This chapter examines the contested concept of constitutional identity in the comparative constitutional law literature and situates it in the specific jurisdictional context of Nepal. In particular, the analysis concentrates on the foundational function of constitutions and explores the relationship between constitutionalism, identity politics, and constitutional design. Nepal is an ideal case study for exploring the notion of constitutional identity because it sits uneasily within the traditional taxonomies used in the discipline. For instance, Nepal is the only South Asian country that was never colonised and whose legal system does not operate in English, but in the country’s national language, Nepali. This unusual level of historical continuity in the process of nation-building has complicated the construction of constitutional identity, as demonstrated by the embattled historical relationship between the Shah-centered “national monarchy” and democracy, the enduring and controversial position of Hinduism in the constitutional framework, and the patterns of legal discrimination on the basis of identity that persist in the new 2015 constitution.

As Pakistan emerged from military rule upon the death of General Zia in a plane crash in 1988, it underwent a new governmental experience marked by tussles between unsettled elected governments, a constitutionally empowered civilian presidency and a military establishment that covertly exercised considerable power. Chapter 6 unveils how the superior courts utilised the available political space to engineer a dramatic expansion of public law and carved a role for themselves as an important institution of the state. As the civil state’s machinery became the turf of power struggles, safeguarding its independence and ensuring its rule-boundedness emerged as a key pillar of the superior courts’ Writ jurisdiction. The superior courts also began to develop a more robust jurisprudence of rule of law and fundamental rights, while the Supreme Court utilised its Original jurisdiction for the first time to institute Public Interest Litigation. Nonetheless, recurrent involvement in matters of pure politics and governmental change resulted in direct confrontations between the judiciary and elected governments, and ultimately the politicisation of judicial review.

Justice PN Bhagwati, who served on the Supreme Court of India from 1973 to 1986 (including as chief justice from 1985 to 1986) is widely regarded as the most influential jurist in post-independence India. He was the main architect of public interest litigation (PIL) in the 1980s. Moreover, his engagement with the press and civil society, along with his post-judicial career as a global advocate for human rights, made him a well-known figure beyond legal circles and kept him in the limelight long after his retirement from the Court. That Justice Bhagwati was a towering judge is beyond dispute. More contested is his legacy. This chapter argues that Bhagwati’s greatest strength as a justice – unwavering confidence in the rightness of his cause – turned out to be a grave weakness, causing substantial damage to India’s higher judiciary.

This chapter critically examines the landmark case of Asghar Leghari v. Federation of Pakistan and Others in the climate litigation docket from the perspective of Pakistani constitutional law. It argues that the Leghari case is the result of an evolutionary process, remarkable in its own right, that has seen the Pakistani courts’ grow increasingly receptive to the adjudication of environmental issues in their constitutional jurisdiction. Through the analysis of environmental law jurisprudence, this chapter shoes how, progressively, various environmental law causes were taken up by these superior courtsHowever, while the pronouncements of the superior courts might be good rhetoric in many cases, it is hard to celebrate these cases as bringing about substantive change on the ground due to reasons such as the use of court-appointed commissions for fact-finding and expertise in constitutional cases relating to environment related claims. Moreover, there is a real danger that judicial activity has stultifying effects on the role of the executive in developing, implementing and enforcing environmental laws. In this light, the story of environmental litigation in Pakistan is much more complex than a celebratory tale.

The globalisation of public interest litigation has caused new forms of democratic lawmaking to emerge. These recent legal actions have altered the manner in which the courts, citizens and advocacy groups interact. Ordinary citizens, despite their nominal remoteness from international decision-making processes, now undertake a significant role in climate governance in and outside of courts. Coupled with the rise of advocacy networks, which bring together state actors and civil society to provide information, personnel and other resources to domestic actors, the emergent properties of recent legal actions warrant a reappraisal of how climate activism and legal activism interact.Using Guinier and Torres’s conception of demosprudence, this chapter inquires whether citizens mobilised towards climate justice are engaged in new forms of democratic lawmaking. In this regard, the international spread of public interest litigation offers a brief example of how demosprudence reconfigures this process and proceeds to frame contemporary climate change activism in the context of social science scholarship on transnational networks. Finally, transnational law and climate change is analysed for insights, utilising crowdfunding and crowdsourcing as case studies.

While there has been climate change litigation in the United States, European Union and twenty-six other countries, it is notable that China is missing from this trend. Nevertheless, recent legal developments in China show that the country is opening its doors to climate change litigation. This chapter engages in a theoretical analysis of the prospects for climate change litigation in China. It canvasses potentially available forms and types of claims for climate change litigation in China, with analysis focusing on China’s current legal framework as well as utilizing empirical evidence from other countries’ climate change litigation experience and China’s progress in other types of environmental litigation. The chapter also analyses the factors that are either obstacles or impetuses for promoting climate change litigation, and provides an overall assessment of the prospects for climate change litigation in China. The chapter concludes by making some proposals for China to further its legal initiatives and reforms to advance climate change litigation.

Public interest litigation to address air pollution has been a novel judicial phenomenon in China since 2016. The modification of the Civil Procedure Law in 2012 and the Environmental Protection Law in 2014 conferred standing on environmental NGOs and public prosecutors to bring environmental public interest litigation cases. The introduction of these reforms has led to a rapid increase in the number of environmental public interest litigation cases. Given the similarities shared by climate change and air pollution, this chapter seeks to shed light on how tort-based air pollution public interest litigation has advanced in China and considers whether it presents a potential avenue for the emergence of climate change litigation in China. It argues that current public interest litigation on air pollution may not only indirectly prepare legal preconditions for climate change litigation but may also directly become the pathway for climate change litigation.

Since Xi Jinping came to power in late 2012, the party-state has moved to increase its control over virtually every important element of Chinese public life, including the media, the Internet, academia, civil society organizations, rights activists and lawyers, the legal profession, and arts and culture. The crackdown on civil society has been particularly damaging. Many of the top rights advocacy organizations in China have been targeted: some have been forced to scale back their work, while others have been shut down. In other words, whereas in the past, the party was willing to tolerate some degree of activity outside of party-sanctioned zones, it now wants a less crowded playing field, one in which it plays a larger role. At the same time, the CCP has also sought to tightly constrict foreign influences. Whereas law was once seen as a tool to facilitate foreign engagement in China, it is increasingly being used to control – or even block – international engagement that the Party sees as problematic. The passage of the Foreign NGO Law, which heavily regulates the activities of international NGOs and foundations, represents a new chapter of China’s engagement, both with domestic civil society, and with the international community.

We examine the impact of the Supreme Court judgment on sex-selective abortion. In the 1980s, the Indian child sex ratio, a ratio comparing the number of male Indian children to female Indian children, began to shift significantly towards a male skew. As ultrasounds became widely available in India, many women used them to determine the future sex of their fetuses and to abort female fetuses. In response, the Indian Parliament prohibited medical professionals from revealing the future sex of the fetus to women in 1994. In 2003, the Indian Supreme Court responded to a public interest litigation petition by pushing for amendment and greater enforcement of the Act. We examine the sex ratio data with 1998, before the Indian Supreme Court’s decision in 2003, and ending in 2008. Our data draw from two large-scale nationally representative cross-sectional household surveys covering all districts of India. We compare these data to the average annual probability of female-births among all ever born children from the same time period. The sex ratio continued to become more male-skewed after the Court’s decision.

This chapter examines the practice of the constitutional courts in India taking up matters suo motu (on their own initiative) without being petitioned by a claimant or party, to address a situation the judges regard as requiring extraordinary intervention on the part of the court. We assemble the available data about the incidence of this practice of suo motu intervention, its frequency, form, and results. We seek to explain why and how the Indian higher courts engage in this practice, and speculate about the effects of this practice on the courts and on Indian social and political life. For illustrative purposes, we describe the case of a recent intervention initiated by the Supreme Court, in response to a newschapter report of a gang-rape in a village a thousand miles away.

The chapter examines the relationship between India’s higher judiciary judgments on affirmative action benefits and the response of the Hindu Right to religious conversion. It makes three arguments: First, progressive court interventions can be impeded by restrictive constitutional provisions. India’s judges are hamstrung by the embedded contradiction in the law, which, in its pursuit of one constitutional goal (social justice) has undermined another (religious freedom). Second, even if judges aspire to implement the spirit of the law, and try to provide an equitable result to these groups, their efforts need not produce positive social change. Third, contrary to the view that apex courts produce moderating effects in the arena of religious freedom, judgments have unintended and deleterious impact on religious toleration and may deepen polarization. The empirical analysis highlights this argument by examining the impact on the access of religious converts from Scheduled Caste and Scheduled Tribe groups to affirmative action benefits in 80 religious conversion cases from 1950-2006 in India's higher judiciary. It scrutinizes the Hindu Right's historical and contemporary responses (in parliamentary debates, newschapter reports, and interviews), to these judgments and highlights the unintended consequences of the courts' decisions, namely religious polarization.

The Indian Supreme Court has become renowned for its policy making decisions, yet at the same time it has often confronted problems in implementation. A literature is developing around the question of which orders are implemented and why. This chapter adds to that literature using as a case study the Delhi Pollution Case and focusing on its most controversial aspect, the order for all public transport vehicles in Delhi to run on compressed natural gas. A confluence of factors came together in this case which it is argued explains its successful implementation. The crucial factor was intensive monitoring by the Court itself, which was supplemented by a series of facilitators that eased the Court’s burden. While this particular mix of factors and their interactions may infrequently reoccur, there are lessons to be drawn for enhancing the likelihood of implementation in future cases. The case also provides a warning. Focusing on implementation alone begs the question of the effectiveness of the Court’s broader policy making. Within five to ten years of the conversion to CNG, short term benefits to both the quality of Delhi’s air and public health had dissipated significantly.

The Indian Supreme Court sits in panels and can have up to 31 judges. This chapter explores how the Indian Supreme Court developed its current structure and the impact of this structure on its functioning. It argues that the Supreme Court’s structure has a range of inter-related effects that includes increasing access to the Court, producing a “polyvocal” jurisprudence that destabilizes stare decisis, spurring experimentation among judges, fostering a “Chief Justice dominant” Court, and reducing the perceived partisanship of judges. Mapping the structure of the Court, as well as the Court’s relationship with the rest of the judiciary, helps us appreciate how judges ultimately interpret the law and the Constitution not in isolation, but within a larger judicial architecture.

Following a period of great enthusiasm about the role of public interest litigation (PIL) as a tool for social change in India, there is now skepticism. It is often argued that the stated objective of PILs in the 1980s, to defend the interests of a disadvantaged and marginalized population, has now been lost. Is the skepticism justified? This chapter provides an empirical analysis of beneficiary inequality in the Indian Supreme Court between 2009 and 2014. Based on an analysis of public interest cases at the Supreme Court, the chapter seeks to characterize who uses public interest litigation in India, who wins and who loses, and the policy areas that occupy the Court's PIL docket. In doing so, it discusses broader patterns in the use of public interest litigation in India.

This chapter critically evaluates the impact of the Indian Supreme Court's interim orders in the Right to Food case, a Writ Petition seeking better implementation of the Midday Meal Program (the largest school nutritional program in the world). We cite significant and varied empirical and social science evidence demonstrating that the Program expanded significantly – from a quantitative as well as a qualitative standpoint – in the years immediately following the Court's orders. The harder question is whether the expansion in the Program was "caused" by the Court's intervention, or was largely the consequence of changed political circumstances. We argue that while the supportive political environment was undoubtedly a significant factor, the evidence available seems to indicate that the Court played an important role too. These orders helped in improving the scheme in certain specific respects, in bringing sustained media attention to the issue, in entrenching the Program against subsequent shifts in political priorities, and in providing a platform for the broader social movement to coalesce around. The experience suggests that there is room for "qualified hope" as to the ability of courts to help realize socio-economic rights, albeit in certain limited situations and in partnership with other actors.