s Basic Structure. This essay contends that the respondents’ argument
bears considerable merit since the higher judiciary has defiantly stepped beyond its conventional
boundaries, venturing into the domains traditionally reserved for the legislature and executive.
Nevertheless, the quest for resolving India’s separation of powers conundrum leads this essay to open the
door to the Basic Structure doctrine’s application to judicial review — an expansion of scope that neither
defies nor eludes possibility — thanks to the Supreme Court’s adept utilisation of the doctrine to review
ordinary legislation and executive action. Building upon this, to counter the innate drawbacks of the
traditional options available to the Supreme Court in Supriya Chakraborty, the essay proposes a balanced
approach: blending the doctrine’s application to Judicial Review with the finesse of dialogic
constitutionalism.
TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................2
II. BREAKING BOUNDARIES: UNRAVELING THE WIDENING APPLICATION OF THE
BASIC STRUCTURE DOCTRINE ...............................................................................................5
A. ORDINARY LAWS, EXTRAORDINARY PROTECTION ................................................5
B. THE EXECUTIVE AND THE BASIC STRUCTURE: A COLLISION COURSE..............7
III. THE BASIC STRUCTURE DOCTRINE, JUDICIAL REVIEW, AND THE DELICATE
EQUILIBRIUM OF SEPARATION OF POWERS .......................................................................8
A. THE DEMOCRATIC TUG OF WAR: MODERN TRILEMMA OF SEPARATION OF
POWERS IN INDIA.................................................................................................................8
B. THE EVEREST OF JUDICIAL REVIEW: EXPLORING ITS EXPANDING SCOPE AND
EFFECTS ON THE DOCTRINE OF SEPARATION OF POWERS ........................................ 10
1. REDRAWING THE LINES: EXAMINING THE HIGHER JUDICIARY’S INCURSION
INTO THE LEGISLATIVE AND EXECUTIVE REALMS.................................................... 11

4th-year B.A. LL.B. (Hons.) students at the Rajiv Gandhi National University of Law, Punjab. The paper was awarded
the 2nd prize for the sub-theme: Scope of Judicial Review, at the Nani A. Palkhivala Memorial Essay Competition,
2023, organised by WBNUJS, Kolkata, and Nani A. Palkhivala Memorial Trust, with support from the Tata Group.
The panel of judges for the aforesaid sub-theme consisted of Justice M. R. Shah, Professor Upendra Baxi, Rohit De,
and Saptarshi Mandal. All errors, if any, are solely attributable to the authors. The authors may be contacted at
[email protected] and [email protected], respectively, for any feedback or
comments.
1
October – December, 2023
NUJS Law Review 16 NUJS L. Rev. 4 (2023)
2. THE GREAT JUDICIAL POWER GRAB: INVESTIGATING THE IMPACT ............. 13

IV. BEYOND THE BINARY: ADVANCING THE CAUSE OF SAME-SEX MARRIAGES IN INDIA
THROUGH THE BASIC STRUCTURE DOCTRINE AND DIALOGIC CONSTITUTIONALISM ..
.......................................................................................................................................... 16
A. JUDICIAL CROSSROADS OF MARRIAGE EQUALITY ............................................. 16
B. PURSUING THE PATH TO BALANCE: HARNESSING THE CONSTITUTIONAL
SHIELD OF BASIC STRUCTURE AND DIALOGIC CONSTITUTIONALISM ...................... 19
1. THE MISSING ‘BASIC’ PIECE ............................................................................... 19
2. DIALOGICAL DYNAMICS ...................................................................................... 20
3. FITTING THE MISSING PIECE INTO THE SAME-SEX PUZZLE .......................... 22
V. CONCLUSION .................................................................................................................. 23
I. INTRODUCTION
Let your mind envision a gigantic ship known as the Indian Constitution. Picture
that the ship was constructed with exceptional wooden planks imported from different nations and
tailored to meet its Indian essentialities. The People chose the Parliament as its captain.1 Over time,
as certain planks deteriorated, Parliament replaced them with newer, progressive ones. However,
surprisingly, the People threw away the ‘modern ship’s any ship without the old exotic planks
stood unworthy of being titled as the ‘original Indian Constitution’. The present conundrum of
identity, 2 inspired by the Ship of Theseus Paradox, 3 is what the Basic Structure doctrine strives to
settle.
Returning from the ship, the real-life Indian Constitution, too, comprises
metaphoric wooden planks of its Preamble and 448 Articles. For social revolution, 4 the Parliament
can make amendments (or replace these planks) by deriving its constituent power from Article
368.5 However, such power brings along disbelief, 6 that it comes with no substantive limits.7
Accordingly, ample occasions,8 arose for the Parliament to brush aside fundamental rights in
1
The Constitution of India, 1950, Preamble.
2
See Chris Meyer, Ship of Theseus: How to Solve the Ancient Paradox, 2022, available at
https://themindcollection.com/ship-of-theseus-identity-paradox/ (Last visited on July 4, 2023).
3
See generally Bethany Williams, The Ship of Theseus Though Experiment, THE COLLECTOR, July 8, 2021, available
at https://www.thecollector.com/the-ship-of-theseus/ (Last visited on July 4, 2023); See also Theodore Scaltsas, The
Ship of Theseus, Vol. 40(3), OXFORD UNIVERSITY PRESS, 152-157 (1980).
4
International IDEA, Constitutional Amendment Procedures, CONSTITUTION NET, September 29, 2014, available at
https://constitutionnet.org/sites/default/files/constitutional_amendment_procedures.pdf (Last visited on July 4, 2023).
5
The Constitution of India, 1950, Art. 368(1).
6
See The Constitution of the Federal Republic of Germany, 1949, Art. 79(3) (Germany); The Constitution of the
Italian Republic, 1947, Art. 139 (Italy); The Constitution of the United States, 1789, Art. 5 (The United States of
America).
7
Christopher J. Beshara, Basic Structure Doctrines and the Problem of Democratic Subversion: Notes from India,
Vol. 48(2), VRÜ, 100 (2015).
8
See generally The Constitution of India, 1950, Schedule IX, inserted vide The Constitution (First Amendment) Act,
1951 (w.e.f. June 18, 1951); The Constitution (Fourth Amendment) Act, 1954, Art. 31A; The Constitution (Twenty-
Fourth Amendment) Act, 1971; The Constitution (Twenty-Fifth Amendment) Act, 1971.
2
pursuit of its socialist utopia until the head of a monastery in Kerala decided not to allow this to
occur.9 In the face of land reform laws impeding the management of religious property, his
Holiness Sri Kesavananda Bharati chose to challenge not only the laws but also its impenetrable
cloak of amendments,10 and gave India its historic legal showdown etched as Kesavananda Bharati
v. State of Kerala (‘Kesavadanda’). 11
Penning down a mammoth seven hundred pages, the thirteen judge bench affirmed
that the Parliament’s amendment power was wide and unfettered, without being limited to Article
13 or fundamental rights,12 insofar as it did not fundamentally destroy or alter the constitutional
identity. 13 To oversimplify, there exists a foundational framework of interrelated and indispensable
‘essential features’,14 that form the unified and organic basis 15 to the Constitution’s ‘basic
structure’, and any attempt to breach it shall stand unconstitutional. Among these essential
features stood, inter alia, the supremacy of the Constitution, the sovereignty of the nation,
parliamentary democracy, separation of powers, unity and integrity of the nation”,16 and chiefly,
judicial review. 17 Furthermore, the doctrine sanctified, inter alia, three pivotal principles: first, the
power to amend is not the constituent power itself, rather a mere division of such constituent power
as derived from the Constitution.18 Thus, the amending power becomes subject to the same
constraints that the Constitution provides for law-making power as exercised by different organs
of the State.19 Correspondingly, second, the limiting of Parliament’s amending power flows from
the principle of separation of powers,— a constituted power—which “protects the constitution
from moving along the spectrum towards authoritarianism than just protecting any single
constitutional principle in isolation”.20 Third, and notably, ‘judicial review’ is an essential and
indivisible component of the doctrine, whose absence would render it ineffective.21 With these
9
See State of Madras v. Champakam Dorairajan, 1951 SCC 351; Nick Robinson, Expanding Judiciaries: Indian and
the Rise of the Good Governance Court, Vol. 8(1), WASH. U. GLOBAL STUD. L. REV., 28 (2009); See also I.C. Golak
Nath v. State of Punjab, AIR 1967 SC 1643; R.C. Cooper v. Union of India, (1970) 1 SCC 248; Madhav Rao Scindia
v. Union of India, (1971) 1 SCC 85.
10
The Constitution (Twenty-Fourth Amendment) Act, 1971; The Constitution (Twenty-Fifth Amendment) Act, 1971;
The Constitution (Twenty-Sixth Amendment) Act, 1971; The Constitution (Twenty-Ninth Amendment) Act, 1972.
11
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
12
Id., ¶494.
13
Id., ¶1064.
14
See Abdul Malek, Vice and virtue of the Basic Structure Doctrine: a comparative analytic reconsideration of the
Indian sub-continent’s constitutional practices, Vol. 43(1), COMMONW. LAW BULL., 50 (2017).
15
See also HANS KELSEN, GENERAL THEORY OF LAW AND STATE, 110 (Routledge, 1945); HANS KELSEN, PURE THEORY
OF LAW, 5 (University of California Press, 1967); Joseph Raz, The Identity of Legal Systems, Vol. 59(3), CALIF. L.
REV., 795 (1971).
16
See BESHARA, supra note 7, 114.
17
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, ¶1007.
18
Virendra Kumar, Basic Structure of the Indian Constitution: Doctrine of Constitutionally Controlled Governance
[From Kesavananda Bharati to I.R. Coelho], Vol. 49(3), JILI, 372 (2007).
19
See Siddharth Sijoria, Implied Limitation on The Power Of Amendment: A Comparative Study Of Its Invocation In
India, Colombia And Benin, Vol. 6(1), COMP. CONST. L. & ADMIN. L.J., 89 (2021).
20
David Landau, Abusive Constitutionalism, Vol. 47(189), U. CALIF. DAVIS, 253 (2013).
21
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, ¶1007.
3
three weavers at play, the fabric of the Constitution’s basic structure has evolved in a multitude of
decisions,22 to become “an integral part of everyman’s litigation strategy at the Supreme Court”.23
In the contemporary zeitgeist, a similar strategy is poised to craft the fate of 135
million Indians —traversing from India’s historical roots to its sociological dynamics, 24
administrative landscape,25 and, unavoidably, its constitutional framework—26 gaining attention
in the name of the ‘same-sex marriage controversy’. Culminating over 50 petitions, queer couples
and individuals have called for a diverse array of requests, inter alia, seeking an inclusive
interpretation of the term ‘spouse’ within the Special Marriage Act, 1954 to incorporate same-sex
couples and a declaration thereupon.27
However, what raised eyebrows was the Attorney General’s contention on behalf
of the respondents that the Supreme Court stands devoid of the power to bestow recognition upon
a ‘distinct class of marriages’, and that any judicial declaration on the subject shall violate the
Basic Structure doctrine due to the separation of powers.28 Curiously, what seems here like a
simple play of the devil’s advocate, is, in fact, a Pandora’s box of several interesting questions:
‘Can’ the doctrine of Basic Structure be extended to test the validity of judicial review? Is there a
need to expand the doctrine’s scope, i.e., ‘should’ it apply to judicial review? Is there a threshold
that, if crossed by the Constitutional Courts, would infringe upon separation of powers and violate
the Basic Structure? Finally, ‘how’ does one apply the doctrine to its creator? This essay addresses
these questions, with the core argument asserting that the solution to the separation of powers
conundrum in India lies in applying the doctrine of Basic Structure to judicial review.
In that backdrop, Part II of the essay discusses the question of whether the Basic
Structure doctrine ‘can’ apply to judicial review. In doing so, the essay explores whether the
doctrine’s reach has expanded from merely constitutional amendments to scrutinising ordinary
legislations and Executive actions. Answering the aforementioned question in affirmative, it is
22
Id.; Indira Nehru Gandhi v. Raj Narain, (1975) 2 SCC 159; Minerva Mills Ltd. v. Union of India, (1980) 2 SCC
591; Waman Rao v. Union of India, (1981) 2 SCC 362; Raghunathrao Ganpatrao v. Union of India, 1994 Supp (1)
SCC 191; S.R. Bommai v. Union of India, (1994) 3 SCC 1; Maharao Sahib Shri Bhim Singh Ji v. Union of India,
(1986) 4 SCC 615; See also M. Nagaraj v. Union of India, (2006) 8 SCC 212, ¶83; Ridwanul Hoque, Constitutionalism
and the Judiciary in Bangladesh in COMPARATIVE CONSTITUTIONALISM IN SOUTH ASIA, 316 (2013).
23
Satya Prateek, Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’, Constitutional Transformations and
the Future of Political Progress in India, Vol. 1(3), NUJS L. REV., 476 (2008); See Delhi Juridical Service Association
v. State of Gujarat, (1991) 4 SCC 406; Indra Sawhney v. Union of India, (1996) 6 SCC 506; Raghunathrao Ganpatrao
v. Union of India, 1994 Supp (1) SCC 191.
24
See Jaideep Singh Lalli, The Paranoia of Former Judges Opposing Same-Sex Marriages on Civilisational Grounds,
THE WIRE, April 7, 2023, available at https://thewire.in/lgbtqia/former-judges-paranoia-same-sex-marriages (Last
visited on July 6, 2023).
25
See Rehan Mathur, The Notice Regime under the Special Marriage Act, INDIAN CONSTITUTIONAL LAW AND
PHILOSOPHY, May 17, 2023, available at https://indconlawphil.wordpress.com/tag/same-sex-marriage/ (Last visited
on July 6, 2023).
26
Supriyo @ Supriya Chakraborty v. Union of India, W.P.(C)No.1011/2022 (S.C.) (Pending).
27
Id.
28
SUPREME COURT OBSERVER (Ajoy Karpuram & R. Sai Spandana), Plea for Marriage Equality, May 3, 2023,
available at https://www.scobserver.in/reports/plea-for-marriage-equality-constitution-bench-day-7/ (Last visited on
July 15, 2023); Transcript of WP (Civil) 1011 of 2022 Hearing dated 03.05.2023, May 3, 2023, at 29, available at
https://www.scobserver.in/wp-content/uploads/2023/05/Arguments-Transcript-May-3rd.pdf (Last visited on July 16,
2023) (‘Transcript, May 3, 2023’); See also Transcript of WP (Civil) 1011 of 2022 Hearing dated 10.05.2023, May
11, 2023, at 35, 37, available at https://main.sci.gov.in/pdf/LU/15052023_112003.pdf (Last visited on July 16, 2023)
(‘Transcript, May 10, 2023’).
4
argued that a fresh expansion of its scope to encompass judicial review is both plausible and
persuasive. Accordingly, Part III delves into whether the doctrine ‘should’ extend to judicial
review, i.e, whether there is a need for such expansion of scope, it contends that the higher Judiciary
has fearlessly transcended the conventional boundaries of its function, venturing into domains
traditionally entrusted to the legislature and the executive, and imposing a weighty burden on the
separation of powers. Thus, a necessity arises to craft a flexible solution with the assistance of the
Basic Structure doctrine that allows the court to fulfill its functions while preserving constitutional
harmony. Turning then to Part IV, the essay sheds light on the Supreme Court’s conundrum in
Supriya Chakraborty, 29 concerning the separation of powers and proposes a way forward by
applying the Basic Structure doctrine to judicial review, complemented by dialogic
constitutionalism.
II. BREAKING BOUNDARIES: UNRAVELING THE WIDENING APPLICATION

OF THE BASIC STRUCTURE DOCTRINE
Time has witnessed a multitude of benches that were here today and gone
tomorrow. Nonetheless, each left a legacy behind by sprinkling more ‘basic elements’ to the cake
of ‘basic structure’, 30 making flexibility the hallmark of our Constitution. 31 Inferably, the
capability of evolution works in a two-pronged manner. First, it is wide enough to accommodate
newer elements since revolutions engulf unalterable constitutions,32 and second, it is also
progressive enough to turn the Constitutional wheel towards social transformation and exclude
elements that were once sacrosanct.33 Inevitably, the question of “how far can it stretch” was
asked, leading to a new debate: Does the doctrine apply to ordinary legislation and executive
action? The following discussion examines this question, whose answer shall forge the path for
applying the doctrine to judicial review.
A. ORDINARY LAWS, EXTRAORDINARY PROTECTION
The ‘ordinary’ lawmaking power of the Parliament and State legislatures is

generally subject to two broad limitations: first, the power must be exercised within their
legislative competence, as specified in Chapter I, Part XI of the Constitution, 34 and second, the
laws must not contravene Article 13(2), which prohibits the creation of laws that take away or
abridge the Fundamental Rights. Despite that, determining whether the Basic Structure review
would apply as an additional limitation has often been like a pendulum reflecting the Supreme
Court’s perspective. The oscillation first began with Indira Gandhi v. Raj Narain,35 (‘Election
case’), in which the issue was whether the Election Laws (Amendment) Act, 1975 and the
Representation of the People (Amendment) Act, 1974 were unconstitutional on the grounds that
29
Supriyo @ Supriya Chakraborty v. Union of India, W.P.(C)No.1011/2022 (S.C.) (Pending).
30
See generally Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Indira Nehru Gandhi v. Raj Narain, (1975)
2 SCC 159; Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591; Waman Rao v. Union of India, (1981) 2 SCC
362; Raghunathrao Ganpatrao v. Union of India, 1994 Supp (1) SCC 191; S. R. Bommai v. Union of India, (1994) 3
SCC 1; Maharao Sahib Shri Bhim Singh Ji v. Union of India and Others, (1986) 4 SCC 615.
31
Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649, 653, ¶93.
32
V. R. Jayadevan, Basic Structure Doctrine and its Widening Horizons, Vol. 27(3-4), CULR, 367 (2003).
33
Ankur Sood, The Basic Structure Unbound, Vol. 2, NUALS L. J., 149 (2008).
34
The Constitution of India, 1950, Arts. 245, 246.
35
Indira Nehru Gandhi v. Raj Narain, (1975) 2 SCC 159.
5
they damage or destroy the Basic Structure. A majority of 3:1 decided that the doctrine only applies
to constitutional amendments, not ordinary legislation. Chandrachud J. argued that since there is a
difference between the Parliament’s constituent (higher) and legislative (lower) power, a limitation
in the form of the Basic Structure doctrine that applies to the higher power will not operate on the
lower power.36 While Ray, C.J. was concerned with equating legislative measures with
constitutional amendments,37 Rai J. noted that an additional limitation on the lawmaking power of
the Parliament “will mean rewriting the Constitution and robbing the legislature of acting within
the framework of the Constitution”.38 Beg J.’s voice of dissent observed that the Basic Structure
doctrine tests the validity of both ordinary laws and constitutional amendments as “ordinary
lawmaking itself cannot go beyond the range of constituent power”.39 Subsequently, in State of
Karnataka v. Union of India,40 Beg J. reiterated his view in a somewhat roundabout manner
without expressly overruling the Election case.41
Over the decades, the Supreme Court’s dicta remained inconsistent. An array of
rulings witnessed the utilisation of the Basic Structure doctrine to test the validity of ordinary
laws.42 Sabharwal C.J. speaking for the majority in Kuldip Nayar v. Union of India,43 relied on the
Election case and concluded that ordinary legislation does not answer to the test of Basic
Structure.44 Surprisingly, a year later, in I.R. Coelho v. State of Tamil Nadu,45 Sabharwal C.J. led a
nine-judge bench to a different conclusion that even though a legislation is added to the Ninth
Schedule through a constitutional amendment, its provisions can still be challenged on the ground
of destroying or damaging the Basic Structure if the fundamental rights affected are linked to the
basic structure.46 In tandem, the Supreme Court examined the provisions of the National Tax
Tribunal Act, 2005 and found them unconstitutional due to their violation of the Basic Structure
of the Constitution.47 Most recently, the court in Madras Bar Assn. v. Union of India48 (‘Madras
Bar Association’) observed that a legislation can be declared unconstitutional if it violates the
principle of separation of powers, which is an integral part of the Basic Structure.49 Therefore, the
Supreme Court appears more inclined towards the doctrine’s applicability to ordinary legislation
and has settled the position of law in that regard.50
36
Id., ¶692; But see UPENDRA BAXI, THE INDIAN SUPREME COURT AND POLITICS, 62 (Eastern Book Company, 1980).
37
Indira Nehru Gandhi v. Raj Narain, (1975) 2 SCC 159, ¶132.
38
Id., ¶134.
39
Id., ¶622.
40
State of Karnataka v. Union of India, (1977) 4 SCC 608.
41
See SUDHIR KRISHNASWAMY, DEMOCRACY AND CONSTITUTIONALISM IN INDIA: A STUDY OF THE BASIC STRUCTURE
DOCTRINE, 64-66 (Oxford University Press, 2011).
42
M. Ismail Faruqui v. Union of India, (1994) 6 SCC 360; G. C. Kanungo v. State of Orissa, (1995) 5 SCC 96; L.
Chandra Kumar v. Union of India, 1997 (3) SCC 261; Indra Sawhney v. Union of India, (1996) 6 SCC 506; KT
Plantations (P) Ltd. v. State of Karnataka (2011) 9 SCC 1; See also Supreme Court Advocates on Record Association
v. Union of India, (2016) 5 SCC 1, ¶¶379, 381 (per Khehar J.).
43
Kuldip Nayar v. Union of India, (2006) 7 SCC 1; See also Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC
1.
44
Id., ¶96.
45
I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.
46
Id., ¶81 (per Sabharwal C.J.).
47
Madras Bar Association v. Union of India, (2014) 10 SCC 1, ¶65.
48
Madras Bar Association v. Union of India, (2022) 12 SCC 455.
49
Id., ¶27.
50
See also Sood, supra note 34, 157-158; Jayadevan, supra note 32, 357-360; Pathik Gandhi, Basic Structure and
Ordinary Laws (Analysis of the Election Case & the Coelho Case), Vol. 4(1), INDIAN J. CONST. L., 57 (2010); Anmol
6
B. THE EXECUTIVE AND THE BASIC STRUCTURE: A COLLISION COURSE
Unlike ordinary legislation, the Supreme Court has not extensively delved into the
issue of the doctrine’s applicability to executive actions. Nevertheless, the court has employed the
doctrine to review such actions without explicitly exploring its widening scope. Tracing the same,
Krishnaswamy has rightly concluded that the answer to the question of the doctrine’s expansion
to Executive actions is “an unambiguous yes”.51 Inaugurated in S.R. Bommai v. Union of India,52
it was held that,53 for Article 356, ‘secularism’, which according to the court, forms part of the
Basic Structure,54 can be used to determine whether the “Government of the State cannot be carried
on in accordance with the provisions of this Constitution”.55 It was further held that the President’s
actions under Article 356 are amenable to judicial review since an arbitrary exercise of such power
would counter ‘federalism’, which is an integral feature of the Basic Structure.56
In B. R. Kapur v. State of Tamil Nadu,57 the Supreme Court examined the
Governor’s action under Article 164 of the Constitution in appointing a person convicted of a
criminal offence as Chief Minister. Bharucha J., while relying on Kesavananda and Minerva Mills
v. Union of India,58 noted that “[n]othing can better demonstrate that it is permissible for the court
to read limitations into the Constitution based on its language and scheme and its basic structure”.59
According to him, a Governor is sworn to protect and preserve the Constitution; thus, he cannot
“in the exercise of his discretion or otherwise, do anything that is contrary to the Constitution and
the laws”. 60 Therefore, without outlining the basic features at stake, the court adopted an
interpretation of Article 164 in consonance with the Basic Structure, suggesting that the doctrine
may impose limits on executive acts.61 Likewise, in P. M. Bhargava v. University Grants
Commission, 62 the petitioners contended that the respondent’s attempt to introduce courses on
Vedic astrology in universities violates the principle of secularism, which forms a part of the Basic
Structure.63 Moreover, it is pertinent to note that the petitioners did not allege a breach of any
statutory obligations. While disagreeing with the petitioner’s argument, the court impliedly
acknowledged the existence of the Basic Structure review of executive action without clarifying
the extent and type of such review. 64
Kohli, A Natural Law Theory of Constitutional Legitimacy: The Basic Structure Doctrine and “Good Reasons for
Action”, Vol. 5(2), CALJ, 28 (2021).
51
KRISHNASWAMY, supra note 41, 68; See also S.P. SATHE, JUDICIAL ACTIVISM IN INDIA, 97 (Oxford University Press,
2002).
52
S.R. Bommai v. Union of India, (1994) 3 SCC 1.
53
Id., ¶¶146-8.
54
Id., ¶¶78, 149, 170, 298.
55
The Constitution of India, 1950, Art. 356.
56
S.R. Bommai v. Union of India, (1994) 3 SCC 1, ¶112.
57
B.R. Kapur v. State of Tamil Nadu, (2001) 7 SCC 231.
58
Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591.
59
B.R. Kapur v. State of Tamil Nadu, (2001) 7 SCC 231, ¶29.
60
Id., ¶¶50-51, 59.
61
KRISHNASWAMY, supra note 41, 94.
62
P.M. Bhargava v. University Grants Commission, (2004) 6 SCC 661; See also KRISHNASWAMY, supra note 41, 93-
101; Aruna Roy v. Union of India, (2002) 7 SCC 268; State of Karnataka v. Praveen Bhai Thogadia (Dr.), (2004) 4
SCC 684.
63
P.M. Bhargava v. University Grants Commission, (2004) 6 SCC 661, ¶16.
64
See KRISHNASWAMY, supra note 41, 98.
7
Building on the analysis, it becomes clear that the Supreme Court has extended the
ambit of the Basic Structure doctrine beyond constitutional amendments to encompass ordinary
legislations and executive actions, leading to the emergence of the Basic Structure review as an
independent form of judicial review.65 Therefore, applying the doctrine to judicial review through
a further expansion of its scope is neither impermissible nor impossible. However, whether the
doctrine can apply to judicial review differs from whether it should. With the former aspect
untangled, the next part of this paper shall unravel the latter.
III. THE BASIC STRUCTURE DOCTRINE, JUDICIAL REVIEW, AND THE

DELICATE EQUILIBRIUM OF SEPARATION OF POWERS
As expected, the proposition advocating for the application of the Basic Structure
doctrine to judicial review is not mainstream. 66 It can be argued that the judiciary being the final
arbiter of the Constitution,67 and possessing superior legal prowess as compared to other branches,
is unlikely to breach the norms that it has established.68 However, to err is to human, and judges,
despite their expertise, are not infallible. 69 Numerous eyebrow-raising judgments, as will be
highlighted in this part, have substantiated the validity of concerns regarding the violation of the
Basic Structure doctrine by Constitutional Courts, owing to non-observance of the limits set by
the separation of powers doctrine— an integral part of the Basic Structure. Hence, it is evident that
such concerns are not entirely unfounded irrespective of whether the violations are inadvertent or
deliberate. In light of this context, this part delves into whether the Basic Structure doctrine
‘should’ apply to judicial review: primarily aiming to address apprehensions surrounding the
infringement of the separation of powers doctrine resulting from instances of judicial overreach.
A. THE DEMOCRATIC TUG OF WAR: MODERN TRILEMMA OF SEPARATION OF

POWERS IN INDIA
Once referred to as the most confusing constitutional and political thought, 70 a

discussion on the doctrine of separation of powers cannot be undertaken without acknowledging
Montesquieu, who famously argued that the powers of the executive, legislative and judicial
organs must be kept separate.71 The core principle underlying this doctrine necessitates the
distribution of powers among the organs so that each organ can exercise a check over the actions
of others, thereby ensuring a balance.72 Although the Indian Constitution does not explicitly refer
to the doctrine of separation of powers, the Supreme Court has held it to be an essential feature of
the same. 73 According to the court, a model which does not recognise the doctrine in its “absolute
65
Id., 83.
66
See generally Sholab Arora, Judicial Overreach and Basic Structure-I, LAW AND OTHER THINGS, August 24, 2020,
available at https://lawandotherthings.com/judicial-overreach-and-basic-structure-i/ (Last visited on July 8, 2023).
67
S.R. Bommai v. Union of India, (1994) 3 SCC 1, ¶257; Supreme Court of India v. Subhash Chandra Agarwal, (2020)
5 SCC 481, ¶232; N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1, ¶47.
68
See Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388, ¶7.
69
See A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, ¶104; HDFC Bank Ltd. v. Union of India, (2023) 5 SCC 627,
¶34; Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364, ¶18.
70
GEOFFREY MARSHALL, CONSTITUTIONAL THEORY, 97 (Oxford: Clarendon Press, 1971).
71
CHARLES DE MONTESQUIEU, THE SPIRIT OF THE LAWS, 157 (1989).
72
See Piotr Mikuli, Separation of Powers in MAX PLANCK ENCYCLOPEDIA OF COMPARATIVE CONSTITUTIONAL LAW,
2 (Oxford University Press, 2018).
73
Bhim Singh v. Union of India and Ors., (2010) 5 SCC 538, ¶78.
8
rigidity”, 74 seeks accountability between the organs,75 allows overlap of functions,76 but prohibits
the delegation or usurpation of essential functions of an organ, 77 is recognised in India. A strict or
complete separation of powers was also negated by the Constituent Assembly, which preferred a
‘harmonious governmental structure’,78 which aimed to avoid conflicts between different branches
of the government and establish inter-branch cooperation.
Significantly, the Supreme Court has repeatedly held the separation of powers to be
a part of the inviolable basic structure of the Constitution.79 In Madras Bar Association v. Union
of India,80 the court noted that judicial review, equality, rule of law, and separation of powers are
part of the Basic Structure and are intimately connected.81 Accordingly, a “violation of separation
of powers would result in infringement of Article 14 of the Constitution”.82 It was further held that
if a legislation violates this principle, it can be declared unconstitutional, 83 and hence, is evidence
of the unparalleled importance of separation of powers in the Indian constitutional framework.
Judges, not representing any constituency, possess the freedom to perform their constitutional
role—safeguarding the Constitution through impartial judicial review without being influenced by
external pressures. This independence allows the judiciary to check and restrain government
actions, upholding the rule of law and constitutional legitimacy while refraining from encroaching
on the distinct domains allocated to the legislature and executive. 84
Therefore, to fulfill the ends of justice, the higher judiciary in India has forged for
itself the ‘one golden ring’, granting its bearer the power of judicial review—a power that, as per
the Supreme Court’s own acknowledgement, “is perhaps the widest and the most extensive known
to the world of law”.85 Moreover, the Judiciary has reserved for itself the right to determine the
limits of the jurisdiction of other organs, 86 but it has done so while striking a note of caution—
“[t]his great power must therefore be exercised by the Judiciary with the utmost humility and self-
restraint”.87 Accordingly, while it is certain that such power is ‘precious’ to the Judiciary, its
74
Ram Sahib Ram Jawaya Kapur v. State of Punjab, 1955 SCC OnLine SC 14, ¶12.
75
Bhim Singh v. Union of India and Ors., (2010) 5 SCC 538, ¶78.
76
Id., ¶59; Ruma Pal, Separation of Powers in THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION, 255 (Oxford
University Press, 2016); H. M. SEERVAI, THE POSITION OF THE JUDICIARY UNDER THE CONSTITUTION OF INDIA, 81
(University of Bombay, 1970).
77
Ram Sahib Ram Jawaya Kapur v. State of Punjab, 1955 SCC OnLine SC 14, ¶14; SATHE, supra note 51, 250; See
also Delhi Laws Act, 1912, In Re, 1951 SCC 568, ¶112
78
LOK SABHA SECRETARIAT, Constituent Assembly Debates, December 10, 1948, available at
https://eparlib.nic.in/bitstream/123456789/762994/1/cad_10-12-1948.pdf. (Last visited on December 17, 2023).
79
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, ¶292-293 (per Sikri, C.J.), 582 (per Shelat and Grover,
JJ.);; Panipat Woollen and General Mills Co. Ltd. v. Union of India, (1986) 4 SCC 368, ¶9; State of Bihar v. Bal
Mukund Sah, (2000) 4 SCC 640, ¶33; I. R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1, ¶129; Indira Nehru Gandhi
v. Raj Narain, (1975) 2 SCC 159, ¶521; Mahmadhusen Abdulrahim Kalota Shaikh v. Union of India, (2009) 2 SCC 1,
¶70-71; State of West Bengal v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571, ¶39; Bhim Singh
v. Union of India, (2010) 5 SCC 538, ¶80; Madras Bar Association v. Union of India, (2022) 12 SCC 455, ¶27; Anoop
Baranwal v. Union of India, 2023 SCC OnLine SC 216, ¶84.
80
Madras Bar Association v. Union of India, (2022) 12 SCC 455.
81
Id., ¶27.
82
Id.
83
Id.
84
See Dr. Ashwani Kumar v. Union of India, 2019 SCC Online SC 1144, ¶13.
85
Union of India v. Raghubir Singh, (1989) 2 SCC 754, ¶7.
86
State of Uttar Pradesh v. Jeet S. Bisht, (2007) 6 SCC 586, ¶46 (per Markandey J.).
87
Id., ¶46 (per Markandey J.).
9
exercise without any restraint comes with a cost to the separation of powers. The essay argues that
the higher judiciary struggles to draw a line between judicial overreach and active or essential
judicial participation.
Simply put, judicial activism refers to “the process in which judiciary steps into the
shoes of legislature and comes up with new rules and regulations that the legislature ought to have
done earlier; stringent, neutral, unbiased observation of the laws made by legislature and
suggesting amendments so as to make them more constitutionally compatible and egalitarian”.88
By providing an expansive interpretation of vital constitutional articles like Article 14, Article 19,
Article 21, and Article 32, it contributes to preserving the essence of the Constitution. judicial
activism, aimed at enhancing transparency and accountability in governance, is a proactive
approach adopted by the judiciary in this regard. However, extreme forms of activism in terms of
arbitrary, unreasonable and frequent interventions take the form of what is known as judicial
overreach,89 and often lead to the usurpation, encroachment, and chilling effect upon the functions
of the legislative and executive branches, thus, transgressing the principle of separation of powers.
B. THE EVEREST OF JUDICIAL REVIEW: EXPLORING ITS EXPANDING SCOPE AND

EFFECTS ON THE DOCTRINE OF SEPARATION OF POWERS
The Judiciary is the most assertive institution within India’s governance structure.90
As Prof. S. Dam has rightly put, 91 the courts have transformed from an institution primarily
responsible for resolving conflicts between private entities to an institution actively striving to
advance the ideals of socioeconomic and political justice, 92 as enshrined in the Preamble. 93 The
mighty sword of judicial review is wielded to scrutinise the actions of the legislature and executive,
to uphold fundamental rights, ensure compliance with constitutional limitations, and ultimately
fortify the supremacy of the Constitution.94 As the credibility of political leadership diminishes,
individuals inevitably turn to exercise judicial power through tools such as “social action
litigation” or “public interest litigation”, 95 to seek refuge from the improper exercise of executive
and legislative powers.96
In the words of Justice P.N. Bhagwati and C.J. Dias, aiming to secure ‘justice for
all’ and to respond to the issue of numerous groups and sectors facing ongoing and systemic
exploitation, injustice, and violence, the Supreme Court created a “uniquely Indian breed of public
interest litigation, which was given the nomenclature ‘social action litigation’ (‘SAL’) by noted
88
See B. Nagarathnam Reddy, Judicial Activism vs Judicial Overreach in India, Vol. 7(1), JGRA, 82 (2018).
89
Id.
90
See A.M. AHMADI, JUDICIAL PROCESS: SOCIAL LEGITIMACY AND INSTITUTIONAL VIABILITY, 5 (Eastern Book
Company, 1996).
91
Shubhankar Dam, Lawmaking Beyond Lawmakers: The Little Right and the Great Wrong, Vol. 13, TUL. J. INT’L &
COMP. L., 111 (2005).
92
See Lord Bingham of Cornhill, Law Day Lecture, SCC ONLINE, November 26, 2020, available at
https://www.scconline.com/blog/post/2020/11/26/law-day-lecture†/ (Last visited on July 12, 2023).
93
The Constitution of India, 1950, Preamble.
94
S.P. Sathe, Judicial Power: Scope and Legitimacy, Vol. 40 INT. J. PUBLIC ADM., 332 (1994).
95
See generally P.N. Bhagwati & C.J. Dias, The Judiciary in India: A Hunger and Thirst for Justice, Vol. 5(2), NUJS
L. REV., 171 (2012); H.S. Mattewal, Judiciary and the Government in the Ma'ing of Modern India, Vol. 1, S.C.C., 17
(2002).
96
Sathe, supra note 94, 332-333.
10
jurist, Upendra Baxi”.97 This approach necessitates judges to creatively utilise the power of judicial
review, innovating tools, devising methods, and formulating strategies to deliver justice to socially
and economically disadvantaged groups. Through inventive interpretation, the courts have
facilitated the democratisation of remedies, extending justice to the common man and making the
judicial process easily accessible to previously marginalised segments of the population. 98 Thus,
the Supreme Court has extended the reach of the sword of judicial review through an activist
interpretation of the Constitution, thereby expanding its jurisdiction and impact.99 Furthermore,
the court has recognised judicial review as part of the Basic Structure in a catena of judgements.100
While exploring the transformative role played by the Judiciary, Prof. Dam
delineated three functional phases of social action litigation:101 The first phase, characterised as
the “creative” phase, witnessed the court interpreting constitutional provisions expansively,
effectively establishing new rights such as the right to shelter,102 right to work,103 right to health,104
right to privacy, 105 and the like. The second phase, known as the “lawmaking” phase, entailed the
court engaging in legislative functions. Lastly, the court entered the “super-executive” phase,
assuming a role in policy formulation and implementation, surpassing the traditional boundaries
of its judicial mandate. The second and third phases have garnered significant controversy, raising
debate and scrutiny. The essay shall now attempt to briefly analyse instances wherein the higher
judiciary has assumed quasi-legislative and executive functions, thereby causing disturbance to
the delicate equilibrium of separation of powers.
1. REDRAWING THE LINES: EXAMINING THE HIGHER JUDICIARY’S INCURSION INTO THE
LEGISLATIVE AND EXECUTIVE REALMS
In the higher judiciary’s courtyard, judicial architects are wielding their gavels as
brushes—drawing new contours of law, with judicial activism becoming their preferred painting
style for actively participating in legislative roles or matters of policy issues.106 As per the Supreme
Court, a passive or negative role— where the court remains as a mere spectator or bystander 107 —
can prove disastrous for a society pulsating with urges for social justice, and therefore, a more
creative and positive stance must be taken. 108
97
Bhagwati, supra note 95, 173; See also Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the
Supreme Court of India, Vol. 4(1), THIRD WORLD LEGAL STUDIES, 108-111 (1985).
98
Id.
99
S.P. Sathe, Legal Activism, Social Action and Government Lawlessness, CULR, 60 (1987).
100
Madras Bar Association v. Union of India, (2022) 12 SCC 455, ¶27; Bharati Reddy v. State of Karnataka, (2018)
12 SCC 61, ¶13; I.R. Coelho v. State of T.N., (2007) 2 SCC 1, ¶¶39-40, 107; L. Chandra Kumar v. Union of India,
(1997) 3 SCC 261, ¶78; Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, (1981) 1 SCC 568, ¶11;
Maharashtra Chess Assn. v. Union of India, (2020) 13 SCC 285, ¶14; Brajendra Singh Yambem v. Union of India,
(2016) 9 SCC 20, ¶48; Madras Bar Association v. Union of India, (2014) 10 SCC 1, ¶54.
101
Dam, supra note 91, 115-116.
102
U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd., 1995 Supp (3) SCC 456.
103
Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545.
104
State Of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83.
105
Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 SCC OnLine SC 996.
106
See generally Ravi P. Bhatia, Evolution of Judicial Activism in India, Vol. 45, JOURNAL OF THE INDIAN LAW
INSTITUTE, 263 (2003).
107
See also Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, ¶14 (per Bhagwati J.).
108
S.P. Gupta v. Union of India, 1981 Supp SCC 87, ¶27 (Per Bhagwati J.).
11
The presence of legislative gaps or vacuums have become a convenient canvas

upon which the Judiciary paints its jurisprudence, with Vishakha v. State of Rajasthan
(‘Vishakha’),109 as the locus classicus. In this case, the Supreme Court acknowledged the absence
of domestic laws that formulate effective measures for preventing sexual harassment of women at
workplaces.110 To fill this gap, the court relied on international conventions and norms to uphold
the “guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g)
and 21 of the Constitution and the safeguards against sexual harassment implicit therein” and
formulated the widely known Vishakha guidelines. 111 Likewise, the court has attempted to fill the
vacuum on several other occasions, including creating guidelines for the issuance of social status
certificates;112 procedure for inter-country adoption of Indian children;113 guidelines on passive
euthanasia,114 which were later modified by a five-judge bench;115 Delhi High Court’s (‘HC’)
directions regarding road safety;116 and the latest judgement of the Supreme Court in Anoop
Baranwal v. Union of India,117 reigniting the debate,118 and laying down guidelines for the
selection process of Election Commissioner and Chief Election Commissioner. Additionally,
Abeyratne and Misri contend that T. N. Godavarman v. Union of India,119 highlights an extreme
example of judicial overreach,120 where the Supreme Court “took on the roles of policymaker,
administrator, and interpreter”,121 aiming to protect Indian forests from exploitation.
Time and again, the higher judiciary has also demonstrated a keen interest in
policymaking, often driven by public interest considerations and societal well-being. In M.C.
Mehta v. Union of India,122 concerns regarding vehicular air pollution led the Supreme Court to
issue several orders that drastically modified Delhi’s environmental policy, such as the order for
conversion of the city bus fleet from diesel to CNG,123 and the application of Euro-I and Euro-II
109
Vishaka v. State of Rajasthan, (1997) 6 SCC 241; see also Vineet Narain v. Union of India, (1998) 1 SCC 226.
110
Id., ¶7.
111
Id.
112
Kumari Mathuri Patil v. Addl. Commissioner, Tribal Development, (1994) 6 SCC 241.
113
Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244.
114
Common Cause v. Union of India, (2018) 5 SCC 1.
115
116
Court on Its Own Motion v. Union of lndia, 2007 SCC OnLine Del 493.
117
Anoop Baranwal v. Union of India, 2023 SCC OnLine SC 216.
118
See generally Rushil Batra, Decoding the Supreme Court’s Election Commission Judgment – II: On the Separation
of Powers [Guest Post], INDIAN CONSTITUTIONAL LAW AND PHILOSOPHY, March 4, 2023, available at
https://indconlawphil.wordpress.com/2023/03/04/decoding-the-supreme-courts-election-commission-judgment-ii-
on-the-separation-of-powers-guest-post/ (Last visited on July 13, 2023); Dr. Harish B. Narasappa, Why the Supreme
Court’s ECI Verdict is Jurisprudentially Unsound, THE LEAFLET, March 15, 2023, available at
https://theleaflet.in/why-the-supreme-courts-eci-verdict-is-jurisprudentially-unsound/ (Last visited on July 13, 2023);
Gautam Bhatia, Decoding the Supreme Court’s Election Commission Judgment, THE WIRE, March 4, 2023, available
at https://thewire.in/law/decoding-the-supreme-courts-election-commission-judgment (Last visited on July 14, 2023).
119
T. N. Godavarman Thirumulpad v. Union of India, AIR 1997 SC 1228, ¶5-7.
120
Id., 379-381; Rehan Abeyratne & Didon Misri, Separation of Powers and the Potential for Constitutional Dialogue
in India, Vol. 5(2) J. INT'L & COMP. L., 374 (2018); Networking of Rivers, In Re (2004) 11 SCC 360.
121
Id., 363, 374 (2018); See also SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA:
CASES, MATERIALS AND STATUTES, 304 (Oxford University Press, 2012); Armin Rosencranz, et al., The Godavarman
Case: The Indian Supreme Court’s Breach of Constitutional Boundaries in Managing India’s Forests, Vol. 37(1),
ELR, 10032-10033 (2007); THE HINDU (Jacob Koshy & Sobhana K. Nair), Objections Overruled, Forest Bill Goes to
House Unchanged, July 9, 2023, available at https://www.thehindu.com/sci-tech/energy-and-environment/objections-
unheeded-forest-bill-goes-to-house/article67061197.ece (Last visited on July 15, 2023).
122
M.C. Mehta v. Union of India, (1998) 6 SCC 63.
123
Id., ¶3.
12
norms.124 The Supreme Court also addressed the menace of road accidents by issuing a directive
to close liquor vendors within a 500-meter radius of the outer edge of national or state highways. 125
Lastly, the interventions of the Uttarakhand High Court,126 and Allahabad High Court,127 to
improve the condition of government schools in their respective jurisdictions, 128 along with the
recent directive from the Supreme Court to the Delhi Government seeking an affidavit disclosing
the funds utilised for advertisements in light of the government’s inability to contribute to the
RRTS project,129 stoke the fires of curiosity.
Reflecting upon the aforementioned verdicts, there remains no escape for from a
compelling contention to emerge: the past few decades have indisputably been the era of expansion
of the scope of judicial review, venturing into territories traditionally entrusted to the legislature
and the executive. Instead of merely invalidating arbitrary or unlawful legislation and policies, the
courts are now legislating and policymaking themselves. Nonetheless, while the ultimate aims and
the outcomes of such usurpations are laudable, their inherent shortcomings and consequential
impact on the separation of powers cannot be ignored.
2. THE GREAT JUDICIAL POWER GRAB: INVESTIGATING THE IMPACT
Flowing from the above discussion, this essay submits a three-pronged argument
against acts of judicial overreach. First, such acts breach the established limits of separation of
powers while disregarding the existing jurisprudence on judicial restraint. The essay contends that
the higher Judiciary’s approach in the mentioned cases, while being justified as an integral aspect
of its function as a Constitutional Court, can be characterised as “judicial excessivism that flies in
the face of the doctrine of separation of powers”.130 Through a series of judicial pronouncements,
the Supreme Court has consistently stressed the significance of exercising judicial restraint, which
mandates judges to decide cases within the confines of their authority. It has been firmly
established that while the courts possess the authority to scrutinise the legality of legislation or
government action, they are not to question the wisdom or weigh the merits and demerits of such
measures. 131 Moreover, the courts cannot direct the Parliament or the executive to create or amend
124
Id.
125
State of T.N. v. K. Balu, (2017) 2 SCC 281, ¶¶29.5, 29.2
126
Deepak Rana v. State of Uttarakhand, 2017 SCC OnLine Utt 760.
127
Shiv Kumar Pathak v. State of Uttar Pradesh, 2015 SCC OnLine All 3902.
128
See Abeyratne & Misri, supra note 120, 367-369.
129
LIVE LAW (Sohini Chowdhury), ‘You Have Funds For Advertisements, But Not For RRTS Project?’ : Supreme
Court Seeks Delhi Government’s Ad Expenditure Details From 2020, July 3, 2023, available at
https://www.livelaw.in/top-stories/supreme-court-seeks-delhi-governments-ad-expenditure-details-since-2020-
231739 (Last visited on July 12, 2023); See also Sohini Chowdhury, ‘If ₹1100 Crores Can Be Spent For Ads In 3
Years, Contributions Can Be Made To Infra Projects’: Supreme Court To Delhi Govt On Rapid Rail, LIVE LAW, July
24, 2023, available at https://www.livelaw.in/top-stories/supreme-court-delhi-govt-arvind-kejriwal-ads-expenditure-
rrts-project-233473 (Last visited on August 4, 2023).
130
S.P. SATHE, JUDICIAL ACTIVISM IN INDIA: TRANSGRESSING BORDERS AND ENFORCING LIMITS, 242 (Oxford India
Paperbacks, 2003); But see Upendra Baxi, On the Shame of Not Being an Activist: Thoughts on Judicial Activism, Vol.
11, INDIAN B. REV. 259, 265 (1984).
131
Dr. Ashwani Kumar v. Union of India, 2019 SCC Online SC 1144, ¶¶13, 30; Kalpana Mehta v. Union of India,
(2018) 7 SCC 1, ¶44; Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796, ¶33; M.P. Oil Extraction v. State of
M.P., (1997) 7 SCC 592; Premium Granites v. State of T.N., (1994) 2 SCC 691; State of M.P. v. Narmada Bachao
Andolan, (2011) 7 SCC 639; State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117; State of H.P. v. Satpal Saini,
(2017) 11 SCC 42, ¶6; Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364, ¶19; Union of India v. M. Selvakumar,
(2017) 3 SCC (L&S) 668; Ekta Shakti Foundation v. Government of NCT of Delhi, (2006) 10 SCC 337, ¶10.
13
a particular law or policy. 132 Accordingly, usurping the constitutionally assigned functions of the
other two organs to create entirely new laws or policies through directions falls outside the purview
of legitimate judicial authority. 133
In Dr. Ashwani Kumar v. Union of India134 (‘Ashwani Kumar’), the Supreme Court
cited numerous authorities on practising judicial restraint and refused to issue a direction to the
Parliament to enact a legislation on custodial torture. It was observed that the Legislature is a
“microcosm of the bigger social community possessing qualities of a democratic institution in
terms of composition, diversity, and accountability”.135 The knowledge and wisdom of an
individual judge or bench cannot equate with the representative nature and resources available to
the Legislature to create laws. 136 Crucially, while the court acknowledged previous instances where
the Judiciary has legislated beyond its traditional role, it rightly held that such guidelines or
directions are to be issued only in extraordinary cases and on an interim basis, where the existing
vacuum leads to gross fundamental rights violations that significantly outweigh concerns regarding
Separation of Powers.137 Thus, the only check upon the Judiciary’s power lies in the “self-imposed
discipline of exercising self-restraint”.138 However, the higher Judiciary’s adherence to such
precedents has been shaky. The absence of clear boundaries to its power enables the Judiciary to
adapt its perspective on Separation of Powers based on the facts at hand, introducing an element
of unpredictability and uncertainty into the legal system. 139
Second, given the judiciary’s inherent institutional limitations in engaging in
legislative or administrative functions,140 legislations and policies created by it are likely to be
surrounded by a web of implementation issues. Such issues cast doubt on the ‘effectiveness’ of the
court’s measures, thereby raising questions such as why the court endeavours to promote rights if
it cannot effectively facilitate their realisation.141 For instance, in Common Cause v. Union of
India,142 the Supreme Court laid down guidelines about the legalisation of passive euthanasia and
the enforcement of Advance Directives or living wills, which were to remain in force until the
Parliament brought suitable legislation:143 According to the court, an individual seeking euthanasia
132
Suresh Seth v. Indore Municipal Corpn., (2005) 13 SCC 287; Dr. Ashwani Kumar v. Union of India, 2019 SCC
Online SC 1144; Supreme Court Employees’ Welfare Assn. v. Union of India, (1989) 4 SCC 187; V.K. Naswa v. Union
of India, (2012) 2 SCC 542; State of H.P. v. Satpal Saini, (2017) 11 SCC 42, ¶6; Manoj Narula v. Union of India,
(2014) 9 SCC 1; Mallikarjuna Rao v. State of A.P., (1990) 2 SCC 707; V.K. Sood v. Dept. of Civil Aviation, 1993 Supp
(3) SCC 9; State of H.P. v. Parent of a Student of Medical College, (1985) 3 SCC 169, ¶4; Union of India v. Assn. for
Democratic Reforms, (2002) 5 SCC 294, ¶19; Common Cause v. Union of India, (2017) 7 SCC 158, ¶18.
133
See S. P. Sathe, Judicial Activism: The Indian Experience, Vol. 6, WASH. U. J. L. & POL’Y, 88-9 (2001).
134
Dr. Ashwani Kumar v. Union of India, 2019 SCC Online SC 1144.
135
Id., ¶26.
136
Id.
137
Id., ¶29; See also V.K. Naswa v. Union of India, (2012) 2 SCC 542; Divisional Manager, Aravali Golf Club v.
Chander Hass, (2008) 1 SCC 683, ¶39; Aileen Kavanagh, Judicial Restraint in the Pursuit of Justice, Vol. 60, UTLJ,
23 (2009).
138
Id., ¶13; Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364, ¶18.
139
See Nafiz Ahmed, The Intrinsically Uncertain Doctrine of Basic Structure, Vol. 14, WASH. U. JURISPRUDENCE REV.
307 (2022).
140
See Sathe, supra note 133, 89.
141
Hardik Choubey, Guest Post: Constitutionally Obligatory Judicial Legislation, INDIAN CONSTITUTIONAL LAW AND
PHILOSOPHY, May 6, 2023, available at https://indconlawphil.wordpress.com/2023/05/06/guest-post-constitutionally-
obligatory-judicial-legislation/ (Last visited on July 16, 2023).
142
143
Id., ¶¶198-200.
14
was required to sign a living will in the presence of two witnesses, who were preferably
independent. Additionally, the will must be countersigned by a Judicial Magistrate of First Class
(‘JMFC’). The treating physician was tasked with forming a board consisting of three expert
medical practitioners from specific and diverse fields, each possessing a minimum of 20 years of
experience. This board was responsible for determining whether the living will should be executed
or not and if permission was granted by the medical board, the will was then submitted to the
District Collector for approval. Following this, the Collector was required to assemble another
medical board comprising three expert doctors, including the Chief District Medical Officer, and
approval was only granted if this second board concurred with the findings of the hospital board.
The final decision was then presented to the JMFC, who personally examined the patient before
granting approval. In essence, this ruling established a comprehensive three-tiered process that
must be followed before any decisions regarding the withholding or withdrawal of life-sustaining
treatment can be made. Unexpectedly, the procedure devised by the court proved excessively
intricate, time-consuming, and impracticable. 144 Thus, necessary amendments were sought to
make the judgement ‘workable,’ leading to the modification of guidelines by a five-judge bench.145
Lastly, in the words of Yash Sinha, the ever-expanding scope of judicial review
coupled with the Rajya Sabha’s detachment from its constitutional objectives, diminishing its
effectiveness as a Legislative-Executive watchdog— has resulted in a state of ‘Constitutional
Dysfunctionalism’. 146 Such a state arises when an institution either fails to fulfil its core functions
within the established limits or significantly changes its functioning. 147 According to Sinha, the
decline in institutional power of the Rajya Sabha has hindered its ability to effectively serve as a
counter-majoritarian check on the Legislature-Executive, thereby paving the way for the Judiciary
to rewrite its boundaries and transition to an “impermissible state of power.”148 In doing so, the
courts encroach upon the domains of the other two organs and undertake tasks reserved for the
representative institutions.
Conclusively, it is evident that judicial activism has now entrenched itself into the
working of the Constitutional Courts. However, pertinently, judicial activism must not be conflated
with governance by the Judiciary. Instead, it must operate within the well-defined boundaries of
the judicial process.149 As aptly emphasised by the Supreme Court, the principle of judicial
restraint serves as a form of ‘judicial respect’ towards the other co-equal branches of
government.150 Its purpose is to minimise undue interference and promote stability, in contrast to
the unpredictable outcomes associated with Judicial activism. 151 For instance, the Supreme Court
in Ashwani Kumar refused to direct the Parliament to enact a stand-alone legislation on custodial
144
See Anjali Gera, Bimla Sharma & Jayashree Sood, Legal Issues in End-of-Life Care: Current Status in India and
the Road Ahead, Vol. 13, CURR. MED. RES. PRACT., 32 (2023); Sohini Chowdhury, Passive Euthanasia : Doctors Body
Tells Supreme Court About Practical Difficulties In “Living Will” Guidelines, LIVE LAW, January 18, 2023, available
at https://www.livelaw.in/top-stories/passive-euthanasia-doctors-body-tells-supreme-court-about-practical-
difficulties-in-living-will-guidelines-219327 (Last visited on July 12, 2023).
145
146
Yash Sinha, Constitutional Dysfunctionalism, Vol. 14(4), NUJS L. REV. (2021).
147
Id., 25; JACK M. BALKIN & SANFORD LEVINSON, DEMOCRACY AND DYSFUNCTION, 139-151 (University of Chicago
Press, 2019).
148
Sinha, supra note 146, 3.
149
Sathe, supra note 133, 106.
150
Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, ¶33.
151
Id.
15
torture.152 Likewise, the court in Divisional Manager, Aravali Golf Club v. Chander Hass, 153 held
that it cannot direct the creation of posts, which is a prerogative of the legislative or executive
authorities. It was observed that Judges must not try to run the government,154 and instances of
encroachment by the courts often elicit reactions from the other branches, leading to efforts aimed
at curtailing the powers and independence of the Judiciary. 155 Nevertheless, the diminishing
presence of judicial restraint has become a disconcerting trend, as encroachments by the judiciary
are now often rationalised under the banner of Judicial Activism. Therefore, finding a balanced
solution that nudges the higher Judiciary towards a route that preserves constitutional harmony is
imperative. The solution, it appears, is more ‘basic’ than it may seem.
IV. BEYOND THE BINARY: ADVANCING THE CAUSE OF SAME-SEX

MARRIAGES IN INDIA THROUGH THE BASIC STRUCTURE DOCTRINE AND
DIALOGIC CONSTITUTIONALISM
A. JUDICIAL CROSSROADS OF MARRIAGE EQUALITY
Social realities are often a double-helix of dichotomy: while some social changes,
like solo gamy and live-in relationships, get more readily accepted, others, such as the ongoing
debate over same-sex marriage, ignite intense moral or conservative discussions. This debate was
recently brought before the Supreme Court in Supriya Chakraborty. The petitioners passionately
advocated for the recognition of marriage between any two individuals, regardless of their sexual
orientation and gender identity, within the framework of the Special Marriage Act of 1954 the
Hindu Marriage Act of 1955, and the Foreign Marriage Act of 1969. They asserted that members
of the LGBTQIA+ community possess a fundamental ‘right to marry,’ rendering Section 4(c) of
the SMA, which restricts marriage to a ‘male’ and a ‘female,’ as unconstitutional and
discriminatory against same-sex couples. 156 Thus, the primary issue before the Supreme Court was
whether the members of the LGBTQ+ community have a right to marry under the existing legal
framework and if such right exists, whether the court can make a declaration to this effect.
Turning to the arguments of the Respondents, broadly, three argumentative
gunshots echoed through the courtroom. First, they argued that recognising same-sex marriages,
which were never expressly included in the SMA, would require the Supreme Court to interpret
the law in a manner that introduces an alien intent, adding an entirely new dimension to the
statute.157 Second, the respondents implored the court not to impose societal changes solely
through its declarations. They contended that when seeking a change in the law that profoundly
impacts society, the society itself must be an active participant in the debate and decision-making
process.158 Third, the respondents favoured Robert J.’s dissent in Obergefell v. Hodges,159
contending that the desired change in the matter must be brought forth by the Parliament through
152
Dr. Ashwani Kumar v. Union of India, 2019 SCC Online SC 1144, ¶42.
153
Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683.
154
Id., ¶20.
155
Id., ¶34.
156
Plea for Marriage Equality, SUPREME COURT OBSERVER, July 5, 2023, available at
https://www.scobserver.in/cases/plea-for-marriage-equality/ (Last visited on July 13, 2023).
157
See Transcript, May 3, 2023, supra note 28, 25.
158
Id., 43-44, 35-36.
159
Obergefell v. Hodges, 576 U.S. 644 (2015) (Supreme Court of the U.S.A.).
16
legislation— giving it the opportunity to debate on the subject matter.160 Accordingly, it was
suggested that a declaration by court on this matter would amount to encroachment upon the
legislative domain, thereby violating the Separation of Powers, Democracy and, the Basic
Structure.161 In essence, the respondents expressed their concern regarding the subversion of the
democratic and political processes since, in their view, the petitioners were trying to “achieve
through the courts what they could not achieve in Parliament”.162 The preceding part of this essay
thoroughly examined the third aspect of the respondents’ argument, demonstrating that their
contentions hold considerable merit. Nonetheless, it must be clarified that the essay shall not
examine whether the right to marriage equality exists in the present case and proceeds with the
assumption that the court rules in favour of the petitioner in this regard.
Considering the above, this essay argues that in search for the balanced solution,
the Supreme Court in Supriya Chakraborty may climb up on the train to remedy and land upon the
following appeasing platforms: 163 station one, agreeing with the petitioners, the court can
acknowledge a constitutional right to marriage equality and subsequently interpret the provisions
of the SMA to include such a right. At station two, the court can alternatively sketch intricate
guidelines or directions on LGBTQIA+ family law, bridging the current legislative gap until the
Parliament acts. Though the aforementioned technique aligns with the court’s customary practice,
as noted previously, such an approach could prove audacious, breaching the Separation of Powers
and, consequently, damaging the Basic Structure. The court in Ashwani Kumar has held that
guidelines should be reserved only for extraordinary cases, where the magnitude of Fundamental
Rights violations surpasses concerns over Separation of Powers,164 such as in Vishakha, where the
Fundamental Right of women to work with human dignity under Articles 14, 15, 19(1)(g), 21, and
prevention of sexual harassment at workplace was at stake. In the instant case, persuading the court
regarding the presence of Vishakha-like extraordinary circumstances may prove to be an uphill
battle. Nonetheless, the Supreme Court, in Common Cause v. Union of India,165 has rightly
observed that “[a] perception, however strong, of the imminent need of the law engrafted in the
Act and its beneficial effects on the citizenry of a democratic country, by itself, will not permit the
court to overstep its jurisdiction”. 166 Therefore, Judges must not develop new principles of law
following their personal opinions, especially when the “society/legislators as a whole are unclear
and substantially divided on the relevant issues”.167
Furthering the route to station three, the court can merely declare the right to marry
for the LGBTQIA+ community and entrust the task of law-making and implementation to the
Parliament and Executive, respectively. However, it risks the widening of the right-remedy gap
160
See Transcript of WP (Civil) 1011 of 2022 Hearing dated 09.05.2023, May 9, 2023, at 58-60, available at
https://main.sci.gov.in/pdf/LU/15052023_111059.pdf (Last visited on July 16, 2023); Transcript, May 3, 2023, supra
note 28, 37-38.
161
Karpuram & Spandana, supra note 28; Transcript, May 3, 2023, supra note 28, 29, 35, 37.
162
R. (Countryside Alliance) v. Attorney General, 2008 AC 719, ¶45 (Supreme Court of the UK); Dr. Ashwani Kumar
v. Union of India, 2019 SCC Online SC 1144, ¶34.
163
See generally Akshat Agarwal, Marriage Equality at the Doors of the Indian Supreme Court, VERFASSUNGSBLOG,
May 24, 2023, available at https://verfassungsblog.de/marriage-equality-at-the-doors-of-the-indian-supreme-court/
(Last visited on July 12, 2023).
164
Dr. Ashwani Kumar v. Union of India, 2019 SCC Online SC 1144, ¶29.
165
166
Id., ¶18.
167
See Dr. Ashwani Kumar v. Union of India, 2019 SCC Online SC 1144, ¶26; See also State of H.P. v. Satpal Saini,
(2017) 11 SCC 42, ¶12.
17
and may prove insufficient in checking Executive recalcitrance. 168 Therefore, at this terminus, the
court rewards the petitioners with a “toothless fundamental right”,169 whose enforcement is
vulnerable to potential Legislative and Executive roadblocks.170
In the final stretch, arrives station four of the suspended declaration of invalidity,171
whereby the court declares that despite a law being violative of the Constitution, it remains
enforced for a limited duration. 172 In the meantime, the political branches are bestowed with an
opportunity to cure the defect, with any inaction giving automatic effect to the order.173 However,
such a remedy is perplexing for two prime reasons. First, it finds no documentation in the Indian
Constitutional culture. Even with the buttress,174 of various domestic,175 and cross-border cases,176
drawing parallels of possibility, notably, the former cases are not illustrative to direct infringements
of fundamental rights.177 Besides, the latter cases witness the remedy of declaration flowing
expressly from their Constitution, unlike the Indian scenario. Second, even if interpreted liberally,
the infancy of such methodology without answering anticipated concerns such as persistent
violation of Fundamental rights during the suspension period,178 underestimation of the curing
time required by the legislature,179 and unsuccessful remedies brought after a maliciously wide
time frame,180 are bound to be hours lost in limbo.
The above discussion unveils the dilemma faced by the Supreme Court, as each
solution station has an inherent drawback. With the sensitivity of the controversy in mind, the court
must tread cautiously to avoid legitimising judicial encroachments on legislative and executive
domains. Thus, unearthing a balanced solution that ensures the preservation of the Separation of
Powers and the delivery of a practical and satisfactory remedy to the petitioners is crucial.
168
See generally Mihika Poddar & Bhavya Nahar, ‘Continuing Mandamus’ – A Judicial Innovation to Bridge the
Right-Remedy Gap, Vol. 10(3), NUJS L. REV., (2017).
169
See SAMPAT JAIN, PUBLIC INTEREST LITIGATION, 342 (Deep & Deep Publications Pvt. Ltd., 2002); Id., 559.
170
See Id., 561.
171
See Transcript, May 3, 2023, supra note 28, 11-12; See also, Aishwarya Singh et al., A Pathway for the Supreme
Court in Ensuring Marriage Equality, THE WIRE, April 18, 2023, available at https://thewire.in/law/a-pathway-for-
the-supreme-court-in-ensuring-marriage-equality (Last visited on July 13, 2023); Hari Kartik Ramesh, The Equal
Marriage Case and a Suspended Declaration of Invalidity, INDIAN CONSTITUTIONAL LAW AND PHILOSOPHY, May 4,
2023, available at https://indconlawphil.wordpress.com/2023/05/04/guest-post-the-equal-marriage-case-and-a-
suspended-declaration-of-invalidity/ (Last visited on July 14, 2023).
172
In Re Manitoba Language Rights, [1985] 1 SCR 721, 19 DLR (4th) 1 (Supreme Court of Canada), ¶¶97-107; See
e.g., Minister of Home Affairs v. Fourie, 2006 (1) SA 524 (CC) (Constitutional Court of South Africa); See also Davy
Lalor, Ontario (Attorney General) V G and ‘Principled’ Remedial Discretion: Lessons for Ireland, Vol. 5(2), IR. JUDIC.
STUD. J. 55, 62-63 (2021).
173
Kent Roach, The Separation and Interconnection of Powers in Canada: The Role of Courts, the Executive and the
Legislature in crafting Constitutional Remedies, Vol. 5(2), JICL 315, 330 (2018); See also A. v. Governor of Arbour
Hill [2006] 4 I.R. 88 (Supreme Court of Ireland).
174
Singh, supra note 171; Ramesh, supra note 171.
175
Sampath Kumar v. Union of India, (1987) 1 SCC 124; Indra Sawhney v. Union of India, (1996) 6 SCC 506; EPFO
v. Sunil Kumar B., 2022 SCC OnLine SC 1521.
176
Minister of Home Affairs v. Fourie, 2006 (1) SA 524 (CC) (Constitutional Court of South Africa); Hillary
Goodridge v. Department of Public Health, 440 Mass. 309 (the Massachusetts Supreme Judicial Court).
177
See generally Chintan Chandrachud, Judicial Review in the Shadow of Remedies in BALANCED
CONSTITUTIONALISM: COURTS AND LEGISLATURES IN INDIA AND THE UNITED KINGDOM, 178-188 (2017).
178
See Blake v. A.G., [1982] I.R. 117, 141-142 (Supreme Court of Ireland).
179
Robert Leckey, Assisted Dying, Suspended Declarations, and Dialogue’s Time, Vol. 69, UTLJ, 64-65 (2019).
180
See Carter v. Canada (Attorney-General), [2015] 1 SCR 331 (Supreme Court of Canada).
18
B. PURSUING THE PATH TO BALANCE: HARNESSING THE CONSTITUTIONAL

SHIELD OF BASIC STRUCTURE AND DIALOGIC CONSTITUTIONALISM
1. THE MISSING ‘BASIC’ PIECE
Unconventional yet potent, the key to India’s Separation of Powers conundrum lies
in applying the Basic Structure doctrine to Judicial Review. Such expansion serves three pivotal
purposes: First, it operates as a stark reminder to the higher Judiciary that the protector and creator
of the doctrine, too, can inadvertently harm it through unchecked encroachments on other organs’
domains. By imposing a vital check on the excesses of Judicial activism, the doctrine stresses that
any Judicial decision overstepping into legislative or executive realms— as discussed previously—
violates the separation of powers and undermines the Basic Structure. Judicial Review, as a vital
component of the Basic Structure, must not be used to harm another essential element, namely the
separation of powers. Thus, the doctrine draws a clear boundary for the higher Judiciary’s activist
role, declaring that the court shall go thus far and no further, thereby preventing the stretching of
the separation of powers to its breaking point.
Second, as argued before, the profound significance of Supreme Court judgments
that have duly cautioned against overreaching has regrettably been relegated to mere words,
lacking practical effect. The absence of an active constraint on the powers of the Supreme Court
implies that the court possesses the discretion to either adhere to or disregard such judgments based
on the prevailing facts and circumstances. However, applying the Basic Structure to judicial review
presents a transformative opportunity to establish much-needed uniformity and boundaries,
cementing the precedential value of those judgments. Third, such expansion of the doctrine’s scope
promotes equality between the three organs, as envisioned by the Supreme Court,181 and offers an
answer to the following question: If the doctrine can check the excesses of the Legislature and the
Executive, then why shouldn’t it be attentive to judicial overreach? Ultimately, the unstoppable
force of Judicial Review finds its match in the constitutional shield of Basic Structure. 182
To set the above proposition in motion, the Supreme Court must first embrace the
doctrine’s application to judicial review just as it birthed it— through a bold and decisive judicial
pronouncement. Furthermore, in navigating this path, insights of the Supreme Court in Rupa Ashok
Hurra v. Ashok Hurra must be considered,183 where the court emphasised that writs of certiorari
cannot be issued to coordinate or Superior Court, including the High Courts, since they “are not
constituted as inferior courts in our constitutional scheme”.184 The court also observed that the
higher Judiciary does fall within the definition of ‘state’ under Article 12. 185 In light of this, it is
suggested that the Supreme Court must exercise its appellate and Review jurisdiction under
Articles 132, 133, 134, 136 and 137 of the Constitution to hear any challenge against Judicial
decisions on the ground of Basic structure violations. Moreover, as the Basic Structure doctrine
finds its way into Judicial Review, the Constitutional Courts will undoubtedly exercise their
powers with greater awareness from the outset. Yet, it is equally incumbent upon the other two
organs to raise concerns regarding violations of the Basic Structure by Judicial decisions during
181
Divisional Manager, Aravali Golf Club v. Chander Hass (2008) 1 SCC 683, ¶33.
182
See Prateek, supra note 23, 476-477; Janhit Abhiyan v. Union of India, 2022 SCC Online SC 1540, ¶395.
183
Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388.
184
Id., ¶7.
185
Id.
19
appeal or review proceedings. Embracing this view establishes a robust balance between the three
co-equal organs and nurtures the vital element of checking and balancing within the framework of
the Separation of Powers.
2. DIALOGICAL DYNAMICS
Adding an extra layer of protection to the Basic Structure shield, dialogic

constitutionalism further strengthens the constitutional fabric by not only bridging the right-
remedy gap,186 but also battling legislative and administrative laxity. Abeyratne and Misri have
eloquently pointed out that a dialogic review envisions collaborative efforts of the institutional
organs, aiming to address constitutional problems while leveraging their strengths and mitigating
weaknesses. 187 Accordingly, under this model, the courts play a pivotal role by exposing rights
violations yet wisely allowing the other two organs to craft appropriate remedies.188 This roadway
furthers the goals of democracy through a combination of constitutional collaboration and counter-
balancing, 189 and avoids the challenge of the courts being perceived as counter-majoritarian.190
Thus, broadly put, it refers to “a public and ongoing process of constitutional interpretation where
issues of public or intersubjective morality are regularly debated among equals, in an inclusive
discussion that embraces the different governmental branches and the people at large”.191
Championing a deliberative democracy, inter-organ equality, and inclusivity among diverse
stakeholders,192 this model of constitutionalism was first witnessed in Canada, 193 and has since
spread its roots globally. 194
Remarkably, dialogic constitutionalism has found the acknowledgement it deserves
in India while being whispered in some instances and boldly proclaimed in others. The Supreme
Court’s dictum in Vishakha featured certain dialogical elements as the Union of India had
consented to the guidelines through the solicitor general. 195 Likewise, the court, while modifying
its previous guidelines on passive euthanasia, observed that ordinarily, it would not have
considered such an application. 196 However, it was noticed that the Union had evolved its position
to agree to certain changes sought by the applicants, thanks to “several rounds of discussions”.197
Thus, rather than asserting its authority to pass a legislation on the issue, the Legislature has opted
186
See generally Grégoire C. N. Webber, The Unfulfilled Potential of the Court and Legislature Dialogue, Vol. 43(2),
CJPS, 443 (2009); R. Gargarella, “We the People” Outside of the Constitution: The Dialogic Model of
Constitutionalism and the System of Checks and Balances, Vol. 67(1), CLP, 1 (2014); Mark Tushnet, Dialogic Judicial
Review, Vol. 61, ARK. L. REV., 205 (2009).
187
Abeyratne & Misri, supra note 120, 377.
188
Id.
189
ALISON L YOUNG, DEMOCRATIC DIALOGUE AND THE CONSTITUTION, 115-116, 160, 171 (Oxford University Press,
2017).
190
Abeyratne & Misri, supra note 120, 377.
191
Roberto Gargarella, Scope and Limits of Dialogic Constitutionalism in DEMOCRATIZING CONSTITUTIONAL LAW:
PERSPECTIVES ON LEGAL THEORY AND THE LEGITIMACY OF CONSTITUTIONALISM, 119, 122 (2016).
192
Id., 122-123.
193
See Peter W Hogg & Allison A. Bushell, The Charter Dialogue between Courts and Legislatures (Or Perhaps the
Charter of Rights Isn't Such a Bad Thing after All), Vol. 35(1), OSGOODE HALL L.J., 75 (1997).
194
YOUNG, supra note 189, 3; See e.g., The Human Rights Act 1998 (the U.K.); New Zealand Bill of Rights Act 1992
(New Zealand).
195
Vishakha v. State of Rajasthan, (1997) 6 SCC 241, ¶9.
196
Common Cause v. Union of India, (2023) 10 SCC 321, ¶5.
197
Id.
20
for the Judiciary to fill the vacuum on issues it prefers not to handle 198— leaving the matters to the
‘wisdom of the court’.199 Furthermore, during the second wave of the COVID-19 pandemic, the
Supreme Court devised the concept of ‘dialogic jurisdiction,’ to provide various stakeholders with
a forum “to raise constitutional grievances with respect to the management of the pandemic”,200
and to “conduct deliberations with the executive”, 201 regarding its policies. 202
Breaking new ground, the Supreme Court, guided by the visionary pen of Chief
Justice D.Y. Chandrachud, expressly embraced a dialogical approach in the case of Gujarat Urja
Vikas Nigam Limited v. Amit Gupta.203 While examining the validity of ipso facto clauses in India,
the court first acknowledged that there is no clear position of law in this regard. 204 It was further
noted that separation of powers is a cardinal principle enshrined in the Constitution, 205 and judicial
determination of this issue poses a myriad of complex questions, impacting several contracts that
contain such clauses. 206 Therefore, the court held that rather than resolving the issue exhaustively
in the present case, it must “appeal in earnest to the legislature to provide concrete guidance on
this issue”.207 In doing so, the court highlighted the importance of “dialogical remedies”,208 and
observed that instead of usurping the Legislature’s role or simply sitting with folded hands, it could
adopt a ‘workable formula’ and leave it to the Legislature to formulate a comprehensive
solution. 209 Citing an illustration of such remedies, the court drew attention to its decision in S.
Sukumar v. ICAI,210 where the bench recommended that the Union should constitute a committee
of experts to examine the issue and identify appropriate remedies through a dialogue with all the
198
Surya Deva, INDIA: Constitutional Courts as Positive Legislators: The Indian Experience in CONSTITUTIONAL
COURTS AS POSITIVE LEGISLATORS: A COMPARATIVE LAW STUDY, 587, 600-601 (2011); Choubey, supra note 141.
199
See, e.g., Navtej Singh Johar v. Union of India, (2018) 1 SCC 791, ¶36.
200
In Re: Distribution of Essential Supplies and Services During Pandemic, (2021) SCC OnLine SC 411, ¶17.
201
Id.
202
See generally Debmalya Banerjee & Vardaan Wanchoo, India; The Advent of Dialogic Jurisdiction, MONDAQ, July
8, 2021, available at https://www.mondaq.com/india/constitutional--administrative-law/1089102/the-advent-of-
dialogic-jurisdiction (Last visited on July 15, 2023); Guatam Bhatia, Coronavirus and the Constitution – XXXVII:
Dialogic Review and the Supreme Court (2), INDIAN CONSTITUTIONAL LAW AND PHILOSOPHY, June 3, 2021, available
at https://indconlawphil.wordpress.com/2021/06/03/coronavirus-and-the-constitution-xxxvii-dialogic-review-and-
the-supreme-court-2/ (Last visited on July 15, 2023); Gautam Bhatia, Coronavirus and the Constitution – XXVIII:
Dialogic Judicial Review in the Gujarat and Karnataka High Courts, INDIAN CONSTITUTIONAL LAW AND
PHILOSOPHY, May 24, 2020, available at https://indconlawphil.wordpress.com/2020/05/24/coronavirus-and-the-
constitution-xxviii-dialogic-judicial-review-in-the-gujarat-and-karnataka-high-courts/ (Last visited on July 15, 2023);
Aakanksha Saxena, Coronavirus and the Constitution – XXXIII: N-95 Masks and the Bombay High Court’s Dialogic
Judicial Review [Guest Post], INDIAN CONSTITUTIONAL LAW AND PHILOSOPHY, June 28, 2020, available at
https://indconlawphil.wordpress.com/2020/06/28/coronavirus-and-the-constitution-xxxiii-n-95-masks-and-the-
bombay-high-courts-dialogic-judicial-review-guest-post/ (Last visited on July 15, 2023).
203
Gujarat Urja Vikas Nigam Limited v. Amit Gupta, (2021) 7 SCC 209.
204
Id., ¶141.
205
Id., ¶142.
206
Id., ¶145-148.
207
Id., ¶149.
208
Id., ¶179.
209
Id., ¶181.
210
S. Sukumar v. ICAI, (2018) 14 SCC 360.
21
stakeholders.211 Ultimately, it was concluded that the court treads “the middle path between
abdication and usurpation” through such inter-institutional dialogue. 212
Given the foregoing, it is evident that the constitutional courts, while playing a
dialogical role, use the resources at their disposal to act as a “mediator with power”,213 rather than
an adjudicator214—to assist the conflicting parties in reaching an agreement but still being able to
impose a legal resolution to the dispute.215 Furthermore, this approach finds its perfect niche in
scenarios where the court acknowledges the petitioners’ rights, yet the optimal remedy necessitates
the collaborative efforts of all organs to preserve the delicate balance of separation of powers. The
Judiciary also has the option to utilise the procedural innovation of “continuing mandamus”, which
involves keeping a case pending instead of issuing a final judgment while actively engaging in a
comprehensive social dialogue with all the relevant stakeholders. 216 Poddar and Nahar have rightly
emphasised that in cases where a declaratory or mandatory judgement will have minimal effect, a
continuing mandamus enables the court to nudge “public opinion sensitive governments” out of
inertia and foster constitutional collaboration among all key actors.217
3. FITTING THE MISSING PIECE INTO THE SAME-SEX PUZZLE
With the innate drawbacks of the traditional options available to the Supreme Court
in Supriya Chakraborty, as discussed previously in this part, a two-pronged strategy emerges as
the way forward. By combining the application of the Basic Structure doctrine on judicial review
with a resort to dialogical remedies, a seamless route is carved for the court to stride confidently
in this case. The golden opportunity of addressing the respondent’s contentions on basic structure
violation through Separation of Powers can be seized by the court to expand the doctrine’s scope
to Judicial Review ingeniously. The court’s acknowledgement of an inviolable limit to its power
would justify its decision to abstain from judicial reinterpretation of the SMA or issuing detailed
guidelines on the subject matter.
Furthermore, like an enchanting twist of fate or a serendipitous dance of luck, this
case has already set the stage for a perfect Constitutional dialogue. The hearing on May 3, 2023 in
Supriya Chakraborty began with the solicitor general informing the bench that upon deliberation
with various union ministries, the creation of a committee led by a cabinet secretary is suggested—
which aims to deal with administrative changes that alleviate the petitioner’s concerns. 218 Acting
as a mediator, D.Y. Chandrachud C.J., on behalf of the bench, asked the petitioners to submit a set
of issues that the committee may address. 219 To further convince the petitioners not wholly in
favour, the bench pointed out that based on the Union’s submissions, there seems to be an
acknowledgment of the LGBTQIA+ community’s right to co-habit, beyond which the committee
211
Id., ¶53.
212
Gujarat Urja Vikas Nigam Limited v. Amit Gupta, (2021) 7 SCC 209, ¶181; O. Ferraz, Between Usurpation and
Abdication? The Right to Health in the Courts of Brazil and South Africa in TRANSFORMATIVE CONSTITUTIONALISM:
COMPARING THE APEX COURTS OF BRAZIL, INDIA AND SOUTH AFRICA, 375, 393 (2013).
213
JULIO RÍOS-FIGUEROA, CONSTITUTIONAL COURTS AS MEDIATORS: ARMED CONFLICT, CIVIL-MILITARY RELATIONS,
AND THE RULE OF LAW IN LATIN AMERICA, 23 (Cambridge University Press, 2016).
214
See Poddar & Nahar, supra note 168, 606.
215
RÍOS-FIGUEROA, supra note 213, 24.
216
See Poddar & Nahar, supra note 168, 608.
217
Id., 606.
218
219
Id.
22
would be tasked with resolving practical matters concerning bank accounts, insurance, housing,
and the like.220
Moreover, the bench gave a mindful reminder to the petitioners that though the
conceptual issue of the existence of the right to marry under the SMA would still be decided, a
mere declaration of this right in itself would be insufficient without a robust statutory and
regulatory framework, which lies within the purview of the other two organs. 221 Hence, the
petitioners were strongly urged to consider the Union’s proposal rather than pursuing an ‘all or
nothing’ outlook.222 Additionally, the bench aptly remarked that the present case warrants the resort
to an incremental approach— meaning that even though the present conflict may not result in a
substantial gain for the petitioners, it would act as a ‘building block’ for the future, with the court
acting as a facilitator of progress.223
Thus, being cognizant of its limitations, the bench in Supriya Chakraborty has
passionately endeavoured to strike a balanced solution through dialogue and collaboration,
eschewing the imposition of remedies on the other organs. It is argued that with wisdom as its
compass, the odds are in favour of the court steering the petitioners towards deliberations with the
Union through the committee while allowing the Parliament to debate on the matter and pursuing
similar formulas in search of an answer that achieves proper balance and harmony.
V. CONCLUSION
Acting as a catalyst of justice, the Judiciary has broadened the scope of Judicial
Review by ingeniously crafting remedies through judicial lawmaking and policymaking. However,
these creative endeavours trigger a chain reaction that undermines the delicate balance of the
Separation of Powers and, in turn, the Basic Structure as noted in Part III of this essay. Since the
Judiciary is the guardian of its own gateways through self-restraint, the ideal solution lies with the
doctrine’s application to Judicial Review itself. This way forward is achievable as the Supreme
Court, through its dicta, has established the doctrine’s elasticity, making it operate as an
independent form of Judicial Review upon ordinary legislation and Executive actions.
The Supreme Court in Supriya Chakraborty faces the Separation of Powers
conundrum, knowing it cannot tread fearlessly into the Legislative domain through a declaration.
To achieve Constitutional harmony and balance, the court must extend the doctrine’s application
to Judicial Review, cementing much-needed uniformity and boundaries while guiding future
benches for decades to come. Furthermore, dialogic constitutionalism holds the potential to give
teeth to the petitioner’s right to marry, ensuring its conversion from rhetoric to reality. It must be
noted that the Supreme Court now leans heavily towards dialogical remedies that grant potent
relief to the petitioners and safeguard the hallowed principle of Separation of Powers. It is worth
mentioning here that D.Y. Chandrachud C.J. has consistently championed the cause of Dialogic
Judicial Review, believing fervently that it can lead to practical solutions that promote harmony. 224
220
221
Id., 11.
222
Id., 5, 12.
223
Id., 9, 12.
224
See Surat Parsi Panchayat Board v. Union of India, (2022) 4 SCC 534, ¶8; HINDUSTAN TIMES (Utpal Parashar),
Need deliberation, dialogue not grandstanding: CJI Chandrachud, April 7, 2023, available at
23
Critics of this approach have argued that the invisibilisation of the LGBTQIA+
community in legislative spaces, 225 coupled with the domination of majoritarian social values in
representative bodies like the Parliament,226 hinders their capacity to address the concerns raised
by the feeble voices of the minority. However, the critics must face the reality that though the
Supreme Court can recognise the right to marry for the LGBTQIA+ community, the fruitification
of that right is vastly dependent on the acts of the Legislature and the Executive.
As argued by the bench in Supriya Chakraborty, an incremental realisation of
marriage equality fosters a broad social dialogue while preventing a disconnect between the law
and society. 227 This gradual progression allows public opinion to adapt to significant social
changes, ensuring that the expansion of rights is steady yet resilient, making them less susceptible
to reversal in the future.228 Furthermore, Reva Siegel has keenly remarked that the U.S. Supreme
Court’s decision in Obergefell was not solely a result of shifting public opinion. 229 Rather, the
struggle over the courts was pivotal in transforming public sentiment and shaping fresh
“constitutional understandings”.230 Hence, conflict can wield constructive power, and adjudication
on such matters not only mirrors but also shapes public opinion. 231 Accordingly, from NALSA v.
Union of India,232 to the present dispute in Supriya Chakraborty, public perception towards the
LGBTQIA+ community has radically transformed, with fifty-three percent of adult Indians now
in support of the legalisation of same-sex marriages.233
The current case provides the Supreme Court with a significant chance to embark
on its inaugural incremental journey, paving the path for future judicial actions— while bearing in
mind that incrementalism need not be synonymous with gradualism as a series of successive cases
might swiftly follow one another, enabling the evolution of the law in a matter of years, not
decades. 234 To sum up, the roadway suggested by this essay is not a panacea. Yet, it stands tall as
a guiding lighthouse when our constitutional courts confront complex issues, where one roadway
jeopardises the Basic Structure through Separation of Powers while the other leaves the aggrieved
with toothless fundamental rights. Integrating the Basic Structure doctrine into the fabric of
Judicial Review, blended with dialogical remedies, carves an approach for the higher Judiciary to
guard a society pulsating with urges for social justice without sacrificing its commitment to
https://www.hindustantimes.com/india-news/cji-stresses-on-constitutional-statesmanship-and-dialogue-between-
judiciary-and-executive-for-nation-building-101680890342005.html (Last visited on July 13, 2023); LIVE LAW
(Mehal Jain), If The Dialogical Role Of Law Is Forsaken, Law Becomes A Diabolical Instrument: Chandrachud.J At
IDIA Conference, December 16, 2018, available at https://www.livelaw.in/if-the-dialogical-role-of-law-is-forsaken-
law-becomes-a-diabolical-instrument-chandrachud-j-at-idia-conference/ (Last visited on July 13, 2023).
225
Lalli, supra note 24.
226
Venkatanarayanan S. & Abhiruchi Ranjan, Same-Sex Marriage: The Court Must Not Follow The Doctrine Of
‘Separate But Equal, THE WIRE, June 18, 2023, available at https://thewire.in/lgbtqia/same-sex-marriage-the-court-
must-not-follow-the-doctrine-of-separate-but-equal (Last visited on July 24, 2023).
227
Singh, supra note 171.
228
Id.
229
Reva Siegel, Community in Conflict: Same-Sex Marriage and Backlash, Vol. 64, UCLA L. REV., 1730, 1744
(2017).
230
Id.
231
Id., 1744-1746.
232
NALSA v. Union of India, (2014) SCC 438.
233
Jacob Poushter, Sneha Gubbala & Christine Huang, How people in 24 countries view same-sex marriage, PEW
RESEARCH CENTER, June 13, 2023, available at https://www.pewresearch.org/short-reads/2023/06/13/how-people-in-
24-countries-view-same-sex-marriage/ (Last visited on July 21, 2023).
234
Singh, supra note 171.
24
Separation of Powers. During these tempestuous times, the higher Judiciary must embrace that in
the pursuit of justice and safeguarding of our constitutional fabric, the true strength lies not in the
unchecked power of one but in the harmonious symphony of the three.
25

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NUJS Law Review 16 NUJS L. Rev.

THE MEHNDI OF JUDICIAL REVIEW IN SAME-SEX

2. THE GREAT JUDICIAL POWER GRAB: INVESTIGATING THE IMPACT ............. 13

II. BREAKING BOUNDARIES: UNRAVELING THE WIDENING APPLICATION

A. ORDINARY LAWS, EXTRAORDINARY PROTECTION

The ‘ordinary’ lawmaking power of the Parliament and State legislatures is

B. THE EXECUTIVE AND THE BASIC STRUCTURE: A COLLISION COURSE

III. THE BASIC STRUCTURE DOCTRINE, JUDICIAL REVIEW, AND THE

A. THE DEMOCRATIC TUG OF WAR: MODERN TRILEMMA OF SEPARATION OF

Once referred to as the most confusing constitutional and political thought, 70 a

B. THE EVEREST OF JUDICIAL REVIEW: EXPLORING ITS EXPANDING SCOPE AND

The presence of legislative gaps or vacuums have become a convenient canvas

2. THE GREAT JUDICIAL POWER GRAB: INVESTIGATING THE IMPACT

IV. BEYOND THE BINARY: ADVANCING THE CAUSE OF SAME-SEX

B. PURSUING THE PATH TO BALANCE: HARNESSING THE CONSTITUTIONAL

1. THE MISSING ‘BASIC’ PIECE

Adding an extra layer of protection to the Basic Structure shield, dialogic

3. FITTING THE MISSING PIECE INTO THE SAME-SEX PUZZLE

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