Comment in 150 words: “India has thrown up a form of judicial democracy that has no parallel anywhere else, and has nurtured a kind of civil society that is uniquely its own.” (Bhikhu Parekh) (2014, 10 Marks)
Bhikhu Parekh‘s remark points to two Indian innovations born where representative institutions were weak: a court that behaves like a democratic forum, and associational life that does not follow the Western template. As description it holds up; as a model it is double-edged.
Judicial Democracy: What Is Distinctive
- Public Interest Litigation, built by P. N. Bhagwati and V. R. Krishna Iyer after the Emergency, opened the courts: relaxed locus standi (S. P. Gupta v. Union of India, 1981), epistolary jurisdiction that turned prisoners’ letters into writs, suo motu cases and court commissioners.
- Continuing mandamus lets the Court supervise policy for years, as in the right-to-food case (PUCL, from 2001) on cooked mid-day meals.
- The basic structure doctrine (Kesavananda Bharati, 1973) lets judges review even constitutional amendments.
- On 15 February 2024 a Constitution Bench struck down electoral bonds for violating voters’ right to know under Article 19(1)(a).
Colombia’s tutela and South Africa’s socio-economic rights rulings are partial parallels, but no court elsewhere combines open standing, self-started cases and amendment review at this scale. Upendra Baxi called it a Supreme Court “for Indians”.
A Civil Society of Its Own
- It is no mere bourgeois voluntary sphere: Lloyd I. Rudolph and Susanne Hoeber Rudolph (The Modernity of Tradition, 1967) showed caste associations turning into democratic pressure groups.
- Movements set the agenda: Chipko, the Narmada Bachao Andolan, and the campaigns that won the Right to Information Act and the rural employment guarantee in 2005.
- Partha Chatterjee (The Politics of the Governed, 2004) finds the real originality in political society. Most Indians meet the state as governed “populations”, bargaining through collective claims rather than enforcing citizens’ rights.
The Critique
- Pratap Bhanu Mehta (“The Rise of Judicial Sovereignty”, 2007) argues that the Court took over executive work and sidelined elected bodies without explaining where its own authority comes from. He calls the result judicial sovereignty: constitutionalism, meant to secure democracy, begins to rival it.
- This is part of a wider post-democracy drift (Colin Crouch, 2004) of power towards unelected centres, fed in India by parties offering little ideological choice.
- Deference and delay: the 2017 bonds challenge was decided only after several elections had been financed through the scheme.
- Setting bad politics against a good civil society is also risky. Activist groups are unelected and mostly middle-class, and the contrast excuses a weakening Parliament.
Conclusion
Parekh is right: India produced an unusual compensatory democracy, in which courts and movements speak for the unrepresented. As a supplement to representative politics it works; as a substitute, it thins the accountability it set out to repair.