Upendra Baxi, while delivering a lecture at Macquarie Law School, spoke about the concept of Demosprudence. Demosprudence primarily means a conglomerate of democracy and jurisprudence. This means that the concept talks about an enhancement of democracy within the judiciary. Demosprudence covers the concept of judicial activism in judicial review to enhance an adjudicatory leadership within the constitutional democracy.

The Supreme Court has practised demosprudence since its inception through a series of judicial decisions. With the wisdom of majority of the population with regards to social welfare and the value of minority in the form of judicial dissent, Demosprudence, as a practice, is followed by the Supreme Court and the High Courts and thereby certain new policies are established through reforms which are as follows:

(a) judicially invented human rights;

(b) jurisdictions (such as epistolary and curative petitions);

(c) enforcement and remedies structures;

(d) policies which will bind until Parliament passes a similar law;

(e) ways of monitoring Union and State policies already adopted;

(f) modes of policing asymmetric federalism

(g) juridical pathways of combating systematic governance corruption

(h) articulations of enunciating basic structure doctrine;

(i) forms of judicial co-governance of the nation

            Apart from the above, the best example for demosprudence in Indian judiciary can be seen in the way the interpretation of Article 368 of the Constitution has evolved with the passage of time. In the year 1951, Shankari Prasad vs Union of India[1] came up wherein the First Amendment was challenged on the ground that the law under Article 13 (3) shall include the constitutional amendment law. The Supreme Court rejected the contention and held that the word law in Article 13 must be taken to mean rules or regulations made in exercise of constitutional power and therefore Article 13(3) did not affect amendments made under Article 368.

Thereafter, in 1965, Sajjan Singh vs State of Rajasthan[2] again challenged the validity of the 17th Amendment Act. The Court stuck to the position laid down in Shankari Prasad case and held that the constitutional amendments made under Art 368 fall outside the purview of judicial review by the courts.

The same amendment was again challenged in Golaknath vs State of Punjab[3] and Supreme Court held that the power of parliament to amend the constitution is derived from Article 245 read with entry 97 of union list of the constitution and not from Article 368. Article 368 only lays down the procedure for the amendment of the constitution. An Amendment is a law within the meaning of art 13 (3), including every kind of law, statutory as well as constitution law and hence a constitutional amendment which contravened Art 13 (3) will be declared void.

In 1973, the validity of the 24th, 25th and 29th Amendment was challenged in Keshvananda Bharati's case[4]. The Supreme Court strengthened its powers of judicial review through the Basic Structure Doctrine. The doctrine of basic feature or the Basic Structure Doctrine has since become the bedrock of constitutional interpretation in India. This has been a case decided by the largest bench and still holds value whenever the concern regarding basic structure comes up. The basic structure doctrine was further improvised in the case of Indira Nehru Gandhi v. Raj Narain[5] through which ‘democracy’ was also included under the purview of basic structure. In this case, Mathew J. opined as follows:

“Article 329A(4) destroyed the basic structure of the Constitution viz. the resolution of an election dispute by ascertaining the adjudicative facts and applying the relevant laws… a healthy democracy can only function when there is the possibility of free and fair elections. The impugned amendment destroyed that possibility and therefore violated the basic structure of the Constitution.”[6]

Along with judicial review, demosprudence also covers the aspect of judicial dissent. In the case of ADM Jabalpur v. Shivkant Shukla[7], Justice H.R Khanna put forth a dissenting judgment and stated therein that one’s right to life and liberty cannot be left at the mercy of the Executive even during a state of emergency.

In the Kharak Singh case[8], Justice Subba Rao gave his dissenting opinion by saying that right to privacy should also fall within the purview of fundamental rights. Although it was not taken into consideration by the then majority, it proved out to be a majority judgment in the case of K.S. Puttuswamy v. Union of India[9] wherein Justice D.Y Chandrachud gave his dissenting opinion denying the whole concept of Aadhar by questioning the legislative procedures. Another latest case is the Sabrimala case[10] where Justice Indu Malhotra gave her dissenting opinion stating that there shall be no judicial intervention in religious matters. This shows that judicial dissent also forms a part of demosprudence and acts as a check on the judicial overreach.