A Progressive Juristocracy? The Unexpected Social Activism of India's Supreme Court
Kellogg Institute Working Paper #391, University of Notre Dame, February 2013): 1-55.
59 Pages Posted: 10 Jul 2016
Date Written: 2013
Since 2005, India has introduced a series of progressive social acts that legislate a right to various socioeconomic entitlements. These range from information, work, and education to forest conservation, food, and public service. Three features distinguish these acts: the explicit use of rights-based claims; the design of innovative governance mechanisms that seek to enhance the transparency, responsiveness, and accountability of the state; and the role played by social activists and activist judges in spearheading these pieces of legislation with the help of progressive party politicians. This paper analyzes a key slow-burning stimulus of India’s new rights-based welfare paradigm: the socially activist turn of its Supreme Court. I address two main questions. First, what explains the rise of progressive socioeconomic jurisprudence in India in the late 1970s? Following the prevailing scholarly consensus, I analyze the role of antecedent conditions and particular causal mechanisms to explain high judicial activism in India: deepening political fragmentation, endogenous judicial change, and the strategic political retreat of elected representatives. None of these factors can fully explain the timing, sequence, and focus of the social activist turn of the Indian Supreme Court in the late 1970s, however, which owed much to the rise of popular social formations during these years and their proliferation in the 1980s. Thus the complex interaction effects of several causal factors, whose weight has differed over time, provides a more convincing explanation. Second, what have been the achievements and failures of high judicial activism in India regarding socioeconomic rights? As many scholars persuasively demonstrate, its direct impact has been limited, while its pro-poor posture has been inconsistent. However, by focusing excessively on direct material consequences in the short-run, these studies discount the powerful long-term ramifications, many of which are symbolic and indirect, of the Indian Supreme Court’s earlier progressive turn.
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