Do judges measure up?

Are Muslims discriminated against in the country’s courts as, it is alleged, they are by the local policemen who tend to arrest more of them than they do Hindus? Does the judicial system just go along blindly, as it were, and convict those accused of terrorism without even a fair trial, as has been alleged in the case of Mohammad Afzal who has been sentenced to death in the Parliament attack case? Can the judgements given by various courts, even judges, be mapped/predicted in the manner John Grisham does in The Runaway Jury? Does the presence of a weak/coalition government have any impact on the kind of judgements courts give?

 

These, and a lot more questions, come to mind naturally whenever you think of India’s court system. Shylashri Shankar, a PhD in political science from Columbia who’s been an assistant professor at the University of Texas at Austin and now works at the Centre for Policy Research in New Delhi, attempts to answer precisely these questions, and more. Apart from an interesting narrative on the phases in the kinds of judgements given by the courts, Shankar uses interesting econometric tools to give a different flavour to her arguments. As a result, the 200-odd pages in the main portion of the book are easily read in one sitting. The book is based on the judgements cited in Manupatra which contains the bulk of judgements given by the Supreme Court and various high courts.

As you’d expect, the courts have followed a bit of a zigzag path when it comes to judgements, lurching from the extreme fawning of the Emergency days to excessive activism, wanting to dictate even the procedure for admitting children to nursery schools. The author has a lovely citation to explain this: As Chief Justice Beg was about to retire in 1978, a Bombay Memorandum prepared by 52 public men and advocates appealed to the government not to appoint either Justice Chandrachud or Justice Bhagwati, given their role in upholding the government’s right to enact the dreaded MISA, the preventive detention law. Two years later, Justice Chandrachud apologised for not having the courage to resign during the trial. In other words, judges are human too, and seek their legitimacy from the public.

Fortunately, the econometric exercises the author has done show the judges don’t seek to get their legitimacy by forgetting to do their job — which, given that a Supreme Court judge heard around 1,700 cases in 2005, is pretty mind-numbing. A sample of some of the results the exercise throws up:

 

 

With only 35 per cent of TADA (1985-95) cases actually pertaining to national security which it was supposed to deal with, just 57 per cent of TADA cases in court went in favour of the state. In the case of Preventive Detention (1950-70), where 53 per cent of the arrests pertained to national security, 74 per cent of judgements were in favour of the state;

A judge was 48 per cent more likely to give a pro-accused ruling in a TADA case as compared to a Preventive Detention one (this also signals the judiciary’s shift after the Emergency);

TADA cases involving Muslim litigants were 38 per cent less likely to be decided in favour of the state (this suggests Muslims tend to get rounded up by the police more often than other communities but also suggests that if there is a Hindu bias against Muslims, the judges certainly don’t reflect it);

In cases where the accused was a Muslim, decisions by Hindu judges (87 per cent of all Supreme Court judges) were 34 per cent less likely to favour the state;

Judges were 27 per cent more likely to deliver anti-state judgements during coalition/minority governments;

After the attack on Parliament, the judgements tended to get more pro-state;

Forty per cent of Supreme Court judges are pro-state 50-75 per cent of the time, 24 per cent were anti-state less than 50 per cent of the time, and so on (think of how litigants would benefit from studying these patterns closely!).

The arguments clearly have flaws — each case, for instance, gets scored equally though it is obvious some are far more important. As the BMW case showed us, the government doesn’t fail to get a conviction only because the case is weak; the list goes on. The purpose of the book, however, is not to praise or indict the judicial system; the idea is to put out patterns in court behaviour, and to venture some explanations for them. To that extent, it is a commendable job. And eminently readable.

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SCALING JUSTICE
INDIA’S SUPREME COURT, ANTI-TERROR LAWS, AND SOCIAL RIGHTS

Shylashri Shankar
Oxford University Press
230 pages, Rs 625