Interest Groups Repairing Unconstitutionality: India’s Ninth Schedule

Abstract

Scholars have called for greater judicial scrutiny to block rent seeking and lobbying by interest groups. What happens when independent judicial review successfully blocks interest groups’ rent-seeking efforts? Do they abandon their efforts? This paper argues that, faced with unfavorable judicial review, interest groups lobby to repair the unconstitutionality of benefits by changing constitutional rules, shifting rent-seeking activity to the constitutional level. In India, entry to the Ninth Schedule of the Constitution of India converts statutes previously declared unconstitutional by the judiciary into constitutionally protected statutes—a goal often pursued by interest groups to repair unconstitutionality. The expansion and slowdown of the Ninth Schedule list demonstrates that interest groups determine the forum for repairing unconstitutionality by evaluating the relative costs of constitutional appeal versus constitutional amendment. The Indian experience demonstrates the limits of judicial review in curtailing rent seeking and the importance of constitutional structures in light of Epstein’s contributions.