Globalization, Rights, and Judicial Review in the Supreme Court of India

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Globalization, Rights, and Judicial Review in the Supreme Court of India Washington International Law Journal Volume 25 Number 3 Asian Courts and the Constitutional Politics of the Twenty-First Century 6-1-2016 Globalization, Rights, and Judicial Review in the Supreme Court of India Manoj Mate Follow this and additional works at: https://digitalcommons.law.uw.edu/wilj Part of the Comparative and Foreign Law Commons, and the Courts Commons Recommended Citation Manoj Mate, Globalization, Rights, and Judicial Review in the Supreme Court of India, 25 Wash. L. Rev. 643 (2016). Available at: https://digitalcommons.law.uw.edu/wilj/vol25/iss3/8 This Article is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington International Law Journal by an authorized editor of UW Law Digital Commons. For more information, please contact [email protected]. Compilation © 2016 Washington International Law Journal Association GLOBALIZATION, RIGHTS, AND JUDICIAL REVIEW IN THE SUPREME COURT OF INDIA Manoj Mate † Abstract : This article examines the broader and evolving role of the Supreme Court of India in an era of globalization by examining the Court’s decision- making in rights-based challenges to economic liberalization, privatization, and development policies over the past three decades. While the Court has been mostly deferential in its review of these policies and projects, it has in many cases been active and instrumental in remaking and reshaping regulatory frameworks, bureaucratic structures, accountability norms, and in redefining the terrain of fundamental rights that non-governmental organizations (NGOs) and other litigants have invoked in challenges to these policies. This article argues that the Court has deployed rights as “structuring principles” in order to evaluate and review liberalization and privatization policies, based on constitutional or statutory illegality, arbitrariness or unreasonableness, or corruption, and framed rights as “substantive-normative principles” to assess development policies. This article argues that the Court’s particular approach to rights-based judicial review has resulted in the creation of “asymmetrical rights terrains” that privilege the rights and interests of private commercial and industrial stakeholders and government officials and agencies, above the rights and interests of labor, villagers, farmers, and tribes. The article concludes by suggesting that the Court’s approach to judicial review reflects a unique model of adjudication in which high courts play an active role in shaping the meaning of rights, regulatory structure and norms, and the legal-constitutional discourse of globalization. I. INTRODUCTION Since the 1980s, globalization has fundamentally transformed relationships between nation states as well as the terrain of domestic political, constitutional, and regulatory frameworks that govern economic and development policies, particularly in developing nations. 1 As part of this global trend, developing nations have shifted from statist-socialist policies toward economic liberalization, privatization, and development policies in line with the broader globalization of the world economy. 2 International institutions and organizations, including the World Bank and † Associate Professor of Law, Whittier Law School, Professor (by courtesy) of Political Science, Whittier College. J.D., Harvard Law School, B.A., M.A., Ph.D., University of California, Berkeley. 1 For scholarship on globalization, see generally JAGDISH BHAGWATI ,IN DEFENSE OF GLOBALIZATION (2004); JOSEPH STIGLITZ ,GLOBALIZATION AND ITS DISCONTENTS (2002); Barbara Harriss- White et al. , Globalisation, Economic Citizenship and India’s Inclusive Developmentalism , in CITIZENSHIP AS CULTURAL FLOW :STRUCTURE ,AGENCY AND POWER (Subrata K. Mitra ed., 2012); Judith White, Globalization, Divestment, and Human Rights in Burma, 14 J. CORP .CITIZENSHIP 47, 47–65 (2005). 2 See Antony Anghie, Time Present and Time Past: Globalization, International Financial Institutions, and the Third World , 32 NYU J. INT ’L L. & POL . 243, 255–62 (2000); Kanishka Jayasuriya, Globalization, Law, and the Transformation of Sovereignty: The Emergence of Global Regulatory Governance , 6 IND . J. GLOB .LEGAL STUD . 425, 445 (1999). 644 WASHINGTON INTERNATIONAL LAW JOURNAL VOL . 25 NO. 3 International Monetary Fund (IMF), have played a central role in pressuring shifts toward economic reforms aimed at liberalization and privatization, and in directly funding development projects.3 These shifts have also helped reshape and influence lawyering and legal practice, constitutional and policy norms, and constitutional adjudication on these issues.4 Internationally, there has been a resurgence of critical legal scholarship regarding the impact of globalization on human rights and constitutional adjudication. 5 While there has been significant opposition to these policies within the political sphere in countries like India, much of the contestation and challenge to these policies has also been through court- based litigation. Indeed, because these policy shifts have often been executive-led and effectuated with limited policy debates in Parliament, opposition parties, grassroots groups and non-governmental organizations (NGOs) have had no choice but to use the courts as the primary forum for challenging and mobilizing oppositional support against globalization policies of the government. 6 While a significant body of scholarship across many disciplines has analyzed the spread of economic liberalization and privatization policies globally, as well as challenges to these development policies from the perspective of human rights, 7 less attention has been given to the primary role that constitutional courts and high courts play in reshaping the terrain of rights and regulatory structures.8 3 See generally BALAKRISHNAN RAJAGOPAL ,INTERNATIONAL LAW FROM BELOW :DEVELOPMENT , SOCIAL MOVEMENTS AND THIRD -WORLD RESISTANCE (2003) [hereinafter RAJAGOPAL ,INTERNATIONAL LAW FROM BELOW ]; Shalini Randeria, Globalization of Law: Environmental Justice, World Bank, NGOs and the Cunning State in India 51 CURRENT SOC . 305 (2003). 4 See, e.g ., GLOBAL PRESCRIPTIONS :THE PRODUCTION ,EXPORTATION , AND IMPORTATION OF A NEW LEGAL ORTHODOXY (Yves Dezalay & Bryant G. Garth eds., 2002); Terence C. Halliday and Pavel Osinsky, Globalization of Law , 32 ANN .REV .SOC . 447 (2006). 5 See, e.g. ,UPENDRA BAXI ,THE FUTURE OF HUMAN RIGHTS (2002); Surya Deva , Human Rights Realization in an Era of Globalization: The Indian Experience , 12 BUFFALO HUM .RTS . L. REV . 93 (2006); Upendra Baxi, Access to Justice in a Globalized Economy: Some Reflections , in INDIAN LAW INSTITUTE GOLDEN JUBILEE 1956–2006, 27 (2007); Judith Resnick, Globalization(s), Privatization(s), Constitutionalization, and Statization: Icons and Experiences of Sovereignty in the 21st Century , 11 INT ’L J. CONST . L. 162 (2013). 6 See Ashutosh Varshney, Mass politics or Elite Politics? India’s Economic Reforms in Comparative Perspective , 2 J. POL ’Y REFORM 301 (1998); Devesh Kapur & Pratap Bhanu Mehta, The Indian Parliament as an Institution of Accountability , U.N. Doc. PP/DGHR/23 (Jan. 23, 2006), 22–29. 7 For recent scholarship on the intersection of globalization and human rights, see generally RAJAGOPAL ,INTERNATIONAL LAW FROM BELOW , supra note 3; Surya Deva , Human Rights Realization in an Era of Globalization: The Indian Experience , 12 BUFF .HUM .RTS . L. REV . 93 (2006). 8 For an example of work that does explore how law and courts shape the regulatory context in India, see Chiranjib Sen & Anil Suraj, The Role of Legal Process in the Redesign of Indian Government- Business Relations (Ctr. on Democracy, Dev., and the Rule of Law, Working Paper No. 102, 2009), http://iis-db.stanford.edu/pubs/22692/No_102_SenSuraj_Legal_Process_India_91909.pdf. JUNE 2016 Globalization, Rights, and Judicial Review in India 645 This article analyzes the role that the Supreme Court of India has played in adjudicating constitutional challenges to India’s globalization policies. Specifically, it examines how the Court, through its decisions, has reconstituted and reshaped constitutional and regulatory frameworks governing economic liberalization and privatization policy and development policy in India. Part II examines broader shifts in the Supreme Court’s fundamental rights jurisprudence from the post-Emergency period to the post-liberalization era.9 Part III analyzes how the Court has redefined the scope and terrain of rights and judicial review and helped reshape and reconstitute regulatory frameworks in the areas of liberalization and privatization. Part IV examines how the Court has redefined the scope of rights and judicial review in development decisions, and how its decisions have reshaped development narratives and created new development governance structures that impact the terrain of rights. Part V concludes by considering the implications of the Court’s approach to adjudicating globalization policies for the future of rights advocacy and litigation in India. II. GLOBALIZATION AND THE TERRAIN OF FUNDAMENTAL RIGHTS IN INDIA As India’s economy underwent major transformation in the 1990s and early 2000s, the Supreme Court’s approach to the interpretation of fundamental rights and application of rights-based scrutiny also fundamentally changed. In cases involving major rights-based challenges to economic liberalization, privatization, and development policies in the post- 1991 era, the Court redefined and adjudicated the
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