Judicial Activism and the Protection of Refugee Rights: Interpreting the Indian Constitution in the Context of Asylum and Non-refoulement

Abstract

The Indian Constitution, as the supreme law of the land, binds all state organs including Parliament and state legislatures to operate within its boundaries, ensuring that any unconstitutional action [1] is rendered legally void. Recognized as the "Soul of the Nation," the Constitution influences all societal aspects, transcending various social, economic, and regional boundaries. Its operational structure consists of the legislature, executive, and judiciary, with the judiciary having a vital role in interpreting
the Constitution and protecting the rule of law and individual rights. Judicial activism in India [2] involves courts in shaping societal norms and guiding the actions of the executive and legislature. The Supreme Court holds significant authority in constitutional matters, including the power to declare laws and actions as unconstitutional. Traditionally, only individuals directly affected could approach the Supreme Court or High Court, but the introduction of Public Interest Litigation (PIL) has expanded access to justice, particularly benefiting the underprivileged and those unable to seek legal redress due to socio-economic disadvantages [3]. Judicial functions are primarily interpretative, with courts acting as arbiters of legal disputes rather than super-legislators. This interpretive function encompasses significant rulings like the "basic structure doctrine" established in the Kesavananda Bharati case, which restricts Parliament from modifying essential constitutional elements. Other significant interpretations include the introduction of "due process" under Article 21 in the Maneka Gandhi case and the affirmation of natural justice principles. Additionally, the judiciary has extended protections to refugees despite the absence of comprehensive refugee legislation, establishing key principles like the right to asylum and non-refoulement. Judicial interpretations enhance the Constitution's adaptability to societal changes, protect individual rights, and ensure justice and fairness. However, they are also criticized for issues such as judicial overreach and inconsistency. The judiciary’s role in reviewing laws and maintaining constitutional balance underscores its importance in fostering a just and equitable society.