Expanding judiciaries: India and the rise of the good governance court.

• Date: 22 December 2009
• Published date: 22 December 2009
• Author: Robinson, Nick
• Author: Robinson, Nick

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 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.

TABLE OF CONTENTS I. INTRODUCTION II. THE PEOPLE AND THEIR REPRESENTATIVE INSTITUTIONS A. India's "Social Question" B. Overridden Constitutional Constraints C. Poor Parliamentary Governance D. A Fractured Parliament E. Executive- and State-Level Governance F. The Corresponding Rise of the Court G. The Growth of Unelected Bodies III. THE BACKSTOP SUPREME COURT IV. THE FIGHT FOR "THE VERY SOUL" OF THE CONSTITUTION, OR THE BASIC STRUCTURE DOCTRINE A. Historical Background B. Judicial Justification C. Accountability and Capacity Concerns V. THE RIGHT TO LIFE: RULE THROUGH RIGHTS A. Background B. Judicial Justification C. Accountability Concerns D. Institutional Capacity Concern VI. HAS THE GOOD GOVERNANCE COURT GONE GLOBAL? A. The Right to Life and Social and Economic Rights B. The Basic Structure Doctrine, Un-amendable Constitutions, and New Structural Checks on Democratic Institutions C. The Spread of Good Governance Courts VII. CONCLUSION I. INTRODUCTION

Judicial review is a relatively recent development. Only after the United States Supreme Court's 1803 decision in Marbury v. Madison (1) was judicial review firmly adopted by any country, and outside the United States the concept was at first slow to catch on. (2) It was not until the run up to World War II that judicial review became common. Since then, not only has the number of courts with the power to perform judicial review increased, but so, too, has the diversity of ways in which these courts use this power. These innovations have corresponded with a marked rise, especially recently, in the influence of courts around the world, from Latin America to South Africa and the European Union. Scholars, including Ran Hirschl, Charles Epp, Tom Ginsburg, Daniel Brinks, and Varun Gauri, have only begun to study this transformation of judicial power. (3)

The Indian Supreme Court has rightly been pointed to as an example of this global trend of the strengthening judiciary. There are few issues of political life in India with which the higher judiciary is not in some way involved, often critically. (4) The Supreme Court has come to sit as what amounts to a court of good governance over the rest of the government--some say seriously realigning India's constitutionally envisioned separation of powers. This Article examines how this transformation took place. It argues that the Court has expanded its role, often in ways it is ill-equipped to handle, in an attempt to combat the perceived governance shortcomings of India's representative institutions. Specifically, this Article tracks the Court's development of two new tools--the basic structure doctrine and its expanded right to life jurisprudence--to address these apparent failings of representative governance. To justify its new interventions, the Supreme Court has appealed not just to a broad interpretation of the Indian Constitution, but indeed to broader (almost transcendent) principles of "civilization" or good governance. The model of the good governance court and its rise in India suggests a useful prism through which to view the recent global expansion of judicial power, especially in developing countries.

The Indian Supreme Court's current broad role in Indian political life was not planned. In the Indian Constitution, the Court's powers closely resemble those of the rather restricted U.S. Supreme Court. Given the lack of well-articulated alternative models of judicial review at independence, this similarity is not surprising. The original, narrow judicial role of the Court, however, sits in incongruity with the Constitution's transformative vision for Indian society.

In contrast to the American Constitution, which largely solidified the economic and social status quo even while bringing momentous political changes, India's Constitution was born with an eye towards multiple transformations. (5) The Indian Constitution not only solidified the gains won in the country's struggles for independence against Britain, but also attempted to spark and shape social and economic revolutions within India, partly out of fear that the failure to do so would lead to political revolution. (6) The Constitution stripped the nobility of its powers and created a framework to empower lower castes and tribal groups. It laid down Directive Principles, which, although not judicially enforceable, imposed a duty on the government to improve the welfare of its citizens through the broad powers of the modern administrative state. (7) In essence, the Indian Constitution--like many constitutions that would follow it, particularly in the developing world (8)--attempted to create an ongoing, controlled revolution by laying an architecture in which massive social and economic transformation could take place within the limits of a liberal democracy. It is this vision of a controlled revolution that the Court has since reshaped itself to promote.

The first section of this Article examines several criticisms of India's Parliament--frustration with its incompetence, fear of its ability to subvert liberal democracy, and exhaustion at its seeming abdication of the responsibilities of governing--to provide a causal context to explain why and how the Supreme Court expanded its role. It argues that Parliament's inability to successfully promote the Constitution's broad vision of a controlled revolution has led the Supreme Court to take on a larger mandate. This section also briefly details some of the perceived deficiencies of India's other representative institutions (executive- and state-level). It then highlights how the shortcomings of India's representative institutions (real, perceived, or feared) have helped spawn various unelected bodies that attempt to bypass or check these perceived limitations.

In the second section, this Article turns to the Supreme Court itself to add an institutional explanation for the Court's rise in power. The Court's institutional structure, which resembles that of South Asia's other vibrant and expansive supreme courts, has been under-explored in previous writings about the Indian legal system. Its structure, though, has helped foster the Court's broader good governance role and helps explain why it has been able to expand this role further than most courts elsewhere.

This Article then focuses on two doctrines that played a decisive role in the Supreme Court's transformation. The third section describes how, largely as a result of emergency rule under Indira Gandhi, the Court developed and solidified the basic structure doctrine during the 1970s and 1980s. This doctrine holds that amendments to the Constitution cannot damage its basic structure, which the Court has found includes such tenets as its democratic and secular nature and certain fundamental rights.

The fourth section of this Article turns to the 1980s and 1990s, during which time the Court expanded its interpretation of the right to life provision of the Constitution. (9) It did so to help empower poorer sections of society and to fill the governance vacuum left by an often ineffective and fractured Parliament. In this process, the Court developed public interest litigation ("PIL") which had relaxed standing and procedural requirements as well as broad new remedies. This right to life jurisprudence eventually created a system of judicial or constitutional governance in which the higher courts took on many tasks traditionally associated with the country's representative institutions.

By striking down threatening constitutional amendments and promoting welfare interests with remarkable zeal, the Indian Supreme Court departed dramatically from its American judicial model. Although these doctrines seemingly represent different extremes of judicial intervention, sections three and four of this Article contend that they are both largely justified by the Court on two grounds. First, the Court successfully claimed that it could, and should, enforce the vision of a controlled revolution embodied in the Indian Constitution. Second, the Supreme Court appealed to wide, almost metaphysical, norms of "civilization" or good governance that should guide modern democratic governments. The third and fourth sections then examine accountability and capacity criticisms of the Court's broadened role. Despite the sometimes uneasy coexistence between good governance and more classical democratic principles these criticisms highlight, the Court's new doctrines have so far proved relatively stable and even gained the Court greater legitimacy.

The fifth section of this Article puts the Court's expanded right to life jurisprudence and basic structure doctrine into global perspective. Viewing parallels of these Indian doctrines in other countries...