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India and the Rise of the Good Governance Court Washington University Global Studies Law Review Volume 8 Issue 1 January 2009 Expanding Judiciaries: India and the Rise of the Good Governance Court Nick Robinson Yale Law School Follow this and additional works at: https://openscholarship.wustl.edu/law_globalstudies Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, Courts Commons, and the Judges Commons Recommended Citation Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court, 8 WASH. U. GLOBAL STUD. L. REV. 1 (2009), https://openscholarship.wustl.edu/law_globalstudies/vol8/iss1/2 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Global Studies Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Washington University Global Studies Law Review VOLUME 8 NUMBER 1 2009 EXPANDING JUDICIARIES: INDIA AND THE RISE OF THE GOOD GOVERNANCE COURT NICK ROBINSON∗ 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. 1 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. TABLE OF CONTENTS I. INTRODUCTION ........................................................................................ 3 II. THE PEOPLE AND THEIR REPRESENTATIVE INSTITUTIONS..................... 8 A. India’s “Social Question”........................................................... 8 B. Overridden Constitutional Constraints..................................... 10 C. Poor Parliamentary Governance .............................................. 12 D. A Fractured Parliament ............................................................ 14 E. Executive- and State-Level Governance.................................... 15 F. The Corresponding Rise of the Court........................................ 16 G. The Growth of Unelected Bodies............................................... 17 III. THE BACKSTOP SUPREME COURT....................................................... 19 IV. THE FIGHT FOR “THE VERY SOUL” OF THE CONSTITUTION, OR THE BASIC STRUCTURE DOCTRINE ................................................... 27 A. Historical Background .............................................................. 28 B. Judicial Justification ................................................................. 33 C. Accountability and Capacity Concerns..................................... 39 V. THE RIGHT TO LIFE: RULE THROUGH RIGHTS ..................................... 40 A. Background ............................................................................... 42 B. Judicial Justification ................................................................. 45 C. Accountability Concerns ........................................................... 49 D. Institutional Capacity Concerns................................................ 55 VI. HAS THE GOOD GOVERNANCE COURT GONE GLOBAL?..................... 58 A. The Right to Life and Social and Economic Rights................... 59 B. The Basic Structure Doctrine, Un-amendable Constitutions, and New Structural Checks on Democratic Institutions ........... 64 C. The Spread of Good Governance Courts .................................. 66 VII. CONCLUSION...................................................................................... 67 https://openscholarship.wustl.edu/law_globalstudies/vol8/iss1/2 2009] EXPANDING JUDICIARIES 3 I. INTRODUCTION Judicial review is a relatively recent development. Only after the United States Supreme Court’s 1803 decision in Marbury v. Madison1 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 1. 5 U.S. 137 (1803). 2. In his famous description of the three branches of government, Montesquieu spoke of the necessity of an independent judicial branch to protect personal liberty. CHARLES DE SECONDAT, BARON DE MONTESQUIEU, THE SPIRIT OF LAWS 151–52 (Prometheus Books 2002) (1748). However, the judiciary Montesquieu envisioned was not empowered with judicial review; rather, it simply enforced the law without the biases or conflicts of interest of the executive or legislative branches. Id. The Privy Council’s jurisprudence was an important precursor to judicial review in British colonies, including the United States and later India, but the Council acted more as an administrator of colonial rule (ensuring the colonies did not step too far from British law) than as a check on the true source of colonial power—the British Parliament. In 1903 Australia became only the second country to have judicial review. Its judicial review, though, was created through a combination of constitutional and legislative provisions, and was not explicitly guaranteed in the constitution itself. See AUSTL. CONST. art. 76; Judiciary Act, 1903, art. 30. The Australian Constitution also lacked a bill of rights. In 1920, Austria became the third country to adopt judicial review. Bundes-Verfassungsgesetz [B-VG] [Constitution] BGBl No. 1/1930, arts. 137–48. 3. See generally RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (2007); CHARLES R. EPP, THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE (1998); TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES (2003); VARUN GAURI & DANIEL BRINKS, COURTING SOCIAL JUSTICE: JUDICIAL ENFORCEMENT OF SOCIAL AND ECONOMIC RIGHTS IN THE DEVELOPING WORLD (2008). 4. Pratap Bhanu Mehta, The Rise of Judicial Sovereignty, 18 J. DEMOCRACY 70, 78 (2007). Washington University Open Scholarship 4 WASHINGTON
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