Tuesday, May 06, 2014

Evaluating Shifts in the Scales of Justice

(Guest Post: Rajgopal Saikumar)

 TheShifting Scales of Justice: The Supreme Court in Neo-liberal India” ed. Mayur Suresh and Siddharth Narrain (Orient Backswan, 2014) is a 200 page edited volume of 8 essays, a well examined overview by the editors, prefaced by a gelatinous piece by Prof. U. Baxi. A major theme running through several of the essays of this edited volume is the “conservative turn” that the Supreme Court apparently takes from the 1980’s to the 1990’s.  
Suresh and Narrain, in their Introduction, engage in this ‘periodisation of the adjudicative time’ tracing a certain telos as though of the Supreme Court from the late 70’s till the late 90’s. Aditya Nigam in his chapter “Embedded Judiciary” argues that -to summarily put it- in the 80’s, the SC was concerned with the poor and the disadvantaged but in the 90’s it started reflecting the ideologies of neo-liberalism and corporate-capitalism. Usha Ramanathan in “In The Name of the People” invokes the common lore about Supreme Court’s atonement in the 80’s for its sinful surrender in the 70’s; and moves on to suggest that by the 90’s, “Compassion itself was soon overridden by considerations of pragmatism, prejudice about the poor and the possibilities offered by power that it had discovered through PIL.” Nivedita Menon traces similar temporalities focusing on environmental cases of the Supreme Court.
The anomaly to this dramatic tale of the Apex Court is offered by Sudhir Krishnaswamy and Madhav Khosla in “Social Justice and the Supreme Court”. Focusing on protection of socio-economic rights, Krishnaswamy and Khosla question this ‘conservative turn’ and instead suggests that the 90’s is in fact not an exception. They go on to offer a test to evaluate a shift in the SC’s position. As per my reading, they not only suggests that there was no ‘conservative turn’ in the 90’s, but seem to even suggest that the narrative of the 80’s may itself not be as coherent as claimed by Nigam and others. They seem to be making two claims in this context- One, that no such conservative turn is evident in the 90’s. Two, if such a claim were to in fact to be made, then the test for it has to be that the- “evidence to suggest that the 1990’s Supreme Court chose not to enforce a right which under similar facts and circumstances- that the 1980’s SC would have”.
Several interesting issues are raised in this debate. For example, any form of periodization of institutions requires creating coherent narratives for public/collective memories (In case of the Indian Supreme Court…sins of the 70’s, the atonement of the 80’s and the neoliberal turn in the 90’s is one such attempt). And Krishnaswamy and Khosla offer a challenge to one of these standard historical narratives of the Supreme Court. The other ‘implied’ point in Krishnaswamy and Khosla (although they do not say this), seems to be the charge that political scientists who study the Supreme Court do not take legal doctrine very seriously. But the project of evaluating the SCs ideology however is an interdisciplinary exercise of balancing the “decisional formalism” of Krishnaswamy and Khosla as well as the “Realism” of political scientists. (see; Brian Leiter “Legal Formalism and Legal Realism: What is the Issue” (Legal Theory, 2010)
In the rest of this comment, I focus on just one issue- Whether the test provided by Krishnaswamy and Khosla sufficient to evaluate whether the SC has made a conservative turn in the 90’s by reflecting the neo-liberalism of the then politics?
Constitutional courts such as the Supreme Court exhibit two important political dimensions: Judicial Politics and Partisan Politics. (See: Nuno Garoupa “Empirical Legal Studies and Constitutional Courts” IJCL (2011))
Judicial Politics is an effort to expand competences, prestige, legitimacy and authority of court. This is usually achieved by closely complying with precedents. Judicial Politics involves putting up “an apolitical façade and provide a coherent body of case law.” This Judicial Politics is also achieved by “rhetoric” embedded in the formalist manner of writing judgments by presenting binding laws, giving precedents, and showing the logic and reasoning in the decision. Partisan Politics is a sense of advancing ideological goals. An empirical study of the ideological shifts of the SC then has to account for Partisan politics as well Judicial politics. But Judicial Politics is always in conflict with Partisan Politics. The former requires institutional consistency and institutional coherence while the latter is motivated by ideologies and partisan politics. But both are essentially political.  
An important characteristic of Judicial Politics is that of a peer-pressure within the Court to comply with precedents, appearing to be apolitical and non-regressive etc. A possible evidence of the predominance of judicial politics can be read in to the seminal judicialization thesis of Ran Hirschl as well. An important characteristic of Partisan Politics is that ideologies are not just about ‘neo-liberalism’ or the Right, the Left or the Democrats etc. But ideological bends can be much more diverse, such as on grounds of class, caste, religion, ethnicity, gender, sexual orientation, region etc. Given this, my argument is as follows.
The ‘Conservative turn’ argument of Nigam and others ignores (a) the influence of Judicial Politics; and (b) that the character of Partisan Politics itself needs to go beyond the limited charges of neo-liberalism and corporate capitalism. The test laid down by Krishnaswamy and Khosla is inadequate because it does not account for the complexity in the relation between Judicial Politics and Partisan Politics. They rely far too heavily on the coherence and continuity in case law. They suggest that only if the SC reversed its recognition of rights in the 90’s as opposed to the 80’s, can one prove the ‘conservative turn’. This test accounts for a narrow formalist argument but does not adequately account for Judicial Politics and more obviously rejects Partisan Politics as an adequate empirical mechanism of evaluation. The SC of the 80’s played an opportunist politics by re-creating a self-image of being a highly activist court, with the tone of an emancipator. Having formed such an image of itself, judicial politics (through a peer-pressure -as living up to the legacy of the 80’s-) forces compliance in the 90’s as well. This makes Krishnaswamy and Khosla’s observation about the non-exceptional 90’s more plausible, but for very different reasons. Such a test also makes it harder to empirically notice partisan politics of the SC.
Another connected point I want to make is about the conception of ‘facts’. To repeat the test, Krishnaswamy and Khosla suggest that to prove the shifting scales of justice, the writer has to show- “evidence to suggest that the 1990’s Supreme Court chose not to enforce a right which under similar facts and circumstances- that the 1980’s SC would have.” (Emphasis added). That is, for Y facts if the decision in the 80’s was Z, then test is whether Y facts leads to the same judgment Z in the 90’s as well. My brief comment is that the conception of the fact “Y” in 80’s and the 90’s can’t remain constant as Krishnaswamy and Khosla assume it to be. They assume ‘Facts’ to be constant, as an “in-itself”, unchanging, determinate and neutral, as in natural sciences. But much of philosophy of science post the 1950’s has rejected the value neutrality of ‘facts’ and instead suggested the “Theory-Ladenness” of facts. Simply put, theory-ladenness of observation holds that everything one observes is interpreted through a prior understanding of other theories and concepts. In the present context, my simple argument is to criticize the constancy in the notion of facts that is assumed in the test offered by Krishnaswamy and Khosla. For judges, a slum can factually either be ‘encroachers’ who need to be evicted or they could be the migrant displaced workers who need constitutional protections. By this argument, their test fails because it is partisan politics that dictates how “facts” are constructed by judges in the first place, which they do not account for.    

Rajgopal Saikumar is a research associate at Centre for Law and Policy Research
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