JUDICIAL REVIEW VS. LEGISLATIVE SUPREMACY: ASSESSING THE LEGITIMACY OF COURTS IN RESOLVING DEEPLY POLARIZED SOCIAL ISSUES

Abstract

Constitutional democracies confront an enduring institutional puzzle when deeply polarized social questions, such as marriage equality, reproductive autonomy, religious practice, and affirmative action, reach the courts for resolution. This paper examines whether unelected judiciaries possess the legitimacy to settle disputes that divide the electorate along moral and religious lines, or whether such questions belong properly to legislatures answerable to the electorate. Drawing on the constitutional experience of India, contrasted with the United States and the United Kingdom, the paper argues that the legitimacy of judicial intervention does not turn on whether a court decides such a case, but on how it decides it. Courts act within their institutional competence when they remove state-imposed disabilities inconsistent with entrenched constitutional guarantees, as in the decriminalization of consensual same-sex conduct. They exceed that competence when they attempt to author new social institutions absent legislative architecture, as the qualified restraint in the marriage-equality litigation and the decade-long pendency of the Sabarimala reference illustrate. The paper develops a framework of calibrated judicial review, distinguishing negative rights-vindication from positive institutional creation, and argues that this distinction, rather than a binary choice between judicial supremacy and legislative supremacy, offers the more defensible account of institutional legitimacy in India's constitutional order.