Judicial Reasoning and Judicial Behavior: Studying the Supreme Court of India (Colloquium)

Judicial Reasoning and Judicial Behavior: Studying the Supreme Court of India

Colloquium hosted by Center for Public Law and Jurisprudence

Jindal Global Law School

Call for Papers

The role of the Supreme Court of India in shaping the post-colonial nation has been central to its study in the academy. The institution’s assertion of supremacy in a constitutional democracy, and its tense relationship with separation of powers have been focal points of scholarship, and rightly so. However, there have been fewer studies on its structures of reasoning, its role as a policy maker, the impact of its structural organization as well as the role that the individual biographies of judges have played in the shaping of the institution as a whole. With more than six decades of appellate and constitutional adjudication behind it, any analysis of the Supreme Court’s functioning is bound to be challenging. However, this is also makes the institution ripe for study using tools drawn from a gamut of social science disciplines.

Accordingly, we propose to deepen existing scholarship of the Supreme Court with a colloquium that will bring together scholars of the Supreme Court to analyze its methods, reasoning and its institutional organization. We invite papers on any of these aspects of the Court’s body of work from different disciplinary perspectives, and not merely those that come from a doctrinal analysis of judicial decisions. Accepted papers may form part of an edited volume that will center on the imprint of the Indian Supreme Court on the making of constitutional democracy in contemporary India.

The themes/ questions that the papers might address are as follows:

  1. Judges of the Court – Biographies, Ethnographies and Subjective Biases: Aside from George H. Gadbois’ monumental work biographing the judges of the Court, sociological work on the Court has been limited. Further, these works do not adequately consider the manner in which the background of the judges might affect their sympathies and decision-making. In particular, there is a need to investigate the nature of assumptions and biases that inform the decision-making patterns of individual judges, and this would require a combination of theoretical, quantitative and qualitative field research. This work requires combining publicly available data with the imposing informal knowledge of the Court that floats within its corridors and, there are several challenges to doing this form of work. It is however, a promising field for sociological investigation.
  1. Structural Questions – Procedures and the rules of the practice, including on appointment of judges and how these shape substantive decision-making? Does the working of the Supreme Court lend itself to certain forms of reasoning, e.g., the use of precedent and departure from earlier decisions? What are some of the structural constraints that affect judicial behaviour like dissent? How do structural aspects affect the nature of cases that are often heard? Do structural factors influence the outcome of cases, and work against the interest of certain classes of litigants? How has the two-judge bench phenomena affected the manner in which law has evolved? Whether the manner in which cases are allotted to benches has influenced the evolution of law? While conclusive research on several such questions may be difficult, it may allow for experimenting with innovative methods.
  1. Judicial Reasoning – Is the court largely formalist? Is there a cleavage between its interpretive techniques in constitutional cases and other cases? What might explain the variations in interpretive techniques across types of cases? What forms of ‘normativity’ may be discerned in its decision-making processes? What are some ethical and moral assumptions that form the basis of decisions? How does the court construct gender, caste and religious identities and the manner in which such constructions would influence law? Does a liberal or conservative bias ground the reasoning of the court in certain types of cases? How has the court explored ambiguity, which is inevitable in legal doctrine? What hermeneutic tools do judges employ when discerning doctrine from precedent? What has been the Court’s tryst of with the philosophical notion of legal realism?
  1. Policy-making and Doctrine – Beyond the usual dichotomy of a law-making/interpretive function, which has marginal use as an analytical tool, and with the assumption that the Court, as a political institution shapes policy, several interesting questions arise. While evolution of doctrine in itself is studied frequently by practitioners and academics alike, it would be worth examining whether the evolution in a particular direction can be explained by changes in the social, economic or political context in which such cases arose. Whether the activism shown by the Court varies depending on the subject-matter with which the case deals? Whether the policy-making objectives of the Court affect the docket of the Court? Whether patterns in decision-making could point to the socio-economic or political aims of the Court? Whether the Court is capable of certain discernable, coherent objectives, despite its regularly changing composition? Moreover, the ‘dialogic process’ between Courts and law-making bodies has become an important analytical framework to study the role of Courts in shaping policy – how can this be applied to the Indian Supreme Court? How do judges view an ‘audience’ to their pronouncements and how do considerations of reputation affect the Court? How does the court influence the popular discourse on various social, political issues?

These themes are of course, intended to be suggestive and we remain open to all innovative and incisive analysis of the Supreme Court in the making of the modern Indian republic.

The colloquium will be held on 29-30 April 2017 at Jindal Global University’s campus, Sonipat, Haryana, India.

We will be open to abstracts till February 15, 2017. Please email your abstract as an MS-Word (.doc, .docx) file without any identifying references to Sannoy Das [sdas@jgu.edu.in], along with a separate document that contains the title of the proposed paper, your name and designation.

Abstracts will be selected through a double blind peer-review process and selected authors will be notified by February 25, 2017. Draft papers will be due on April 23, 2017.

For clarifications, please write to sdas@jgu.edu.in.

National Constitutional Law Olympiad

Date : January – February 2017
Nature : Constitutional Law Olympiad
Location : First two rounds online and next two at ILS Law College

The 1st National Constitutional Law Olympiad is being organised by ILS Law College, Pune and Maharashtra Knowledge Corporation Limited (MKCL) in January-February 2017 in commemoration of the 125th birth anniversary of Dr. B. R. Ambedkar.

Eligibility

The competition is open to anyone between the age group of 18-35 years.

Registration

The last date of the registration has been extended to 10th January, 2017. The fee for registration is Rs. 500.

Exam Process and Dates

The first and the quarter final rounds of the competition will be held online on January 15 and February 5, 2017 respectively. The semi-final and the final round will be held at ILS Law College, Pune on February 24 and February 25, 2017 respectively.

Prizes

The winner of the Olympiad will receive two prizes of Rs. 10,000 each. The first and the second runner up will also receive two prizes of Rs. 5,000 each and Rs. 3000 each respectively. There are many more prizes for all other rounds. All contestants shall receive a participation certificate.

Contact Details

For further details on registration, prizes, syllabus etc., please visit the website www.lawolympiad.in or write an e-mail at clo@mkcl.org. The student co-ordinators and their contact numbers are as follows: Ms Gnanusha: 07768060959 | Ms Sushil: 07066565902 | Mr Rishabh: 07798900396

The poster is available here.

Rescheduled Vidhi talk for Today: Securing Dissenters’ Consent for India’s Constitution: The Role of Directive Principles

 

On the evening of the 19th of December, Dr. Tarunabh Khaitan,  Associate Professor in Law at Wadham College, Oxford, will be delivering a talk titled “Securing Dissenters’ Consent for India’s Constitution: The Role of Directive Principles“.  A copy of the draft article on which the talk is based is available for download here.

 

Using India as a case study, Dr. Khaitan’s paper on the issue argues that Directive Principles can be a key tool to secure the consent of groups that would otherwise lose out in constitutional negotiations. The talk is scheduled on Monday, 19th December, 2016 at 6.00 p.m at the Vidhi Centre for Legal Policy, D-359, Lower Ground Floor, Defence Colony, New Delhi. The talk will also be streamed via Facebook Live.

 

The demonetisation notification as it exists, suffers from illegality and violates the Constitution

In an op ed in the Economic Times on December 10, 2016, and an earlier, more detailed piece on the CPR website on December 6, 2016, I have argued that the demonetisation notification, as it exists, is illegal because it goes beyond the scope of what is permitted under the Reserve Bank of India Act, 1934, (“RBI Act”), the stated source of authority for the notification. There is also a prima facie case of direct and indirect abridgement of fundamental rights to movement (Article 19(1)(d)), trade or business (Article 19(1)(g), livelihood and in certain cases life (Article 21), the right to equality (Article 14), and the constitutional right to property (Article 300A).

It is clear that section 26(2) of the RBI Act empowers the government to demonetise, that is, to declare any series of notes as illegal tender.  Therefore, that part of the notification which merely declares that “Rs. 500 and Rs. 1000” notes cease to be legal tender is permissible under section 26(2). In fact, the government twice before, in 1946 and 1978, carried out demonetisation lawfully, with the same goal of addressing unaccounted money. But neither the RBI Act, nor the Banking Regulation Act, 1949, empower the government to impose restrictions on cash withdrawals or deposits in the manner it has been done, and to discriminate between holders and non holders of bank accounts, as the present notification has done. Such actions require an authorising legislation, either an Act of Parliament or an Ordinance. Both in 1946, and in 1978, similar actions were authorised by an ordinance. The failure to issue an ordinance to provide the legal basis for the demonetisation notification this time renders the demonetisation exercise illegal. Even if the act of demonetisation is severed from the restrictions placed on people’s access to their cash and bank accounts, the latter stipulations are both illegal and unconstitutional on several counts.

 

First, Article 13 of the Constitution provides that the state shall not pass any law or issue any notification that violates the fundamental rights of the people. In Madan Mohan Pathak v. Union of India, the Supreme Court held that “public debts” are property and “the extinguishment of such a debt owing from the state amounts to compulsory acquisition of that debt”. Such compulsory acquisition must be for a public purpose and upon payment of compensation. In Jayantilal Ratanchand v. RBI, in the context of the 1978 demonetisation, the Supreme Court held that insofar as the demonetisation wiped out the RBI’s debt to the bearer of notes declared illegal, it constituted compulsory acquisition of property. Under Article 300A, the state may deprive an individual of property only pursuant to the authority of law, that is, by an Ordinance or an Act of Parliament. The Supreme Court has held that even a temporary deprivation of property can constitute deprivation within the meaning of this provision. The government’s failure to issue an Ordinance (since Parliament was not in session at the time of the demonetisation) to extinguish its debt to the people thereby depriving them of their property impermissibly violates Article 300A. Of course, even if the demonetisation had been sanctioned by an Ordinance, the Court would investigate if it met a public purpose and whether those who were deprived of their property were reasonably compensated. Here the Court would likely hold in light of Jayantilal that the Ordinance fulfilled a public purpose but there is a strong claim that the rationing of currency done by the government constitutes a form of creeping expropriation for which there has been no compensation, and that might nevertheless violate Article 300A.

Second, the extraordinary hardship caused by the demonetisation ordinance has impacted fundamental rights to trade, business and livelihoods of vast sections of the population and even the right to life of those who have died. While the government may “reasonably” restrict the rights to trade, business and livelihood of the people in the interests of the “general public”, the burden is on the government to show that such restrictions are reasonable. The test of reasonableness is whether the measure was necessary to achieve the government’s objectives, and whether less risky, less harmful alternatives were available. In Saghir Ahmad v. State of UP, the Supreme Court held that the reasonableness of a law must be assessed in terms of its “immediate effects” on the affected population. Unlike the 1978 demonetisation exercise that impacted only 1% of currency held, the 2016 demonetisation measure insofar as it impacts an estimated 86% of total currency has had severely punitive effects on many sections of the population, daily wage earners, those without bank accounts, those dependent on the informal cash economy for the major source of their trade and livelihood. The notification is unconstitutional for violating their fundamental rights under Articles 19 and 21.

Third, the notification also discriminates between holders and non-holders of bank accounts. While the government may argue that such a classification is necessary to achieve their objectives of eliminating unaccounted money, insofar as the government failed to ensure that 100% of the population had bank accounts prior to the issuance of this surprise notification, the classification may be assailed as arbitrary and violative of the right to equality under Article 14.

I conclude the piece by stating that we live in a country governed by the rule of law, and not by the rule of men. The objectives of the demonetisation notification may be laudable, whether the notification will achieve those objectives is debatable. But, as it exists, the demonetisation notification is illegal and unconstitutional.

On December 11, the government announced that they will pass an ordinance to extinguish the RBI’s debt by extinguishing the validity of the Rs. 500 and Rs. 1000 notes. That would render the demonetisation exercise legal, but that still would not automatically validate the continuously shifting restrictions on people’s rights to access their money that were stipulated in the notification and the various executive orders that followed. There are also prima facie violations of constitutional and fundamental rights and the government has the burden of showing that these restrictions were reasonable and non-arbitrary.

 

Indian Law Review: Now Accepting Submissions

Routledge, Taylor & Francis
is delighted to announce the launch the Indian Law Review. Edited
by a global team of exceptional
scholars
, we are excited to be publishing the first volume in 2017. Authors
are now welcome to submit
manuscripts
. Its current Editors are Arun Thiruvengadam, Dev Gangjee, Farrah Ahmed, Prabha Kotiswaran, Sudhir Krishnaswamy, Tarunabh Khaitan, and TT Arvind.
The Indian Law Review is an academic – led, double- blind
peer-reviewed, generalist journal on Indian Law. It aims:
·    to publish top quality scholarship on Indian law
spanning all areas of law including comparative perspectives that include
Indian Law.
·        to offer a forum for the community of scholars
of Indian Law both within and outside India.
·    to take a broad interdisciplinary approach to
the study of Indian Law, thereby reaching a wide readership, including legal
academics, philosophers, criminologists, anthropologists, sociologists,
historians, political scientists, legal practitioners and others. 
The Indian Law Review‘s scope is broad, and extends to all work
relevant to Indian law (including comparative perspectives). The journal is not
limited in terms of legal themes or methodology; the only limitation is
jurisdictional, and submissions are welcome from scholars located worldwide. Indian Law Review may also publish a
small number of high quality pieces relating to the law of other South Asian
and Southeast Asian jurisdictions with historical and geographical connections
to India.
The Indian Law Review publishes three issues per year. Each issue aims
to contain three to five articles, one to three book reviews, a literature
review, and notes on recent case and statutes. Its editorial policy requires
anonymised submissions, and strictly follows double-blind peer review.
Indian Law Review is
accepting submissions
The Indian Law Review uses
Editorial Manager to manage the submission and peer review process, and is now
accepting submissions for articles, literature reviews, case notes, legislative
notes, and book reviews. To submit your manuscript please visit the Journal’s submission page. For information on preparing
your submission please visit the Instructions
for Authors
page. 

Govindaswamy v. State of Kerala (Soumya Rape Case) – Analysis in the Light of Recent Controversies (Part II)

Guest Post by Akshita Jha
In
continuance of the Part I on the analysis of this judgment, this part
constitutes of the criticism of the judgment and its analysis in the light of
the rights of the accused and the responsibility of the Supreme Court in
safeguarding them. This part also highlights the importance of literal
interpretation of medical reports in light of settled precedents.
The Other Perspective              
On factual and moralistic standards, the opinion of the
Supreme Court has been questioned by some of the media houses, Women Rights
Activists, Justice Katju among
others. They have questioned the stance of the SC urging to take into account
the plight of the victim.
Katju has also legally challenged the judgment by remarking that there are 4
sub sections in S 300, the satisfaction of any of which, is enough to prove the
offence of murder and just because the intention of the accused was to make
victim weak and supine, does not mean he never intended to kill her.
These arguments do hold a good
value as far as the idealistic punishments for people like Govindaswamy, who
caused the victim so many injuries, raped her, robbed her and abandoned her to
die, exist. The Delhi Rape Case can be held as a good example for the injuries
that are sufficient in the ordinary course of nature to cause death. The
standards of punishment should be strictly interpreted against the accused when
the victim is not able to survive after rape, and since after the Delhi Rape
Case, such incidents have been on a rise, where the accused causes gruesome
injuries to the victims, the Supreme Court should award the strictest of the
punishment to the accused in order to set a deterrent for the society and such
minded people.
Moreover, the simple chronology of the death of the victim,
3 days after getting brutally raped and injured by the accused point towards
the role of accused, though minimal in causing the death of the victim. In such
circumstances, the prerogative of the apex court should be to provide a good
deterrent to the society.
Conclusion
Very clearly, the latter group of arguments is from a
socio-legal and factual perspective. Apart from the legal challenge put forth
by Justice Katju, which can be rebutted by the above given analysis of all the
sub-parts of S 300 and the act does not fall in any of them, other arguments
are resting on the sensitivity of the victim and they fail to accommodate the
rights of the accused.
 The judiciary, right
from the famous case of Virsa Singh v State of Punjab 1958
AIR 465 has relied literally on the medical
reports to adjudicate the actus reus of the accused and this reliance has been
time and again criticized. However, the Courts’ argument has rested upon its
duty safeguard the interest of the accused (S 227, CrPC) from any gross
violations of justice that can be caused to him. This job specifically becomes
tougher in the cases of death penalty, since the award is punished in the
‘rarest of the rare’ cases, the court has a duty to satisfy itself that the
particular case does and the accused is not being killed for a crime which he
did not even commit. The Court made a distinction between causing grievous hurt
and consequential death and causing death with an intention to do so under S
300. The bench relied gave preference to the precise medical report over the
actual plight suffered by the victim.
The reasoning for such analysis can be attributed to the
theory of legal causation and can be traced back to Virsa Singh again. In this
case, it was opined by the apex court that the medical reports also can be open
to interpretation, if not taken literally and made subject to analysis. One
judge may find the nature of the injuries sufficient to cause death and the
other might not. To avoid this ambiguity, the court took the reports as they
were and this practice started a valid precedent. Moreover, the court also
differentiated in factual and legal causation. A person could be liable for
factually causing a wrong, however, if the acts of the wrongdoer are not
contrary to any legal principals or is not a substantive reason for the
commission of the crime, the benefit of the doubt is generally given to the
accused.
In Soumya case, the victim indeed died of the cumulative
effect of the bodily injuries and the forced sexual intercourse caused by the
accused. However, to ascertain that these particular injuries were caused by
the accused, the prosecution had to show the “mens rea” for causing death and
separate it from “mens rea” of committing rape, which due to the lack of
evidence and problems with the admissibility, it could not. Thus, in this
scenario, some doubt arose as to the culpability of the accused and hence the
benefit of the doubt was provided to him.
However, in these circumstances and peculiarity of the facts
of the case, terming it as a “wrong judgment” is not the right thing to do. The
critiques should look into the legal aspect of the entire situation, the powers
and the limits of the apex court and the rules the court is bound to
follow.  Katju’s argument on “common
sense” of the court and the idealistic arguments on the death of the victim are
very non-legal and do not stand against the established legal practices and
settled precedents in Criminal Law.
Thus, in my opinion, the SC has portrayed itself to be as
much of the accused as of the victim. It has adjudicated the case on simple
balance of probabilities and in accordance with the strict principles of law,
which in the socio-legal scenario that followed the incident has been a
herculean task.
Moreover, internationally as well as within India, capital punishment is being highly discouraged. And amidst all the controversies, passing this judgment
has reinstated the balance between the rights of both the parties in the eyes
of law.

Therefore, this decision of
the Supreme Court will go down the books as a classic example of literal
interpretation of the statute while acknowledging and safeguarding the rights
of the accused, in a socio—legal context and amidst the rage of the society
against the judgment, where deterrence needs to be established for such crimes of
rape and causing grievous bodily injury.

(The author is a second year student at the National University of Juridical Sciences, Kolkata. Part I can be accessed here.)

Govindaswamy v. State of Kerala (Soumya Rape Case) – Analysis in the Light of Recent Controversies (Part I)

Guest Post by Akshita Jha
This
part of the analysis puts forward the brief facts of the case, coupled with the
analysis of the medical reports and the reasoning of the Supreme Court behind
giving the final verdict.
Introduction
After
the issuance of a notice for the contempt of court to Justice Markandey Katju,
the Soumya Rape case (Govindaswamy v State of Kerala, Criminal Appeal No.
1584-1585 of 2014), which was already in the headlines in the anticipation of
death penalty for the accused, has gained the momentum once again.
Keeping
the spat between Justice Gogoi and Justice Katju aside, in my opinion, the
judgment stands out as a classic example of literal interpretation of S 300 of
the Indian Penal Code (IPC) and safeguarding the rights of the accused. Thus,
in this post, I aim to analyze the judgment and emphasize the importance of the
rights of the accused in the Criminal Law system.
Analysis of the judgment – review
petition
On a
plain reading of section 300 (a) (“If it
is done with the intention of causing such bodily injury as the offender knows
to be likely to cause the death of the person to whom the harm is caused”)
,
we get an idea that the offender must cause the bodily injury either with the
specific intent of causing death or with the specific intent of causing bodily
injury which will in most of the probability cause death. However, Justice
Gogoi holds that, in this case, the accused, Govindachamy, did not have the
specific intent to cause the death of the victim and this was apparent right
from the initial assaults on the victim’s body. He remarked that “the intention
of the accused (Govindaswamy) was to make victim sub-conscious or in a supine
position, so that she does not protest and resist when he commits the sexual
intercourse with her”. Justice Gogoi also remarked that since the intention of
committing sexually indecent behavior towards the victim was clear since the
beginning, in normal circumstances, the murder, if at all has to be carried,
would have been done after the intercourse. Therefore, when the intention of
the accused is to make victim weak so as to not protest while raping her, this
section does not apply and hence, the accused was acquitted of the charge for
murder. Justice Gogoi, upholding the principal laid down in William Staney v
State of Madhya Pradesh (SC 1956, AIR 116), also took into consideration that
the victim did not die on the spot or very shortly after the infliction of
injuries but survived for some days in the hospital before death.
On a
literal interpretation, the judgment seems in consonance with S 300(a) and (b)
of the Indian Penal Code. However, if we go by with S 300(c) (“If it is done with the intention of
causing bodily injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause death”)
,
it is to be emphasized that the injury inflicted should be sufficient in the
ordinary course of nature to cause death. In this case, according to the
forensic reports, there were two main injuries listed. The first injury was in
the head of the victim, caused due to pushing forward and banging her head,
against a flat surface. The second injury is to be emphasized here, since this
is the point of contention between the versions of the facts laid out by the
prosecution and the defence. The prosecution argues that the victim got unconscious
after the first injury and hereafter, the accused pushed her out of the moving
train. However, the defence argues that the victim herself jumped out of the
train and fell, thereafter injuring herself.
Now
coming to the medical reports, they clearly mention the injury was on the cheek
and towards the eye of the victim, showing an upward glide and no resistance by
the hands of the victim. The inference that the medical reports suggest is that
the train was moving at a negligible speed when the victim was pushed out (or
jumped) from the train and her left side of the face hit the rail track,
causing this injury. No injury marks on the hands show that the victim was not
in a position of defending her body, as a natural reflex, from getting hurt by
the train. The point that is to be noted out of these medical reports is that,
even if the accused pushed the victim out of the train, since it was moving at
a negligible speed, and he himself jumped out of the train, after the victim,
as was seen by the security guard, the entire transaction did not include any
major risk to the life of the victim at the time of commission. The death of
the victim was caused by the cumulative effect of both the injuries. The speed
of the train is very important here. The negligible speed of the train, and
just the deep abrasions on the cheek and eye of the girl without any specific
cuts or permanent privations, combined with the medical reports show that the
victim died of the cumulative effect of the injuries, rape and abandonment
leading to a delay in the medical care.
The
part of this entire transaction that saved the accused was the fact that it
could not be proved beyond reasonable doubt that the accused had formed the
intention of causing the death of the victim. There was more than one
hypothesis available to the proof of showing the intention of the accused(rape
and murder). Though it is true that the victim died of the injuries caused by
the accused, however, to be held guilty under S 300, it is to be proven that
the accused had sufficient “mens rea” to cause death or the act was so
dangerous that it will, in all probability, cause death of the victim. Even the
medical report has not attributed either of the injuries to be the sole cause
of death and has mentioned about the combined effect of both in addition to the
forced sexual intercourse. And it is the common knowledge that the guilt of the
accused has to be proved “beyond reasonable doubt” in order to convict
him. 
Thus,
the condition is formed where, the accused caused injuries to the victim in
order to rape her and the victim died as a result. The question before the
court was whether the accused would be liable for causing the death of the
victim when he clearly wanted to commit some other crime and death happened as
a result of both the acts? And whether, in a case where there is no sufficient
proof of intention of the accused, will render him liable for a crime as
grievous as murder?

It seems the Supreme Court
has not exonerated but maintained the conviction for rape and for lack of
evidence could not substantiate the charge under 302 IPC – ultimately only the
sentence was changed from death to life imprisonment.

(The author is a second year student at the National University of Juridical Sciences, Kolkata. Part II will be posted tomorrow.)

Courting the People: Public Interest Litigation in Post-Emergency India

Guest Post by Anuj Bhuwania, South Asian University, about his new book.
My book ‘Courting the People: Public Interest
Litigation in Post-Emergency India’ is going to be released this weekend as
part of the 4th Law and Social Sciences Network (LASSnet) Conference from 10-12th December in New Delhi. Published
by Cambridge University Press, the book is part of a new series entitled ‘South
Asia in the Social Sciences,’ edited by Partha Chatterjee. More details of the book are
available here

As the readers of this blog are well aware, the Indian higher judiciary has
acquired an increasingly important role in India’s public discourse in the last
few decades. The Supreme Court and the state High Courts have emerged as
enormously powerful judicial institutions in the aftermath of the Internal
Emergency of 1975-77. The principal means through which these judicial powers
have been mobilized and enacted is the jurisdiction of Public Interest
Litigation (PIL). This book studies the political role that PIL has come to
play in contemporary India. It revisits the circumstances and manoeuvres that led
to the rise of PIL and traces its political journey since then, arguing that
the enormous powers that PIL confers upon the appellate judiciary stems from
its populist character.

Based on empirical research, it shows how PIL grants the appellate courts enormous
flexibility in procedure allowing them to manoeuvre themselves into positions
of overweening authority. It focuses on the most intensive laboratory of PIL in
recent times, the city of Delhi, and foregrounds the role that PIL has played
in the radical reconfiguration of the city in the 21st century. While PIL cases
are usually politically analysed solely in terms of their effects, whether
beneficial or disastrous, this book locates the political challenges that PIL
poses in its very process: arguing that its fundamentally protean nature stems
from its mimicry of ideas of popular justice.

Courting the People examines PIL as part of a larger trend towards
legal informalism in post-Emergency India. Casting a critical eye at these
institutional reforms that aimed to adapt the colonial legal inheritance to
‘Indian realities’, this book looks at the challenges posed by self-consciously
culturalist juridical innovations like PIL to ideas of fairness in adjudication
as well as democratic politics.


As part of a LASSnet Conference Book Panel, a
discussion on this book will be held on Sunday 11th December between 4:15 and 6
pm at Jacaranda 1 Hall, India Habitat Centre. Professor Ujjwal Kumar Singh and
LAOT’s own Tarunabh Khaitan will be commenting on the book. Professor Sitharamam Kakarala will
be the chair. All are welcome.
The book will be available for sale exclusively at the LASSNET
conference this weekend. It will be available in bookstores and online stores
in India soon after. It is also already available for pre-order
internationally on Amazon, though the Indian version is much cheaper.

I had recently written an opinion piece in The Hindu, touching
on some of the themes and arguments of the book in the context of the
Indian Supreme Court’s controversial order on the compulsory playing of
the national anthem in cinema halls.

CANCELLED:Vidhi talk: Securing Dissenters’ Consent for India’s Constitution: The Role of Directive Principles

The following event has been cancelled. 

On the evening of the 5th of December, Dr. Tarunabh Khaitan,  Associate Professor in Law at Wadham College, Oxford, will be delivering a talk titled “Securing Dissenters’ Consent for India’s Constitution: The Role of Directive Principles“. 

Using India as a case study, Dr. Khaitan’s paper on the issue argues that Directive Principles can be a key tool to secure the consent of groups that would otherwise lose out in constitutional negotiations. The talk is scheduled on Monday, 5th December, 2016 at 5:30 p.m at the India International Centre Annexe (Lecture Hall II) , New Delhi. Kindly RSVP for this event here