Expanding Judiciaries: India and the Rise of the Good Governance Court
Harvard Law School, Program on the Legal Profession; Center for Policy Research (India)
April 9, 2012
8 Wash. U. Global Stud. L. Rev. 1 (2009)
In recent years courts have risen in power across the world. The Indian Supreme Court has rightly been pointed to as an example of this global trend. Indeed, in many ways it has become a court of good governance that sits in judgment over the rest of the Indian government. This article argues that it is the mandate for a "controlled revolution" laid out in the Indian Constitution, combined with the shortcomings of India's representative institutions, that has led the Court to expand its mission. The Indian Supreme Court's relatively unique institutional structure has also aided its rise, and perhaps helps explain why it has gained more power than most judiciaries elsewhere. The article examines two doctrines - the basic structure doctrine and the Court's broad right to life jurisprudence - to see how the Court has enlarged its role. It argues that the Court justified these two doctrines not only with a wide reading of the Indian Constitution, but also with an appeal to broad, almost metaphysical, principles of "civilization" or good governance. The Court's interventions have not been without critics (who raise accountability, capacity, competency, and constitutional legitimacy concerns), but these doctrines have proved remarkably stable. This article finishes by examining parallel interventions in other parts of the world which suggest India's experience is part of and helps explain a larger global phenomenon of the rise of rule through good governance principles via courts.
Number of Pages in PDF File: 70
Keywords: Indian Supreme Court, comparative law, public interest litigation, basic structure doctrine, Pakistan Supreme Court, Thailand, controlled revolution
JEL Classification: K33working papers series
Date posted: April 28, 2008 ; Last revised: March 5, 2014
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