Professor Manoj Mate is an incoming Professor of Law at the University at Buffalo, State University of New York. His research and teaching center on constitutional law, election law and voting rights, and International and comparative law. Professor Mate has held numerous faculty appointments including at DePaul University, the University of Windsor Faculty of Law (Canada Research Chair), the University of California, Berkeley School of Law, the University of California, Irvine School of Law, and was a visiting scholar at Harvard Law School's East Asian Legal Studies Program.
The George Washington International Law Review, 2016
Among liberal democracies, India stands out as a polity that broadly defines the right to free sp... more Among liberal democracies, India stands out as a polity that broadly defines the right to free speech to include the right to information in elections, and has been at the forefront of innovative transparency reforms. Although the United States is often represented as an ideal democracy, mass participation in the U.S. is limited by the particular nature of its representative democracy, and negative rights-based campaign finance reform regime that limits opportunities for meaningful participation. Drawing on insights from India, this article advances a “positive rights participatory model” of speech based on the Indian Supreme Court’s right to information jurisprudence, an active role of the state in facilitating participation, and strong oppositional state institutions that check state power and foster robust civil society and social movements. The article critically challenges conceptions of the public sphere in contemporary liberal democracy as a framework for analyzing the Indian case. I argue that we must analyze the particular constitutional and political context of Indian democracy in order to understand India’s right to information regime as a distinct participatory model for speech. I then explore how Indian model addresses the shortcomings of liberal democracy, by drawing on the literatures in state-society and democratic participation. I conclude by suggesting that the positive rights participatory model can achieve “participatory equilibrium” between state and civil society in promoting autonomy, access, and accountability.
Previous scholarship on public opinion and the legitimacy of the United States Supreme Court has ... more Previous scholarship on public opinion and the legitimacy of the United States Supreme Court has advanced competing claims about the impact of specific decisions on support for the Court. While some studies have found that specific decisions have strongly affect confidence in the Court, others, including Gibson, Caldeira and Spence, suggest that the empirical data confirms the expectations of Legitimacy theory, which posits that the Court has a relatively strong reservoir of goodwill that immunizes it from potentially legitimacy-threatening decisions. In this chapter, we analyze data from the 2000 and 2004 Annenberg National Election study to examine the impact of the Bush v. Gore on legitimacy in the Court, using new and different measures of diffuse support or institutional loyalty, and of specific support. While our findings appear to confirm Gibson and his colleagues hypotheses and findings generally, with respect to the long-term resilience of the Court, we find that in the short term, the decision did indeed affect the foundations of specific and diffuse support for the Court, as partisanship, race, and ideology both emerge after (but not before) the decision as significant predictors of specific and diffuse support in the Court
Previous scholarship on public opinion and the legitimacy of the United States Supreme Court has ... more Previous scholarship on public opinion and the legitimacy of the United States Supreme Court has advanced competing claims about the impact of specific decisions on support for the Court. While some studies have found that specific decisions have strongly affect confidence in the Court, others, including Gibson, Caldeira and Spence, suggest that the empirical data confirms the expectations of Legitimacy theory, which posits that the Court has a relatively strong reservoir of goodwill that immunizes it from potentially legitimacy-threatening decisions. In this chapter, we analyze data from the 2000 and 2004 Annenberg National Election study to examine the impact of the Bush v. Gore on legitimacy in the Court, using new and different measures of diffuse support or institutional loyalty, and of specific support. While our findings appear to confirm Gibson and his colleagues hypotheses and findings generally, with respect to the long-term resilience of the Court, we find that in the short term, the decision did indeed affect the foundations of specific and diffuse support for the Court, as partisanship, race, and ideology both emerge after (but not before) the decision as significant predictors of specific and diffuse support in the Court
This article examines two critical "moments" in the expansion of judicial power in Indi... more This article examines two critical "moments" in the expansion of judicial power in India: the assertion of the basic structure doctrine and the development of the PIL regime in the post-Emergency Indian Court. The Indian Supreme Court asserted two key functional roles in these moments: (1) the role of a constitutional guardian in asserting its role in preserving the basic structure of the Constitution, and (2) as a champion of the rule of law and responsible governance in developing PIL. Though both moments were significant in the empowerment of the Indian Supreme Court, I argue that development of PIL was the critical turning point in the transformation of the Indian Supreme Court. Through PIL, the Court became an auditor and active participant in the governance of the Indian polity. After examining the development of the basic structure doctrine and public interest litigation, the article seeks to assess the relative importance of these two "moments" and paths ...
This article examines the broader and evolving role of the Supreme Court of India in an era of gl... more This article examines the broader and evolving role of the Supreme Court of India in an era of globalization by examining the Court’s decision-making 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 dev...
This article challenges the prevailing conception of judicial supremacy in comparative constituti... more This article challenges the prevailing conception of judicial supremacy in comparative constitutional law as informed by U.S. and western models of constitutionalism, and argues for reconceptualizing judicial supremacy in a way that captures the broader range of institutional roles courts play globally. Drawing on insights from global constitutional systems, this is the first article to argue for and develop an institutional conception of judicial supremacy that focuses on three key institutional roles played by courts globally: constitutional guardianship, institutional guardianship, and governance optimization. It then provides a dynamic account of the emergence of “expansive” judicial supremacy in India through a study of the Indian Supreme Court’s assertion of these institutional roles. The article seeks to uncover the institutional conception of judicial supremacy and its global applicability by comparatively analyzing the institutional roles asserted by courts in India, German...
Over the past decade, the push for electoral reform in India and the United States – the world’s ... more Over the past decade, the push for electoral reform in India and the United States – the world’s two largest democracies – has been prominent in the politics and governance of both nations. The supreme courts in each country have played important, but distinct, roles in recent electoral reform efforts, responding to different facets and regimes of political corruption. In the 1990s, the Indian Supreme Court became increasingly assertive in requiring greater levels of disclosure and transparency for political parties in India. In a series of decisions in 2002 and 2003, the Indian Supreme Court challenged the Central Government’s failure to promote transparency and disclosure in elections, and asserted a more active role in advancing electoral reforms by expanding the scope of the “right to information” and ordering the promulgation of disclosure requirements for legislative candidates. In contrast, the United States Supreme Court has become more assertive in challenging government re...
This article examines judicial challenges to central government power in the Supreme Court of Ind... more This article examines judicial challenges to central government power in the Supreme Court of India by analyzing activism and assertiveness in fundamental rights decisions from 1977 to 2007. Based on field research and contextual analysis of politically significant decisions, the article traces patterns of judicial assertiveness in politically significant fundamental rights decisions. During this era, the Court was selectively assertive in challenging the central government in fundamental rights cases. This article provides an explanatory account of the motives and factors that drove the Supreme Court of India‘s selective activism and assertiveness in politically significant fundamental rights decisions. It argues that existing public law theories, including regime politics, institutionalist models, and strategic models, fail to provide a complete account of patterns of judicial assertiveness in the Supreme Court of India. Instead, these theories should be supplemented by focusing o...
The George Washington International Law Review, 2015
Among liberal democracies, India stands out as a polity that broadly defines the right to free sp... more Among liberal democracies, India stands out as a polity that broadly defines the right to free speech to include the right to information in elections, and has been at the forefront of innovative transparency reforms. Although the United States is often represented as an ideal democracy, mass participation in the U.S. is limited by the particular nature of its representative democracy, and negative rights-based campaign finance reform regime that limits opportunities for meaningful participation. Drawing on insights from India, this article advances a “positive rights participatory model” of speech based on the Indian Supreme Court’s right to information jurisprudence, an active role of the state in facilitating participation, and strong oppositional state institutions that check state power and foster robust civil society and social movements. The article critically challenges conceptions of the public sphere in contemporary liberal democracy as a framework for analyzing the Indian...
This chapter explores the critical role played by the Indian legal complex in the battles over pr... more This chapter explores the critical role played by the Indian legal complex in the battles over protection of property rights, fundamental rights, constitutionalism, and the rule of law in the Indian Supreme Court. In these battles, the Indian legal complex played an important role in developing the legal and doctrinal arguments that were ultimately adopted by the Court in a series of landmark decisions asserting and developing the basic structure doctrine. The push to advance the basic structure doctrine in India was characterized by initial contestation between leading lawyers and political leaders in the ruling Congress Party, and conservative lawyers and political leaders from conservative opposition parties over land reform policies and protections for property rights. The chapter traces the role of government lawyers, legal academia and the private bar, in the battle over the basic structure doctrine, examining how subset of the legal complex helped advance and build support fo...
The George Washington International Law Review, 2016
Among liberal democracies, India stands out as a polity that broadly defines the right to free sp... more Among liberal democracies, India stands out as a polity that broadly defines the right to free speech to include the right to information in elections, and has been at the forefront of innovative transparency reforms. Although the United States is often represented as an ideal democracy, mass participation in the U.S. is limited by the particular nature of its representative democracy, and negative rights-based campaign finance reform regime that limits opportunities for meaningful participation. Drawing on insights from India, this article advances a “positive rights participatory model” of speech based on the Indian Supreme Court’s right to information jurisprudence, an active role of the state in facilitating participation, and strong oppositional state institutions that check state power and foster robust civil society and social movements. The article critically challenges conceptions of the public sphere in contemporary liberal democracy as a framework for analyzing the Indian case. I argue that we must analyze the particular constitutional and political context of Indian democracy in order to understand India’s right to information regime as a distinct participatory model for speech. I then explore how Indian model addresses the shortcomings of liberal democracy, by drawing on the literatures in state-society and democratic participation. I conclude by suggesting that the positive rights participatory model can achieve “participatory equilibrium” between state and civil society in promoting autonomy, access, and accountability.
Previous scholarship on public opinion and the legitimacy of the United States Supreme Court has ... more Previous scholarship on public opinion and the legitimacy of the United States Supreme Court has advanced competing claims about the impact of specific decisions on support for the Court. While some studies have found that specific decisions have strongly affect confidence in the Court, others, including Gibson, Caldeira and Spence, suggest that the empirical data confirms the expectations of Legitimacy theory, which posits that the Court has a relatively strong reservoir of goodwill that immunizes it from potentially legitimacy-threatening decisions. In this chapter, we analyze data from the 2000 and 2004 Annenberg National Election study to examine the impact of the Bush v. Gore on legitimacy in the Court, using new and different measures of diffuse support or institutional loyalty, and of specific support. While our findings appear to confirm Gibson and his colleagues hypotheses and findings generally, with respect to the long-term resilience of the Court, we find that in the short term, the decision did indeed affect the foundations of specific and diffuse support for the Court, as partisanship, race, and ideology both emerge after (but not before) the decision as significant predictors of specific and diffuse support in the Court
Previous scholarship on public opinion and the legitimacy of the United States Supreme Court has ... more Previous scholarship on public opinion and the legitimacy of the United States Supreme Court has advanced competing claims about the impact of specific decisions on support for the Court. While some studies have found that specific decisions have strongly affect confidence in the Court, others, including Gibson, Caldeira and Spence, suggest that the empirical data confirms the expectations of Legitimacy theory, which posits that the Court has a relatively strong reservoir of goodwill that immunizes it from potentially legitimacy-threatening decisions. In this chapter, we analyze data from the 2000 and 2004 Annenberg National Election study to examine the impact of the Bush v. Gore on legitimacy in the Court, using new and different measures of diffuse support or institutional loyalty, and of specific support. While our findings appear to confirm Gibson and his colleagues hypotheses and findings generally, with respect to the long-term resilience of the Court, we find that in the short term, the decision did indeed affect the foundations of specific and diffuse support for the Court, as partisanship, race, and ideology both emerge after (but not before) the decision as significant predictors of specific and diffuse support in the Court
This article examines two critical "moments" in the expansion of judicial power in Indi... more This article examines two critical "moments" in the expansion of judicial power in India: the assertion of the basic structure doctrine and the development of the PIL regime in the post-Emergency Indian Court. The Indian Supreme Court asserted two key functional roles in these moments: (1) the role of a constitutional guardian in asserting its role in preserving the basic structure of the Constitution, and (2) as a champion of the rule of law and responsible governance in developing PIL. Though both moments were significant in the empowerment of the Indian Supreme Court, I argue that development of PIL was the critical turning point in the transformation of the Indian Supreme Court. Through PIL, the Court became an auditor and active participant in the governance of the Indian polity. After examining the development of the basic structure doctrine and public interest litigation, the article seeks to assess the relative importance of these two "moments" and paths ...
This article examines the broader and evolving role of the Supreme Court of India in an era of gl... more This article examines the broader and evolving role of the Supreme Court of India in an era of globalization by examining the Court’s decision-making 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 dev...
This article challenges the prevailing conception of judicial supremacy in comparative constituti... more This article challenges the prevailing conception of judicial supremacy in comparative constitutional law as informed by U.S. and western models of constitutionalism, and argues for reconceptualizing judicial supremacy in a way that captures the broader range of institutional roles courts play globally. Drawing on insights from global constitutional systems, this is the first article to argue for and develop an institutional conception of judicial supremacy that focuses on three key institutional roles played by courts globally: constitutional guardianship, institutional guardianship, and governance optimization. It then provides a dynamic account of the emergence of “expansive” judicial supremacy in India through a study of the Indian Supreme Court’s assertion of these institutional roles. The article seeks to uncover the institutional conception of judicial supremacy and its global applicability by comparatively analyzing the institutional roles asserted by courts in India, German...
Over the past decade, the push for electoral reform in India and the United States – the world’s ... more Over the past decade, the push for electoral reform in India and the United States – the world’s two largest democracies – has been prominent in the politics and governance of both nations. The supreme courts in each country have played important, but distinct, roles in recent electoral reform efforts, responding to different facets and regimes of political corruption. In the 1990s, the Indian Supreme Court became increasingly assertive in requiring greater levels of disclosure and transparency for political parties in India. In a series of decisions in 2002 and 2003, the Indian Supreme Court challenged the Central Government’s failure to promote transparency and disclosure in elections, and asserted a more active role in advancing electoral reforms by expanding the scope of the “right to information” and ordering the promulgation of disclosure requirements for legislative candidates. In contrast, the United States Supreme Court has become more assertive in challenging government re...
This article examines judicial challenges to central government power in the Supreme Court of Ind... more This article examines judicial challenges to central government power in the Supreme Court of India by analyzing activism and assertiveness in fundamental rights decisions from 1977 to 2007. Based on field research and contextual analysis of politically significant decisions, the article traces patterns of judicial assertiveness in politically significant fundamental rights decisions. During this era, the Court was selectively assertive in challenging the central government in fundamental rights cases. This article provides an explanatory account of the motives and factors that drove the Supreme Court of India‘s selective activism and assertiveness in politically significant fundamental rights decisions. It argues that existing public law theories, including regime politics, institutionalist models, and strategic models, fail to provide a complete account of patterns of judicial assertiveness in the Supreme Court of India. Instead, these theories should be supplemented by focusing o...
The George Washington International Law Review, 2015
Among liberal democracies, India stands out as a polity that broadly defines the right to free sp... more Among liberal democracies, India stands out as a polity that broadly defines the right to free speech to include the right to information in elections, and has been at the forefront of innovative transparency reforms. Although the United States is often represented as an ideal democracy, mass participation in the U.S. is limited by the particular nature of its representative democracy, and negative rights-based campaign finance reform regime that limits opportunities for meaningful participation. Drawing on insights from India, this article advances a “positive rights participatory model” of speech based on the Indian Supreme Court’s right to information jurisprudence, an active role of the state in facilitating participation, and strong oppositional state institutions that check state power and foster robust civil society and social movements. The article critically challenges conceptions of the public sphere in contemporary liberal democracy as a framework for analyzing the Indian...
This chapter explores the critical role played by the Indian legal complex in the battles over pr... more This chapter explores the critical role played by the Indian legal complex in the battles over protection of property rights, fundamental rights, constitutionalism, and the rule of law in the Indian Supreme Court. In these battles, the Indian legal complex played an important role in developing the legal and doctrinal arguments that were ultimately adopted by the Court in a series of landmark decisions asserting and developing the basic structure doctrine. The push to advance the basic structure doctrine in India was characterized by initial contestation between leading lawyers and political leaders in the ruling Congress Party, and conservative lawyers and political leaders from conservative opposition parties over land reform policies and protections for property rights. The chapter traces the role of government lawyers, legal academia and the private bar, in the battle over the basic structure doctrine, examining how subset of the legal complex helped advance and build support fo...
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