Scaling Justice: India’s Supreme Court, Anti-Terror Laws, Social Rights and Civil Liberties 9780195693201, 0195693205

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Scaling Justice

Scaling Justice India’s Supreme Court, Anti-Terror Laws, and Social Rights

Shylashri Shankar

1

1 YMCA Library Building, Jai Singh Road, New Delhi 110 001 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trademark of Oxford University Press in the UK and in certain other countries Published in India by Oxford University Press, New Delhi © Oxford University Press 2009 The moral rights of the author have been asserted Database right Oxford University Press (maker) First published 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose this same condition on any acquirer ISBN-13: 978-0-19-569320-1 ISBN-10: 0-19-569320-5

Typeset in Amo Pro 11/13.2 by Excellent Laser Typesetters, Pitampura, Delhi 110 034 Printed in India by DeUnique, Delhi 110 018 Published by Oxford University Press YMCA Library Building, Jai Singh Road, New Delhi 110 001

To Annika

Acknowledgements This book would not have become a reality without the encouragement of several people. I am very grateful to Pratap Bhanu Mehta for suggesting that I write the book and Raghav Gaiha for helping me design the econometric models. I am deeply obliged to Sangeeta Goyal for the initiation into the world of data, and Raj Bhatia for meticulously generating the models. Sadly, Charles Tilly passed away before he could see the book in print. His thoughtful comments on the draft helped me frame many of the ideas in the book. Chuck, as he was fondly known to friends, showed me the kind of scholar and person I should aspire to be. I am also deeply indebted to Mark Kesselman for his generous guidance. I have benefited immensely from discussions with Upendra Baxi, George Gavrilis, Charles Cameron, Anil Kalhan, Gurpreet Mahajan, Rahul Mukherjee, Gary Jacobsohn, Partha Mukhopadhyay, Gary Jacobsohn, Niraja Jayal, Jack Snyder, Bill McAllister, C.V. Madhukar, M.R. Madhavan, Jishnu Das, Usha Ramanathan, Bharat Reddy, Lavanya Rajamani, Kalyani Shankar, Varun Gauri, Dan Brinks, and Devesh Kapur. I would like to thank the members of the JNU Political Studies seminar, the participants of the ‘Religion and Democracy’ Seminar and the ‘Contentious Politics Workshop’ at Columbia University, and the members of the ‘Authors Workshop’ on social and economic rights at the World Bank. The database could not have been compiled without the splendid research assistance from Vinod, Paulomi Mehta, Neha Bhat, and Khushal Kumar. I thank the staff at the Centre for Policy Research, particularly Kamaljit Kumar for sterling assistance in procuring the books and the software. The editors at OUP did a marvelous job in transforming the manuscript into a book. Several judges, lawyers, and activists gave generously of their time but are far too many to enumerate here. I thank all of them for advice and suggestions. For any glaring errors in the book, mea culpa.

Tables, Figures, and Boxes Tables 2.1 Profile of Supreme Court Judges of India 3.1 Profile of Ordinary Criminal Justice, Preventive Detention, and Anti-Terror Laws 4.1 Profit Analysis of Anti-Terror Cases 4.2 Type of Cases and Security Laws 4.3 Verdicts and Type of Government 4.4 Effect of Crisis on Verdicts 6.1 Probit Analysis of Health and Education Cases 6.2 Profile of Health and Education Cases (%) 6.3 Winners in Health (%) 6.4 Winners in Education (%) 6.5 Enforcement Mechanisms in Health

54 77 94 98 107 108 131 141 142 143 161

Figures 4.1 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8

Judges and Verdicts Health and Education Cases in the Higher Judiciary Health Cases in the Supreme Court and High Courts Main Health Issues in Courts Plaintiffs in Health Cases Education Cases in High Courts Education: Type of Issue School Issues University Issues

114 134 135 136 137 138 139 140 140

Box 5.1 Selected Directive Principles and Socio-Economic Rights

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Abbreviations ARV BIMARU CA CJI CrPC DMK HER MISA MLA NGO NHR NSA PD PDA PIL POTA RJD SSA TADA UAPA UPA

Anti-Retro Virals Bihar, Madhya Pradesh, Rajasthan, Uttar Pradesh Constituent Assembly Chief Justice of India Criminal Procedure Code Dravida Munetra Kazavkam Health and Education Rights Maintenance of Internal Security Act Member of Legislative Assembly Non Governmental Organization National Human Rights National Security Act preventive Detention Preventive Detention Act Public Interest Litigation Prevention of Terrorist Activities Rashtriya Janata Dal Sarva Shiksha Abhiyan Terrorist and Disruptive Activities Unlawful Activities (Prevention) Act United Progressive Alliance

Introduction ‘Judges must exercise judicial restraint and must not encroach into the executive or legislative domain’, cautioned a two-judge bench of the Supreme Court in December 2007.1 The two judges catalogued many instances of ‘judicial adventurism’ by the Delhi high court including orders passed on nursery school admissions’ policy, unauthorized schools, criteria for free seats in schools, use of ambulances, air pollution, begging in public, legality of building constructions, identification of the buildings to be demolished, size of speed-breakers on Delhi roads, overcharging by auto-rickshaw drivers. We are compelled to make these observations because we are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism, judges cannot cross their limits and try to take over functions, which belong to another organ of the State… In our opinion, these were matters pertaining exclusively to the executive or legislative domain. If there is a law, judges can certainly enforce it, but judges cannot create a law and seek to enforce it.2

Why should it matter if the judiciary has become over-activist? In an age characterized as the ‘global expansion of judicial power’ (Tate and Vallinder 1995) and even a ‘juristocracy’ (Hirschl 2004), it is important to understand the decisions taken by judges of the Supreme Court of India, the ‘most powerful court in the world’ (Gadbois 1968), and the influences on their choices. We live in an age of judicial omnipresence. Higher court judges, in the last two decades, have become very active in promoting positive rights in new and established democracies like South Africa, Brazil, and India where the courts have ruled in favour of rights to health, education, better environment, housing, cultural minorities, and women’s rights. Divisional Manager, Aravali Golf Club and Anr v. Chander Hass and Anr, 2007 (14) SCALE 1. 2 Ibid., para 26. 1

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Has the judiciary in India been activist? What exactly is the nature of activism and why did it occur? Has judicial activism become ‘judicial aberration’ or ‘judicial adventurism’? If so, is the charge applicable only to the high courts, as the judgment mentioned above seemed to imply, or also to the Supreme Court of India? While several studies have highlighted the tremendous power appropriated by India’s judiciary, we still do not have a good sense of the way judges today wield their power. Scholarly studies, newspaper reports, and the court’s own judgments give us contradictory images of a judge in India’s Supreme Court: activist, political, confrontational, policy maker, ineffective, corrupt, apolitical, and impartial. Most experts agree that India’s Supreme Court and lower courts’ pro-active behaviour on social rights can be traced to the immediate post-emergency era when justices evolved user-friendly approaches to the court. On 25 June 1975, Prime Minister Indira Gandhi suspended Article 21 and imprisoned hundreds of people (primarily political opponents and civil society activists) under an Executive Order proclaiming a state of Emergency in India. Article 21, a fundamental right, states that no person shall be deprived of their personal liberty except according to the procedure established by law. A high court ruling that the Prime Minister was guilty of corrupt electoral practices was a ‘principal cause’ for Prime Minister Indira Gandhi’s assumption of Emergency powers (Tate 1993: p. 328). Nine high courts rejected the constitutionality of the Executive order when the detainees appealed. The Supreme Court, except for the lone dissenting voice of Khanna, overruled the lower courts and in the process experienced a dent in its authority for allowing Indira Gandhi and her associates to violate civil liberties. The majority’s rationale rendered by Ray was that the judiciary was ‘ill-equipped to determine whether a given configuration of events threatens the life of the community and thus constitutes an emergency’.3 The implication of the ruling was that during an emergency the judiciary ought not to scrutinize governmental control of individual activities even if the executive misused these powers. As Dua (1983) notes, the Court not only refused to grant relief to the victims of preventive detention but also came close to endorsing the Emergency regime itself. The public’s condemnation of ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 52 also known as the habeas corpus case. 3

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the judgment triggered a crisis of legitimacy for the Indian Supreme Court. Immediately after the emergency, one saw the dawn of a more socially concerned court: justices who were criticized for assenting to the habeas corpus judgment now pioneered new forms of litigation like Public Interest Litigation (PIL). Alongwith Krishna Iyer and others, Bhagwati adopted flexible and creative interpretations of the court’s epistolary jurisdiction and locus standi (rules of standing). In S.P. Gupta v. Union of India, the judges relaxed the rules of locus standi and opened the doors of the Court to public spirited persons—those wishing to espouse the cause of the poor (representative standing) and those wishing to enforce the performance of public duties (citizen standing).4 P.N. Bhagwati said: Today a vast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief.5

These moves brought a new class of cases to courts in the 1980s and 1990s; judges in the higher courts said that citizens had a right to health, education, better environment, shelter, among others. These judgments were surprising because the Indian Constitution makes a distinction between rights and goals, and puts fundamental rights, including civil liberties, in the enforceable section (Part III), while relegating social rights (right to health, education, nutrition, environment, among others) to non-justiciable directive principles (Part IV). Traditional standing permits only a person who has suffered a legal injury to approach the court for redress; in PILs a public-spirited person could initiate proceedings through a letter (epistolary) or representative standing because the person is accorded standing as a representative of another person. For an analysis of PIL in India see Peiris (1991), Rosencranz, Divan (2002), and Rajamani (2007). 5 S.P. Gupta v. Union of India, (1982) AIR SC 149. 4

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Standard Explanations for the Judiciary’s Behaviour after the Emergency Several scholars explain the judicial focus on non-justiciable social rights after the Emergency, as an endeavour to ‘seek new, historical bases of legitimation of judicial power’ and ‘a bold but controversial response to the perceived implications of social inequality and economic deprivation’ (Baxi 1985, Iyer 1987, Peiris 1991). There are three flaws in this narrative. Firstly, it does not tell us why the judges chose to focus on nonenforceable directive principles. Faced with what Subba Rao (1974: 17) terms as the choice between the Constitution’s twin objectives of ushering in a new social order, ‘where there will be justice—political, social and economic’ and preserving the freedom of the people from the onslaught of autocratic power, why did the judges choose the former?6 After all, the Emergency had wreaked havoc with the fundamental (and enforceable) rights of personal liberty and freedoms, for which the judges shared the blame. Moreover, constitutional injunctions on judicial involvement in preventive detention were replicated for social rights.7 The behaviour is even more puzzling for a court that increasingly commanded immense power. As a former Supreme Court Justice, Krishna Iyer noted, ‘no court in the world—not the House of Lords, nor the US Supreme Court put together—has such vast jurisdiction, wide powers and final authority as the Indian Supreme Court’ (Iyer 1987: 38). The Court had already increased its power of judicial review through a judgment saying that the Constitution had a basic structure, which could not be amended by the legislature.8 But, as Sathe (2002: 88) points out, the Supreme Court exercised ‘maximum restraint’ in using the basic structure doctrine For an analysis of the contradictory and complementary goals of the Indian Constitution see Austin (1999), Khilnani (2000), and Jacobsohn (2002). 7 The Constitution of India (1950) permits preventive detention during peacetime. Article 22 (3)–(7) limits the rights of detainees and the judiciary’s jurisdiction to oversee the procedures; the court cannot question the content, grounds, and the need for preventive detention. 8 Kesavananda Bharati v. Union of India, (1973) 4 SCC 225. The doctrine has been described in many books such as Diwan and Diwan (1997) and Lakshminath (2002). 6

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against constitutional amendments and was ‘reticent’ in striking down an amendment.9 The court’s reluctance to incorporate fundamental liberties and due process into the ‘basic structure’ is puzzling. For instance, in 1981, the Peoples Union of Civil Liberties, the Supreme Court Bar Association, and others challenged the validity of the National Security Ordinance (a preventive detention measure) in A.K. Roy v. Union of India.10 The petitioners argued that the Act deprived ‘people of their personal liberty excessively and unreasonably’, and gave ‘vast and arbitrary powers of detention’ to the Executive, and sanctioned a procedure which was ‘unfair and unjust’. In response, the five-judge bench led by Chandrachud reaffirmed the validity of the ordinance, saying that while the judges were not unmindful of the tyranny of the majority, the power to issue ordinances had historical origin and ‘the executive, at all times, has resorted to it freely as and when it considered it necessary to do so.’ The Court said that the Constitution permitted preventive detention because the liberty of the individual has to be subordinated, within reasonable bounds, to the good of the people … The fact that England and America do not resort to preventive detention in normal times was known to our Constituent Assembly and yet it chose to provide for it, sanctioning its use for specified purposes. 9 T.C.A. Srinivasa Raghavan. ‘The Emperor’s New Dhoti’, Business Standard, 26 January 2008. Until 1969, the Constitution was amended 21 times, and since then it has been amended 83 times. The Congress was in power for most of the time, while in the 12 non-Congress years, there were 20 constitutional amendments, of which 16 were during BJP-led governments. Raghavan says that of the 63 amendments during Congress rule, at least 15 were for highly questionable reasons. 10 A.K. Roy v. Union of India, (1982) 1 SCC 272. A five-judge bench comprising Chandrachud, D.A. Desai, P.N. Bhagwati, D. Tulzapurkar, and A.C. Gupta heard the case in December 1981. Gupta and Tulzapurkar dissented on one count, saying that the court should issue a writ of mandamus on the failure of the government to implement revised provisions. The NSA allowed the central or state government to order preventive detention to prevent a person from acting in any manner prejudicial to the defence and security of India, relations of India with foreign powers, security of the state, maintenance of public order, and/or the supplies and services essential to the community. All these are valid grounds mentioned in two legislative entries in Lists I and III (Jain 2003: 1537).

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At least two of the judges on the A.K. Roy and S.C. Gupta benches were in the Supreme Court during the Emergency. Baxi (2007: 7) provides us with one answer as to why judges were more pro-active on social rights. He argues that the battle between the court’s role in civil liberties and social rights highlights a ‘cognitive dissonance’ of the Indian Constitution. The Constitution, according to Baxi, includes two notions of a rule of law that permit contrasting forms of judicial behaviour: a thin notion ‘entailing procedural restraints on forms of sovereign power and governmental conduct, which may also authorize Holocaustian practices of politics’, and a ‘thick’ conception involving the theories about the ‘good’, the ‘right’, and the ‘just’ (Ibid.). The thin notion ensures that nothing is allowed to intrude on the state’s battle with secessionism. In upholding the state’s punitive actions against suspected secessionists and revolutionaries, the judiciary functions as an arm of the state, justifying Louis Althussers warning that the Doctrine of Separation of Powers also masks the ‘centralized unity of state power’,11 and what American legal scholar Robert Cover (1983) calls the ‘jurispathic’ role of courts. The thick conception of a rule of law, on the other hand, empowers the state to undertake social justice, where the rule of law is ‘normatively conceived not just as a sword against State domination and violation’ but also ‘as a shield empowering an encyclopaedic regime of ‘progressive’ State intervention in the life of civil society (Baxi 2007: 16). In Baxi’s narrative, the judges are primarily creatures of the State in its coercive and benevolent guises—judges are part of the coercive apparatus in anti-terror cases, and part of the welfarist state in issues dealing with rights to health and education. Agency or the power to decide on a course of action rests with the other wings of the government, not with the judges. But, as we shall see shortly, it is not clear whether judges actually behaved in this fashion on the two sets of rights. The second flaw in the narrative on the apex court’s post-emergency behaviour is the assumption that Supreme Court judges were activists on social rights. The term ‘activism’ seems to have multiple definitions for the scholars. Baxi (1985c) sees activism as part of judicial populism that attempted to ‘refurbish’ the image of the court.12 Sathe (2002), on Louis Althusser (1982), quoted from Upendra Baxi (2007). Baxi, in an interview with the author in January 2008, highlighted three types of activism: The first type of activism is one where judges regard judicial power as a trust or themselves as trustees of citizen’s rights and express it through 11 12

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the other hand, distinguishes between judicial populism (an aberration that takes place either when the Court is swayed by euphoria or when it overreaches itself), activism (that evolved over 50 years), and excessivism. Sathe (2000: 100) writes: Judicial activism turns into populism when doctrinal effervescence goes beyond the institutional capacity of the judiciary to translate the doctrine into reality; and it is excessivism when a court undertakes responsibilities that should normally be discharged by other co-ordinate organs of the government.

Sathe characterizes post-Emergency judicial activism of Indian Supreme Court judges as ‘doctrinal creativity’ and ‘processual innovations’ involving a liberal interpretation of Articles 21 (right to life) and 14 (right to equality) and reconceptualizing the basic rules of the judicial process with a view to making it more accessible and participatory (Sathe 2002: 100, 107). Moreover, neither scholar gives us evidence that supports such goaloriented behaviour. ‘These are after all our conjectures, we do not have evidence to support them, ’ notes Sathe, adding that ‘post-emergency judicial activism was probably inspired by the Court’s realization that its elitist social image would not make it strong enough to withstand the future onslaught of a powerful political establishment’, and therefore, consciously or unconsciously, the court moved closer to the people (Sathe 2002: 100). We therefore have to unpack notions of activism and assess whether, and how, the Supreme Court judges were activists. pro-citizen judgments in social rights, litigation, and instituting legal aid. A second type of activism is juristic activism—the obiter dicta of judges where the judgments include grand theories and speak to the future of lawmaking but the actual decision does not reflect it. A third type is eclectic activism where a judge gives decisions case by case without manifesting ideological coherence—for example, a judge could be pro-business in some cases and pro-poor in others. Baxi periodized many phases of activism in the post-emergency era. The initial stage was that of judicial populism, followed by a social action litigation phase (though political rights and civil and libertarian values were advenced by some judges), environmental litigation which redefined the right to life and started the focus on social rights, followed by consumer rights when SAL was extended and the Supreme Court became a supreme regulatory authority, and concurrently a women’s rights litigation that liberalized religious and work place laws. Baxi argued that Sathe does not periodize the development of post-emergency judicial activism.

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The third problem with the explanation of post-Emergency activism is that the activism of a few judges does not necessarily demonstrate an institutional trend. Even as late as 1993, Krishna Iyer lamented that the pro-active judges on social rights were few and far between. The size of the apex court (26 judges) and the institutional practice of hearing cases in two- or three-judge benches produce an adhoc clustering of judges who speak in several tongues. How, then, can we even begin to talk of Supreme Court activism? Thus, there are several gaps in our understanding of how the Supreme Court behaved after the Emergency.

Questions Investigated by the Book Who or what is the main influence on a judge? Is it the law? If so, social rights jurisprudence cannot be explained. Or is it non-legal, that is, political and ideological influences? If we regard the ruling regime as the initiator and/or implementer of policies, does this mean that judges simply legitimize the political wing’s decisions, as American political scientist Robert Dahl famously said in 1957 about the American court? Or do they stray from the ruling regime’s preferences as they discover and use broad powers of judicial review to constitutionalize new rights, make policies, and even laws? Or is their behaviour more complex? Paraphrasing Epstein (1996), what explains the choices that Supreme Court Justices make? We address this question in the book by assessing the judgments on preventive detention, anti-terror cases, health, and education cases. Negative rights include civil and political rights, which are justiciable, while positive rights like economic, social, and cultural rights were considered non-justiciable until the 1980s in India. The book will examine judgments of the lower courts and before Supreme Court on anti-terror laws, Terrorist and Disruptive Activities (Prevention) Act (TADA), and Prevention of Terrorist Activities (POTA) as a proxy for negative rights where the courts had to balance security with liberty. The tenor of behaviour on positive rights will emerge from an analysis of high court and Supreme Court judgments on the rights to health and education. Why focus on these two sets of rights? Preventive detention (including anti-terror) cases pit the citizen’s freedoms directly against state organs like the police, forcing the court to take sides. Stymied by constitutional injunctions about legislative sovereignty in framing PD laws, we should expect less confrontation between the courts and the other organs of the state. In social rights—an area where we

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would expect less action by judges because of the constitutional nonjusticiability of these rights—the judiciary in India has been branded as over-active and as a policy maker. In both, judges found ways to negotiate with different elements and offer a rights-based perspective without unduly upsetting the political branches. Examining the court’s role in these two areas helps us discern its attitude to the executive and legislature and arrive at some understanding on the choices made by the apex court. Our questions are part of a broader enquiry into judicial behaviour. Our hypotheses challenge two sets of theories—arguments about what induces choices that justices make, and arguments about the activism of Indian Supreme Court judges. Traditional models of judicial decisionmaking emphasize either law (legal) or non-law (political, ideological, and institutional) factors as the determining influences on a judge. We adopt a more flexible approach that sees judges as embedded negotiators entrenched in particular institutional and legal contexts with the ability to negotiate with political configurations and public concerns under certain conditions. While deciding a case, a judge negotiates with four elements: the framework of laws, institutional norms and memories, political influences, and public concerns. Each element carries limits and opportunities and is often at odds with at least one other influence. Our perspective highlights the dynamic process underlying a judge’s interpretation of laws within particular political and social contexts.

Empirical Tests Tilly (2007) highlights seven traditional ways of explaining social processes. They include: (1) proposal of covering laws for complex structures and processes; explanation here consists of subjecting robust empirical generalizations to higher and higher levels generalizations, the most general of all standing as laws; (2) specification of necessary and sufficient conditions for concrete instances of the same complex structures and processes; (3) variable analyses in which statistical analysis shows the extent to which one or more predictor variables (often called ‘independent variables’) account statistically for variation in an outcome variable (often called the ‘dependent variable’); (4) location of structures and processes within larger systems they supposedly serve or express, for example, through the claim that element X exists because it serves function Y within system Z; (5) stage models in which placement within an invariant sequence accounts

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for the episode at hand, for example, the stages of revolution or of economic growth; (6) identification of individual or group dispositions just before the point of action as causes of that action—propensity or disposition accounts; (7) reduction of complex episodes, or certain features of those episodes, to their component mechanisms and processes. Most of these modes, however, exclude history as a significant shaper of social processes.13 Mechanism-process accounts (explanation number 7), in contrast, welcome history, [because] their explanatory program[me] couples a search for mechanisms of very general scope with arguments that initial conditions, sequences, and combinations of mechanisms concatenate into processes having explicable but variable overall outcomes. Mechanism-process accounts reject covering law regularities for large structures such as international systems and for vast sequences such as democratization. Instead, they lend themselves to ‘local theory’ in which the explanatory mechanisms and processes operate quite broadly, but combine locally as a function of initial conditions and adjacent processes to produce distinctive trajectories and outcomes (McAdam, Tarrow, and Tilly 2001, Tilly 2001).

We blend two modes of explanations: a mechanism process account and a statistical model to understand choices made by the Supreme Court judge. Our account combines a textured qualitative analysis of the constitutional and legal framework, landmark rulings and dissenting opinions, with a statistical multivariate analysis, the probit model, to assess the influence of the facts of the case, legal procedures, characteristics of judges, political configurations, timing of the judgment, and public concerns gauged from the presence of crises. This is the first study that uses a probability analysis to assess the behaviour of Indian Supreme Court judges on anti-terror cases and social rights, and combines it with a textured analysis of constituent assembly debates and landmark judgments. We used Manupatra on online legal database, Tilly (2007) points out that covering-law, necessary-sufficient condition, and system accounts generally resist history as they deny the influence of particular times and places. Stage models do incorporate time, but they usually run roughshod over the actual complexities of historical social processes. Propensity accounts respond to history ambivalently, since in the version represented by rational choice they depend on transhistorical rules of decision-making, while in the versions represented by cultural and phenomenological reductionism they treat history as infinitely particular. 13

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which has over 80 per cent of the reported High Court and Supreme Court cases. Our dataset includes only a fraction of cases that actually made it to the courts, and not all of them were appealed at the Supreme Court. It is to be noted that the cases do not include ongoing petitions, environmental cases, the tens of thousands of cases in the lower courts, medical councils, consumer courts, lok adalats, national human rights commission, and a number of tribunals. We also do not examine out-of-court settlements or cases that are negotiated outside with the threat of a court ruling. In the anti-terror cases, we analysed only those cases that were appealed at the Supreme Court. We captured all the PD, TADA, and POTA cases to 2006 reported by Manupatra. However, it is important to note that of all the arrests under these laws, only 15–20 per cent of under trials make it to the court. This is because Indian police procedures (particularly for anti-terror laws which are pre-emptive) favour arrests prior to the search for proof. So, of over 50, 000 TADA detainees over the ten-year period, less than one per cent (448) were convicted. Our sample is not comprehensive but is sufficient to get a sense of the pattern of the judgments at the Supreme Court. We are aware that our analysis focuses only on the tip of the iceberg, ignoring all that has occurred at the lower courts. This book does not assess the impact of the judgments on the actual delivery of rights and services to the people.14 For instance, a judge may have agreed with the plaintiff that municipal authorities in Jaipur were obligated to keep the city clean, but the book does not investigate whether local authorities implemented the court’s directives.15 Moreover, to assess the influence of the judiciary, we would have to separate the actions of the court from those of the political actors and civil society. Fourteen years ago, Gerald Rosenberg published a book on American courts titled ‘The Hollow Hope—Can Courts Bring About Social Change?’ Rosenberg’s answer was in the negative. He argued that courts are constrained by institutional, ideological, and structural factors. Newspaper reports and the higher courts’ pronouncements in In this, we follow the path forged by Sathe (2002) and others who establish activism through a discussion of landmark cases, but do not address enforcement. 15 We found it hard to assess if the judgments were implemented since we were constrained by the age of the case, the difficulty of finding the lawyer and the litigants, and following the paper trail on the case. 14

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India suggest that Rosenberg is right about the limited nature of the court’s direct impact. But an empirical demonstration of Rosenberg’s argument in India requires a different study.

Outline of the Book Readers can skip or dip into chapters that interest them. Chapter 1 discusses the explanatory potential of the legal, attitudinal, and institutional approaches to understanding judicial decision-making. It highlights the positive and negative elements of each approach and outlines the ‘embedded negotiator’ approach. Traditional models of judicial decision-making—the legal, attitudinal, and institutional models drawn from American judicial politics studies—cannot fully explain the post-Emergency behaviour of Indian justices. The legal model, with its emphasis on constitutional text/intent and precedent cannot tell us why Supreme Court judges transformed non-justiciable social rights (health, basic education, food, shelter) into fundamental rights in the 1980s. The attitudinal model, which explains decisions by looking at the ideology of judges in conjunction with the facts of the case, cannot be tested systematically in the Indian context because we have not mapped the ideological biases of a judge. The institutionalist approach, which gives us the most nuanced perspective on judicial choices, brings law back in, along with an emphasis on institutional rules, but undervalues the scope for choices created by political and public circumstances. The embedded negotiator approach forges the insights of the institutionalist approach into a dynamic model of judicial decision-making. Chapter 2 discusses another element of our approach, namely, the nature of the institutional norms and the memories of the court. It outlines the decision-making process of the court, its experience with other wings like the legislature and executive, and the court’s appropriation (and use) of the power over judicial appointments and judicial review. We argue that the constitutional powers on the nature of jurisdiction, and the institutional norms that flow from these powers encourage the apex court to be supportive of the elected wings of the state. These norms, coupled with the institutional memory of judicial impotence during the emergency promote a more negotiated style of decision-making. Chapter 3 assesses the legal framework of preventive detention and anti-terror cases. We argue that the Indian Constitution saw rights as

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‘gifts’ of a benevolent State that could also be curtailed by its agencies (police, army, bureaucracy, administration, and judiciary) in their battle against those aiming to rip the country apart. Not surprisingly, the creeping normalization of security laws became the norm. But we show through a textual analysis of important Supreme Court rulings that judges found ways to tinker with the procedures and expand some of the detainees’ rights. Chapter 4 examines the conditions under which the four elements of the embedded negotiator approach affect the likelihood of a judgment favourable to the State. It conducts a probability analysis on 194 preventive detention and anti-terror cases in conjunction with the profiles of Supreme Court judges deciding those cases. It assesses the relevance of ‘the Emergency’, the attitude to minorities, and terrorism and wars on the likelihood of a ruling for the state. Chapter 5 spells out the legal framework of social rights and periodizes the way in which the Apex Court approached these rights from 1950 onwards. We argue that despite the absence of constitutional intent in making courts responsible for ensuring the legalization of these rights, judges went ahead and appended the realization of some social rights to the notion of a right to life with dignity. The timing of such judgments reflects the choices made in the political arenas; for instance, the notion of a right to health and environment came after the statutory enactments of specific laws. Chapter 6 conducts a probit analysis of health and education cases. We focus only on those health (without environmental cases) and education cases that dealt with a ‘right to health or education’ in the high courts and the Supreme Court. Note that unlike anti-terror cases, we do assess high court rulings in one model. The rest of the models capture judgments delivered by Supreme Court judges in the course of their career in the higher judiciary. We discuss the results in the context of theories about the activism of judges, judicial attitude to government and private sector negligence, and the influence of personal characteristics of judges (caste, education, regional affiliation and other such) on a pro-social rights judgement. Chapter 7 discusses the ramifications of our findings for the choices an Indian Supreme Court justice makes. We discuss the implication of viewing judges as embedded negotiators for theories of judicial activism, the judicialization of politics, and the need for draconian antiterror laws.

1 Judges as Embedded Negotiators What is (or ought to be) the reasoning of a judge while writing his opinion? Edward Levi (1949) provides us with a simple but clear explanation of the steps in legal reasoning. First, similarity is seen between cases; then the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case. Levi points out the problem judges face: working out when it will be just to treat different cases as though they were the same? No fixed prior rule exists since the kind of reasoning involved in the legal process is one in which the classification changes as the classification is made. Legal reasoning is reasoning by example; rules arise out of the process, which, while comparing fact situations, creates the rules and then applies them. Courts, however, have greater freedom to interpret constitutional fundamental rights in countries like India with written constitutions and common law systems, which, by setting up conflicting ideals, give judges the space to frame the boundaries of a law. The question then is what influences judicial decisions within this space? Is it the law (Dworkin 1986; 1999), politics (Dahl 1957), ideology (Segal and Spaeth 1996), strategic choices (Ordeshook 1986; Epstein and Knight 1998), interest groups (Epp 1998), or public opinion (Barnum 1985; Caldeira 1986; Marshall 1989)? Scholars on judicial behaviour follow either a normative approach or a positive one. Typically, the legal academy favours the normative orientation and asks questions about how judges ought to decide cases and the posture they ought to take towards other institutions like the legislature and executive.1 India’s Supreme Court has been studied by judicial scholars 1 Sathe (2002), Shiva Rao (1968), Baxi (1980), Seervai (1991); and in the USA, Dworkin (1999), and Sager (2004).

Scaling Justice. Shylashri Shankar. © Oxford University Press 2009. Published 2009 by Oxford University Press.

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who tend to be lawyers influenced greatly by the normative approach.2 Outside the legal academy, as Barry Friedman (2006) says, the interest in how judges behave is more positive—on how they behave and why. Positive theorists ask what motivates the judges to decide cases as they do and what forces are likely to influence judges’ decisions. The two approaches demonstrate ‘a classic conflict between the ‘is’ and ‘ought’, with political scientists describing the ‘s’ of empirical reality and the legal scholars philosophizing about how this ‘ought’ to be’ (Bloom 2001: 220). In another conceptualization of the difference between normative and positive styles, Rehder (2007) distinguishes between American and European modes of studying courts and politics. Europeans study courts, while Americans study judges; Americans focus on process, that is, the politics of judicial actions, while Europeans study the effects of such action; Europeans see courts as an autonomous sphere, while Americans see it as an extension of the political system; and lastly, Europeans speak of juridification where judicial action invades or displaces politics while Americans talk of politicization where politics invades the legal space. Not surprisingly, European researchers and Indian legal scholars emphasize the impact of the rule of law, legal doctrine, and legal reasoning on politics (Shapiro and Stone 1994). The normative and positive projects differ fundamentally on what forces influence judicial decisions. Law is the key influence for a normative theorist, while politics is the main influence for positive theorists. ‘Politics’ is used in a broad sense to refer to any influence on a judge’s resolution of the case other than an independent judgment of the law as applied to the facts before the court (Friedman 2006: 258). The suggestion that that judicial ideology or pressures from political actors are key determinants of a judgment is anathema to normative theorists who cherish the notion of a separation of constitutional law from politics. Three models, constructed from a study of Anglo-American courts, dominate studies of judicial behaviour: the legal, the attitudinal, and the institutional models.3 Let us assess the applicability of these models 2 Dhavan (1977), Gadbois (1991), Gupta (1995), and Sathe (2002) have used the ‘positive’ approach to study the Indian Supreme Court judges. 3 Segal and Spaeth (2002) rightly emphasize the importance of models to understand a wider range of behaviour.’ A model is a simplified representation

Judges as Embedded Negotiators 3

in understanding the behaviour of India’s Supreme Court judges on security laws and social rights.

The Legal Model (Law Matters Most) The legal model (and all its variants) holds that judges make decisions based on the facts of the case including the language of the law, intentions of the framers of those laws, precedents established in previously decided cases, and a balancing of societal interests. Constitutional theorist Ronald Dworkin, in Law’s Empire, distinguishes between justice (a quality of the outcomes of a decision process), fairness (a quality of the structure of that decision procedure), and procedural due process (right procedures for judging whether some citizen has violated laws laid down by political procedures) (Dworkin 1986: 165). An ideal judge, Hercules, must often compromise commitments to fairness and justice by finding a fit with settled law, and precedents guide this endeavour. The approach assigns law (and judges) with the task of acting as a neutral guardian of the boundary between state and civil society; law, and legal reasoning are very important determinants of judicial decision-making.4 Though Dworkin recognizes the practical problems a real world judge faces such as obtaining the agreement of his colleagues, and getting the judgment implemented by other government actors, he puts these problems aside so that Hercules is free to concentrate on issues of principle. This, as Friedman (2006) and others point out, is unsatisfactory because Hercules must do his judging in a political world. Let us assess each element of the legal model from the viewpoint of their critics. The legal model has been criticized for its assumptions of constitutional passivity and ideological neutrality of courts.5 Central of reality; it does not constitute reality itself. Models purposefully ignore certain aspects of reality and focus instead on a select and often related set of crucial factors. Such simplifications provide a useful handle for understanding the real world that reliance on more exhaustive and descriptive approaches does not…Internal consistency, coherence, explanatory ability, and parsimony are all hallmarks of a good model’ (p. 46). 4 See Alan Hunt (1992) for a critique of Dworkin’s conceptualization of judges. 5 Segal and Spaeth (1996). Dotan (2003) continues on this theme in the Israeli context and argues that the High Court of Justice is heavily influenced in its attitude towards different categories of litigants by ideological and institutional concerns.

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to this critique is the lack of falsifiability of the legal model, that is, its inability to state the potential conditions that, if observed, would refute the model. Segal and Spaeth point out several problems with plain meaning: is firstly, a word can mean a number of things since the English language is not precise; second, legislators and framers of the Constitution usually fail to provide definitions because of compromises made or because of their inability to anticipate future events; and third, identical words in different statutes may not have the same meaning. For instance, for some judges from India’s high courts, a terrorist act threatened public order, while for others, a terrorist act was one that threatened public security, which was not synonymous with public order (Jain 2003; Seervai 1991) Similarly, one could argue that the plain meaning of the right to education was that it was non-enforceable. Segal and Spaeth’s point is valid in India that if the Court can regularly read rights out of the Constitution that it explicitly contains while simultaneously reading into the Constitution rights that it does not explicitly embrace then plain meaning is not a good explanation for the Court’s behaviour. This brings us to the second element of the legal model, the framer’s intent. Let us assume that legislative intent does exist and is knowable. How do we discover it? One option is to look at the records left by the framers of the Constitution—the debates, the diaries, and the journals of the delegates. For instance, the debates of the Constituent Assembly of India provide us with a glimpse into the framer’s intent on social rights—that these rights should become realities only when the state could afford them. But it is not clear whether the intent was to make the rights legally enforceable—several Constituent Assembly members said that the courts should not be involved in the process. Even if it was the intent, the timing of the transformation of these rights is puzzling; social rights became enforceable just when the country was facing economic hardships in the 1980s and 1990s and could not afford such rights. Moreover, as we shall see later, no such intent can be gleaned on preventive detention. The legal school proponent would fall back on precedent or stare decisis as a tool that explains a judge’s decisions. Simply put, a judge decides a case based on what has already been decided in the past in a similar set of cases and would then explain her ruling as adhering to precedent. Lawyers too frame their arguments using precedents,

Judges as Embedded Negotiators 5

which brings us to the problem that competing lawyers use different precedents to argue different outcomes for the same case. A judge chooses one or the other side, or sometimes a bit of both. How, then, do we establish the influence of precedent on decisions? Segal and Spaeth (2002) test precedent-oriented and preferenceoriented behaviour and conclude that stare decisis or precedent rarely influences American justices. They provide a succinct indictment of the legal model. Plain meaning assumes a mathematical exactness in the use of English that simply does not exist. Yet even when the constitutional language is fairly clear, the Court may behave arrogatingly, reading into the document rights that are not explicitly there, and reading out of the Constitution rights that it explicitly contains. Supporters of legislative or framers’ intent must recognize the sparseness of the historical record: that however ‘framer’ is defined, different framers had different interpretations; that intent often conflicts with plain meaning; and, most notably, that the framers did not claim such prescience that only their motivations could rightfully bind future generations. Precedent also fails as an explanation of judicial decisions. In appellate cases legitimate precedents exist on both sides of controversies, allowing justices to abide by precedent no matter which position they take. And even when the weight of authority leans heavily toward one side, several legalistic methods enable courts and judges to avoid literal adherence to precedent. Justices can even cite precedents to avoid adhering to precedents (Segal and Spaeth 2002: 110).

The insulation of judges from political control and the importance of law as a constraint on judicial wilfulness are twin themes in a normative theory’s effort to enforce the law–politics divide. The legal approach is right in emphasizing the importance of law in explaining judicial behaviour, but strict reliance on this approach does not help us understand why Indian Supreme Court justices transformed non-justiciable social rights into enforceable rights. Ultimately, as Friedman (2006: 268) rightly argues, Hercules’s (Dworkin’s ideal judge) power rests on the willingness of the public and political actors to respect his independence and the decrees of his court, and that is something normative theorists have to take into account before coming to any conclusions. Positive theory, on the other hand offers us a way to assess judicial behaviour within the real life constraints that judges face.

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The attitudinal Model (Judge’s Ideological Preferences Matter) Unlike the legal model, attitudinalists emphasize the importance of non-legal influences on a judge’s decision and deny the constraining influence of the law. ‘What explains why judges, at least those on the US Supreme Court, decide cases the way they do? To answer this question we need to focus on judges’ decisions rather than on the reasons they give in their opinions for deciding the way they have. For the explanations that persons—including judges—give for what they have done do not necessarily correspond to their actions’, argue political scientists Jeffrey Segal and Harold J. Spaeth in The Attitudinal Model. Their answer is that a judge’s decision is based on the facts of a case in light of his/her ideological attitudes and values.6 ‘Justice William J. Brennan decided cases as he did because he was liberal; Justice William Rehnquist or Warren Burger, because they were conservative’ (Spaeth 1995: 305). The attitudinal model has its strengths—it regards judges as fallible beings with ideological preferences who are capable of making strategic choices. Segal and Spaeth (2002) praise their own model for successfully predicting judicial behaviour almost 70 per cent of the time and providing the best explanation for the court’s decisions. As political scientists, though, we require more than prediction; we require an explanation. The legal model, the attitudinal model, and the separation-ofpowers model all try to provide explanations for what the Court actually does. Only the attitudinal model’s explanation, though, is supported by systematic empirical evidence. The fact that the attitudinal model has been successfully used to predict the Court’s decisions further confirms its status as the best explanation of the Court’s decisions (Segal and Spaeth 2002: 351). 6 American judicial scholars typically use cumulative scaling to identify the attitude of a judge who is expected to display some level of consistency on a particular issue set (for example, capital punishment). They then test the model by comparing a judge’s earlier vote to a later vote and create the ranking of judges along the ideological continuum of liberal to conservative. Schubert (1965), Segal and Spaeth (1993), and others placed American judges along ideological dimensions of liberal and conservative based on the decisions recorded in subsets of cases like civil liberties, search and seizure cases, affirmative action, and so on. Rohde and Spaeth (1976) formulated an alternative model, that constructed attitudes based on a set of interrelated beliefs about at least one attitude object and the situation in which it was encountered.

Judges as Embedded Negotiators 7

This claim is debatable because studies have shown that the model may work only for civil rights issues in the US, but not for other issue-sets (Epstein and Mershon 1996: 261–94). The central claim by attitudinalists is not that law is without influence but that it does not keep judges from voting their own ideology, that is, influence is not the same as constraint. How can one be sure it is ideology that is driving the judge, Epstein and Knight (1998) ask, rather than a good faith personal understanding of what the law requires? While attitudinalists have struggled to answer this question, normativists cannot dismiss such theories because scholars like Segal and Spaeth have been able to predict outcomes accurately based on the ideological preferences of judges. Attitudinalists have also struggled to find a perfect proxy for ideology. One prominent measure is the ideology of the party of the appointing president—the rationale is that a president would appoint a judge close to his/her ideological position. Therefore, an attitudinalist would posit that a judge appointed by a Republican president would be more conservative than a judge appointed by a Democrat president. Even if attitudinalists are right about the importance of ideology in explaining a judge’s rulings, can we export the attitudinal model to countries with parliamentary systems? Like the American Supreme Court, India’s apex court has vast authority provided by fundamental law, federalism, separation of powers, and judicial review. The court has the authority to interpret constitutional laws, and assess legislation to ensure that fundamental rights are not infringed upon. It also arbitrates tussles between the states and the Centre. We face several problems in applying the attitudinal model to India. Firstly, the institutional rules do not allow for an easy way to assess ideological attitudes because the norms discourage dissenting opinions (Hidayatullah 2005: 198). Unlike in the USA where nine Supreme Court judges sit en banc and hear every case (making dissents a common feature), two or three judge benches typically decide a case in India. Very few cases (generally constitutional cases) are heard by 5, 7, 9, or 11 judge benches and none by all the 26 Supreme Court judges.7 ‘I am perhaps not wrong in saying that one group of two never differed except on a solitary occasion, ’ said one former chief justice of his colleagues (Ibid.). Initially, the Supreme Court had 7 judges and the Chief Justice, and as the caseload increased, the number of judges rose to the current figure of 26 judges. 7

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Secondly, the pioneers of the attitudinal model themselves point out that it would be hard to test their approach in situations where judges are in a court for a short period of time. Indian Supreme Court judges, who retire at the age of 65, serve in that court for an average term of 4–6 years.8 In the USA, the nine Supreme Court justices have lifetime tenure allowing us to assess their preferences, demonstrated in their voting records over a 10–15 year period. Thirdly, to test the attitudinal model, we would first have to map the preferences of judges—a Herculean task since Indian judges hear thousands of cases.9 Even if we could do so, mapping the ideological space would be time consuming and tough because the American versions of liberal and conservative do not apply in India. As Baxi (1985b: 80) points out: [T]he ideological universe of Indian Supreme Court Justices is not easy to discover and delineate, so extraordinarily varied are their tenures and the nature of cases and controversies coming before them for adjudication. The lack of a dissenting tradition aggravates the task. And it is difficult to get at the deep structure of decisions, especially in constitutional adjudication, without a mature grasp of regressive and progressive tendencies in politics of the time. Western labels and rubrics (like conservatism, liberalism, activism and restraint) further becloud understanding.

Some studies (Dhavan 1977, Gupta 1995) mapped the pro-business and pro-government attitudes of judges. Perhaps that might be a way to proceed. In this work we assess the pro-state and pro-accused tenor of judgments in anti-terror cases. Moreover, the sparse records of decisionmaking process, lack of access to a judge’s conference notes, paucity of memoirs by retired judges—all contribute to making the process of determining ideological orientations well nigh impossible.10 Fourthly, unlike the US where the two-party system allows us to see the influence of Republican and Democrat Presidents on the appointment of a Supreme Court judge, it is hard to distinguish between the influence of the appointing regime and the influence of the Chief Justice of India. 8 India’s high courts may offer a more suitable testing site for the attitudinal model since those judges serve for 12–16 years. 9 In the US, the so-called Rule of Four ensures that the Supreme Court does not accept the review of a case unless four justices vote affirmatively to grant certiorari. 10 See Dhavan (1980), Gadbois (1978), Baxi (1980) for a discussion of the early years of the Supreme Court.

Judges as Embedded Negotiators 9

In 1957, political scientist Robert Dahl argued that American judges would be regime supporters because the appointments process (the President appoints and the Congress approves) ensured that the Court’s decisions would never be too wildly discordant from the preferences of the political majority. Dahl concluded that courts were part of ‘enduring alliances’ of national politics because presidents and congresses had opportunities to appoint judges who shared their political and policy preferences. In Dahl’s account, agency in making choices lay with the political wings, not with judges. More recently, in a variation on Dahl’s thesis, rational choice theorists have argued that judges would take the preferences of the ruling regime into account (Epstein 1995; Eskridge 1991; Epstein and Knight 1998). The difference with Dahl’s explanation is that the relevant preferences are not those of the regime that appointed the judges, but those of the regime in power when the judge decided a case. So even if a judge had been appointed by a Republican President (or in India, by a Congress party government), he would tailor his judgment to suit the inclination of a ruling Democrat President and Congress (in India, by a BJP-led NDA coalition government). The Congress party was in power at the centre for over 75 per cent of post-independent India’s existence; and oversaw the appointment of a majority of the judges (in our sample) to the Supreme Court. The nonCongress led governments, however, have been coalitions comprising parties with diverse ideological orientations, making it hard for us to gauge political preferences in judicial appointments. Later, in our empirical study (Chapters 4 and 6), we test the influence of political parties and single party majority/coalitions on the likelihood of prostate judgments in anti-terror and social rights cases. More recent scholarship, as Pickerill and Clayton (2006) point out, has given judges some agency by focusing on enumerating the ways in which political elites supported judicial review for strategic reasons (Hirschl 2004; Whittington 2005). These scholars reconceptualize judicial review as an institutional instrument for policymaking rather than as a mechanism for protecting minorities (as argued by Casper 1976) or checking the majority.11 This view has a more complicated Casper (1976) argued that the lifetime tenure of federal judges gave them independence from the political wings, and allowed courts to protect minority interests. But we still don’t know the conditions under which a judge would protect minority rights. 11

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picture of the relationship between the judiciary and the political wings. For instance, elected officers might allow judges to make policies so as to avoid responsibility for controversial decisions (Graber 1993), or protect some rights from new or emerging electoral majorities (Hirschl 2004; Gillman 2002). There is some basis for the existence of view in India. The Indian Parliament as referred to the Supreme Court of India on difficult decisions such as the nature and the extent of affirmative action, religious freedom, and the status of disputed religious sites, among others. Pickerill and Clayton (2006: 5) note: The power of judicial review is just as often employed as a mechanism for repealing outdated legislation from previous constitutional periods, for extending the values of the current political regime to recalcitrant local jurisdictions, for protecting the policy commitments of a current majority that are becoming democratically vulnerable, for managing cross pressures within the dominant governing coalition or in many other ways that further or advance policy agendas of the dominant political coalition. Indeed scholars adopting this ‘political regimes’ approach have developed a large body of research that ties judicial decision making to specific patterns of party politics, group coalition building, critical elections, the policy agenda of the governing elites, and other features of the political regime.

As Whittington (2000) points out, the faithful interpretation and application of the law or the duty to protect individuals and minorities may be important motivations for a judge, but inadequately captured in attitudinal explanations of judicial behaviour.12 The legal and attitudinal approaches can offer only partial explanations for the choices made by Indian Supreme Court judges. Both believe that judges are unconstrained by other institutions and ignore the importance of institutional norms and institutional memory in influencing a justice’s actions.

The Institutional Approach (Law and Institutions Mould a Judge’s Preferences) More recently, judicial scholars brought institutions back into the study of courts. The new institutionalisms—rational choice, sociological, and historical—draw on the insights of economists like Douglas See Saul Brenner and Marc Stier, Retesting Segal and Spaeth’s Stare Decisis Model, 40, AJPS, 1036, 1043, 1996. They found that 47 per cent of the Supreme Court decisions in the US could be explained by precedent if they included memo decisions that were left out of the original study. 12

Judges as Embedded Negotiators 11

North (1990: 30) that institutions are the rules of the game in society, the humanly devised constraints that shape human interaction.23 The institutionalists explain the characteristics of social outcomes on the basis not only of the agent’s preferences and optimizing behaviour but also the institutional features.13

Rational Choice Institutionalism This approach allows some agency for individual justices. The intellectual origins of seeing judges as strategic actors can be traced to Murphy’s Elements of Judicial Strategy (1964). Murphy held that judges were constrained by the actions of fellow justices, potential actions of decision makers like the Congress and President, and the public—in other words, internal and external features of the institution restricted the actions of judges. Maltzman et. al (2000) analyse the internal rules of the court (collegial character) that limit a judge’s capacity to translate her preferences into legal policy outcomes. Judges are part of a collegiate institution where their preferences are modified in the process of writing joint opinions. ‘Because justices do not act alone, and because the weight of what they accomplish typically depends on the extent to which they agree to act in concert, they face difficult choices on how to reconcile individual views with the need to achieve a group result’ (Friedman 2006: 280). Maltzman (2000: 13) points out that the strategic approach contradicts the two tenets of the behavioural tradition: that human behaviour is predetermined, and that individual action can be aggregated to account for political outcomes. In contrast, a strategic explanation places rational political actors back into their institutional context, recognizing that rational calculation entails consideration of the strategic element of the political game. Instead of deterministically responding to psychological and sociological approaches beyond their control, rational actors understand that they face a number of constraints imposed by the actions of other political actors and by the institutional context in which they act. Justices as strategic actors must take into consideration these constraints as they attempt to introduce their policy preferences into the law.14 For an overview of the institutionalist approach, see Alt and Shepsle (1990). Also see Rohde and Spaeth (1976) who argue that court decisions result from the interaction between goals, rules, and situations. Goals refer to individual and collective values of the judges and are the most significant determinants of decision-making; rules are the formal procedures, norms and rule structures of institutions. 13 14

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The main problem with applying the rational choice approach to India is that judicial conferences are rare; judges tend to join opinions as written making it hard to gauge a judge’s preferences. For instance, in a three-judge bench, one judge is assigned the task of writing the opinion, while the other two usually concur with the opinion after it is written. Dissenting opinions, as we shall discuss later, are rare in smaller benches, occurring only in large constitutional benches of five or more judges. Also, it is not clear how one distinguishes between a sincere preference, strategic preference, and no preference. Rational choice institutionalism overlaps to some extent with the attitudinal model because of its emphasis on choice and policy preferences of an individual judge rather than on the institution of the judiciary. But unlike attitudinalists, rational choice theorists argue that judges are constrained by the choices of other actors including other judges, the legislature, the executive, and public opinion; and that institutions structure these constraints.15 But as Rehder (2007) points out, the proximity to the attitudinal model lies in the fact that courts are still not regarded as an institution, but as a conglomeration of individual policy-seeking judges. The attitudinalists and rational choice institutionalists understand judges as value-maximizing agents seeking to impose their preferences (ideological or otherwise) on public policy. In this respect, the institutionalist part of the approach remains weak, as routines, roles or procedures deriving from the institutional environment and the context of law in which judges manoeuvre do not seem to play a major (socializing or structuring) role (Rehder 2007: 14).

In applying the rational choice model to the Indian context, we face some of the same problems associated with the attitudinal model, namely the difficulty of assessing the policy preferences of the judges.16 Attitudinalists like Segal and Spaeth (2002) point out the differences with the rational choice school: the attitudinal model limits the justices to policy goals but the rational model allows any goal; for rational choicers, the court must defer to Congress in statutory cases, which attitudinalists vehemently disagree with and say that the American political system virtually always allows the justices to engage in rationally sincere behaviour on the merits. 16 As Maltzman (2000) points out, the results from the strategic approach are mixed. While some studies show that the judges act strategically in specific cases like abortion or death penalty (Epstein and Knight 1998), others like Segal (1977) show that the political environment does not systematically constrain judges. 15

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Historical Institutionalism Historical institutionalism is a different species with its emphasis on legal and institutional norms as key factors driving a judge’s choices. First, like the legal model, one has to make room for the importance of law as a conceptual system and view legal doctrine and discourse as an institution (Smith 1988). As Whittington (2000: 624) succinctly puts it, the justices may adhere to the law because, in an important sense, that is what justices do. ‘Litigants and justices make reference to statutory text, legislative intent, or judicial precedent in part because they expect judges to be responsive to such considerations, to recognize their authority within the institutional context of the judiciary.’ The more the laws define the scope for judicial intervention, the less room judges have to make policy. The judiciary, in this conceptualization, acts as an important site of ‘preference formation and the constitution of a normative order. Justices are likely to think about and act on public problems differently because of their experiences and expectations on the Court. For historical institutionalists, institutions are both regulative and constitutive. They constrain choices by structuring incentives, but they also shape preferences by influencing ideas.’ These scholars explore the self-perceived role of judges (Gillman 1999), organizational conditions, (O’Brien 1999), the influence of informal hierarchies and decision-making process on the judges (Davis 1999), and the influence of courts on politics through the development of legal doctrine (Feeley and Rubin 1998). How would the historical institutional approach explain the postEmergency behaviour of Indian judges on social rights and preventive detention? One narrative would argue that the institutional constraints on judges such as lack of enforcement capabilities, vast and rapid turnover, decision-making processes (small benches, lack of dissent), and overburdened docket would make them less eager to challenge the Executive. The power of the Chief Justice to determine the constitution of benches, and the practice of judging with one or two other judges would lower the incidence of dissent and induce conformity. This, coupled with the institutional memory of Executive curbs on the judiciary during the Emergency, predicts a more deferential attitude of courts to the State in anti-terror and social rights cases. The power of the Executive over appointments to the higher courts and the possibility of post-retirement appointments for tractable judges could

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(not would) make them more likely to support the state. For instance, a Supreme Court judge would favour social rights if the Executive (perhaps in pursuit of its campaign promises) enacted these rights. That is one narrative. A second narrative would argue the reverse. The memory of the loss of institutional legitimacy during the Emergency would encourage later judges to challenge the state. Supreme Court judges, who were perceived by the opposition parties and citizens to have yielded to the Executive controlled by the Prime Minister Indira Gandhi, would be more likely to undertake far-reaching measures in the post-Emergency era to redeem their reputations. Historical institutionalists could thus make several mutually exclusive types of arguments about the post-Emergency behaviour of the judges. But the approach does not tell us the conditions under which institutional memories act as a constraint on judges, and when such memories abet judicial activism. Historical institutionalism, by far the most attractive approach, also does not give sufficient importance to the political and public’s influences on a judge’s decisions.17 After all, if Indian scholars are right that the loss of legitimacy in the eyes of the public and their peers impelled Supreme Court justices towards social rights cases, then we need to take that influence into account in designing an approach to study a judge’s choices. That is what we do in our approach, which sees judges as embedded negotiators. The plethora of studies and explanations indicates that it is not productive to pursue research primarily directed at demonstrating which model of judicial behaviour is right. Perhaps Whittington (2000: 629) is right that: The different models … direct our attention to somewhat different features of the judicial system. In addition, the assumptions and approaches that are indicated by these different approaches are not readily comparable. This research in judicial decision-making is most productive when it focuses on substantive problems rather than alternative academic models. Empirical research must be guided by agendas and hypotheses that emerge out of particular theoretical perspectives, but the results are most compelling when they are explaining particular empirical arguments rather than when they 17 While the methodological work on the relationship between public opinion and judicial review/outcomes is sparse (see Mishler and Sheehan 1993) and almost non-existent in India, observations by Indian justices and the increase in suo motu cases show that public opinion matters to a judge. We need more studies to systematically test these hunches.

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are used to make broad claims about the superiority of a universal model of judicial behavior.

The Embedded Negotiator Approach (Judge as a Negotiator with Law, Institutions, Politics, and Public Concerns) Our approach focuses on the ‘is’—the empirical reality of a judge who makes choices within constraints. We begin with Murphy’s (1964) insight that judges operate within a framework of internal and external constraints. A judge makes choices but is not merely a part of a conglomeration of individual legitimacy/policy seeking judges; he is also a member of an institution with its own memories and rules, and a member of society. The notion of public concerns is hard to measure, and more importantly, connect to a judge’s rulings. Yet, we know from memoirs and interviews that judges react to issues like pollution, traffic jams, increase in crime, security threats and other issues concerning society. In the absence of scholarship measuring the impact of public concerns on judgments, we will use a proxy like the increase of attacks by terrorists to measure the impact of public concerns. While this constraint will not play a major role in our approach, we would like to flag its importance for future studies. Our approach has four elements: the presence and content of laws, institutional experience/ norms/rules, political configuration, and public concerns. The limits and opportunities for judicial decisions are triggered by the relative power of these four factors. Our approach takes a dynamic approach to explaining choices made by a judge and bridges the gap between the legal, attitudinal, and institutional schools because it assesses the conditions under which each factor could influence a judge.

Assumptions Our basic assumption is that a judge wants his judgment to be perceived as legitimate. Legitimacy of the court, as Sathe (2002) says, depends upon the feeling among the people that the judgments are principled, objective, and just. Contrary to the assumption made by a number of European legal scholars, legitimacy has to be negotiated; it is not inherent in the institution.18 This is more than a modus vivendi argued Pratap Bhanu Mehta makes the point about European legal scholars. Also see Rehder (2007) for a comparison of European and American judicial studies. 18

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by Mehta (2005: 65) who says that most judgments ‘are a delicate and political balancing of competing values and political aspirations; they seek to provide a workable modus vivendi rather than articulate high values.’ Legitimacy involves combining the workability of a decision with the spirit of the right. Judgments on public health issues articulate high values like a ‘right to potable water’ or ‘right to clean streets’ but the actual decision focuses on what the government can feasibly perform rather than what it ought to do. Upendra Baxi calls such rulings ‘juristic activism’, because they set the markers for the future direction of law. After a bout of authoritarian rule, like the one India experienced under Indira Gandhi’s emergency regime in 1975–7, the Supreme Court judges had an even greater need to recover legitimacy in the eyes of the general public, their colleagues in the lower courts and the Bar Associations, and the political and legislative wings of the state.19 One former Chief Justice, who later took over as the chairman of the Law Commission (1971–7) wrote: While staying in Delhi, I did not know what was happening in the country under the Emergency, and after the emergency was lifted and newspapers started reporting about irregularities and atrocities committed in the name of implementing certain policies, I feel completely frustrated and almost ashamed.20

Corroborating evidence also comes from the public apology by Chandrachud on his acquiescence in the habeas corpus judgment, and the efforts of some senior judges like P.N. Bhagwati and Krishna Iyer to make the court more accessible to vulnerable sections by introducing relaxed standing requirements of public interest litigation.21 The dispersed nature of the term ‘legitimacy’ allows us to incorporate two ideas, drawn from Ferejohn, about the motivation of a judge. (a) A judge reaches a decision in the light of his more or less coherent jurisprudential ideas about what the law requires; (b) a judge As the Chief Justice (Beg) was about to retire in 1978, a Bombay Memorandum prepared by 52 public men and advocates questioned the integrity of Chandrachud (the senior most judge) and Bhagwati for their decision in the habeas corpus case and appealed to the government not to appoint either of them as the next Chief Justice. See Dhavan (1980) and Dua (1983). 20 Gajendragadkar (1966), correspondence, Nehru Memorial Library. 21 Baxi (1985b), p. 77. Also see Dua (1983), fn 18, p. 480 who reports that Chandrachud, speaking at a Bar Association meeting in Bangalore said, ‘I should have resigned [after the MISA judgment]. I regret I have no courage to do so.’ 19

Judges as Embedded Negotiators 17

shapes his decision on the basis of a normative understanding of the appropriate role of courts.22 These two presuppositions allow us to avoid the pitfalls of establishing a judge’s policy preferences or the ideological orientation of the appointing or ruling regimes. To paraphrase one scholar, a judge’s decision is a function of what he prefers to do, tempered by what he thinks he ought to do, but constrained by what he thinks is feasible to do.23 A judge could have several goals: he may want to influence policy, crave power or public recognition, or want to be seen as a good judge, or want his peers, to respect him, but underlying all these goals is the notion of legitimacy. Please note that we do not argue that the Supreme Court of India had a goal and justices knew it and followed it. Several scholars and former justices have argued, and quite rightly, that particularly after the Emergency, the apex court did not have a vision. Instead, it rapidly lost ‘it’s corporate character, and began its great march towards its transformation into an assembly of individual justices.’24 Even serving justices of the 1980s like P.N. Bhagwati lamented the demise of judicial collectivism.25

The Dynamic of the Four Elements The first influence is that of laws. As Aharon Barak (2002), the former Chief Justice of the Israeli Supreme Court said: I am a judge—a judge in the highest court of my country’s legal system … Certainly it is my role—and the role of every judge—to decide the dispute before me. Certainly it is my role, as a member of my nation’s highest court, to determine the law by which the dispute before me should be decided. Certainly it is my role to decide cases according to the law of my legal system.

Most Indian judges would not disagree with this statement. The presence of a law, as well as its silence are important influences on a judge’s decision. In common law systems that depend on judges to interpret a law, the judge is more than what Montesquieu calls a mouth that produces the words of the law. A judge, as Barak argues, participates in a creative process where he picks one of several possible solutions, John Ferejohn quoted from Clayton (2002). James L. Gibson, ‘From Simplicity to Complexity: The Development of Theory in the Study of Judicial Behaviour, 5’ Political Behaviour 7, 9 (1983). 24 Baxi (1985b), p. 77. Also see Iyer (1993), Kannabiran (2004). 25 See Bhagwati’s opinion in Minerva Mills case. 22 23

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delivers a ruling, after which the law is what the judgment says it is. So law provides the limits and the opportunities for a creative interpretation. See, for instance India’s Supreme Court judgments declaring that citizens have a right to health and education. The second major influence is institutional norms and institutional memories. Like the rational choice institutionalists and Dahl (1957), our approach assumes that judges, as members of a state institution prefer to be non-confrontational in their dealings with the executive and legislature (especially powerful ones). As Barak (2002) writes in the Israeli context, in bridging the gap between law and society the judge must take into account the institutional limitations of the judiciary such as the lack of complete information about social facts, the reliance on someone bringing a dispute to the court, and the sporadic and time-lagged nature of dispute resolution. ‘Our laws of evidence usually look backward (adjudicative facts), providing a (partial) answer to the question of ‘what happened’. They usually do not look forward (legislative facts), and do not provide an answer to the question of ‘what should happen’. Moreover the means at a judge’s disposal are limited (Ibid.: 34). So a judge would prefer to collaborate rather than fight it out with the other state agencies. Internal institutional norms also support collaborative behaviour between judges. ‘In the Supreme Court, I was constantly made aware that I was a junior. I was told that in Calcutta the Junior Judge does not speak in Court which was a hint that I should keep my mouth shut….It takes time to make room for yourself among older colleagues,’ said, former Chief Justice Hidayatullah (2005: 198). And time is something few judges have in the apex court, since they serve for brief periods. The small benches, the emphasis on seniority, and case overload promote collaboration within the court.26 Institutional memories of authoritarian rule and court curbing measures by a powerful executive would make judges wary of confronting other wings. The emphasis on collaboration increased after the judiciary’s experience with court-curbing measures by Indira Gandhi’s powerful regime in the 1970s. She took several steps to rein in the higher courts: she subverted the traditional practice of appointing the senior-most judge as the Chief Justice, authorized large scale See Gupta (1995) for a detailed review of the decision-making process in India’s Supreme Court. 26

Judges as Embedded Negotiators 19

transfers of judges perceived to be hostile to her policies, and introduced the 42nd constitutional amendment to exclude constitutional amendments from the purview of judicial review. Former Chief Justice Gajendragadkar writes that when he was asked for his opinion by the law minister who was contemplating the supercession of three judges in 1973, he ‘emphatically told him (the law minister) that the step contemplated was totally unsound and would be resented by the entire legal world’. Gajendragadkar added that in his view ‘it was destructive to the independence of the judiciary’.27 The law minister, however, followed his leader, Indira Gandhi’s directive and overturned the traditional norm of seniority to appoint A.N. Ray as the Chief Justice. A similar move occurred in 1977. Not surprisingly, the post-emergency Supreme Court opted for the path of least confrontation with the executive. ‘Institutional accommodation is crucial for preservation of democratic rights; attempts to preserve rights at the cost of endemic conflict between the executive, legislature, and the judiciary, are according to Chief Justice Chandrachud, self defeating’, wrote Upendra Baxi (1985b: 81) in a nuanced analysis of Chandrachud’s career. The third influence on a judge is the political configuration of power. The fragmentation of the political environment during coalition governments produces more leeway for judges, while single party majorities are more likely to limit the scope of judicial choices (Tate and Vallinder 1995). Like Ferejohn (1992), we separate the scope of judicial choices from questions about the direction of such choices. Ferejohn rightly argues that the direction is dependent on the views of individual justices while the scope is shaped by institutional factors permitting or prohibiting judicial independence. In parliamentary systems, the scope will depend on the extent of ideological cohesion between the legislature and the executive. Unlike the presidential system where the Congress and White House could be controlled by different parties, in parliamentary systems ideological cohesion exists between the legislature and the executive during single party majority governments. During such periods, we expect judges to remain in the shadows of the elected wings. In India, for instance, when the political actor was strong (singleparty majority), prepared to take on the courts (as Indira Gandhi did), Gajendragadkar, Letter to Morarji Desai, 8 July 1977, Nehru Memorial Library, Correspondence, Box No. 1, Acc No. 807, File No. 3. 27

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and had a policy agenda, the Supreme Court was more constrained by the political milieu. If the political actor was strong and had a policy, but was not prepared to strike at the court’s autonomy (the Nehruvian regime), or if there was a weak governing coalition/minority government (post-1988 governments), the Supreme Court had more room to manoeuvre. Barak’s warning that the judiciary is hamstrung by its inability to enforce its rulings means that judges will have to act strategically. American legal scholar Jeffrey Rosen (2006) notes that to avoid the risk that their rulings might be ignored, judges must think strategically and take into account, not just the case itself, but also its political context. This links up with the institutional norms and memories that nudge a judge towards a path of least resistance against a proven adversary. For instance, when their old nemesis Indira Gandhi, who had been the force behind court-curbing measures during the 1970s, returned to power in 1980 and was considering similar measures, the judges faced a dilemma. How should they retrieve legitimacy? Judicial activism on civil liberties would have pitted the courts squarely against the government. Social rights, on the other hand, had a vague constitutional mandate because the framers had included words to the effect that directive principles ought to be accomplished when the state could afford it. The emphasis by the ruling regime on redistribution and social justice created a space for judges to make social rights justiciable without riling the Executive. Dhavan (1980: 128) points out that in 1971 and 1976, Indira Gandhi’s government amended the Constitution to force the courts to take more notice of the Directive Principles. This does not mean that the judiciary never clashes or rarely fights with the executive. The judiciary has clashed often with the executive over the nature and extent of its authority, autonomy, and judicial review. As legal scholars like Baxi, Austin, Seervai, and others point out, the court played the role of opposition to Nehru, when justices like Subba Rao challenged legislation and policies on property rights—a key justiciable freedom for the citizen until an amendment removed it from the fundamental rights section. But even here, the process of negotiating legitimacy required compromises on the part of judges (Mehta 2005). Our argument is that judges in the decade following the emergency were less eager to challenge the political elites because of their institutional memories of Indira Gandhi’s courtcurbing measures.

Judges as Embedded Negotiators 21

Preventive detention, which had constitutional and political limits, gave fewer opportunities for judges to challenge the execution. Subsequent events such as rising militancy in the Punjab and the assassination of Prime Minister Indira Gandhi by her bodyguard in October 1984 increased the threat perceptions of the public, judges, and politicians. Upendra Baxi writes that Chandrachud, who served as Chief Justice of India from 1978 to 1985, [held the] belief that in matters of national integrity and security, and in the rarest situations when enforcement of rights threatens the survival of the Supreme Court as an institution, the Supreme Court should not intervene against the Supreme executive even if fundamental rights are thereby jeopardized’.28

But our approach predicts that the judge will negotiate with other elements in fashioning a judgment. For instance, the empirical analysis of the trends in security law cases shows that compared to preventive detention cases before the emergency a judge was less likely to give a decision for the state (police and bureaucracy) in a TADA case. TADA cases came to the apex court in the late 1980s and the early 1990s, and coincided with the dawn of unstable coalition governments at the centre and the diminution of secessionism in Punjab. The scope for judicial choices widened as the political actors became weaker, while the direction of these choices was influenced by the post-Emergency urge to regain legitimacy by supporting vulnerable groups. The first major influence on judicial decisions is public approaval. Lacking both, the ‘force of arms’ and the ‘power of the purse’, public confidence in the judiciary is important for its effectiveness (1998: 145). As a former chief justice of India said, ‘judges do not cease to be citizens and as such they take part in all educational, cultural, and social activities which are intended to make the national life of the country richer, broader, more tolerant, and progressive’ (Gajendragadkar 1965 : 13). He would agree with Barak (2002) that a judge gives expression not to his or her own beliefs but to the deep underlying beliefs of society. 28 Baxi (1985b), p. 81. Baxi cites Chandrachud’s decision in the habeas corpus case during the Emergency, and the Sant Longowal habeas corpus petition in 1984–5. ‘In one case, there was a constitutionally proclaimed reign of fear and suspicion; in another, such a reign was imposed by justices upon themselves without the formal constitutional protection.’

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The choice is between two levels of the wishes of the people. The first, basic level, reflects the most profound values of society in its progress through history; the second, ad hoc level, reflects passing vogues … It is a judge—who enjoys independence and does not need to stand for re-election every few years—who is best equipped for succeeding in the difficult task of choosing between these two levels.

Judges read newspapers—environmental litigation initially started as suo motu cases—and have similar concerns as other citizens about clean air, miscarriage of justice, terrorism, and other social issues. Terrorist threats, for instance, are urgent concerns that operate as significant influences on a judge and increase the probability of a pro-state ruling. Unfortunately, the global concern about terrorism has resulted in the Muslims as a targeted suspect religious group. But even within this constraint, institutional memories of the emergency may impel a judge to display an anti-majoritarian bent, that is, they refrain from targeting religious minorities. As the ‘weakest organ of the state’, the judiciary, as Sathe (2002: 310) points out, becomes strong only when people repose faith in it; such faith constitutes the legitimacy of the court and of judicial activism. What are the conditions under which one element trumps the others? The mechanism underlying our model is the presence or absence of authoritarianism. The Emergency regime of Indira Gandhi (and the preceding court-curbing measures by her regime) instilled in judges an institutional memory of the high cost of challenging the political executive. If there is a strong executive who is willing to punish non-pliant judges, the political element will act as a key control on a judge’s decisions. A fragmented political environment could produce more room for judges to follow their personal preferences. Or when there is a crisis, the security threat to the country would out-trump the other influences on a judge’s decision in an anti-terror case. Our approach allows us to avoid the trap of an ‘either law or preferences or politics or institutions’ paradigm and address the diverse influences on judicial decision-making. We emphasize the constant negotiation of judges with the different elements. In writing a judgment, a judge walks a fine line between deference to the political system and judicial autonomy, between populism and activism, between overstating the problem and losing authority because of non-compliance by the executive and the bureaucracy, and understating the solutions and losing the respect of the public. Judges may often fail to get the balance

Judges as Embedded Negotiators 23

right, but the constant negotiation by judges helps explain why different groups perceive them so differently and even contradictorily. A critic of our approach would say that the explanation is ‘catch all’ since it seems to give equal weight to the four influences. However, that is not really so, because each influence has limits and opportunities and is often at odds with other influences. We outline the conditions and processes by which one element trumps the others in influencing a judgment. For instance, the Constitution’s exclusion of courts from reviewing the validity of preventive detention laws (Article 22) acted as a strong barrier to judgments favouring such challenges. At the same time, one could argue that institutional concerns about retrieving legitimacy impelled judges to introduce legal procedural restraints on actions by prison and the police officials towards detainees. There were a series of judgments on prison reforms, prisoner rights, and an emphasis on the importance of the police following correct procedures (See Epp 1998; Seervai 1991; Jain 2003). Criminal lawyer Ram Jethmalani (2000) notes that ‘apart from some sporadic decisions, the Court has steadily frowned upon detention orders and made “detention without trial” extremely difficult and not too oppressive. The major transformation in the Court’s attitude and philosophy may be traced to its revulsion against the outrageous Jabalpur (habeas corpus) judgment delivered during the emergency.’ Judgments on the grounds of detention and the right of post-detention ‘representation’ were in line with the concerns of civil rights activists. Similarly, despite the Constitution’s exclusion of social rights from justiciability, the emphasis on redistributive policies and the legalization of some social rights by governments provided a window of opportunity for judges to interpret more of these rights as part of a constitutional right to life (Article 21). How would the embedded negotiator approach play out in an anti-terror case? We expect that a Supreme Court judge will make a distinction between the religious faith and the separatist goals of the accused, and rule for the state only in the latter type of cases. For instance, if powerful sections of a governing coalition favour more antiMuslim verdicts because they conflate religious faith and separatism, our approach predicts that judges will use the space provided by the coalition nature of the regime to refrain from such actions. Or take judgments delivered after 2001—a year that saw terrorist attacks in America in September and on the Indian parliament in December. We would expect more pro-state rulings, not because of the ruling BJP

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regime’s hawkish attitude on security, but because the citizens were concerned about terrorism. The embedded negotiator approach thus allows us to assess the relative importance of these complex influences operating on judges. The approach also provides a dynamic account of the Court’s transformation of social rights; judges were more careful about how they dealt with government failures, preferring to request rather than order compliance. To sum up, the embedded negotiator approach argues that: (1) A judge wants legitimacy for his/her judgment and institution. (2) The quest for legitimacy increases after a bout of political authoritarianism. (3) Judges will carve out legitimacy by negotiating with four elements which constrain or expand choices; these are laws, institutional experience/norms/rules, political preferences, and public concerns.

Empirical Tests How do we test the validity of our embedded negotiator approach? The traditional route adopted by several legal theorists and lawyers is to undertake a textured and detailed analysis of judgments, usually landmark decisions, to discover the trends in judicial behaviour on specific issues (Seervai 1983; Baxi 1985a; Kannabiran 2004). But as Epstein (2000) points out, such an analysis does not lend itself well to generalizations about judicial behaviour since it is limited in time and scope. A newer trend pioneered by American social scientists and legal realists uses statistical procedures, like probability, to explain outcomes. The underlying assumption is the notion that in deciding a case, judges respond to the stimulus of the facts of the case rather than to legal rules and reasons. Karl Llewellyn and Felix S. Cohen, who were among the pioneers of legal realism, were reacting to the classical legal scholar’s notion of judicial techniques as socially neutral, and judging as a matter of finding rather than making choices. While this attitude remains in the writings of present-day judges, the academic study of judicial behaviour has shifted its focus from what judges say they are doing, to assessing what judges actually do. American legal realists in the 1920s were the forerunners of the attitudinal school.29 29

For a review of the legal realists, see Leiter (2003).

Judges as Embedded Negotiators 25

Two branches of legal theorists emerged over the question of what determined a judge’s response to the facts of a case. The sociological school (Llewellyn, Oliphant, and Moore) said that since a judge’s decision had predictable patterns, social forces must influence them. The personality school, which used theories from Sigmund Freud and Jean Piaget, said that decisions were shaped by an individual judge’s personality (Frank 1949). From these assertions emerged the first detailed attitudinal model of decision-making by the US Supreme Court in the work of Glendon Schubert (1965). In recent decades, American judicial scholarship witnessed an explosion of the use of such statistical methods to measure a judge’s preferences, voting choices, interactions with the political wings, interest groups, and public opinion (Eskridge 1993; Nollgast 1995; Maltzman 2000; Ferejohn and Weingast 1992; Epstein and Knight 1998; Segal and Spaeth 1996, 2002). The systematic approach, however, has its shortcomings; it is less likely to capture nuances and policies enunciated by the Court (Epstein 2000). Legal research in India has drawn primarily from case studies and landmark judgments to assess the Supreme Court’s behaviour. A few scholars like Gadbois (1969, 1970, 1974, and 1985), Haranath (1973), Dhavan (1977, 1978, and 1980), and Gupta (1995) have used quantitative methods to study the Supreme Court, but these works are dated. The most recent study is Vijay Gupta’s Decision Making in the Supreme Court of India, an excellent jurismetric analysis of the Supreme Court judges including their appointments, structure of decision-making, nature of cases heard, participation on benches and voting behaviour. But these scholars have not used probability models or conducted a multivariate analysis of the Indian Supreme Court’s behaviour. Let us assess why a probability mode of analysis is useful in understanding judicial choices.

The Probit Analysis We want to test if there is a relationship between our four elements and a Supreme Court judge’s decisions in cases dealing with social rights and security laws. Social scientists use hypotheses to claim relationships between observable characteristics of phenomena, also known as variables. As Lee Epstein (1995: 9) clarifies: In social science research, we often talk about two kinds of variables, independent and dependent variables. Dependent variables are things we are trying

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to explain; independent variables are those properties that we think cause the variation in our dependent variables. For instance, in the relationship between war and judicial decision-making, the political environment (whether we are engaged in a war or not) would constitute my independent variable, and judicial outcomes (whether the Court decided for or against the civil liberties claim), the dependent variable. But hypotheses do more than state the variables under examination; they also posit a relationship between the dependent and independent variables.

How do we determine the accuracy of the hypothesis or predictions? A good measure, as Epstein points out, would include reliability (one that can be used repeatedly by other people with comparable results) and validity (measures something as it was defined). For instance, if we defined a crisis period as one where each day 100 persons or more died in India, it would not be a valid measure because these deaths could occur because of various unconnected reasons such as medical problems, road accidents, murders, and the like. Instead, it would be more valid to define a crisis as a period when a war occurs. After defining our measures, we would want to test our predictions against the reality.

What is Probability? Epstein (1995: 13) offers a clear exposition of probability: To scholars, probability means more than simply guessing about whether something will or will not happen. It is often used to establish—with some degree of precision—‘the likelihood of a given data emerging by chance’. To see this usage of probability, think about jurors examining blood on a murder weapon. Suppose a medical expert told them that the chance of a random relationship between the blood found on the weapon and the defendant’s blood was only one in a hundred. The jurors would surely feel a good deal more confident in making the inference that the defendant wielded the murder weapon than if the expert had told them that there were fifty chances out of a hundred. The same is true of social scientists. Quite typically, we consider data important at a level of significance of .05 or less (represented…as p