Countermajoritarianism, the Court and the Capital

Unelected courts in constitutional democracies are described as “countermajoritarian” fundamentally because they carry the power to invalidate law enacted by the directly elected representatives of the people. However, in a purely formal sense, is the Indian Supreme Court countermajoritarian? In order to answer this question, I compared the Supreme Court’s composition between 1985-2010(published in the EPW, and available here) with the composition of Parliament: particularly, with the seats that are allocated under India’s constitution to the Lok Sabha (Article 81 read with the first schedule to the Representation of People Act, 1950) and the Rajya Sabha (Article 81 read with Schedule 4 of the constitution).

The results of this comparison are set out in the table attached to this post. Columns 1, 3, and 5 set out the total members of the Rajya Sabha, Lok Sabha and, for the sake of convenience, both houses of Parliament, respectively for each state. Columns 2, 4, 6 and 7 reflect the percentage-wise voting power belonging to each state in the Rajya Sabha, Lok Sabha, both Houses of Parliament, and the Supreme Court of India respectively. Column 8 measures the difference in the voting power of each state between Parliament and the Supreme Court of India respectively (essentially, Column 7 – Column 6). Accordingly, if the figure in Column 8 is positive, it means that a state has a higher representation on the Supreme Court than it does in both Houses of Parliament, and if the figure is negative, then the state has a lower representation on the Supreme Court than it does in Parliament.

Perhaps the most striking result of this comparison is that while Delhi has less than 1.3% voting power in each House of Parliament, it has on average over the last twenty five years had 6.4% voting power on the Supreme Court of India. To put this into perspective, consider that the following states have on average had lesser representation than Delhi on the Supreme Court of India over the last twenty five years, although they enjoy significantly greater voting power than Delhi in both Houses of Parliament: Gujarat, Punjab & Haryana (each state taken separately), Kerala, Madhya Pradesh, Orissa, Rajasthan, and Jammu & Kashmir.

Besides Delhi, the following states have a >0.5% difference between their voting power in Parliament, and their voting power on the Supreme Court (not counting the newer states of Jharkhand, Uttaranchal and Chhatisgarh): Gujarat (+), Haryana (+), Kerala (+), Maharashtra (+), Karnataka (+), Orissa (+), Punjab (+), Uttar Pradesh ( – ), Jammu & Kashmir (+), Himachal Pradesh( – ).

This comparison does not seek to establish or even argue that judges or Parliamentarians vote according to the geographic region that they represent. What it does seek to do is to determine whether the court’s state-wise composition mirrors the constitutional scheme for majoritarian representation.

[Methodological Note: since the states of Punjab and Haryana have had 6.6% representation on the court on average, and since it is difficult to conjecture how this figure splits between Punjab and Haryana separately, each state has been attributed half the total figure of 6.6% for the purposes of this comparison].

Written by
Abhinav Chandrachud
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  • Maybe if you take into account the proportion of urbanization in every state, that will offer better correlation with SC representation.

  • It might also be worthwhile to compare the SC's bench composition (broken down by State) with the concentration of the bar in certain cities, which would broadly correlate to the number of lawyers enrolled with the bar councils in the respective states. Even though many enrolled individuals do not practice regularly, i think that would be a more appropriate basis for comparison as opposed to legislative representation.