Two Paths to Judicial Power: The Basic Structure Doctrine and Public Interest Litigation in Comparative Perspective

Abstract

This Article analyzes two key critical moments in the empowerment of the Supreme Court of India--the assertion of the basic structure doctrine, in which the Court asserted that constitutional amendments may be held unconstitutional on substantive grounds, and the development of the Public Interest Litigation (PIL) regime, through which the Court sought to protect and promote the rule of law and assume an expanded role in governance. I argue, in this article, that these two moments are exemplars of two types of moments that capture distinct aspects of the role of courts in different polities--"constitutional entrenchment" and "judicialization of governance" moments. By constitutional entrenchment moments, I refer to decisions in which high courts respond to efforts by political regimes to fundamentally alter or violate constitutional norms by entrenching certain aspects of a nation's constitutional structure. In contrast, judicialization of governance moments describe changes that profoundly change the role of courts in the governance of a polity. Although both types of moments have been significant in the empowerment of constitutional courts worldwide, this Article suggests that judicialization of governance moments provides a more dynamic path to judicial power by promoting greater levels of accountability, participation, and efficacy in governance, which in turn, enhance the legitimacy of courts as institutions.

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