Book Review: Weak Courts & Strong Rights: Judicial Review And Social Welfare Rights In Comparative Constitutional Law, Mark Tushnet, 2008
Akhil Surya, NALSAR University of Law, Hyderabad
Introduction
In popular understanding, specification, determination, and enforcement of rights finds its correlative duty only on the courts. The central tenet of a separation of powers system is to put checks and balances on the power of each organ. The same can be said in rather stronger vigour in the context of rights. But, today, there is hardly any democratic setup that has the legislature, executive, and courts working in isolation. Judicial Review is one function that ties up these institutions together for the achievement of the final goal- all laws must conform to the Constitution. The riddle of balancing the legitimacy deficit that courts are burdened with and the distrust on the legislature/executive to exercise their judgment of constitutionality while making laws and enforcing refuses to go away. This is precisely my entry point into reading Mark Tushnet. Questions like “Are courts really the right forum to deal with rights that have many real-life implications?”, “Should courts be given the power to override laws made by a democratically elected body?”, “How do we place the legislature and courts on the same pedestal of understanding and working out the Constitution?”, etc.
