Two Paths to Judicial Power: The Basic Structure Doctrine and Public Interest Litigation in Comparative Perspective
12 San Diego International Law Journal 175 (2010)
48 Pages Posted: 19 Aug 2013
Date Written: May 18, 2010
This article examines two critical "moments" in the expansion of judicial power in India: the assertion of the basic structure doctrine and the development of the PIL regime in the post-Emergency Indian Court. The Indian Supreme Court asserted two key functional roles in these moments: (1) the role of a constitutional guardian in asserting its role in preserving the basic structure of the Constitution, and (2) as a champion of the rule of law and responsible governance in developing PIL. Though both moments were significant in the empowerment of the Indian Supreme Court, I argue that development of PIL was the critical turning point in the transformation of the Indian Supreme Court. Through PIL, the Court became an auditor and active participant in the governance of the Indian polity. After examining the development of the basic structure doctrine and public interest litigation, the article seeks to assess the relative importance of these two "moments" and paths in the context of the development of judicial power in India, and then situates the two moments and paths in a comparative context. The article concludes by assessing both moments and paths' relative strengths and weaknesses as legitimation strategies.
Keywords: Comparative Law, India, Basic Structure Doctrine, Public Interest Litigation, Supreme Court of India
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