Author
Ms Surbhi Karwa
Organisation/Institution
University of New South Wales, Faculty of Law & Justice
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. Its 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
I am currently a PhD Candidate at the University of New South Wales, Sydney (Australia). I have previously done BCL(Distinction) from the University of Oxford and was awarded the Law Faculty Prize for best performance in subjects relating to constitutional law in Asia, family law, and international human rights law. My works have been published in the International Journal of Constitutional Law, Comparative Constitutional Studies Journal, the Indian Law Review, World Comparative Law Journal and the forthcoming Cambridge Companion to the Constitution of India. I am currently Associate Editor at Indian Law Review and Book Review Editor at Australian Feminist Law Journal. I widely write in South Asian media publications including the Indian Express, the Hindustan Times, and the Daily Star (published from Dhaka). I was Letten Visting PhD Researcher at the London School of Economics and Political Science in 2025 and the Bonavero Institute, University of Oxford Researcher at SERI, South Africa in 2023. I am part of the G+T Centre for Public Law and the Gender Hub at UNSW-Sydney. I have previously taught compulsory and elective courses at NLSIU-Bangalore, NLU-Delhi, and Jindal Global Law School, Sonepat. I am committed to constitutional literacy and have published book titled, ‘Hum Bharat Ke Log’ in Hindi on the Indian Constitution with my co-author Prof. Tarun Khaitan (Chair, Public Law, LSE).
