Mayur Suresh and Siddharth Narrain (eds)., The Shifting Scales of Justice: The Supreme Court and Neo-liberal India (Orient Black Swan 2014); Rs. 650.
There is a well-known narrative that explains the trajectory of the Supreme Court in the last quarter of the 20th century. Habeas Corpus (1976), with its abject capitulation to the Executive, was the low point – four judges, either desirous of currying political favour, or fearful of the consequences (or both), failed in their fundamental duty to protect the civil liberties of India’s citizens. The crisis of legitimacy that this generated drove the Court to look to another forum to re-establish itself. That forum became the PIL, a substantive and procedural revolution: loosening the rules of standing, combining it with an expansive interpretation of Article 21, and bringing in the Directive Principles into constitutional adjudication, the Court spent the 1980s solicitously tending to the social and economic needs of the most marginalized sections of society. But then, with the 1991 economic turn to neo-liberalism, there was a parallel change in judicial values. Now the PIL became the instrument of choice for a newly-assertive, rising middle class, and it was the interests of that class – prefaced with grand perorations of economic development and progress – that the Supreme Court found itself giving most attention to – and that, at the expense of the most marginalized. If Bandhua Mukti Morcha, with its powerful and moving use of the PIL to free bonded labourers living in conditions of abject depredation, characterized the former phase – then Almitra Patel, contemptuously equating encroachers on public land (normally desperately poor people with nowhere else to go) with “pickpockets” – marked the Brave New Supreme Court: neoliberal and corporatist.
This narrative fits in with two theories. One is the theory of institutional vacuum, which posits that if one wing of the State retreats from its proper sphere of functioning, its place will be taken by another. The other is Robert Dahl’s famous argument to the effect that the judiciary is not, and has never been, a “counter-majoritarian institution”: on the contrary, much like the legislature, the judiciary also comes to reflect majoritarian values. Legislature and judiciary are not so much in opposition, then, as much as sometimes separated by a lag: more often than not, they will be on the same side of a concrete issue.
Judicial Nineties is thus an important book, in order to understand how the Supreme Court has come to stand where it does today; but also, perhaps, to understand its trajectory in the short-term future.