CEU Electronic Theses and Dissertations, 2024
| Author | Mehta, Aman |
|---|---|
| Title | Dealing With Dialogue: The (Mis)Application of Dialogic Judicial Review in India & Comparative Constitutional Dialogue |
| Summary | The thesis attempts to put forward a pragmatic understanding of dialogue theory in order to understand the relationship that the three branches can share with each other. It aims to highlight and clear the confusion stemming from the two diametrically opposite understandings of dialogue among academics and Courts, wherein Courts with a relatively weaker form of judicial review use the dialogue metaphor in its ‘original understanding,’ i.e., a constitutional dialogue between the Courts and the legislatures wherein the legislature usually has the final say in constitutional issues and the Courts, therefore, provide sufficient political and legal leeway to the political branches to come up with their own interpretative decisions even if it means overriding the judgement of the judiciary, whereas strong and active Courts in jurisdictions with strong-form judicial review use dialogue, usually in cases related to socio-economic rights, to garner more powers when it comes to policy matters. The thesis differentiates the two approaches by terming the latter ‘dialogic jurisdiction’ and argues for the Courts to use it in a constrained manner. The thesis then makes an argument for rationalizing a form of ‘constructive constitutional dialogue’ in a strong-form review country like India by highlighting that it has the normative potential to protect the rights of the citizens in a better manner and in a way which is digestible and palatable to both legal as well as political constitutionalists. In doing so, it engages in a discussion of the kind of experiences different jurisdictions, like Canada and several East-Asian countries, have had with constitutional dialogue. It also looks at same-sex marriage legalization in different jurisdictions to argue how constitutional dialogue can enhance the rights of the citizens in a manner that has both judicial backing and a democratic mandate. Therefore, the thesis argues for a culture of constructive constitutional dialogue in strong-form review systems by looking at how it can be realized in a Juristocratic country like India. |
| Supervisor | Böckenförde, Markus |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2024/mehta_aman.pdf |
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