About The Book
The Indian Supreme Court is widely recognized as a complex and dynamic institution. It has been the subject of much acclaim, as well as criticism. The Court has even been charged with overreaching itself and intruding into the domains of the executive and the legislature. In an era of Globalization and judicial activism, the experience of India, offers a valuable perspective on the role judges Play in a vibrant democracy.
What explains the choices that India’s Supreme Court justices make? Shankar addresses this question by combining a textured qualitative analysis of the Constitutional and Legal framework, landmark rulings, and dissenting opinions, with a statistical multivariate analysis of cases dealing with Civil liberties and social rights. She argues that judges are ‘embedded negotiators’ who craft judgments to avoid conflict with the Political wings, while also remaining mindful of their role as safe keepers of the rights of citizens.
This Study shows how judges seek legitimacy for their decisions by negotiating with four elements that constrain or expand choices before them-laws, Institutional norms/experience/rules, political preferences, and public concerns. It applies Probability analysis on the Higher judiciary’s decisions in anti-terror, health, and Education cases from 1950-2006. This work represents the first time such an approach has been used to study the Indian Supreme Court.
Contents
Introduction
1. Judges as Embedded Negotiators
2. Institutional Norms and Memories of the Supreme Court
3. The Legal Framework of Preventive Detention and Anti-Terror Laws
4. Judges, Preventive Detention and Anti-Terror Laws
5. The Constitution and Social Rights
6. Transforming Social Rights
7. Scaling Justice
List of 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 Healt
List of Figures
4.1. Judges and Verdicts
6.1. Health and Education Cases in the Higher Judiciary
6.2. Health Cases in the Supreme Court and High Courts
6.3. Main Health Issues in Courts
6.4. Plaintiffs in Health Cases
6.5. Education Cases in High Courts
6.6. Education : Type of Issue
6.7. School Issues
6.8. University Issues
Review
‘This book is path breaking in several respects. It is the first attempt to chart patterns in judging... to quantify and analyse judicial attitudes across a range of important issues, and gives a rich sense of how courts think. The analysis is... alive both to the possibilities and limitations of different methodologies [for] studying judicial behaviour. The book will set a veritable research agenda for the study of the judiciary and force us to rethink several entrenched assumptions about judicial behaviour.' - Pratap Bhanu Mehta, Centre for Policy Research.
‘This remarkable work... not merely illustrates the ways in which empirical, institutional, and policy-science based explorations of the appellate Indian judicial process help advance overall social understanding of Indian constitutionalism, but also contributes to the cause of a more constitutionally sincere regard for Justices at work... [It] will, I hope, help generate a greater measure of collective self-understanding among India’s eminent Justices and contribute to a richer multidisciplinary understanding of the institutional and activist dilemmas inherent to any pursuit of human rights based Indian governance.' Upendra Baxi, University of Warwick.