Elite Institutionalism and Judicial Assertiveness in the Supreme Court of India
69 Pages Posted: 19 Apr 2015
Date Written: December 30, 2014
This article examines judicial challenges to central government power in the Supreme Court of India by analyzing activism and assertiveness in fundamental rights decisions from 1977 to 2007. Based on field research and contextual analysis of politically significant decisions, the article traces patterns of judicial assertiveness in politically significant fundamental rights decisions. During this era, the Court was selectively assertive in challenging the central government in fundamental rights cases. This article provides an explanatory account of the motives and factors that drove the Supreme Court of India‘s selective activism and assertiveness in politically significant fundamental rights decisions. It argues that existing public law theories, including regime politics, institutionalist models, and strategic models, fail to provide a complete account of patterns of judicial assertiveness in the Supreme Court of India. Instead, these theories should be supplemented by focusing on a new variable — the values of national political, professional, and intellectual elites that influence judges‘ worldviews, attitudes, and role conceptions, as well as the way professional and political elites and the media evaluate assertive high court decisions. I refer to this approach as ― elite institutionalism. According to elite institutionalism, the unique institutional environment and broader normative and intellectual atmosphere of courts shape the institutional perspectives and policy worldviews that may drive or limit judicial activism and assertiveness. The article illustrates that the selective activism and assertiveness of the court in fundamental rights decisions reflected both the institutional values and motives of Supreme Court justices and the influence of elite meta-regimes — the broader consensus of political, professional, and intellectual elite worldviews on particular constitutional, political, and social issues. I argue that the Court's selective activism and assertiveness in politically significant fundamental rights decisions reflected a shift from the meta-regime of liberal restoration to that of reform.
Note: This article was published as part of a symposium issue by the Temple International and Comparative Law Journal, based on papers presented at the 2014 Association of American Law Schools (AALS) Panel, "Constitutional Conflict and Development in South Asia and Africa" (co-sponsored by the AALS Sections on Africa and Law & South Asian Studies).
Keywords: Law in India, India, Law in South Asia, Supreme Court of India, Indian politics, high courts, fundamental rights, governance, corruption, elites, public law, law and courts, comparative law, comparative constitutional law, judicial activism, judicial politics, judicial behavior
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