High Courts and Election Law Reform in the United States and India
41 Pages Posted: 1 May 2014 Last revised: 16 Jun 2014
Date Written: April 1, 2014
Over the past decade, the push for electoral reform in India and the United States – the world’s two largest democracies – has been prominent in the politics and governance of both nations. The supreme courts in each country have played important, but distinct, roles in recent electoral reform efforts, responding to different facets and regimes of political corruption. In the 1990s, the Indian Supreme Court became increasingly assertive in requiring greater levels of disclosure and transparency for political parties in India. In a series of decisions in 2002 and 2003, the Indian Supreme Court challenged the Central Government’s failure to promote transparency and disclosure in elections, and asserted a more active role in advancing electoral reforms by expanding the scope of the “right to information” and ordering the promulgation of disclosure requirements for legislative candidates. In contrast, the United States Supreme Court has become more assertive in challenging government reforms and asserting limits on campaign finance reform laws aimed at curbing the power and influence of corporate spending on elections over the past decade.
This Article seeks to elaborate on the divergent approaches of each high court by analyzing the evolution of free speech jurisprudence in the area of campaign finance and electoral reform. It then seeks to provide an explanatory account for the divergent approaches to electoral reform within each judiciary. Several key factors account for the divergent approaches of the two supreme courts: the distinct jurisprudence of each court in the area of fundamental rights, the composition of the courts, and the nature of corruption in each system. This Article concludes by analyzing both the normative and prescriptive implications of the different approaches to electoral reform in each country, proposing a new conception of the participatory model of speech as encompassing a broader set of approaches to advancing the goal of participation in election law reform, and suggesting that the different approaches in the U.S. and Indian Supreme Courts reflect the “liberal” and “positive rights” conceptions of the participatory model.
Keywords: Election Law, Campaign Finance Reform, India, U.S., Right to Information, Transparency
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