Expanding Judiciaries: India and the Rise of the Good Governance Court

Abstract

The Indian Supreme Court has rightly been pointed to as an example of a global trend in the increase in the power of courts. 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 and the Supreme Court’s relatively unique institutional structure, which has led the Court to enlarge its role. The article examines the Court’s basic structure doctrine and right to life jurisprudence, which exemplify this expanded mission, and argues that the Court justified this jurisprudence 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 the Court’s wide-reaching jurisprudence has proved remarkably stable. The article finishes by examining parallel interventions in other parts of the world that suggest India's experience is part of and helps explain a larger global phenomenon of the rise of rule through good governance courts.

Keywords: Indian Supreme Court, comparative law, public interest litigation, basic structure doctrine, Pakistan Supreme Court, Thailand, controlled revolution

JEL Classification: K33