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6 - Limitation Analysis by the Indian Supreme Court

Published online by Cambridge University Press:  14 April 2020

Mordechai Kremnitzer
Affiliation:
Israel Democracy Institute
Talya Steiner
Affiliation:
Hebrew University of Jerusalem
Andrej Lang
Affiliation:
Martin Luther-Universität Halle-Wittenberg, Germany
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Summary

The chapter presents an analysis of the practice of limitation analysis in the case law of the Indian Supreme Court. Based on both a qualitative and quantitative analysis of a large sample of case law relating to claims for limitation of the rights to equality, fundamental freedoms, and life and personal liberty, the chapter deconstructs the Court’s approach to identify the distinct elements of limitation analysis, and argues that though the Court has not expressly articulated a single structured test for the validity of rights limitations, in practice the Court generally examines three elements: worthy purpose, rational nexus (at times including narrow tailoring), and a general balancing between various interests at stake. Quantitative indicators are used to provide an overview of the characteristics of limitation analysis in action, including the rights and subject matters to which limitation analysis is applied and the division of labour between the components of the analysis when striking down measures. The findings demonstrate that the majority of limitations struck down are based on either lack of legitimate purpose, lack of rational nexus, or both. The chapter further analyses qualitatively the formulations and applications in practice of each of the components of limitation analysis.

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Information
Proportionality in Action
Comparative and Empirical Perspectives on the Judicial Practice
, pp. 458 - 541
Publisher: Cambridge University Press
Print publication year: 2020

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