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

This article examines the broader and evolving role of the Supreme Court of India in an era of globalization by examining the Court’s decisionmaking 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.