Author
Prof Rehan Abeyratne
Organisation/Institution
Western Sydney University
Country
AUSTRALIA
Panel
Constitutional and Admin Law
Title
Incongruous Aura: The Supreme Court of India in the Global South
Abstract
At least since the 1980s, the Supreme Court of India has received a great deal of international attention. It’s innovations on the basic structure doctrine and public interest litigation have been cited by courts and comparative scholars around the world. In recent years, the Court’s jurisprudence on the right to privacy and on LGBTQ+ rights has been relied upon by courts across the Global South. From Singapore to Barbados, Dominica to Botswana, judges on constitutional courts have drawn on SCI case law to decriminalize same-sex intercourse and, in some cases to expand the ambit of the right to privacy. These developments mirror an earlier generation of comparative citation, from courts in Bangladesh, Sri Lanka, and Malaysia, which drew from the SCI case law to expand access to justice and constitutional remedies. However, while the previous generation cited a Court that was largely respect-worthy, it has become more problematic to cite the SCI for its advances on rights. As an initial matter, the Court in the Modi era (2014 – present) has largely evaded ruling on the most pressing fundamental rights questions or upheld laws that are prima facie unconstitutional. It has thus abdicated its role as constitutional guardian. Moreover, over the past decade, the Court has been mired in several institutional crises, including credible corruption and sexual harassment charges against individual justices, and misuses of power by the Chief Justice. In this paper, we analyze the disconnect between the SCI’s aura as an exemplar of judicial creativity and rights protection, and its present reality as a beleaguered and much diminished institution. We argue that the Court’s international reputation needs to be updated. Its counterparts across the Global South should decouple from the SCI, which is no longer the exemplary apex court that they appear to treat it as.
Biography
Rehan Abeyratne is Professor and Associate Dean (Higher Degree Research) at Western Sydney University School of Law. He holds a PhD from Monash University, a JD from Harvard Law School, and a BA (Hons.) in Political Science from Brown University. Professor Abeyratne’s primary research area is comparative constitutionalism. He serves as an elected member of the International Society of Public Law (ICON-S) Council and as co-chair of the Society’s Committee on New Directions in Scholarship. He holds editorial positions at the Asian Journal of Comparative Law (Subject Editor) and at Comparative Constitutional Studies (Special Issue Editor). Professor Abeyratne is the author of Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment (Oxford University Press 2025). He is a co-editor of Towering Judges: A Comparative Study of Constitutional Judges (Cambridge University Press 2021), The Law and Politics of Unconstitutional Constitutional Amendments in Asia (Routledge 2021), and the Routledge Handbook of Asian Parliaments (Routledge 2023). He has authored articles in leading journals including the International Journal of Constitutional Law (I-CON), Yale Journal of International Law, and Global Constitutionalism, as well as chapters in edited volumes published by Hart, Cambridge University Press, and Oxford University Press.
