As Ken Hurwtiz of the Open Society Justice Initiative explained here in February, the Justice Initiative has commissioned a series of papers on civil society and anticorruption litigation to, among other things, alert anticorruption activists and litigators in one country to legal developments in another they can adapt, if not borrow wholesale, for use in cases they are pursuing.
The second paper in the series, Arghya Sengupta’s “Anti-Corruption Litigation in the Supreme Court of India,” just released and now available on the JI web site, fills this bill admirably. As Sengupta, Founder and Research Director of the Vidhi Centre for Legal Policy in Delhi, explains, there is much in the Indian experience of value to lawyers in other nations. Since the late 1990s Indian courts have issued a series of extraordinary, precedent setting decisions to address the rampant corruption that infects India’s public sector. In response to cases brought by civil society, they have ordered law enforcement authorities to investigate grand corruption cases they had been ignoring, appointed civil society monitors to ensure the investigations are faithfully conducted, and invalidated executive actions tainted by corruption.
Sifting through the massive number of precedents to find ones useful elsewhere would be a daunting task for the non-Indian jurist or researcher. Sengupta’s paper makes it easy. He organizes the cases by theme and summarizes the holdings of the key decisions. He notes too where the courts’ decisions have had unintended effects and where critics argue that the cost of a court’s intervention may have exceeded the benefit. While litigators in other common law countries will find the paper an invaluable guide to cases they can lift directly, lawyers in civil law countries will be able to make great use of it as well, suggesting innovative arguments for a judicial solution to the chronic corruption problems affecting their nations.
This is just the sort of deep dive into the role of courts in fighting corruption that I find fascinating. I hope other scholars or practitioners create similar documents for other countries.
I wonder how if civil society in India has also taken advantage of some Indian states’ specific anticorruption courts and what the interaction is between those venues and the Supreme Court in terms of litigation strategy and jurisprudence.
The fact that India seems to have an activist Supreme Court, one inclined to support progressive causes (e.g., the social justice human rights issues the paper mentions), seems likely to make this sort of litigation an easier lift (as the author alludes to). In addition to the “the success conditions for such litigation to convert into a trial and for systemic reform” the paper mentions, it would be great to see guidance on what indicates a country’s judicial system is generally “ripe” for these sorts of approaches. That’s definitely not saying something is missing from this paper–it just makes me think that that sort of analysis would, like this, also be useful for activists elsewhere, particularly those still deciding whether or not they should take a court-focused approach to their anticorruption advocacy.
Glad you enjoyed the paper. What makes for an activist court is one of those large questions that is tough to answer. In the case of India, it was a combination of factors, one of which was the failure of the elected branches to act.
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