I have a paper that is being published this fall in Wash. U. Global Studies Law Rev. on the rise of the Court in India. I still hope to do another substantial round of edits before being its published. You can find it on SSRN here. I am attaching the abstract below. Any critical comments people want to post or send me would be appreciated.
Abstract: In recent years courts have risen in power across the world. The Indian Supreme Court has rightly been pointed to as an example of this global trend. Indeed, in many ways it has become a court of good governance that sits in judgment over the rest of the Indian government. This article argues that it is the shortcomings of India’s representative institutions (real, perceived, or feared) that have led the Court to expand its mandate. The Indian Supreme Court’s institutional structure has also aided its rise, and perhaps helps explain why it has gained more power than most judiciaries elsewhere. The article examines two doctrines–the basic structure doctrine and the Court’s broad right to life jurisprudence–to see how the Court has enlarged its role. It argues that the Court justified these two doctrines not only with a wide reading of the Indian Constitution, but also an appeal to broad, almost metaphysical, principles of “civilization” or good governance. The Court’s interventions have not been without critics (who raise both accountability and capacity concerns), but these doctrines have proved remarkably stable. This article finishes by examining parallel interventions in other parts of the world which suggest India’s experience is part of and helps explain a larger global phenomenon of the rise of rule through good governance principles via courts.
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