Basic structure doctrine

Abstract: 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.

Abstract: In recent years, courts have risen in power across the world, and the Indian Supreme Court has rightly been pointed to as an example of this global trend. In many ways the Indian Court has become a court of good governance that sits in judgment over the rest of the Indian government. This Article argues that the Court has expanded its mandate as a result of the shortcomings (real, perceived, or feared) of India’s representative institutions. The Indian Supreme Court’s institutional structure has also aided its rise and helps explain why the Court has gained more influence than most other judiciaries. This Article examines the development of India’s basic structure doctrine and the Court’s broad right to life jurisprudence to explore how the Court has enlarged its role. It argues ∗ J.D. (2006), Yale Law School. Currently Yale Law School Robert L. Bernstein Fellow at Human Rights Law Network, New Delhi. I would first like to thank Anu Agnihotri and Rohit De, who, early on in this project, were my two primary teachers of the Indian legal system. Sudhir Krishnaswamy and Dr. Elizabeth provided valuable comments on this Article and arranged to allow me to present an earlier draft at the National Law School in Bangalore, where the Article benefited greatly from the engagement of participants. Arudra Burra, Pratap Bhanu Mehta, Jayanth Krishna, Avani Mehta Sood, Vikram Raghavan, and Jeff Redding gave invaluable feedback on this Article. Extensive information about the Indian Parliament was provided by PRS Legislative Services. The Article also gained critically from discussions with Peter Schuck, Bruce Ackerman, and Dieter Grimm. I gained valuable insights about the working of the Indian Supreme Court that are reflected in this Article while clerking for five months for Chief Justice Y.K. Sabharwal, from 2006 to 2007. However, none of this Article should be seen as an insider account, as it is based on publicly available information. The opinions presented are mine alone, as are the errors. Last, but not least, I would like to thank the generosity of the Yale Fox Fellowship Program, which allowed me to take the time in India to research and write this Article. Washington University Open Scholarship 2 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 8:1 that the Court justified these two doctrines with not only a wide reading of the Indian Constitution, but also an appeal to broad, almost metaphysical, principles of “civilization” or good governance. The Article finishes by examining parallel interventions in other parts of the world, which suggest India’s experience is part of, and helps explain the larger global phenomenon of, the rise of rule through good governance principles via courts.

Abstract: This article analyzes how the Supreme Court of India, through its activism and assertiveness, has emerged as arguably the most powerful court among democratic polities. Over the past four and a half decades, the Court dramatically expanded its role in the realm of rights and governance, asserting the power to invalidate constitutional amendments under the basic structure doctrine, control judicial appointments, and govern in the areas of environmental policy, monitoring and investigating government corruption, and promoting electoral transparency and accountability. In this article, I argue that the Court’s shift toward greater, yet selective, assertiveness in India’s governance can most adequately be explained by a new theoretical approach — elite institutionalism. This theory posits that the unique institutional and intellectual atmosphere of the Court shaped the institutional perspectives and policy worldviews that drove activism and selective assertiveness in governance. Elite institutionalism expands the scope of regime politics and institutional theories by situating judicial decision-making within the larger intellectual context of Indian judging. The identities of justices on the Indian Supreme Court are a subset of their overall intellectual identity and worldviews, which they share with professional and intellectual elites in India. This article illustrates how “elite meta-regimes” of opinion — the collective values and currents of professional and intellectual elite opinion on sets of constitutional or political issues — shaped justices’ worldviews. The broader shifts in the Court’s activism and assertiveness reflected a shift from the meta-regime of “social justice” to one of “liberal reform.”

Abstract: This article analyzes the expansion of the power of the Supreme Court in India, by tracing the development of Public Interest Litigation (PIL). It examines how the Indian Supreme Court, through PIL, was able to dramatically expand its role in the governance of the polity, by intervening and challenging key governance failures by the other branches of Indian government. The article then seeks to provide an explanatory account of how the Indian Court was able to expand its power through greater activism and assertiveness in governance decisions.