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Title: The role of 'reasonable restrictions' in the Indian Constitution
Author: Iyer, Tirukkattupalli Kalyana Krishnamurthy
ISNI:       0000 0001 3602 5283
Awarding Body: SOAS University of London
Current Institution: SOAS, University of London
Date of Award: 1974
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Judicial review of written constitutions is seen by most modern researchers as a value-ridden, policy-making exercise. A rapid (I do not say superficial) analysis of the judicial process tends to see it, in the end, in terms of judicial activism or restraint. In explanations of such 'activism' or 'restraint' it is not uncommon to see references to factors personal to the judges such as their preferences on social and economic matters. Studies of the 'irrational factors' in judicial policy-making, convincing as many of them are, could easily become exaggerated and tend to become one-sided. It is fair to ask that judges should be 'conscious' of their preferences in whatever choices they make, but it may not be right to ask them to transcend themselves in a totally unrealistic fashion. Admitting that judicial policy-making exists and that presuppositions pervade decisions interpreting a written Constitution, it still remains to be said that judges do, in the course of their work, try to express their concept of 'justice' , albeit legal justice. Every general, unspecific expression in a written legislative document gives rise to judicial review and there constantly arise opportunities for the Judges to express their notion of 'justice' in the ciruumstances of the cases before them. Such a flexible expression as 'reasonable restrictions' (on Fundamental Rights) used in Article 19 of the Indian Constitution provides a good field in which to see how Judges develop the notion of 'reasonableness' or 'fairness' which are inseparable from the very idea of judicial review. Among the many valuable and comprehensive treatments of the constantly shifting subject of Indian constitutional law, there appears no treatise devoted to 'reasonableness'. It is not hard to see why (as will be explained below). One often hears that the notion of 'reasonableness' varies from case to case, from one set of circumstances to another. This platitude is true so far as it goes, but not being the product of detailed research into judicial attitudes, it has no secure foundation and thus cannot dispense with the need for an inquiry into the acute problem it poses with regard to judicial method. The notion of reasonable restrictions is a vital and growing area of the law relating to fundamental rights guaranteed by the Indian Constitution. The potentiality of this notion has already been realized in such areas as freedom of the press in India, freedom of assembly and freedom of association. Further growth, we find, is possible in the area of free movement and free pursuit of profession. Needless to say there are considerable pressures in an underdeveloped country of India's complexity and size. A hypothetical judicial notion of reasonableness may be but one of hundreds of factors that constitute the basis of the Indian nation. The immediate impact of judicial attitudes expressed in decisions is felt by the administration and the State. Only indirectly does the citizen perceive the effects. Nevertheless, a link must exist between the judicial view of 'reasonable restrictions' on the basic freedoms and the evolving notions of society and government in India. It would take more than a thesis to explore such a complex subject. As long as Courts are taken seriously in India, in the sense in which they have been since 1772, the constitutional requirement of reasonableness expressly referred to in Article 19 will play a vital role.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral