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Articles by Maurer Faculty Faculty Scholarship

2007

Scholarly Discourse, Public Perceptions, and the

Cementing of Norms: The Case of the Indian
Supreme Court and a Plea for Research
Jayanth K. Krishnan
Indiana University Maurer School of Law, Jkrishna@indiana.edu

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Krishnan, Jayanth K., "Scholarly Discourse, Public Perceptions, and the Cementing of Norms: The Case of the Indian Supreme Court
and a Plea for Research" (2007). Articles by Maurer Faculty. Paper 313.
http://www.repository.law.indiana.edu/facpub/313

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SCHOLARLY DISCOURSE AND THE CEMENTING OF
NORMS: THE CASE OF THE INDIAN SUPREME
COURT -AND A PLEA FOR RESEARCH

Jayanth K. Krishnan*

I. INTRODUCTION

For Americans, India has been a country of intense interest

in recent years. Less than ten years ago India alarmed many
around the world, including then-President Clinton, after it (and
neighboring Pakistan) conducted a series of nuclear tests.' But
even before this military display, India was on the radar of
observers in the United States. Since opening its markets in
1991, India has been fertile ground for American entrepreneurs2
engaged in outsourcing and for other foreign investors as well.
With the exception of a two-year period between 1975 and
1977, India has served as a light of democratic rule in the
developing world since it gained independence from Britain in
1947. It is a constitutional republic with a representative

* Professor of Law, William Mitchell College of Law. J.D., Ohio State University; Ph.D.
University of Wisconsin-Madison. For their trenchant insights, I am grateful to Jamie
Cameron, Don Davis, Marc Galanter, Chandra Mallampalli, Bob Moog, and Russ Pannier.
I also wish to extend special thanks to the law faculty at the Australian National University,
and, in particular, to Peter Cane, for inviting me to present a version of this paper in March
2008.
1. A host of websites and news services have talked about the nuclear crisis between
these two countries. For just one sample, see South Asia's High Nuclear Stakes, BBC News
(May 7, 2003) (available at http://news.bbc.co.uk/l/hi/world/southasia/1732430.stm)
(accessed May 19, 2008; copy on file with Journal of Appellate Practice and Process). For
a set of scholarly books on this topic, see generally Ashley J. Tellis, India's Emerging
Nuclear Posture (Rand Corp. 2001); South Asia's Nuclear Security Dilemma (Lowell
Dittmer, ed., M.E. Sharpe 2005); The India-Pakistan Conflict: An Enduring Rivalry (T.V.
Paul, ed., Cambridge U. Press 2005).
2. See generally Jayanth K. Krishnan, Outsourcing and the Globalizing Legal
Profession, 48 Wm. & Mary L. Rev. 2189 (2007).

THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 9, No. 2 (Fall 2007)
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

Parliament; it has a free and flourishing media; and in certain3

ways it has sought to emulate the American way of governance.
And for decades there have been interchanges between groups
of Americans and Indians on issues ranging from agricultural
development to legal education reform to various social,
religious, and cultural matters.4
Despite all of India's past, current, and no doubt future
successes, a pervasive, competing problem has long plagued this
country. The state and its agents-including politicians,
bureaucrats, and the police-are routinely held in low regard by
the mass public. Empirical evidence suggests that the source of
this disdain is the public's perception that corruption runs
rampant among these state actors. Transparency International is
a leading independent non-governmental association that has
made fighting corruption around the world its central mission.5
One of its most highly cited, methodologically reputed
publications, the Corruption Perceptions Index (CPI), is a survey
of 150-plus nations where it measures "the degree to which
corruption is perceived to exist among public officials and
politicians." 6 (The survey includes the views of respondents
both within and outside of each country,7 and the scoring is done
on a scale of one to ten. where one is perceived as most corrupt
and ten as least corrupt. )

3. See generally Gary J. Jacobsohn, The Wheel of Law: India's Secularism in

Comparative Constitutional Context (Princeton U. Press 2005). Jayanth K. Krishnan,
Social Policy Advocacy and the Role of the Courts in India, 21 Am. Asian Rev. 91 (2003)
[hereinafter Krishnan, Social Policy Advocacy].
4. See generally Jayanth K. Krishnan, Professor Kingsfield Goes to Delhi: American
Academics, the Ford Foundation, and the Development of Legal Education in India, 46
Am. J. of Leg. History 447 (2004) [hereinafter Krishnan, ProfessorKingsfield].
5. For background information on Transparency International, see its online site at
http://www.transparency.org/about-us (accessed May 19, 2008; copy on file with Journal
of Appellate Practice and Process), and for information specific to the CPI, see id.
at 2007:
FAQ: General: What is the Corruption Perceptions Index (CP)? http://www.
transparency.org/policy-research/surveys indices/cpi/2007/faq#generall (accessed May
19, 2008; copy on file with Journal of Appellate Practice and Process).
6. See Transparency International: FAQ: General: What is the CPI?
http://www.transparency.org/policy-research/surveys -indices/cpi/2006/faq#general 1
(accessed July 30, 2008; copy on file with Journal of Appellate Practice and Process).
7. Id.
8. Id.
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

Between 1995 and 2007 India's CPI score ranged from

2.63 to 3.50 with a median score of 2.80 and a mean of 2.83. 9
Soberly, India's 2007 score (3.50) was its highest since the
survey began, tying it for seventy-second with six other
countries. Compare these data with that of Finland, Denmark,
New Zealand, and Sweden-four other parliamentary
democracies-which had medians and means of higher than 9.0
during this same time period.11 The CPI score for the United
States between 1995 and 2007 remained rather consistent,
ranging from 7.30 to 7.80 with a median score of 7.60 and a
mean of 7.59.12 But maybe most telling is that among
longstanding consolidated
13 democracies, India's CPI repeatedly
ranked the lowest.
Admittedly, the CPI is open to the criticism that the survey
respondents are business leaders and what Transparency
International refers to as "country analysts," 14 or those experts
who have a deep understanding of the political, economic, and
socio-cultural practices of the society in question. But other
empirical work by Transparency International, focusing on the
views of ordinary citizens, confirms that Indian governmental
institutions are indeed held in low regard because they are
perceived as corrupt. Since 2003, Transparency International has
administered what it refers to as the Global Corruption

9. From the Transparency International website, the following data on India is

provided. (The first number after the year is the CPI score, followed by where India ranked
in the survey for that year.) 2007: 3.5 (72nd); 2006: 3.3 (70th); 2005: 2.9 (88th); 2004: 2.8
(90th); 2003: 2.8 (83rd); 2002: 2.7 (71st); 2001: 2.7 (71st); 2000: 2.8 (69th); 1999: 2.9
(72nd); 1998: 2.9 (66th); 1997: 2.75 (45th); 1996: 2.63 (46th); 1995: 2.78 (not numerically
ranked).
10. See http://www.transparency.org/policy-research/surveysjindices/cpi/2007 (chart
showing both countries' ranks and scores, and information about the survey instruments)
(accessed May 19, 2008; copy on file with Journal of Appellate Practice and Process).
11. On Transparency International's website, the data set, specifically the CPI scores
for each year dating back to 1995, is provided. See e.g. http://www.transparency.org/policy
_research/surveysindices/cpi/2007 (featuring 2007 results, but also including links to prior
years' results).
12. The US scores for the following years are 1995: 7.79; 1996: 7.66; 1997: 7.61;
1998: 7.5; 1999: 7.5; 2000: 7.8; 2001: 7.6; 2002: 7.7; 2003: 7.5; 2004: 7.5; 2005: 7.6;
2006: 7.3; 2007:7.2. Id. Australia's scores can be found at the same site.
13. Id.
14. Id.
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

Barometer. 15 Each year this Barometer has probed the

sentiments of mass populaces in over sixty countries that range
from one extreme to the other in economic development.
As the data indicate, the perceptions from the ground level
regarding corruption in India differ little from the responses in
the CPI. 6 For example, between 2003 and 2005 roughly three-
fourths of Indians stated that corruption in public services and
civil society was likely only to increase in the future. 17 Although
the 2006 survey shows some softening of this position, Indians
still perceive that most of their institutions "are significantly
affected by corruption."' 8 Add to this the point that Indians still
report being asked to pay19bribes in order to obtain the majority
of governmental services.
While perceptions of corruption are seemingly endemic to
this democratic nation, interestingly, there is an expressed norm,
found namely within scholarly discourse, that one institution is
not part of this negative stereotype-the Indian Supreme Court.
Scholars in India and in the West have tended to view the Court

15. See e.g. Policy & Research Dept., Transparency International, Report on the
TransparencyInternationalGlobal Corruption Barometer 2007 at 2 (Dec. 6, 2007), http://
www.transparency.org/policy- research/surveys-indices/gcb/2007 (noting that Barometer
evaluates "how and where ordinary people feel corruption") (accessed May 19, 2008; copy
on file with Journal of Appellate Practice and Process).
16. For a detailed discussion of the methodology of the Global Corruption Barometer,
see Transparency International, Global Corruption Barometer 2007-Frequently Asked
Questions 1, 2, & 3, http://www.transparency.org/policy-research/surveys-indices/gcb/20
07/gcb_-2007_faq#1 (describing general nature of Barometer, survey organizations that
gather data reported in it, and subjects reporting data) (accessed May 20, 2008; copy on file
with Journal of Appellate Practice and Process).
17. The surveys from these three years can be found at the Global Corruption
Barometer site by clicking on the 2003, 2004, and 2005 links, which lead to the survey
results for each year. See Policy & Research Dept., Transparency International, Report on
the Transparency International Global Corruption Barometer 2005, http://www.
transparency.org/policy-research/surveys indices/gcb/2005 (Dec. 9, 2005); Policy &
Research Dept., Transparency International, Report on the Transparency International
Global Corruption Barometer 2004, http://www.transparency.org/policy-research-surveys
_indices/gcb/2004 _1 (Dec. 9, 2004); Transparency International, The Transparency
International Global Corruption Barometer, http://www.transparency.org/policy-research
/surveys indices/gcb/2003-1 (July 3, 2003) (all accessed May 20, 2008; copies on file
with Journal of Appellate Practice and Process).
18. See Policy & Research Dept., Transparency International, Report on the
Transparency International Global Corruption Barometer 2006 at 14, http://www.
transparency.org/index.php/policy-research/surveys indices/gcb/2006 (accessed May 20,
2008; copy on file with Journal of Appellate Practice and Process).
19. Id.
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

with admiration and respect. Of course there has been

disagreement with and anger towards the Court when it has
issued judgments contrary to specific agendas. Rarely, though,
within scholarly discourse is the Court's reputation placed in the
same category with other state institutions. Moreover, the
expressed reverence from scholars is frequently imputed to the
mass public. 2° We often hear, for example, that the general
public has a high opinion of the Court because it is uncorrupted
and because of its willingness to stand up on behalf of the
powerless and against the powerful.
But here is the puzzle. To date, there has been no serious,
systematic public opinion data on the Court. On occasion,
polling organizations have inquired about the public's views
towards the judiciary. The problem is that in these few isolated
instances the "judiciary" is treated as a single entity rather than
as a series of separate and hierarchical courts. In India, it is
especially necessary to investigate what the public thinks of the
different levels because while the Supreme Court is lauded by
scholars, the lower courts (particularly at the district level) are
depicted in a highly negative manner. Therefore, without
differentiating among the layers of courts, the little information
we do have on the public's
21
attitudes towards the judiciary is
virtually meaningless.

20. There is a rich political communications literature which has examined both
scholarly and elite discourse and the manner in which they help to shape and construct
norms and attitudes within a society. For a select set of readings, see John R. Zaller, The
Nature and Origin of Mass Opinion (Cambridge U. Press 1992); Political Persuasionand
Attitude Change (Diana C. Mutz, Richard A. Brody, & Paul M. Sniderman, eds., U. Mich.
Press 1996); Hannah Goble and Stacey Pelika, Elite Discourse, Public Opinion, and
Significant Social Policy Change during the Clinton Administration: The Cases of Welfare
and Health Care (unpublished paper; presented at 63rd Annual Natl. Conf., Midwest
Political Sci. Assn., Apr. 10, 2005); Teun Van Dijk, Elite Discourse and Racism (Sage
Publications 1993); Shanto Iyengar, Is Anyone Responsible? How Television Frames
PoliticalIssues (U. of Chi. Press 1991); Lutz Erbring, Edie N. Goldenberg, & Arthur H.
Miller, Front-PageNews and Real-World Cues: A New Look at Agenda Setting by the
Media, 24 Am. J. Political Sci. 16 (1980); Jeffery Cohen, Presidential Rhetoric and the
Public Agenda, 39 Am. J. Political Sci. 87 (1995); Robert M. Entman, How the Media
Affect What People Think, 51 J. Pol. 347 (1989).
21. One study that asserts that it is studying public support for the Supreme Court was
conducted in 1989. See George H. Gadbois & Mool Chand Sharma, Law Students Evaluate
the Supreme Court: A Case of Enchantment, 31 J. Indian L. Inst. 1 (1989). This is an
interesting piece of research; however, it is seriously limited by the fact that, as the title of
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

So why then is there a strong scholarly norm indicating that

the Indian Supreme Court possesses such integrity? One
explanation might be that the case made by scholarly observers
has been so persuasive-and correct-that any alternative
argument is simply not tenable. Another more unsettling
hypothesis is that the scholarly based perception of the Court
may not be the perception held by the mass public, which would
suggest the existence here of what social psychologists call
pluralistic ignorance. That is, there may be those, perhaps even a
plurality of the public, who individually disagree with the norm
expressed by scholarly elites. However, because the power of
this norm is so overwhelming, this plurality is unwilling to
express its sentiment for fear of social, political, or legal
sanction. If this is indeed the case, there is a lack of
knowledge-or ignorance-on the part of scholars vis d vis the
mass public's real belief structure, and among people within the
mass population vis A vis each other.
I hasten to emphasize that I hope there is no mismatch
between how scholars and the general public see the Court; it
would be a tremendous testament to India's highest legal
institution if no disconnect exists. But given the stark absence of
public opinion data or other large scale empirical evidence
affirming this congruence, the fact is that we simply do not
know. And the ramifications of this observation, I believe, are
especially relevant for those in India and in the West who
routinely assert that the Indian Supreme Court is a widely
revered institution, one that is both effective and legitimate in
advancing a social justice, rights-based agenda.
With that background, this article will proceed as follows.
In Section II, I explain how and why within scholarly discourse
the Supreme Court of India has been able to retain such high
regard. Admittedly, there will be some disagreement and certain 22
limitations as to how I define "scholarly discourse."

the article suggests, the respondents were limited to "261 law students of the Campus Law
Centre at Delhi University." Id. at 3.
22. One immediate critique some may have is that all of the sources that I rely on are in
English, which while one of the national languages of India and the language used by the
Supreme Court in its decisions, is not the only way in which discourse on the Court is
expressed. Given that India has many languages, it is conceivable and likely that there are
discourses on the Court that occur within these other linguistic traditions. I recognize this
point, and hope that future scholarship will examine how the Court is discussed in these
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

Conceding this point, for this project I see the term as

constituting the normative views of the Court expressed
primarily (a) in journals, books, and internet blogs that are
academic in nature; (b) in popular newspapers and magazines
(which in India are frequent venues for scholarly commentaries);
(c) on television news broadcasts; and (d) through academic
lectures or speeches. In Section III, I suggest that because it is an
open question as to whether the views of these elites reflect the
attitudes of the mass public, there is a possibility that a
pluralistic ignorance phenomenon is occurring in India. I then
conclude in Section IV by discussing the implications of this
study and then proposing a set of research questions that future
scholars of the Indian Supreme Court-as well as others
interested in rights discourse, public opinion, and judicial
politics more generally-may wish to engage.

II. PERCEPTIONS OF THE SUPREME COURT:

A DIFFERENT, MORE COMPLICATED STORY

A. Carving out an Independent Reputation: The Early Years

The Constitution of India became effective on January 26,

1950, and two days later an inaugural ceremony was held for the
country's Supreme Court. 23 Articles 124 and 147 provide the
constitutional basis for the Court. Under these provisions, the
Court is empowered with original, appellate, and advisory
jurisdiction.24 The Court initially seated eight justices (including
the Chief Justice), but over time that number has grown, where
today there are twenty-six justices on the Court who usually hear
cases in panels determined by the Chief Justice.25

other languages.
23. See Granville Austin, The Indian Constitution: Cornerstoneof a Nation (Clarendon
Press 1966).
24. India Const., Art. 124, 147; see also Sunita Parikh & Alfred Darnell, Interbranch
Bargaining and Judicial Review in India (unpublished ms., presented July 25, 2007, at
International Conference "Law & Society in the 21st Century," Humbolt-Universitat zu
Berlin) (copy on file with author).
25. Pursuant to Article 124 of the Constitution, Parliament increased the number of
Judges from eight in 1950 to eleven in 1956, fourteen in 1960, eighteen in 1978, and
twenty-six in 1986. For a retrospective, see generally Fifty Years of the Supreme Court of
India: Its Grasp and Reach (S.K. Verma & K. Kusum, eds., Oxford U. Press 2000).
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

Article 124 also states that in order to be eligible as a

justice, an individual must have served at least five years on a
state supreme court, or what is called a "High Court,, 26 or
practiced as a lawyer in front of a state High Court or the
Supreme Court for at least ten years.27 In addition, the 28
constitution sets forth a mandatory retirement age of sixty-five.
And justices are selected to the Court by the ceremonial
President of the country working on behalf of the Prime
Minister's government
29 and in consultation with sitting members
of the Court itself.
In its formative years the Court seemed satisfied to give
India's first Prime Minister, Jawaharlal Nehru, the leeway to
follow through on his vision for creating a democratic-socialist
republic. 30 In several cases during the 1950s and early 1960s, the
Court affirmed the government's initiatives nationalizing
industries, creating monopolies over certain sectors, and
regulating private businesses. 31 But upon closer scrutiny of the
case law during this time, there were certain occasions when the
Court refused to acquiesce completely to the government.
For example, between 1950 and 1960, the Indian
Parliament passed legislation that stripped zamindars, or
landlords of large estates that they owned throughout the
country. 3 The goal was to redistribute these lands to individuals
and communities that had long been denied fee simple

26. See Austin, supra n. 23.

27. See India Const., Art. 124, § 3(a), (b). Note that the constitution does allow for a
"distinguished jurist" to qualify as a justice. India Const. Art. 124 § 3(c). This conceivably
would mean an influential legal thinker or academic who is at the peak of her or his legal
field. It might even mean an eminent lawyer or judge who may not yet have satisfied the
requirements in section 124(3)(a) or section 124(3)(b). Still, the most frequent way to be
appointed to the Court is through meeting the criteria set forth in these first two provisions
of Article 124.
28. See India Const., Art. 124, § 2.
29. Id. (providing also for consultation with judges of High Courts should President
deem it necessary).
30. For a detailed and excellent discussion of Nehru, see Stanley Wolpert, Nehru: A
Tryst with Destiny (Oxford U. Press 1996).
31. See e.g. Ram Krishna Dalmia v. Justice Tendulkar, A.I.R. 1958 SC 538; Hamdard
Dawakhana v. India, A.I.R. 1960 SC 554; Akadasi v. Orissa, A.I.R. 1963 SC 1047.
32. For a discussion on the history of land reform in the post-independence era, see
R.S. Gae, Land Law in India: With Special Reference to the Constitution, 22 Intl. & Comp.
Law Q. 312 (1973).
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

ownership. 33 In order to immunize its program from judicial

review, the Parliament in 1951 amended the constitution (which
in India only takes a two-thirds majority in each house),
removing the issue of property takings from the Court's
jurisdiction. 34 In a move surprising to observers at the time, the
Court in two companion cases refused to forfeit its jurisdictional
authority and ruled that compensation must be provided 35to the
zamindars, and that the pay-out must match market value.
In response, the Parliament amended the constitution again
in 1954.36 This new provision allowed for compensation to
property owners, but only when private land was directly seized
for public use--effectively then foreclosing regulatory takings
claims from being3 made. 37 The Court responded in K. K.
Kochuni v. Madras 8 by firmly stating that it would not dilute
the importance of Article 19-a fundamental guarantee
enshrined in the constitution which provided for the right to
property. In this landmark case the Court held that it, and not
Parliament, would determine whether the state was providing
adequate compensation and whether a regulation was a
compensable taking. 39 Between adhering to an amendment
passed by Parliament and enforcing Article 19, then, the Court
clearly believed that its obligation was to the latter.
The staunch position of the Court regarding landowners'
rights during the first two decades of independent India could be
seen as anti-democratic, especially given the dominance of
Nehru's Congress Party at the local, state, and federal levels.
But within scholarly discourse an alternative narrative emerged:
that while the Court "seemed to share the Nehruvian vision of
socialist India, as evident in its decisions on the rights of

33. See generally id.

34. See S.P. Sathe, JudicialActivism in India: TransgressingBorders and Enforcing
Limits 46-47 (Oxford U. Press 2002).
35. West Bengal v. Bella Bannerjee, A.I.R. 1954 SC 170; West Bengal v. Subodh
Gopal, A.I.R. 1954 SC 92. For commentary on these cases, see Sathe, supra n. 34, at 47.
36. See Sathe, supra n. 34, at 47; see also S.P. Sathe, ConstitutionalAmendments,
1950-1988: Law and Politics (N.M. Tripathi 1989).
37. Sathe, supra n. 34, at 47.
38. 1960 lndlaw 463.
39. Id. For a follow-up decision affirming the Court's institutional presence on this
issue, see Vajravelu Mudaliarv. Spec. Dep. Collector, 1964 Indlaw SC 380.
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

industrial labour and regulation and control of the economy,, 40 it

could not without losing its integrity completely buckle to the
government. The few property law cases that came its way gave
the Court the opportunity to display its independence from the
aggressive pressure being wielded by the national government.
These rulings were important because, even though they
preserved the status quo, they were steeped in the constitution's
own rhetoric, particularly in terms of protecting the fundamental
rights of individuals. Yes, as then sitting Justice K. Subha Rao
told the late Professor S.P. Sathe in an interview, landlords were
able to retain their property. 41 But by adhering to the
constitution's principles rather than to the policy preferences of
politicians, the Court was establishing that it took the rule of law
seriously and, perhaps as important, the Court was also
establishing that it, as an institution, would not curtail individual
rights even when pressured to do so by an increasingly powerful
government.42
This exhibition of institutional muscle-flexing, I believe,
helped scholarly observers, like Professor Sathe and others who
have written about this period, begin the process of crafting the
reputational norm of the Court. 4 3 By acceding to the economic
policies of Nehru, the Court was viewed by these elites as
gaining enormous capital among the large majority of the public
that the government sought to aid. At the same time, the Court's
firm stance on the issue of takings was interpreted as a sign that
this institution was not going to be obsequious to, or in the
pocket of, the government.
Jawaharlal Nehru died in 1964. Although the Congress
Party continued to remain in power, for the next ten years the
Court's reputation within scholarly discourse was further
enhanced. I will next examine the reasons for this enhancement
of the Court's reputation.

40. See Sathe, supra n. 34, at 6.

41. Id. at 50 (citing S.P. Sathe, Interview with Shri K. Subba Rao, 4 J. Const. &
Parliamentary Stud. 99 (1970)).
42. Id.
43. For another parallel view, see Granville Austin, Working a Democratic
Constitution: The Indian Experience (Oxford U. Press 1999).
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

B. Refusing to be a Pawn of Indira

Nehru was succeeded first by an interim prime minister

(Gulzari Lal Nanda) and then by L.B. Shastri, who died in office
in 1966. Subsequently Nehru's daughter, Indira Gandhi (no
relation to Mahatma Gandhi), who was a sitting member of
Parliament at the time, was voted in as prime minister in a
contested intra-party election.44 Despite her win and the fact that
her Congress Party retained a majority in Parliament, the
political landscape was fractured.
In an effort to consolidate and bolster her authority, Mrs.
Gandhi sought, among other acts, to override the Supreme
Court's power of judicial review, which appeared as the main
issue in the 1967 case of Golaknath v. Punjab.4 5 Here the
question was whether Mrs. Gandhi's majority-led Parliament
could pass either a statute or constitutional amendment that
contradicted or abridged the fundamental rights enumerated in
the constitution.4 6 In ruling against Mrs. Gandhi, the Court

44. For further discussion of this point, see Stanley Wolpert, A New History of India
(7th ed., Oxford U. Press 2003) and Paul R. Brass, The Politics of India since
Independence (2d ed., Cambridge U. Press 1994).
45. 1967 Indlaw SC 462. Golaknath reversed a decision that was handed down by the
Court in 1965, Sajjan Singh v. Rajasthan, A.I.R. 1965 SC 845. In Sajjan Singh, the Court
was confronted with a property law case similar to one that it had decided a few years
earlier. Parliament had passed a constitutional amendment which said that certain types of
privately owned land that previously were immune from governmental taking now could
be requisitioned for public use by either the central or state government. The petitioner in
the case argued that this amendment unfairly targeted his property and sued, claiming a
fundamental rights violation. Backtracking on its precedent, the Court, by a three-to-two
majority, ruled that because constitutional amendments were different from ordinary
statutes, it, as an institution, did not have the authority to restrict Parliament's power to
abridge any of the fundamental rights. In a sharply worded separate opinion, however,
Justice Mohammad Hidayatullah questioned whether the fundamental rights should be so
easily alterable given the relatively simple process of passing a constitutional amendment.
See e.g. Saijan Singh at 962-63 (indicating that "the power to make amendments ought not
ordinarily to be a means of escape from absolute constitutional restrictions") (Hidayatullah,
J., concurring in the result).
46. These fundamental rights included the right to equality, the right to freedom, the
right to hold private property, the right against exploitation, the right to freedom of
religion, the protection of cultural and educational rights of minorities, and the right to seek
constitutional remedies. Note that the right to freedom includes six sub-rights, including
the freedom of speech and expression, freedom to assemble, freedom to form unions and
associations, freedom of movement, freedom to settle in any part of India, and the freedom
to practice a profession. These freedoms, as noted earlier in the text, all have caveats in that
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

reiterated that it alone was obligated to preserve these rights.47

The Parliament was too political a body, one which was too
easily subject to the whims of politicians who were guided by
majority will, a desire to remain in office, or sheer craven
interests. 4 8 The fundamental rights, on the other hand, were
steadfast protections for the minority who needed an
independent arbitrator to safeguard their interests; 4 9 and in
Golaknath the Court affirmatively opted to embrace this role.
So that there would be no mistake that this was an isolated
decision, the Court in two other cases issued judgments which
clearly signaled that it was willing to stand up against what it
saw as Mrs. Gandhi's coercive tactics to curtail the rights of
those who opposed her authority. First, the Court sided with the
individual shareholders who complained that because they
refused to sell their stakes in various private banks to the
government, Mrs. Gandhi was unconstitutionally nationalizing
these financial institutions as a means of end-running
shareholders' fundamental rights to property.50 And one year
later, the Court held that Mrs. Gandhi's plan to force a small
sovereign province within southern India to inte rate into the
union without compensation was an unjust taking.5
Within scholarly discourse, each of these three cases is
taken as highlighting the Court's willingness to challenge the

the government may restrict them on behalf of the public interest or to preserve public
order. See India Const., Pt. III ("Fundamental Rights").
47. Golaknath, 1967 Indlaw SC 462 (stating that "there is nothing in the nature of the
amending power which enables Parliament to override all the express or implied
limitations imposed on that power" by the Constitution, and holding the proposed act
"void" because it sought to take away or abridge the fundamental rights).
48. Id. (asserting that "a bill enacted by a unanimous vote of all the members of both
Houses is ineffective to derogate from ... [their] guaranteed exercise," and pointing out
that "[t]he incapacity of Parliament . . . in exercise of its amending power to modify,
restrict, or impose fundamental freedoms in Part III arises from the scheme of the
Constitution and the nature of the freedoms").
49. See id. (citing Austin, supra n. 23, for both the proposition that incorporating an
expression of the fundamental rights into the written Constitution would provide "tangible
safeguards against oppression" of one minority by another, and the conviction that the
fundamental rights are the "conscience of the Constitution").
50. R.C. Cooper v. India, A.I.R. 1970 SC 564 (holding invalid the act authorizing the
takings).
51. Madhavrao Scindia v. India, 1971 A.1.R. 530 (holding the orders eliminating the
local rulers illegal and inoperative).
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

state's abusive assertion of power.52 This admiration for the

Court was only heightened with the judgment in Kesavananda
Bharati v. Kerala.53 The facts surrounding KesavanandaBharati
came on heels of the Congress Party's 1971 electoral win in the
lower house of Parliament, with Mrs. Gandhi at the helm.
During the campaign Mrs. Gandhi had promised that 54
if elected
she would seek to curb the activism of the judiciary.
Believing that she and her party had enormous political
capital following the election, Mrs. Gandhi successfully pushed
through a constitutional amendment that overturned the
Golaknath decision. 55 This amendment was challenged in
Kesavananda Bharati, in which the Court, sitting in a panel of
thirteen, held by a seven-to-six margin that Golaknath had been
incorrectly reasoned. According to the seven justices, Parliament
could alter the fundamental rights in the constitution through the
passage of a constitutional amendment, but not through the
passage of an ordinary legislative act.5 6 After all, even within the
fundamental rights themselves, the majority contended,
exceptions existed indicating that these guarantees could be
restricted.5 7 Nevertheless, while the Court was willing to
reinstate Parliament's ability to amend the constitution,
including the fundamental rights, it set 58
forth what has come to
be known as the basic structure doctrine.

52. See e.g. Sathe, supra n. 34 at 63-73; see also e.g. B.P. Jeevan Reddy, Speech, The
Centenary Celebration of Chief Justice K. Subba Rao, 8 SCC Journal 41 (2003) (noting
that within the political sphere, the "decision [in Golaknath] created a furore ... [and that
the] Government of the day felt deeply disturbed by this decision") (also available at http://
www.ebc-india.com/lawyer/articles/2003v8a6.htm).
53. 1973 Indlaw SC 537.
54. See Wolpert, supra n. 44; see also Sathe, supra n. 34, at 68-69.
55. See Sathe, supra n. 34, at 68-69. Mrs. Gandhi pushed through two other
amendments as well-one which sought to undo the R.C. Cooper case and another which
sought to overturn Madhavrao Scindia. Id.
56. See generallyKesavanandaBharati, 1973 Indlaw SC 537.
57. India Const., Part III ("Fundamental Rights"). A refrain found throughout the
Fundamental Rights is that "[n]othing in the.., said clause shall.., prevent the State from
making any law imposing, in the interests of... public order, reasonable restrictions on the
exercise of the right conferred." See e.g. India Const, Art. 19, § 3 (addressing freedom of
speech, association, choice of domicile, and employment, and incorporating the quoted
language).
58. See e.g. Kesavananda Bharati, 1973 Indlaw SC 537 at 1171, 1291 (setting out
features of Constitution's "basic structure").
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

Under this principle, according to the Court, the

Constitution had certain features to it that could never be
compromised or abused by those entrusted with public
authority-else India's democracy would cease to exist. For the
Court, these features included constitutional, not parliamentary,
supremacy; a republican form of government; secularism and
federalism; separation of powers; a mutual respect for the
fundamental rights and for a establishing a welfare state; and
keeping the country unified. 59 For Mrs. Gandhi and her
supporters, the decision in Kesavananda Bharati was a direct
repudiation. Although Golaknath had been overruled, the
reversal was cold comfort given the Court's firm pronouncement
of the basic structure doctrine. Indeed Mrs. Gandhi was
determined not to allow the Court to define the contours of the
Constitution and the powers (and limitations) of the government.
But as we will see in the next section, the Court refused to cave
in to the Prime Minister-at least for a while-which further
enhanced its image among those contributing to the scholarly
discourse.

C. Consolidatingan Uncorruptedand Just Image

Following the decision in Kesavananda Bharati, Mrs.

Gandhi's government took dramatic steps to limit the ruling's
effect. As noted above, Article 124 of the Indian Constitution
spells out the required qualifications for Supreme Court
justices. 60 An unwritten rule that is part of the process includes a
tradition that the Chief Justice will be the person who has the
most number of years on the Court. In KesavanandaBharati,the
presiding Chief Justice was in the majority bloc, but because he
was approaching sixty-five, he was on the verge of mandatory
retirement. 6 1 The next justice in line, J.M. Shelat, 62 had argued
for even stronger limitations on the government and in fact

59. See id.

60. See India Const., Art. 124.
61. Sathe, supra n. 34, at 72-73.
62. Id. at 70, 72-73.
THE INDIAN SUPREME COURT: DISCOURSE AND NORMs

believed that Golaknath, the predecessor case, did not need to be

overturned.63
Shelat too, though, was close to sixty-five. Claiming that
his appointment would have forced the Court to endure another
leadership change in just a few months, Mrs. Gandhi's
government bypassed naming Shelat as Chief,64 and then passed
over the next person in line, as well as the justice after him.
(Both of these justices also had been part of the majority opinion
in KesavanandaBharati.65) She then tapped Justice A.N. Ray to
lead the Court; Ray had been a dissenter in the case and believed
the Parliament66
had virtually limitless power in amending the
constitution.
Mrs. Gandhi's manipulation of the Chief Justice selection
process was chastised and came to be known derisively in
scholarly discourse as the Supersession. 67 Her actions were
boldly confrontational, but rather than accommodating her
agenda, the three members who had been bypassed for the Chief
Justice post defiantly resigned from the Court. 68 With these
departures and the death and retirement, respectively, of two
other justices who had joined the majority in Kesavananda
Bharati,the bloc which had put forth the basic structure doctrine
had shrunk considerably. 69 In 1975, Mrs. Gandhi looked to the
newly comprised Court, headed now by Chief Justice Ray, to
validate a controversial decision she had taken. 70 Specifically,
Mrs. Gandhi declared emergency rule that year, suspending the
Constitution
71
and imprisoning hundreds of her political
opponents.

63. Id. at 69-70.

64. Id. at 72.
65. Id. 70, 72-73 (noting that Justices Hegde and Grover were in the Kesavananda
Bharati majority, and that they were passed over when Ray was selected to be chief
justice).
66. Id. at 70, 72.
67. Id. For a classic treatment of this subject in greater detail, see Rajeev Dhavan, The
Supreme Court of India: A Socio-Legal Critique of Its Juristic Techniques (N.M. Tripathi
1977).
68. Sathe, supra n. 34, at 73.
69. Id.
70. Id.
71. See generally Mary Calliope Carras, Indira Gandhi: In the Crucible of Leadership
(Beacon Press 1979).
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

The "Emergency" was in part prompted by a state High

Court judgment, which had nullified Mrs. Gandhi's election
victory of a contested seat in the lower house of Parliament. The
state High Court had found her guilty of violating an anti-
corruption election statute and ordered that she be removed from
Parliament and banned from participating in electoral politics for
a set period of time. 72 Mrs. Gandhi appealed to the Supreme
Court; as the case was pending her party pushed into law the
"Thirty-Ninth Amendment" to the Constitution, which
established a special parliamentary-based adjudicative body to
hear all election matters involving the Prime Minister. 73 The
amendment was to apply prospectively as well as retroactively,
and thus her hope was that the Supreme Court would render
moot the decision by the lower court.
A panel of five justices heard the case, and in a complicated
judgment the Court unanimously ruled that the Thirty-Ninth
Amendment was unconstitutional.74 The justices, however,
differed on how they reached this conclusion. One opinion
signed by three justices held that the amendment violated the
basic-structure doctrine.75 Another opinion stated that
Parliament simply had no authority to adjudicate.76 And a third
opinion rejected Parliament's attempt77 to strip the Court of its
ability to review a lower-court ruling.
Although the Court refused to uphold Mrs. Gandhi's
Thirty-Ninth Amendment, it did provide her with an olive
branch. The Court unanimously allowed her election win to
stand, ruling that the evidence on which the lower state court
based its decision was not enough to overturn the original
outcome. Mrs. Gandhi thus was allowed to retain her
Parliamentary seat and in turn the Premiership.

72. Id.; see also Sathe, supra n. 34, at 73-74.

73. See Sathe, supra n. 34, at 73-75; see also Carras, supra n. 71. Note that the text of
the thirty-ninth amendment is available on line at http://constitution.org/cons/india/tamnd
39.htm (accessed June 2, 2008; copy on file with Journal of Appellate Practice and
Process).
74. Indira Gandhi v. Raj Narain, 1975 Indlaw SC 473.
75. Id. at 1-158.
76. Id. at 230-696.
77. Id. at 159-229.
78. See generally Gandhi, 1975 Indlaw SC 473.
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

To some observers, the Court diluted its otherwise

monumental ruling by not voiding Mrs. Gandhi's election. But
for most, the Court played it just right. It placed the necessary
check on abusive governmental power while recognizing that
going any further (e.g., nullifying the election) might jeopardize
its position vis i vis the public-a public that had voted Mrs.
Gandhi and her party into office.7 9
The Emergency was the most polarizing era in India since
it had gained independence. The Court's decision in the Thirty-
Ninth Amendment case helped consolidate its reputation within
scholarly discourse as an institution of integrity willing to
invalidate a clearly abusive initiative by the Prime Minister. But
as the Emergency continued over the next two years, the Court's
steadfast image eroded-to the point where a new norm seemed
to emerge: that of a weak Court kowtowing to the whims of the
Executive.

D. Serious Missteps

Mrs. Gandhi's Emergency lasted from June 26, 1975, until

March 23, 1977.80 During this time Mrs. Gandhi autocratically
ruled India-imprisoning her opponents, barring protests and
strikes, and suspending civil liberties. A great deal has been
written on the abuses and corruption she perpetrated, 8 1 but for
our purposes what is important is that following the Thirty-
Ninth Amendment case, Mrs. Gandhi asked the Supreme Court,
and Chief Justice Ray in particular, again to reconsider whether
the basic-structure doctrine was constitutional.8 2 In an
unprecedented step, the Chief Justice organized a panel of
thirteen justices to deliberate on the matter even though there
was no case at bar.

79. See Sathe, supra n. 34, at 77 (noting the author's opinion that "the ... case
provided social legitimacy to the basic structure doctrine"); see also H.M. Seervai, The
Emergency, Future Safeguards, and the Habeas Corpus Case (N.M. Tripathi 1978);
Upendra Baxi, The Indian Supreme Court and Politics(Eastern Book Co. 1980).
80. See Carras, supra n. 71.
81. See e.g. id; Wolpert, supra n. 44; Charles R. Epp, The Rights Revolution: Lavyers,
Activists and Supreme Courts in ComparativePerspective(U. Chi. Press 1998).
82. See Sathe, supra n. 34, at 85-87.
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

This move was interpreted by a number of scholars as 83 a

serious concession to Mrs. Gandhi's dictatorial government.
Although the Court ultimately refused to make a ruling on the
issue, it nevertheless looked enfeebled on two counts: First, by
agreeing to entertain a petition from an undemocratic
government which had no standing, the Court was seen as
submissive. Second, the Court, to its credit, did allow a set of
acclaimed civil liberties lawyers to argue against overturning the
basic-structure doctrine. 84 But by not issuing a judgment
affirming their sentiments (and instead simply dismissing the
hearing in totem) the Court's reputation within scholarly circles
as the de facto opposition
85
to, or check on, the government was
placed into question.
Without a doubt, however, the Court's most obsequious
moment came in the 1976 case of A.D.M. Jabalpurv. Shiv Kant
Shukla. 86 Here, the Court was confronted with whether during
the Emergency the government could suspend an individual's
right to liberty guaranteed under Article 21 of the fundamental
rights. The issue involved Mrs. Gandhi's sweeping detention of
her political opponents. Reports were that within the prisons,
police were engaging in abusive tactics including torturing those
being detained.8 'TA challenge to the Court was made by Mrs.
Gandhi, who sought a reversal of several different state High
Court rulings prohibiting the government's suspension of habeas
corpus.
To the dismay of many, the Court held that the
government's detention practices were outside its scope of
review given that the country was under the unusual period of
Emergency Rule. 88 Likely out of fear that its institutional
existence was at stake, the Court capitulated to the government's

83. Id.; see also Dhavan, supra n. 67; Baxi, supra n. 79; H.M. Seervai, Constitutional
Law of India: A Critical Commentary vol. 2 (3d ed., N.M. Tripathi 1983).
84. See Sathe, supra n. 34, at 85-87; see also Dhavan, supra n. 67; Baxi, supra n. 79;
Seervai, supra n. 79.
85. For a discussion of this point, see the works cited in notes 79-81.
86. A.I.R. 1976 SC 1207.
87. Id.
88. Id. For a passionate critique of this decision, see Jos. Peter D'Souza, When the
Supreme Court Struck Down the Habeas Corpus, PUCL Bulletin (June 2001) (available at
http://www.pucl.org/reports/National/2001/habeascorpus.htm) (accessed June 4, 2008;
copy on file with Journal of Appellate Practice and Process).
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

wishes. If the Golaknath, Kesavananda Bharati, and even the

Thirty-Ninth Amendment decisions were considered high points
in the Court's efforts to counter abuses of power by the
executive, this latest case proved to be its low-water mark.
Although widespread outcry from writers was muted during the
Emergency, following its lifting-upon which Mrs. Gandhi and
her party were summarily drummed out of power in the 1977
national elections--criticism from various scholars was
unrelenting. 89 The Court's image among these observers was in
tatters. The following discussion will illustrate how the Court
sought to improve its reputation after 1977, and how, by and
large, it has been successful in regaining its reputation for
integrity-at least among those who contribute to the scholarly
discourse.
90
E. ReputationalRedemption

Mrs. Gandhi lifted her Emergency Rule in 1977, and

thinking that she had public support behind her, held open
elections. To her surprise, her Congress Party failed to gain a
majority of seats in Parliament for the first time since
independence. 9' This defeat and return to democracy in 1977
was met with great excitement, including from a new group of
judges on the Supreme Court interested in pursuing social
justice issues. 92 Upon the restoration of democracy, the Court
quickly tried to rehabilitate its integrity by, for example,
appointing commissions to investigate human rights abuses. It
also began allowing claimants directly to petition it in matters
where the central government was accused of infringing upon
the fundamental rights of the constitution. 93 The Court

89. See e.g. D'Souza, supra n. 88; see also Dhavan, supra n. 67; Baxi, supra n. 79;
Seervai, supra n. 83.
90. Note that Professor Sathe has used the term "atonement" to describe the Court's
post-Emergency behavior. See Sathe, supra n. 34, at 106.
91. See e.g. Carras, supra n. 71.
92. See generally Upendra Baxi, Taking Suffering Seriously: Social Action Litigation
in the Supreme Court of India, in Judges and the JudicialPower 289 (Rajeev Dhavan, R.
Sudarshan, & Salman Khurshid, eds., N.M. Tripathi 1985).
93. See Jayanth K. Krishnan, Lawyeringfor a Cause and Experiencesfrom Abroad, 94
Cal. L. Rev. 575 (2006) [hereinafter Lawyeringfor a Cause]; Marc Galanter & Jayanth K.
Krishnan, "Breadfor the Poor": Access to Justice and Rights of the Needy in India, 55
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

broadened who could qualify as a litigant with standing and did

not even require litigants to specify the relief being sought in
order to have their cases heard. 94 And there was an effort to
implement a long-standing commitment to legal aid; 95 a national
legal aid body was established, under the aegis of the Chief
Justice of India, resulting in a number of innovative legal service
schemes in which social justice groups used the law
"systematically and continuously" to promote the interests of
96
various constituencies.
The Court's actions helped to start a public interest
litigation movement during the late 1970s and early 1980s. This
development resulted in important social changes-such as
protecting the rights of excluded and powerless groups, 97 raising
public awareness of many issues, energizing grassroots
movements, increasing scrutiny on government agencies, and
enhancing the institutional integrity of the Court. 98 Indeed the

Hastings L. J. 789 (2004) [hereinafter Bread for the Poor]; see also Carl Baar, Social
Action Litigation in India: The Operations and Limitations on the World's Most Active
Judiciary, 19 Policy Stud. J. 140 (Fall 1990).
94. See Lawyeringfor a Cause, supra n. 93, at 594; Susan D. Susman, Distant Voices
in the Courts of India: Transformation of Standing in Public Interest Litigation, 13 Wis.
Intl. L. J. 57, 90 (1994) (noting that the courts have found themselves "in the business of
constructing remedies unknown in pre-P[ublic] I[nterest] L[aw] days"). For relevant case
law, see S.P. Gupta v. India, AIR 1982 SC 149; D.C. Wadhwa v. Bihar, AIR 1987 SC 579
(indicating that members of the public have standing, by virtue of their status as citizens, to
challenge governmental actions alleged to be in violation of the Constitution); Ratlam
Municipal Council v. Vardhichand, AIR 1980 SC 1622 (noting, in a case involving both a
municipality's failure to provide adequate sewers and drains and its failure to abate a
factory's release of pollutants into a residential area, that governmental bodies must
provide their citizens with basic services); Fertilizer Corp. v.India, AIR 1981 SC 344;
People's Unionfor DemocraticRights v. India, AIR 1982 SC 1473.
95. See Breadfor the Poor, supra n. 93, at 796; see also id. at 796 n. 27 (quoting the
Constitutional provision that requires the provision of "free legal aid").
96. Id. at 796.
97. See generally Lawyeringfor a Cause, supra n. 93; see also Jamie Cassels, Judicial
Activism and Public Interest Litigation in India: Attempting the Impossible? 37 Am. J.
Comp. L. 495 (1989); Sathe, supra n. 31, at 195-248.
98. See e.g. Bread for the Poor, supra n. 93, at 796. A large body of scholarly
discourse has focused on this point. See e.g. Upendra Baxi, Courage, Craft, and
Contention: The Indian Supreme Court in the Eighties (N.M. Tripathi 1985); S.P. Sathe,
JudicialActivism (II): Post-Emergency JudicialActivism: Liberty and Good Governance,
10 J. of Indian Sch. of Political Econ. 603 (Oct.-Dec. 1998); Oliver Mendelsohn, Life and
Struggle in the Stone QuarriesofIndia: A Case-Study, 29 J. of Cmmw. and Comp. Pol. 44
(Mar. 1991) [hereinafter Life and Struggle]; Susman, supra n. 94; G.L. Peiris, Public
Interest Litigation in the Indian Subcontinent: Current Dimensions, 40 Intl. & Comp. L.Q.
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

series of pro-public-interest rulings during this time rebuilt the

Court's reputation among scholars and seemingly beyond,
prompting, for example, the country's oldest polling agency, the
Indian Institute of Public Opinion (IIPO), to declare in 1984 that
"[t]he Supreme Court[] [now]... enjoy[s] a high level of
confidence by a majority of Indians." 9 And this sentiment has
only continued and been promoted by many other observers to
this day, including by one of the world's most prominent
scholars on India who recently noted that since 1977 he has
always assumed that Indian society
00
as a whole sees the Supreme
Court in a very positive light.
But as noted, to date there is no reliable data, even from the
IIPO, confirming that the mass public sees the Court in such a
manner. In fact, the long-time director of the IIPO has conceded
that the available public opinion data includes "no specific
information on the Supreme Court of India."'' While the Court
has been lauded in scholarly discourse for its initiatives, there is
some empirical evidence which shows that the public interest
litigation movement, in particular, has proved to be a weak

66 (1991); Marc Galanter, New Patterns of Legal Services in India, in Marc Galanter, Law
and Society in Modern India 279 (Rajeev Dhavan ed., Oxford U. Press 1989) [hereinafter
New Patterns];Clark D. Cunningham, PublicInterest Litigation in Indian Supreme Court:
A Study in the Light ofAmerican Experience,29 J. of Indian L. Inst. 494 (Oct.-Dec. 1987);
Madhava Menon, Justice Sans Lawyers: Some Indian Experiments, 12 Indian B. Rev. 444
(1985).
99. Indian Inst. of Pub. Opinion, Metropolitan Opinion on the Instruments of the Indian
Republic, Blue Supplement to the Monthly Public Opinion Survey vol. XXIX, No. 11, at V
(1984).
100. Interview with Marc Galanter, John and Rylla Bosshard Professor of Law and
South Asian Studies, emeritus, U. of Wis.-Madison (Mar. 27, 2007).
101. Ltr. from V.P. Madhok, former Dir., Indian Inst. of Pub. Op., to author (Mar. 9,
2007) (on file with author). Polls that ask about the courts, even in general, are not that
frequent. And when a poll does ask about the courts, it is usually along the lines, such as
one conducted by the Center for the Study of Developing Societies, which, once-in
1996-asked how much faith the public then had in the "judiciary." See Questionnaire and
Survey Findings, at http://www.csdsdelhi.org/index.pgl.htm (Question 40) (accessed June
9, 2008; copy on file with Journal of Appellate Practice and Process). One could find other
similarly uninformative questions being asked by the IIPO as well, and this problem was
not just an Indian phenomenon. Polls conducted in India by Western polling agencies
suffer from similar omissions. See e.g. http://www.transparency.org (click on India link);
http://www.worldvaluessurvey.org (polling by Transparency International and World
Values Survey, respectively) (accessed June 9, 2008; copy on file with Journal of Appellate
Practice and Process). Indeed, no poll results focused specifically on either the Supreme
Court of India or the different levels of the courts in India came to light during the research
conducted for this article.
276 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
0 2
vehicle for enlarging access to justice for the disadvantaged.1
Statements which suggest that the general public perceives the
Court as possessing great integrity, therefore, are conjecture.
So where does that leave us? As I commented in the
Introduction, my hope is that scholars who view the Court with
such respect do reflect the sentiments of the mass public. But as
we do not know for sure, it is only appropriate to consider
alternative scenarios under which the public may see the Court.
Below I provide one such alternative, that, although admittedly
provocative, will, I hope, spur much-needed empirical
investigation into this matter.

III. THE SILENT MAJORITY?

A. Postulatinga PluralisticIgnoranceHypothesis

How might it be that public opinion of the Supreme Court

in India fails to match up with the prevailing vision that scholars
have of the institution? One explanation is that the social
psychological phenomenon of pluralistic ignorance is occurring
within this environment. Although there is a rich, recent
scholarship on this subject, 10 3 the concept was first introduced
into the academic discourse in the 1920s by Floyd Allport, who
then followed up on his work with Daniel Katz and Margaret

102. See Bread for the Poor, supra n. 93, at 797; see also id. at 797 nn. 36, 37; Epp,
supra n. 81.
103. See e.g. John M. Darley, The Cognitive and Social Psychology of Contagion
OrganizationalCorruption, 70 Brook L. Rev. 477, 1189-91 (2005); Alex Geisinger, Are
Norms Efficient? Pluralistic Ignorance, Heuristics, and the Use of Norms as Private
Regulation, 57 Ala. L. Rev. 1 (2005); J. Nicole Shelton & Jennifer A. Richeson, Intergroup
Contact and Pluralistic Ignorance, 88 J. Personality & Soc. Psychology 91 (2005);
Jonathon R.B. Halbesleben & M. Ronald Buckley, Pluralistic Ignorance: Historical
Development and OrganizationalApplications, 42 Mgt. Decision 126, 134 (2004); Jon
Hanson & David Yosifon, The Situational Character:A CriticalRealist Perspective on the
Human Animal, 93 Geo. L. J. 1 (2004); Tracy A. Lambert, Arnold S. Kahn & Kevin J.
Apple, Pluralistic Ignorance and Hooking Up, 40 J. Sex. Research 129 (2003); David
Luban, Integrity: Its Causes and Cures, 72 Fordharn L. Rev. 279, 284 (2003); David Hines,
et al., PluralisticIgnorance and Health Risk Behaviors: Do College Students Misperceive
Social Approval for Risky Behaviors on Campus and in Media? 32 J. Applied Soc.
Psychology 2621, 2622 (2002); Dan Hunter, Phillipic.Com, Review Essay of Cass
Sunstein's Republic.Com, 90 Cal L. Rev. 611 (2002); Richard H. McAdam, An Attitudinal
Theory ofExpressive Law, 79 Or. L. Rev. 339, 340 (2000).
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

Jenness. 10 4 Pluralistic ignorance, according to these researchers,

manifested when a noticeable sum of individuals rejected an
existing societal norm, but because they believed that others
accepted it, they remained silent about their own rejection of
that norm. 105 As the social theorist Robert Merton would note
almost four decades later, there is the "unfounded assumption
that one's own attitudes are unshared"'10 6 by the rest of the
members of the group or society.
More contemporary work too has addressed the pluralistic
ignorance dilemma. Several scholars in the 1980s found that
influential individuals with pronounced opinions within a
society often would inhibit less-informed members from
expressing a point of view, thereby contributing to a downward
"spiral of silence" among the mass populace.'0 In the 1990s, a
series of theoretical and empirical studies by Deborah Prentice
and Dale Miller further advanced our understanding of
pluralistic ignorance.' Based on their behavioral experiments,

104. See Floyd Allport, The Influence of the Group upon Association and Thought, 3 J.
Experimental Psychology 159 (1920); Daniel Katz, Floyd Allport & Margaret Babcock
Jenness, Student Attitudes: A Report of the Syracuse University Reaction Study (Craftsman
Press 1931).
105. See Katz, Allport & Jenness, supra n. 104.
106. See Robert K. Merson, Social Theory and Social Structure 431 (Free Press 1968).
107. Stephen D. Gottfredson, Barbara D. Warner & Ralph B. Taylor, Conflict and
Consensus about Criminal Justice in Maryland, in Public Attitudes to Sentencing (Nigel
Walker & Mike Hugh, eds. Gower Pub. Co. 1988); Allen Breed, The State of Corrections
Today: A Triumph of PluralisticIgnorance (Edna McConnell Clark Found. 1986); Dale T.
Miller & Cathy McFarland, Pluralistic Ignorance: When Similarity is Interpreted as
Dissimilarity,53 J. Personality & Soc. Psychology 298, 301 (1987); Elihu Katz, Publicity
and PluralisticIgnorance: Notes on "The Spiral of Silence ", in Offentliche Meinung und
Sozialer Wandel (H. Baier, H.M. Kepplinger & K. Reumann eds., Verlag fur
Sozialwissenschaften 1982); D. Garth Taylor, Pluralistic Ignorance and the Spiral of
Silence: A FormalAnalysis, 46 Pub. Opinion Q. 311 (1982); Daniel J.Isenberg, Levels of
Analysis of PluralisticIgnorance Phenomena: The Case of Receptiveness to Interpersonal
Feedback, 10 J. Applied Soc. Psychology 457, 467 (1980). Note that much of this work
drew (either implicitly or explicitly) on the enormous developments made in the research
during the 1960s and 1970s. See e.g. David Matza, Becoming Deviant (Prentice Hall 1969);
Ronald L. Akers, Norman S. Hayner, & Werner Gruninger, Prisonization in Five
Countries: Types of Prison and Inmate Characteristics, 14 Criminology 527 (1977);
Warren Breed & Thomas Ktsanes, Pluralistic Ignorance in the Process of Opinion
Formation, 25 Pub. Opinion Q. 382 (1961); Hubert J. O'Gorman & Stephen L. Garry,
PluralisticIgnorance-A Replication andExtension, 40 Pub. Opinion Q. 449 (1976).
108. Deborah A. Prentice & Dale T. Miller, PluralisticIgnorance and the Perpetuation
of Social Norms by Unwitting Actors, 28 Advances Experimental Soc. Psychology 161
(1996) [hereinafter Perpetuationof Social Norms]; see also Dale T. Miller & Deborah A.
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

Prentice and Miller argued that silent constituencies are not

necessarily "ignorant" of other members' "sentiments; rather
they think they know, but are mistaken." 0 9 They also found that
dominant norms were often not beneficial for those perpetuating
these beliefs. 10 And building upon this work, scholars in recent
years have noted that powerful pervading norms may ultimately
serve as a counterproductive, hegemonic societal force, leading
to an "entrenchment ''1of suboptimal, as opposed to welfare-
enhancing behaviors. I
Given India's socio-demographic character, inferring that
there is a divide between scholars and the mass populace is not a
logical leap. Consider the situation just in terms of economic
and social distinctions. The country, as discussed earlier, still
struggles with debilitating poverty and economic hardship. Over
fifty percent of the population belongs to lower castes-which
often seriously hinders the academic, political,
1 12 and socio-
economic opportunities of these individuals.
In addition, over the last two decades a rich literature has
developed-mainly from non-legal and non-judicial politics
scholars-that sheds light on the subaltern, or marginalized,
peoples of India." 13 Although these works vary in subject matter

Prentice, Collective Errors and Errors About the Collective, 20 J. Personality & Soc.
Psychol. Bull. 541 (1994); Deborah A. Prentice & Dale T. Miller, PluralisticIgnorance
and Alcohol Use on Campus: Some Consequences of Misperceiving the Social Norm, 64 J.
Personality & Soc. Psychology 243, 244 (1993).
109. Perpetuationof Social Norms, supra n. 108, at 161.
110. Id.
111. See Geisinger, supra n. 103, at 16.
112. The exact number of lower castes in India has been a matter of debate for years.
According to recent census data, there are over 166,000,000 scheduled castes and
84,000,000 scheduled tribes, which would be part of this lower-caste category. See 2001
Census of India, http://www.censusindia.gov.in/CensusData_2001/Censusdatafinder/A
_Series/SCST.htm (chart entitled "Scheduled Castes & Scheduled Tribes Population)
(accessed Aug. 11, 2008; copy on file with Journal of Appellate Practice and Process). In
addition, the government believes that there are "other backward castes," or "other
backward classes," which too would be considered lower castes, and has estimated this
figure to over fifty percent, although there is debate over this latter figure. See Subodh
Ghildiyal, Gov't Wants OBC Census, Times of India (Oct. 20, 2006) (available at
http://timesofindia.indiatimes.com/articleshow/2210455.cms) (accessed Aug. 11, 2008;
copy on file with Journal of Appellate Practice and Process).
113. The University of Virginia has put together a wonderful online subaltern studies
bibliography at http://www.lib.virginia.edu/area-studies/SouthAsia/ldeas/subaltemBib.html
(accessed June 9, 2008) (copy on file with Journal of Appellate Practice and Process).
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

and methodological approach, most are unified around the idea

that traditional scholarly research has overlooked how subaltern
populations throughout Indian history have drawn upon their
own norms, beliefs, and identities to become politicized agents
in their own right. 1 4 Upendra Baxi, one of the few Indian
Supreme Court scholars who is also steeped in subaltern
rhetoric, has implored others who study Indian judicial politics
to recognize that for centuries indigenous communities in this
society debated and studied issues of "prescriptions,
prohibitions,5 punishments-the grammar and even the practice
of power.""1
Of course this does not mean that all subaltern populations
behave in the same manner. Some have the opportunities and
resources to become more mobilized, while others face greater
constraints. But the body of work from these scholars highlights
a recognition that a disconnect certainly can exist between the
mass public and those who contribute to scholarly discourse. In
the next section, I pursue this possibility by focusing on two
reasons why, in my view, the general public may not feel the
type of affinity for the Supreme Court exhibited by supportive
scholars.

B. The Supreme Court's Contempt Power

The Indian constitution contains two provisions that arm

,,116 Court with the ability to "punish . . . for
the Supreme
provided lower(Acourts
contempt. statute
withpassed
similarshortly
power.' after independence
17) What does this

114. See generally id. Arguably the most renowned scholar writing on subalternality has
been Professor Partha Chatterjee. For a selected sample of relevant works, see Partha
Chatterjee, The Politics of the Governed: Reflections on PopularPolitics in Most of the
World (Columbia U. Press 2004); Partha Chattejee, Two Poets and Death: On Civil and
PoliticalSociety in the Non-Christian World, in Questions of Modernity (Timothy Mitchell
ed., U. Minn. Press 2000); Partha Chatterjee, The Nation and Its Fragments (Princeton U.
Press 1993).
115. Upendra Baxi, "The State's Emissary": The Place of Law in Subaltern Studies, in
Subaltern Studies VII: Writings on South Asian History and Society 247, 251 (Partha
Chatteijee & Gyanendra Pandey eds., Oxford U. Press 1992).
116. India Const., Art. 129; India Const., Art. 142.
117. The Contempt of Courts Act, 1952 (repealed 1971). For a historical discussion of
this statute that includes the text of the act with which it was replaced, see Network of
Women in Media, India, The Contempt of Courts Act, 1971, http://www.nwmindia.org/
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

power mean, and how has it been used? In the Supreme Court,
the decision to hand down a contempt citation typically has
hinged on whether an order by the Court has been defied;
whether there is a finding that pending matters in the Court have
been undermined; or whether a justice or the Court itself has
been defamed." 18 While it is understandable that the Court might
issue a contempt citation against a party in the first two
instances, the use of this power in the last case deserves
discussion.
The Framers of the Indian Constitution believed, and many
scholars and judges have also long believed, that allowing the
judiciary's integrity to be questioned "would destabilize the
Constitution and ultimately the whole edifice of constitutional
government."' 19 There is, in other words, an established norm in
India which treats the judiciary-and especially the Supreme
Court-as a sacred institution. Without precise data, it is
difficult to know for certain why this norm exists. Perhaps one
reason, as argued by one scholar, is that as opposed to other
countries where there are legendary stories of lawyers and
judges using the law to fight on behalf of those in need, in India
the historic folklore has centered on judges alone. 20 In ancient
and pre-colonial times, judges were seen as impartial, wise, and
almost divine.12 Because they were typically of a high-ranking
caste affiliation,
22
their social status was that much more enhanced
as well. 1
During the colonial period (1757-1947), judges also played
an important role in governing India. The British established a
general territorial law that operated in a common law style and

Law/Bare -acts/contemptLact.htm (accessed June 10, 2008; copy on file with Journal of
Appellate Practice and Process).
118. See Sathe, supra n. 34, at 286; see generally K. Balasankaran Nair, Law of
Contempt of Courtin India (A. Publishers & Distributors 2004).
119. Sathe, supra n. 34, at 289.
120. Velcheru Narayana Rao, Courts and Lawyers in India: Imagesfrom Literature and
Folklore, in Boeings and Bullock Carts: Studies in Change and Continuity in Indian
Civilization vol. 3, 196, 205, 209 (Y.K. Malik & D.K. Vajpeyi eds., Chanakya Publications
1990) (noting that "stories of lawyers who stand our as heroes fighting for justice" are
"significantly absent in [Indian] movies, literature, and foldore," and that "the judge is
viewed with respect even when he fails to deliver justice," for "[p]opular movies and
folklore do not usually present the judge in a bad light").
121. Id.
122. Id.
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

was administered in a nationwide system of government courts

first by English judges but then increasingly by Indian judges.121
These judges helped to transition the substantive law to
resemble its British counterpart, by adhering to the practice 124of
stare decisis and by applying codified statutes to cases at bar.
And judges in colonial India were also active in deciding the
ever-important area of family law matters.
Yet relying on a historical or path dependency argument for
why judges today remain sacrosanct is not entirely satisfying.
Over the course of Indian history, judges in fact have been
subject to scrutiny and suspicion. Acclaimed Sanksritist Richard
Lariviere has documented how ancient Hindu scriptures set forth
strict codes of judicial conduct out of concern (and experience)
that judges may be tempted to transgress the norms of
professional ethics. 125 Furthermore, during the British rule many
saw judges as collaborators with the oppressors and as caring
little about India's disadvantaged. 126 Indeed, the use of the
contempt power in this era was angrily interpreted as a key way
in which the British exercised their dominance over Indians.
Therefore, it is unclear and somewhat surprising why, in a
democracy that prides itself on free expression, judges in the
post-Independence era are able to possess such sweeping
contempt powers and receive special immunity as well.
And over the years the Supreme Court has not shied away
from using this constitutional power to discipline those it
perceives as tarnishing its reputation. The Court's most famous
exercise of it came in a case involving the acclaimed author
Arundhati Roy. Roy has been active in working with Medha
Patkar, a leader in the grassroots movement known as the
Narmada Bachao Andolan (NBA), which since the early 1980s

123. For a discussion of this issue, see extraction from Marc Galanter and Jayanth K.
Krishnan, PersonalLaw and Human Rights in India and Israel,34 Isr. L. Rev. 101 (2000).
124. Id.
125. See Richard Lariviere, The Naradasmrti (Dept. of S. Asian Regl. Stud., U. of Pa.
1989). (I must express special thanks to Don Davis for highlighting this point.)
126. For example, various nationalist leaders during the Indian Independence movement
sought to boycott the courts. At the forefront of this cause, of course, was Mohandas
Gandhi who as early as 1919 spoke out against colonial judges. For a selected set of
readings on this particular issue see generally Sunit Bal Kher & Mohandas K. Gandhi, The
Law and Lawyers (Navajivan Publg. House 1962); Judith M. Brown, Gandhi: Prisonerof
Hope (Yale U. Press 1989).
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

has focused on blocking the construction of a government dam

on the Narmada River in Western India. 27 To protest the
government project, the NBA has embraced a range of practices,
including litigation. Lawyers for the NBA have cast the
government's dam project as an unconstitutional taking in
violation of Article 31;128 a violation of Article 14's equal
protection clause; 129 and a violation of Article 19(e)'s0 right "to
reside and settle in any part of the territory of India."13
In 1998, the Court ruled that although the government
would be required to ensure that habitable "relief and
rehabilitation" sites be provided to the displaced villagers, the
NBA could not block or "come[] in the way" of the dam
construction. 131 Both Roy and Patkar publicly and repeatedly
derided the Court, and in a subsequent ruling made in 1999 the
Court lashed back, warning that such "vicious stultification and
vulgar debunking
132
cannot be permitted to pollute the stream of
justice."'
In 2000 the NBA re-petitioned the Court, seeking a
complete injunction against the government construction. The
Court, however, refused to grant such a motion, prompting
further outrage from Roy and other NBA supporters. Ultimately,
in 2002, Roy was convicted of contempt of court after she
continued her oral and written 33 attacks on the Court. She served
one day in jail and paid a fine. 1
The Roy affair has brought to light the chilling effect that
the contempt power can have on individual expression regarding
the Court. Perhaps one charitable interpretation of this matter is

127. See Ashish Kothari & Shekar Singh, The Narmada Valley Project: A Critique
(Kalpavriksh 1988). Portions of the ensuing discussion on the NBA are extracted from
Lawyeringfor a Cause, supra n. 93.
128. India Const., Art. 31.
129. India Const., Art. 14.
130. India Const., Art. 19.
131. See NarmadaBachaoAndolan v. India 1998 Indlaw SC 1602, at 1, 2.
132. Seeid. at 6.
133. See e.g. J. Venkatesan, Arundathi Roy Jailedfor Contempt of Court, The Hindu
(Chennai, India) I (Mar. 7, 2002) (available at http://www.hinduonnet.com/thehindu/2002
/03/07/stories/2002030706060100.htm) (accessed June 10, 2008; copy on file with Journal
of Appellate Practice and Process). The case cite for the 2000 decision is Narmada Bachao
Andolan v. India 2000 Indlaw SC 3658. Readers might also be interested in the discussion
of these matters in Lawyeringfor a Cause, supra n. 93, at 611-12.
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

that the Court did not seem to allow Roy's fame to interfere with
its imposition of a sentence against her. On the other hand, it
may have been the case that because of Roy's popularity she
was treated in a less harsh fashion than someone not as well
known. Without any data, it is hard to know how many people
have been imprisoned (and for how long) for criticizing the
Court. And given the uncertain nature of this area of the law
where no bright-line rule exists, it is unclear when a critical
statement towards the judiciary is likely to lead to a contempt
citation and when it is simply the exercise of free speech.
If understanding the parameters of the contempt law is
difficult for even legal observers, if there is a well-accepted
norm against criticizing the judiciary, and if the public witnesses
the consequences of defying this norm, then it is reasonable to
assume that everyday individuals may not wish to express
openly their real sentiments towards the Supreme Court. On the
other hand, however, it is true that-questions have recently been
raised about the Court's integrity.
For example, Indira Jaisingh, a highly reputed lawyer and
women's rights activist, has harshly reviewed a January 2007
decision that reaffirmed the principle that it, rather than the
Parliament, is the final interpreter of the basic structure of the
constitution. 134 Jaisingh has referred to the ruling as
"devastating" and accused the Court of being
"unaccountable." 3 5 Another well-known public intellectual,
Nivedita Menon, has commented that allowing the Court to
remain shielded from criticism is the epitome of contempt for
the democratic process. 136 And even Arundhati Roy has not
relented in her scathing assessment of the Court. Shortly after
her release from prison, she issued a statement questioning the

134. This essay can be found at Indira Jaisingh, Ninth Schedule: What the Supreme
Court Judgment Means, Rediff.Com (Jan. 11, 2007) (available at http://us.rediff.com/news
/2007/jan/1 lindira.htm) (accessed June 10, 2008; copy on file with Journal of Appellate
Practice and Process).
135. Id.
136. Nivedita Menon, Contempt of Democracy: Time for Judicial Reform, on Kafila:
Media/Politics/Dissent, http://www.kafila.org (Mar. 1, 2007) (main page of site; click
"Menon" under "Authors" for archived columns; scroll down to March 2007) (accessed
June 11, 2008; copy on file with Journal of Appellate Practice and Process).
284 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

Court's inconsistent use of the contempt power' 3 7 and deriding it

for its own contemptible, condescending comments in
demeaning her gender in its ruling against her.
Open criticism by such high profile people may well
motivate the general public to challenge both the norm and the
law which prohibit criticizing the bona fides of the Court. But
recall that while neither Jaisingh nor Menon has been held in
contempt, Roy was-which may chill others from speaking out.
If someone of Roy's status 139 could be convicted, what chance
does the average citizen have of challenging the contempt power
of the Court?
Moreover, consider the case of a German writer, Hans
Dembowski, whose contract was canceled by his publisher-
Oxford University Press-as his book was about to be widely
distributed in 2001.140 The reason: the West Bengal state High
Court had issued a contempt citation against the author and the
publisher after receiving word that the manuscript contained an
academic assessment, to which the state High Court objected, 14of1
how public interest litigation functioned in its jurisdiction.
Even though the author consulted and was supported by some of
India's finest lawyers,142 his contempt citation was not lifted and

137. Arunduthi Roy, Statement (Mar. 7, 2002), http://www.narmada.org/sc.contempt/

aroy.stmt.mar7.2002.html (accessed June 11, 2008; copy on file with Journal of Appellate
Practice and Process).
138. Id. (pointing out that the Court in its ruling stated that it was acting in a proper
manner "by keeping in mind that the respondent is a woman, and hoping that better sense
and wisdom shall dawn upon the respondent" before she makes any further critical
comments).
139. Roy's The God of Small Things (Random House Canada Ltd. 1997) won the Man
Booker Prize in 1997.
140. For a discussion of the Dembowski case, see T.M. Ciolek, Taking the State to
Court: PublicInterest Litigation and the PublicSphere in Metropolitan India, on The Best
of the Asian Studies WWW Monitor, http://asia-www-monitor.blogspot.com/2006 07
01_archive.html (July 20, 2006) (accessed June 11, 2008; copy on file with Journal of
Appellate Practice and Process). For more discussion of the book, see Web Publicationof
Controversial Book: OUP's Grovel Stretches from Calcutta to Essen, http://www.
btinternet.com/-akme/calcont2.html (Nov. 2, 2006) (anonymous post) (accessed June 11,
2008; copy on file with Journal of Appellate Practice and Process). And also see Hans
Dembowski, Limits to the Public Sphere: How the Calcutta High Court is Stifling
Academic Debate (unpublished ms., 2007) (copy on file with Author).
141. See e.g. Ciolek, supra n. 140.
142. Indeed, the late Professor S.P. Sathe was one of the lawyers he consulted, as was
the Supreme Court advocate Dr. Rajeev Dhavan.
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

remains in effect to this day. Some wonder whether Dembowski,

who has since returned to Germany, will be prosecuted if he
ever travels back to India.
Therefore, without any systematic evidence of the
supposedly high esteem in which the public holds the Court-
along with the fact that this contempt power hangs over Indian
society-it seems reasonable to assert that we really do not
know whether the public privileges the Supreme Court over
other governmental institutions. Indeed, as I shall suggest below,
given how the lower courts function, as well as the reality that it
is in the lower courts that most Indians engage the legal process,
it might well be that any impression that the public has of the
Supreme Court would be based on their experiences at this
lower level.

C. A Different Legal Universe-A Different Reality

Given its national policy-making power, along with the fact

that as of March 2007 there were a startling 40,000 cases
pending before the Indian Supreme Court, 143 it is no surprise
that it (the Court) has attracted the attention of legal scholars and
the media. Even with its influence and packed docket, however,
the workings of the Supreme Court represent only a small
portion of what occurs within the Indian judiciary. The vast
majority of Indians never interact with the Court; rather it is in
the lower courts where people encounter the legal process most
often. Consider that the total number of cases pending in all of
the state High Courts is roughly three million. 144 And
nationwide there
14 5
are twenty-five million cases pending in the
district courts.
Although Indians appear highly litigious, ironically the
little empirical evidence available suggests that in terms of civil
filings of lawsuits per capita, comparatively, they are not high

143. See Press Information Bureau, Government of India, Ministry of Law and Justice,
Over 40 Thousand Cases Pending in Supreme Court and About 40 Lakh Cases in High
Courts, http://pib.nic.in/release/release.asp?relid=25376 (Mar. 2, 2007).
144. Id.
145. As of June 30, 2006, the website India Stat, a fee-based membership site, which is
the most comprehensive database that tracks pending suits in court, stated that the figure
was 25,393,251. See www.indiastat.com. (Relevant data on file with Author).
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

users of the legal process. This point and the causes for it have
been discussed elsewhere in greater detail, 146 but in short
because of the expenses associated with engaging in litigation, a
shortage of judges to hear cases, and the inordinate number of
interlocutory appeals allowed for by the Indian legal system
(which results in the huge backlog of cases) there is the natural
tendency to want to stay away from the courts if at all possible.
There is no current data on the length of delays present in the
district courts (although the anecdotes are both legendary and
depressing147), but we do have information on the High Courts:
Table 1141
Pending Cases in State High Courts

Total Ttl than FiveMore

Pending but Pending for
o Population
oaine
Rdn
Pending More than Rank per
Less than Ten e High Court
High Courts Cases Years Ten Years
Allahabad 981245 164484 322244 1
Andhra Pradesh 183139 35215 3796 5
Bombay 332975 66807 61035 2
Calcutta 209233 48296 91080 4
Delhi 113785 18909 20799 17
Gujarat 143655 46808 19321 10
Gauhati 57381 10616 32 14
Himachal Pradesh 23539 36196 0 20
Jammu & Kashmir 45225 5088 240 18
Karnataka 129653 617 5656 9
Kerala 130267 18965 1026 12
Madras 298759 26958 4347 6
Madhya Pradesh 200918 32567 9975 7
Orissa 106549 2905 32015 11
Patna 84948 67075 13461 3
Punjab & Haryana 265302 66589 56338 15
Rajasthan 204348 42234 14545 8
Sikkim 55 0 0 21
Uttaranchal 35898 6516 5960 19
Jharkhand 63732 Not Available Not Available 13
Chhatisgarh 35812 Not Available Not Available 16
Total 3,648,475 627,680 65,4206

146. See e.g. Lawyeringfor a Cause, supra n. 93; Breadfor the Poor,supra n. 93.
147. See e.g. Barry Bearak, In India, The Wheels of Justice Hardly Move, 149 N.Y.
Times Al (June 1, 2000). Note that the website India Stat includes data from 1999-2000
indicating that 4,616,057 cases had at that time been pending between three and ten years,
while 829,345 had been pending more than ten years.
148. The data for this table come from the comprehensive India Stat database. See n.
145, supra. The data are from 2004, and are the most recent statistics compiled at the time
of this writing.
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

As we can see from Table 1, of the more than 3.6 million

cases in all of the High Courts, over 627,000 have been pending
for more than five years and over 654,000 have been pending for
more than ten years. More generally, the table seems to confirm
a correlation between how populated a jurisdiction is and the
number of cases pending before its respective High Court. (To
be sure, there is some variation. Take, for instance, the state of
Bihar, which has the third largest population in India. Its High
Court (in Patna) is almost in the bottom one-third in terms of the
number of cases pending.)
On an absolute scale the numbers of cases backlogged in
the High Courts-and the amount of time litigants have to wait
to obtain a final outcome-are mind-boggling. That a relatively
small percentage of the population has any contact with the
Supreme Court makes it conceivable that the impressions and
attitudes of the general public towards the judiciary, including
the Supreme Court, are based upon the only reality with which
they are familiar: that in the lower courts. Therefore, given the
combination of the contempt power discussed in the previous
section, the situation of delay in the High Courts and district
courts addressed here, and the overall possibility of pluralistic
ignorance occurring among the mass populace, it is reasonable
to wonder whether the scholar-driven norm regarding the
Supreme Court is in fact widely accepted by the general public.

IV. CONCLUSION

This project has sought to understand why despite being

surrounded by institutions that are publicly disdained, the Indian
Supreme Court has been able, by and large, to retain a reputation
of high regard. As it turns out, the Court's reputation appears to
be based on the expressed sentiment mainly found within
scholarly discourse. The Court's historically aggressive
protection of individual rights during tumultuous times certainly
has enabled supporters to promote its reputation. But because
actual evidence is lacking, we simply do not know if this
scholarly belief is shared by the mass public.
Some may interpret this inquiry as exhibiting contempt for
the Court-a potentially criminal offense as we have seen. Yet
in a free and democratic society like India, a call for further
 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

empirical confirmation of a norm should be welcomed rather

than viewed with hostility. Moreover, consider that it was
former Chief Justice S.P. Bharucha who just a few years ago
asserted that he believes twenty percent of Indian judges are
corrupt. 149 Add to this a recent anthropological study conducted
over a two-year period finding that officials, including members
of the Court, who publicly promoted alternative dispute
resolution tribunals as a means of reducing the backlog in the
judiciary, were overtly chided by the everyday claimants who
participated in these forums.15° And most recently, Prime
Minister Manmohan Singh has strongly cautioned the Court
against what he perceives as its increased "judicial ...over-
reach[ing], ' implying that the practice undermines India's
democratic process. My article is thus not alone in trying to
situate the Court's role and reputation within Indian society.
Beyond sheer academic interest, though, my desire that
future scholarship might examine how the Court is publicly
regarded has important policy implications as well. By first
understanding what the public thinks of the Court, we might
then move to learn why the public thinks what it does. This
follow-up question is important because it is likely to tap into
Indians' perceptions of how effective the Court is in addressing
their concerns.
Assume that subsequent research finds that the general
public holds the Court in high esteem. Does that necessarily
mean that the public perceives the Court to be effective as well?
Perhaps not, for as mentioned above, there is preliminary
empirical evidence to suggest that some of the Court's public
interest decisions have not produced tangible societal benefits.
Thus, we might find that the public believes that the Court does
not abuse its entrusted authority and is composed of justices who

149. See Only a Handful of Judges Face Corruption Charges: Chief Justice, http://
www.indiaenews.com/india/20070204/38111 .htm (Feb. 4, 2007) (indicating that "[flormer
chief justice S.P. Bharucha had said that perhaps 20 percent of judges were corrupt")
(accessed June 13, 2008; copy on file with Journal of Appellate Practice and Process).
150. See generally Breadfor the Poor,supra n. 93.
151. See Sandeep Phukan, PM Sends Out Strong Message to Judiciary,http://www.ndtv.
com/convergence/ndtv/story.aspxid=NEWEN20070008083 (noting, for example, that the
issue of affirmative action, which is as divisive a topic in India as it is in the United States,
should be left to the legislative process) (NDTV News, Apr. 8, 2007) (accessed June 13,
2008; copy on file with Journal of Appellate Practice and Process).
THE INDIAN SUPREME COURT: DISCOURSE AND NORMS

are well-intentioned, but the public might nonetheless think that

the Court is simply incapable of meeting their everyday needs.
In addition, careful probing of mass opinion could also
shed light on how legitimate the Court is among the Indian
public. As scholars in the United States have found when
studying American public opinion of its Supreme Court,
determining what legitimacy means is complicated. 152 Consider
that recent polling data from Gallup has shown a steady decline
in the American public's esteem for its Supreme Court. 53 In
spite of this trend, rigorous surveying by Professor James
Gibson reveals that the United States Supreme Court has not lost
its legitimacy among the American public.' 54 Upon thoughtful
questioning we similarly might find that the Indian public
perceives its Supreme Court as quite legitimate, irrespective of
the esteem it holds for--or how effective it deems-this
institution. After all, even with their cynicism towards the
Parliament, the police, and the bureaucracy, Indians continue to
value and actively participate in the democratic process,
intimating that the public believes, at least
' 55 to some degree, in the
legitimacy and overall "idea of India."'
In sum, having more of this type of information, in my
view, would be important not just for members of the Court but
for policy-makers in charge of executing judicial decisions, for
lawyers, for interest group leaders, and for others whose tactical
strategies (including using litigation) may be altered upon
knowing the public's perspective. I hope that the preceding
study prompts observers of the Indian Supreme Court-and
constitutional courts more generally-to undertake the
investigation of issues like these in the years ahead. Only then

152. See e.g. James L. Gibson, The Legitimacy of the US. Supreme Court in a Polarized
Polity, 4 J. of Empirical Leg. Stud. 507 (Nov. 2007); James L. Gibson, Gregory A.
Caldeira, & Lester Kenyatta Spence, Measuring Attitudes Toward the United States
Supreme Court,47 AM. J. Pol. Sci. 354 (2003); Herbert M. Kritzer, The American Public's
Assessment of the Rehnquist Court, 89 Judicature 168 (Nov.-Dec. 2005).
153. See Gallup Poll, www.gallup.com (noting the percentage of Americans who have
"a great deal" or "quite a lot" of confidence in the United States Supreme Court: 2007:
34%; 2006: 40%; 2005: 41%; 2004: 46%; 2003: 47%; 2002: 50%; 1999: 49%; 1997: 50%;
1995: 44%; 1991: 39%; 1990: 47%) (accessed June 13, 2008; copy on file with Journal of
Appellate Practice and Process).
154. See Gibson, supra n. 152.
155. See Sunil Khilnani, The Idea of India (Farrar, Straus & Giroux 1998).
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can we know for sure that when elites claim to be speaking on

behalf of the general public, that they truly are.