Abstract India and South Africa have experienced comparable levels of democratic decline over the last 15 years. The South African Constitutional Court, however, has shown greater resilience in the face of this process than the Indian Supreme Court. This article seeks to explain this outcome by reference to three sets of factors: structural, institutional and agentic. It finds that the main factors conditioning the South African Constitutional Court’s stronger performance are legal-cultural factors associated with the nature of the anti-apartheid struggle, the judicial appointments model, and the Court’s tendency to shore up democratic institutions rather than seeking to displace them.
Theunis Roux (Fri,) studied this question.