Rethinking judicial independence in India and Sri Lanka

The traditional narrative of judicial independence in India and Sri Lanka goes like this. The Indian Constitution established a strong and independent judiciary, which has become one of the most powerful in the world. By contrast, judicial independence was never entrenched in Sri Lanka due to insufficient constitutional safeguards and political interference. This paper seeks to challenge this narrative. It argues that despite important structural differences, India and Sri Lanka have followed similar judicial paths since the 1970s. Both judiciaries relaxed procedural requirements to allow sweeping public interest litigation; defined secularism and regulated religious practices in line with the dominant religious tradition; and largely deferred to the executive on the scope and necessity of emergency regulations. This remarkable convergence in jurisprudence demonstrates that (1) the Sri Lankan Supreme Court is more rights-protective and (2) its Indian counterpart is less willing to assert its independence on controversial issues than traditionally understood.