The Variable Power of Courts: The Expansion of the Power of the Supreme Court of India in Fundamental Rights and Governance Decisions

Abstract

This dissertation analyzed the extraordinary expansion of the power of the Supreme Court of India from 1967 to 2007, through close study of the Court's politically significant decisions in the areas of fundamental rights and governance. During this period, the justices of the Supreme Court India shifted toward greater activism in constitutional interpretation, and toward heightened, albeit selective, assertiveness, and greater authority, in challenging the exercise of Central Government power. Referencing existing public law theories, this study sought to provide an explanatory account of this shift by analyzing both the motives that drove judicial activism and assertiveness and the opportunity structure for judicial power. The interaction of these two factors are examined through close analysis of the Court's decision-making in politically significant rights and governance decisions, through field interviews with retired judges, legal scholars and other experts on the Court, and through analysis of news editorial coverage of these decisions. To understand the expansion of the power of the Indian Court, this study looks both within the Court, highlighting the sources of the judges' institutional values and policy worldviews, and outside the Court to understand how the broader political, and professional and intellectual elite environment, both shaped and constrained the assertiveness and authority of the Court. I argue that the Court's shift toward activism, selective assertiveness, and greater authority in rights can most adequately be explained by the thesis of "elite institutionalism." According to the thesis of elite institutionalism, the unique institutional environment and intellectual atmosphere of the Court shapes the institutional perspectives and policy worldviews that drove activism and selective assertiveness in rights and governance decisions. I found that the identity of judges as members of the Supreme Court and judicial branch, and their professional alignment with the Court as an institution was a source of the judges' values and motivations in key decisions. Indeed, much of the Court's activism and assertiveness was driven by the judges' desire to protect constitutionalism and fundamental rights and the Court's role in protecting both, and later, a drive in the post-Emergency era to build popular support to bolster the Court's legitimacy. This is in line with "historical new institutionalist" scholarship (e.g. Gillman 1993) that suggests that judges may be motivated by a unique "institutional mission" that flows from their membership and identification with the judicial branch (see Gillman 1993; Keck 2008). Elite institutionalism, however, differs from existing institutionalist theories by situating judicial decision-making within the larger intellectual milieu and context of Indian judging. I argued in this study that judges' institutional mission or outlook/identity is a subset or part of a judges' overall intellectual identity and worldviews, which judges tend to share with professional and intellectual elites in India. The Indian judiciary--the judges of the Indian Supreme Court and High Courts--reflect the broader ethos of professional and intellectual elite opinion nationally. I contend that the justices of the Court were part of, and influenced by broader elite "meta-regimes"--the collective values or currents of professional and intellectual elite opinion on a set of constitutional or political issues. In the pre-Emergency period, the Court's basic structure doctrine decisions were shaped and influenced by the meta-regime of "constitutionalism." In the area of fundamental rights, shifts in the Court's activism and selective assertiveness in fundamental rights cases in the post-Emergency era (1977-2007) reflected a broader shift from influence of the meta-regime of "liberal democracy" to that of "liberal reform. In the area of governance, I suggest that broader shifts in the Court's activism and selective assertiveness reflected a shift from the meta-regime of social justice, to liberal reform. The study also illustrates how the thesis of elite institutionalism helps complement and broaden the strategic model of the political opportunity structure. In the post-Emergency era, and in particular, in the post-1990 period, the Court's authority was bolstered by stronger levels of intellectual and professional elite opinion, and national public support. This was because political regimes in the post-1990 era perceived that the Court had higher levels of public support vis-à-vis the Executive and Parliament (as illustrated by elite news coverage of the Court's decisions, and news coverage of public reactions and debate within Parliament and among ministers in the Executive branch). Political regimes in this era were reluctant to attack or resist the Court's assertive judicial decisions in rights and governance cases, because of public support for the Court's relative effectiveness in ameliorating governance failures.The Court's strong level of authority, then, was not only a result of the weakening of political institutions at the Central Government level. In addition, the Court's authority has been bolstered by the elite media and leaders of the Indian Bar who have played a crucial role in framing and shaping public perception of the Court's activist and assertive decisions. Media elites, and other governance constituencies such as the Bar, policy groups, court-appointed commissions, and opposition parties in the Central Government, have continued to play a crucial role as a powerful ally and advocate for the Court's activism and selective assertiveness in fundamental rights decisions. This is reflected in the strong levels of support in national newspapers' editorial coverage of most of the Court's assertive and deferential decisions in the post-1990 period. The national news media, the Bar, and opposition political parties have thus emerged as "watchdogs" (see Vanberg 2001; Staton 2002) that enable other elites, and the national public to monitor the Central Government's compliance with the Court's decisions in the area of fundamental rights. The thesis of elite institutionalism illustrates how the media and legal elites, and governance constituencies, can help constrain political actors and bolster the authority of courts, by closely scrutinizing government policies for compliance with the rule of law and constitutional norms.