Indian Judicial Behaviour

Author(s): George H. Gadbois, Jr.

Source: Economic and Political Weekly, Vol. 5, No. 3/5, Annual Number the Seventies
(Jan., 1970), pp. 149+151+153-155+157+159+161+163+165-166
Published by: Economic and Political Weekly
Stable URL: https://www.jstor.org/stable/4359548
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 Indian Judicial Behaviour
George H Gadbois, Jr

This is an exploratory study of the behavioural patterns of Supreme Court justices as revealed by
the judges th.emselves in their non-unanimous decisions and by their individualistic behaviour.
Analysisof individualistic behaviour and divided decisions suggests that attitudinal diferences
among the justices account for the consistent differences noticed in the choices some of them make.
Thus the judges themselves emerge as very important variables in determining the nature of
the Supreme Court's decisional output. If, therefore, one wishes to acquire a better understanding
of the Indian Judicial process, judges must be studied much more carefully than they have been so
far.
[The author wishes to express his appreciationt for research and financial aid to the University of
Kentucky Research Foundation and to the American Institute of Indian Studies.]
THE justices of the Supreme Court of fisticuffs which are increasingly be- seems to be that decisions are made
India occupy a unique place among coming a routine feature of the legis- by the "Court", and not by ordinary
the public policy decision-making elitelative and executive decisional proces- - or even extraordinary - human be-
of the nation. They are highly esteem- ses. Indians apply the highest stand- ings who sit on the Bench. The Court
ed by the public. More than any other ards to their judicial priesthood, the seems to be viewed as a virtually face-
segment of this elite, they are viewed political system asks a great deal from less collectivity of legal wizards, as an
as exemplars of honesty and integ- these men, and certainly the available almost machine-like institution which
rity in public office. Indeed, one is evidence indicates that both the high admits litigation snd emits decisions.
exaggerating only slightly, if at all, in standards and great expectations are (On this point it is instructive to com-
observing that these judges are perhapsmet by the juldges. pare newspaper coverage of the deci-
the only group remaining in the Apart from being publicly perceived sional output of the Supreme Court
political system in whom trust can be as representatives of integrity and and Parliament. In the former, the
placed, and whose motives and actions honesty - terms only rarely used now newspaper reader is customarily in-
are publicly perceived as beyond re- to describe the behaviour of ministers, formed only of the decision, and not
proach. Evidence for these observa- legislators and bureaucrats-, what also of the identity of the particular
tions is extensive and easily located. manner of men are these? In seeking judges who comprised the bench that
Each time a demand is voiced for a an answer to this query, one is struck reached the reported decision. While
judicial inquiry into a politically sensi-first by the anonymity of Supreme in the case of Parliament, newspaper
tive matter (recent illustrations include Court justices. These men are not copy concerning a decision almost in-
communalism in Gujarat, alleged cor- national figures about whom the public variably reveals the identity of the
ruption in the Kerala Govemment, and can be said to be familiar. Nor were MPs and ministers who played leading
the Chandigarh problem), the reputa- most, prior to elevation to the Supreme roles in determining the outcome of the
tion of judges as a special genre of Court, well known persons even with- decision.) Indeed, the prevailing folklore
decision-makers is confirmed. Whether in their respective States. A look into seems to be that the judges, by some
the demand for the judicial inquiry is their backgrounds provides an explana- inexorable legal logic, and by consult-
made by the CPI(M), the Akali Dal, tion for their anonymity, and revealc. ing the tablets, arrive at decisions
or Swatantra, the expectation is the also that they are a remarkably homo- which are virtually untouched by hu-
same - that an unbiased inquiry will geneous group of men. The typical man hands and, more significantly, un-
be undertaken, and that ari honest, judge's backgrouLnd is characterised by influenced by the attitudes and values
politically-neutral report will be pre- education at one of the better Indian of the judges. Even when one will
pared. For other evidence supporting universities or in England, some twenty concede that individual judges may have
this uniquely flattering image enjoyed years of law practice before the High attitudes and values of their own, the
bv the judges, one might recall that Court in his home State, no- active (no prevailing view seems to be that deci-
no Supreme Court justice has ever overt, at any rate) participation in the sions are dictated invariably by the
been a party to any major or minor nationalist movement before 1947 nor "merits", that decisions involve no
scandal and, as far as we know, they in post-Independence politics there- more than a mechanical application of
routinely file their income-tax retums after, appointment to the High Court abstract rules to available facts, and
each year. Moreover, the characteris- before which he practiced at age forty that India's paramount judicial officers
tics of the process by which the judges seven, a ten-year tenure on the High are super-human in their ability to pre-
reach decisions are another factor which Court by which time he is the Chief vent their personal attitudes from in-
contribute to the esteem they enjoy, justice or a very senior puisne judge of fluencing their judgments. If this esti-
and serve to distinguish sharply judi- that court, and then promotion to the mate of the image is generally accu-
cial decision-making from the legisla- Supreme Court. This is, of course, not rate, it is easy to understand how it
tive and executive decision-making pro- the kind of career pattern which re- serves both to enhance the prestige of
cesses. The point here is that the judi- sults in a high degree of visibility the Court and strengthen the legiti-
cial decision-making process is marked among the public. macy of the Courts' decisions. But at
by the presence of order and reason, But far from being a handicap, this the same' time, it is an image which
in contrast to the fasts, threats of self- anonymity seems to be a key compo- virtually places these men outside the
immolation, shouting of slogans, hurl- nent of the prestige enjoyed by the community of homo sapiens.
ing of inkwells and paperweights, and Court, for the prevailing local folklore Empirically observed, the nature of

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EiCONOMIC AND POLITICAL WEEKLY Annual Number January 1970

the Supreme Court's decisionial output
provides some evidence in support of
at least that part of the image which
vie-ws the judges as interchangeable
parts of ain impersonal decision-mak-
ing machine. This evidence is the fact
that of the total of 3,272 reported (in
the Suipreme Cour-it Repor ts) decisions
handcied downi from the Court's begirn-
rnilg in 1950 through Subba Rao's re-
sigination on April 11, 1967, all hut 274
wZere unanimous. (Non-unaninmous de-
cisions are those in which at least onef
participating judge inldicates his dis-
agrcement with the outcome decreed
vy his colleagutes; the key criterion is
tfhat this disagreement must be denot-
ed by a clear vote contrary to the ouit-
coimie preferred by the majority.1) In
other words, in fully 2,998 decisionis
all participating judges agreect withl
the otutcome decreed; 91.6 per cent of
viewed, the nationi's public policy-
the reported. decisions were ciaracteri-
sed by unan-imity.
rThis is ani astonishingly high ratio of
uniauiniiiity. Such a high degree of consensius anad liarinioiiv. A further
consensus is seldomIi observed among reason for regarding the observed uinal-
thie topmost collegial courts in Western nninitv as striking is that the kinds ol
(in recent decacdes over 50 per cenit (disputes, which arise for resolutioni by
of United States Supreme Court deci- the Suipreinie Court (for example, the
sions have been dissensual) ancl other sCo)e of personal, religious, political
Asian couintries. Even in Japan, where arid property rights, labour/manage-
conse.ustus and conformity are societal ment relations, regulation of business
values both in theory and to a large aitid of the economy generally, corrup-
extunt in practice, dissensual jucticial tion by governinent officials, and the
biehaviour is miuch more characteristic validity of a bewildering variety of
of Japan's judecicial elite than it is of the laws andi regUlations) embrace virtuall?'
Incdian Supreme Court justices. More- the whole gamuit of difficult questions
ove'L, this relative absence of dissensius over which reasonable meen are expect-
arn(ig decision-makers of a sub-systemn ed to differ, and w,,Nhich clearly do pro-
(a the Indian political systemn is, to inci cf.p)itate shamp differences of opinion
at any rate, intuitively unexpected(J. aimiong memibers of other decision-
Notwithstanding the fact that harmony maiking elites. Of couirse, it is true
anld consensus are often held forth as that the grounidic iules of the courtroom
goals worth striving for in India, one torum require that politicallv impoirt-
need not be blessed with any special tault issues stich as bank nationalisation,
insight to observe that, collectively cornilunalisirl and land reform be arti-
culated in the sacer(lotal legal jargon
imiakers are considerably more skilledof in
judges and lawyers. But regardless
protmoting division anid faction than of whether- a discussioin of communa-

TABLE 1 : INDIVIDUALISTIC BEHAVIOUR OF SUPREME COURT JUSTICES

January 26, 1950 to April 12, 1967

No:n-Solo Concur- Simple Opinions Total Individu- Solo Dis-

Participa- Solo Dis- Dissenting ring Mino- Minority Concur- Individu- alistic Be- sent To
Justices tions sents Opinions rity Opin- Votes ring with alistic haviour Individu-
ions Outcome Behaviour Ratio alistic Be-
(Per cent) haviour
Ratio
(Per cent)

Kania 49 0 0 0 0 1 1 2.0
Fazl Ali 85 3 3 0 0 7 1 3 15.3 23.1
Sastri 135 4 1 0 1 13 19 14.1 21.1
Mahajan 248 4 2 2 1 8 17 6.9 23.5
Mukheriea 249 0 3 1 1 10 1 5 6.0 -
Das,SR 433 2 0 2 0 19 23 5.3 8.7
Aiyar, N C 119 0 0 1 0 7 8 6.7
Bose 304 8 2 1 0 8 19 6.3 42.1
Bhawati 330 4 0 0 0 5 9 2.7 44.4
Hasan 132 0 0 1 0 2 3 2.3
Jagannadhadas 166 6 1 0 0 4 11 6.6 54.5
Ayyar, T L V 341 2 0 1 0 1 4 1.2 50.0
Sinha 580 4 0 2 2 0 8 1.4 50.0
Imam 289 1 0 0 1 2 4 1.4 25.0
Das, S K 449 5 2 1 2 6 16 3.6 31.3
Menon 48 0 0 0 0 1 1 2.1
Kapur 433 10 4 1 1 6 22 5.1 45.5
Gaiendragadkar 993 0 0 0 1 0 1 0.1 -
Sarkar 527 30 8 0 4 3.1 73 13.9 41.1
Subba Rao 779 42 1 1 4 13 61 7.8 68.9
Wanchoo* 938 2 6 0 3 4 15 .1.6 13.3
Hidayatullah* 767 16 7 0 9 25 57 7.4 28.1,
Das Gupta :l0 5 3 0 4. 6 18 3.5 27.8
Shah* 952 15 3 3 3 1.1 35 3.7 42.9
Dayal 422 19 4 0 5 6 34 8.1 55.9
Ayyangar 449 3 8 0 2 9 22 4.9 13.6
Mudholkar 447 12 3 0 4 19 38 8.5 31.6
Sikri* 377 0 1 0 0 0 1 0.3 _
Bachawat* 204 5 4 1 2 12 24 11.8 20.8
Ramaswami* 256 3 1 1 3 2 10 3.9 30.0
Raju 46 0 0 0 0 0 0
Shelat* 99 1 0 0 1 2 .4 4.0 25'.0
Bhargava* 83 0 1 0 1 0 2 2.4
Mitter* 59 0 0 0 1 0 1 1.7 -
Vaidialingam* 40 0 0 0 0 0 0 - -

12,338 206 68 19 56 240 589 4.8 ave 35.0 ave

* Data incomplete because he was still on the Bench at e

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ECONOMIC AND POLITICAL WEEKLY Annual Number jantuary 1970
lisim is punctuated ))y the albusive lan-
guage and table-thumping of the legis-
lators, or characterised lby the more
formal, polite, dispassionate legal idiom
of the judge and lawyer, neither the
judges nor the legislators can escape
the presence of the issue of communnal-
ism.
One should not infer that con-
setisus amoin$ the judges implies a
Court composed of a permissive collec-
tion of robed rubber-stampers whose
behaviour is passive, forty ner cent of
the clecisions wvhichl reach the Supreme
Coturt on appeal from the Iligh Courts
are overturined, and over half of thc
appeals from the various tribunals are
reversed by the Supreme Coturt. In
slightly ovCr two-thirds (2,186) of
the reported decisions, the disputaints
were some level of the government on
one side, and an individual or private
party on the other. The government
lost fully 40 per cent of this litigation,
which is substantial proof that the
judges do nlot cower before the minis-
ters and legislators. Few, if any, other
governments in the world fare as poor-
ly in encounters with their citizens be-
fore the nation's highest judicial tri-
bunal. Moreover, in 487 of these
3,272 decisions, the validity of legisla-
tion was explicitlv attacked by the
private party to the dispute, and in 128
of these instances the legislation was
held unconstitutional or otherwise in-
valid in its entirety (27 State laws, 4
Central laws), or in part (70 State
laws, 27 Central laws). Qtuite clearly
the Coutrt's high uinanimity ratio does
not mean that the judges are eithler
inactive or solicitouis.
So the typical Supreme Cotirt deci- cIomnpiled the astounding record of al
sion is a unanimotis one, andcl is charac-
terised by a single judgigmenit or opin- ioitu (61/2/679).2
ion - the judgment of the Court.
Any decision cliaracterised by more
than one opinion signals the presence
of some form of aberrant jtidicial lbe-
haviour. This aberrant, or xvhat mighit
more elegantly be termed "incdividiual-
istic", behaviour is present in onie of
five distinct forms: (i) a separate opin-
i6n conctirring with thie outcome, but
customarily recording some measure of
disagreemenit with either the reasoning
by which the others arrived at the
conclusion, or with the specific charac-
ter of the outcome itself; (ii) a solo
(lone) dissenting opinion where a jus-
tice, speaking for himself only, records
his, inability to agree with the outcome
decreed by, what is no w, the majority;
(iii) a non-solo dissenting opinion whichli in another unanimous opinion. So the
when these occur, ustially takes the
form of a dissenting oniniona authored
by one justice bult wzhich is joined by
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onie or more other justices; (iv) a sepa- case of the simple vote wvith the
rate opinion expressing concurrence minoritv, a grreat deal in the case of
with a dissenting opinion; and (v) a a solo dissent) on the nart of a justice.
simple vote with the minority - that A more relevant observation, in
is, aligning oneself with the minority view\ of the analysis which follows
but withotit w,vriting a senarate minor- here, is the fact that any expressi6n of
ity opinion. individualistic behaviour requires a
Precisely how rare these forms of jutdge to stand apart from his col-
itndividualistic behaviour are among leagues, to lbreak away fromi the deci-
the judges cani be seen in Table 1. sion-making team, to breach slightly or
From the Court's inception in January slharply the consensus norm. Viewed
1950 through April 11, 1967, the 35 from a still different perspective, an ex-
judges whb servecd on the Court par- pression of such behaviouir almost
ticipatecl 12,338 times in the 3,272 invariably (tlhe exceptionzs would be
reported decisions. Yet there eNree only s(omle of the concurring-with-the-out-
589 expressions of individualistic ie- coimie opiniions) has the effect of de-
liaviour: 240 separate opilions conW- tractin(g f rom the impact of the
cliu-rring wfith the outcone, 206 solo "Coturt's" judllgmcelt. That is, a judg-
dissents, 68 nono-solo dissenlts, 19 coIn- mnent whlich includes anything in ex-
curring minior-ity opinions, annd 56 sin- Cess of the single uinanimous judgment
ple votes with the minior itv. Oin the has, at least in the Indiani context, less
aver.age, indclividuialistic behaviour wvas imlpact, final itv, and future precedential
manifested in on-ly 4.8 prei cent of the Value.
total jpaiticipatioins that is, a judge, Ordlinary comimion sense suggests the
dleparts froin the norm abouit onice in hypothesis that a judge is unlikely to
every 21 decisions in wlhich he is a par- break aw1zay from his colleagues unless
tici'ant. There 're, however, enor- he feels relatively strongly about a par-
moous differences among the justices in ticular issue. This assumption is probab-
their propeensity :for individualistic be-lv of universal validity, and it would
haviour. Fazl Ali registered the high- sefym to be especiallv true of small, col-
est individualistic behaviour ratio, hott legrial groups such as the Supreme Couirt
perhaps more noteworthy in this re- of India, where any recorded form of
garcd are Sarkar wvith 73 expressions of indlividlualistic behaviour is so uncom-
suich behaViour, and Subba Rao, the niioni. To puit essentially the same point
g reatest dissenter in the history of SMMewhliat
the differently, the presence of
Supren-e Couirt, who by himself regis- suich behaviour indicates (lisagreement
tered 42 solo dissents (more than one- amrong judges. Over wNhat do they dis-
fifth of the total) duiring hi.s nine-yeaL agree, and how does one account for
the disagreement? At this jutnctur e the
te,nure on the Court. At the otlher ex-
treme is Gajendragadkar who, in 993 problem, becomes one of first attempt-
ing to find recurring patterns, iuiformi-
participations (more thani aniy otbeic
jtudge dturing the period covere(l), ties, anid consistencies in the indiviclu-
istic behaviour of each judge, and
only
onice maniifesting individualistic lehav-
then, if regularities are obsservable, ideni-
tifying the variables sifficient to explai"n
The, milere presence of indiVidualistic thle observed reguilarities. This is a searcl
1 )e'naviour (does ot imiake it necessarily for the presence of stable attitudes in
signl ificant. Bllt the fact that it is so the behavioural patterns of individual
vCery rarel does suegest to the, Nlbav- judges, anld this is a searbch which re-
iouiral scienltist th-at perhaps insights quires one to observe the judge's be-
concerning the attituldes of the judges hiaviour in manyv decisio'ns over a sub-
niiav emerig(r frojii systematic analysis stantial period of time.
of- stuch behaviour All five forlmns ofi If these Indian judges are at all akini
individualistic bleaviour renDresenit not to r jucdicial decision-n-makers in -other
only aberrant jutliciral behaviour, but countries, then. it is highly likely that
represent xwbat is at the same time their individualistic behaviouir, and their
unnecessary" behaviour. The minost behbaviour in split decisions generally,
innocuous form of judicial behaviour- w-vill reve.al that there are recurring pat-
ancd tlhe easiest thing for a judge to ternis in the choices that most judges
do - is to nod his head as ani indi- mlake. In short, individtualistic behaviour
cation of agreement with a decision-in- and divided (lecisions provide irrefut-
the-making. If it is a five-judge panel, able evi(lence of the existence of dif-
five nods in the same direction result fer-ences between the jtidges. And the
expectation is (unless one has some
registering of any form of individualis- basis for the p)rediction that such be'
He behaviour requires some measure haviour will be arbJitrarv or w'himsical)
of ex;tra effort (little perhaps inl the that analysis of such opinions and
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 Annual Number January 1970 ECONOMIC AND POLITICAL WEEKLY

decisions wvill show that particular pairs The first of these classificatory steps-- ordered his release. Thus the latter are
of judges may niot only differ over time locating the cases in wvhich the Govern- scored as having supported the
in the outcomes they prefer, but that ment is on one side and a private party individual's claim in this civil liberties
each will lbe consistent - thouah on the other - requires no analyst dis- (preventive detention) case, and the
consistently different - in the choices cretion whatsoever; every decision of majority as having stupported the
he makes. Such consistently different the Court either meets, or fails to meet, deprivation of liberty, that is, the
judicial l)ehaviour, if indeed presenit, this criterion. The second step requires positioin of the State of Tamil Nadu In
suggests the possibility that personal the analyst to exercise some discretion, this inistanice.
attitudes ancd values arie operIative in h)ut verv little because over ninety per By contemporary standards, the judge
such decisions. cenit are easilv partitioned into the eco- who supports the freedom claim in civil
The ultimate purpose of research of nlomic f reedom or civil liberties liberties cases is denoted as a liberal,
this nature is em-pirical and theoIretical categories. The one relatively difficult and the judge who votes to sustain the
knowvledge of the compilex phenomienia problem concern.s how to classify the deprivation of liberty is denoted as a
known as the juidicial process. The ve- pl)lic servvant (dismissal, suspension, conservative. In the economnic freedom
search an(d analysis reported in the fol- corrtiption. seniiority) cases. Is a dis- (property rights) cases, and again ac-
lowing pages, however, represents but a (rruntledi, (lismiiisse(I (ex-) public servant cording to contemporary standards, the
inodest and exploratory beginning. Here r aisinig questions of personal or eco- jutdge who suipports the State (who sup-
wve shall very simnply anid objectively niomiic rights ? F'or the purposes ports land reform, the regulation of
classify the outcomes preferred by each of this exploratory analysis, such business, etc) wvould be denoted as a
julstice into categories according to bhat (lisputtes wvill le classified as raising liberal, while the judge who supports
the choices he makes represent in ideo- civil liberties auestions because most of the individual or private claimant in
logical termns familiar to the student of these dispuites raise questions of fair pro- suich disputites is considered, in today's
p)olitical philosophv. Needed Lit this cedure, anid because the judges them- parlance, a conservative.
junctuire, then, is an objective mnetho(dselves seemii to regard such disputes as There being two categories of cases,
and some criteria for classifying the die- raising quiestions of non-economic per- and no more than two response puN-
cisions. social rights. Finally, there are a few sibilities, we have a fourfold clas-
Examination of the (lecisions in which decisions wvhich meet our first criterion, sification scheme. The voting behaviotur
individualistic behaviour is present re- hut which cannot be partitioned into of a judge may indicate (i) rejection of
veals that about seventy-five per cent of ether the civil liherties or economic governmental regulation of both civil
these are disputes between sonie level freedom categories. Most of these are a(In economic freedoms, (ii) acceptance
of the Government (Union, State, M!mii- protective discrimination (reservationof ofgovernmtental regulation of 1oth
cipality, other), ancd an individual or posts or se-ats for the Schedtuled Castes civil and economic freedoms, (iii)
private interest. That is, these cases in- anid Scheduled( Tribes) cases, or election rejection of deprivations of civil
volve some kind( of encotunter between a disputtes. Becauise they fail to meet the liberties but accentance of econoinic
private party and(i the State, ancl in dis- secon(l criterion, they will be excluded regutlations, or (iv) acceptance of re-
senting or concurring), the jll(lge is either fromn the analy,sis that follows. strictions on civil liberties but rejection
accepting or rejectitng the claim ma(le Thus we have tw,o categories of de- of economic reguilationis.
by the State. Carrving the classificationi cisions - civil liberties and economic For the sake of convenience, and in
a step further, it is readily apparenit that freedlomi - ani(l in all of these decisions order to describe what eacli of these
these disputes almost invariably raise( some mnanifestation of incdividuialistic be- :our patterns of votinlg behaviouir repre-
questions of the scope or extent of halviouir is present. Each of these cases ;ents in ideological termils, the following4
either personal rights an(I freeclonis, or will be considered as a stimuilus which iabels, qtuite commonly uised by students
of economic or property rights an(d free- evokes a responise bv the participating f political philosophy, will be employ-
dorns. The former, 7hich shall be de- ju1stices. Futrther, we shall be concerned -d:
signate(l as the "civil liberties" ca(se,s herewith the jud(1ge's votihg response. MODERN LIBERAL: one whose voting
incluide such familiar civil liberties that is, with w7hat he does, and not withbehaviour reflects an antipathy towards
issues as free speech, preventive deten- what he slys. In short, we will be dleprivations of civil liberties, but ap-
tion, the right to legal couinsel, the right partitioning votes (for the appellant, proval for of regulation of the economy.
to a fair trial, anid protection againist the respon(lent) and not analysing the MODERN CONSERVATIVE: opposite the
self-incriminiationi. Includ(lecl within thi.,content of the opinions written by the modern liberals, these are the judges
category are not only claims to freedlonm judges. Determining the direction of a who condone restrictions on civil liber-
as a substantive value, but also claimis juidge's vote is an entirely objective un- ties, but who indicate opposition to eco-
relating to the procedures according to dertaking for, no matter how mtuch he nomic regtulations.
which the substantive claimiis are deter-might vaver or hedge in his written CLASSICAiL LIBERAL: one whose vot-
nmined. In short, the civil liberties cases opinion, he is obliged ultimately either ing behaviour corresponds to the belief
are characterised by a conflict between to accept or reject the appellant's (or in freedom of the individual in both his
a non-economic personal right and gov- petitioner's) claim. The landmark A K personal anid his property rights. A cen-
ernmental authority. The latter, wvhich GoPALAN decision (50/88) will serve for tury ago, these juidges would have been
shall be designated as the "econominc illtistrative piurposes. Six justices partici- counted among the conieiporar y
freedom" cases, incltude suich fanmiliar i'ate(l in this (lecision anid (oiite un- lil)erals for, it will be recalled, leading
economic issules as land reform, land ac- characteristically) each of them prepared liberals of the mid-nineteenth century
quisition, rent anmd eviction contr ols, an in(lividuial opinion. Four of the six (John Stuart Mill and Herbert Spencer,
sales and income taxes, rining leases, (Kania, Sastri, Mukherjea, SI R Das) for example) rejected governmental in-
fiscal claims against the Governmiient, dismisse(d Gopalan's habeas corpus peti- terference with the economy no less than
the regulation of bu.siness, ancl n.ational-tion; they voted to leave him in jail. ioifringements ulponl civil liberties. The
isation of var ious .sector s of the eco- The other twvo (Fazl Ali, Mahajan) cast modern liberal shares with his ideologi-
nomy. thleir votes in favour of Copalan, and cal forebears an anathema towarlds sub--

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ECONOMIC AND POLITICAL WEEKLY Annual Number January 1970

tractionis fromii civil freedoms, butthrough

cisioniS fromll 1950 he haslate 1968, then- the four judges in the majority
come to look with favour upon govern- 210 (74 per cent) meet our criteria, and have also made a choice, represented
mental intrtusions into the economy of a revised total of 616 expressions of by their support for the government.
lairgely l)ecauise of the pro-economic individtualistic behaviour, 468 (7G6 P? This latter lehaviour, thouigh noni-
utnderdog character of, for example, cent) meet the criteria. Hence we are individualistic per ouir definition, has
hand rieform-l, business regulation, and not making use of some 25 per cent of bel'n found( by studeents of judicial
the income tax. Those who demonstrate the "available" data because these data behaviour elsewhere to be hardlv
a pervasive opposition to the exercise do not "fit" our criteria. less revealing of the attitudes of
of governiental authority, whom we En route to a determination of each judges than inidividualistic behaviou-r.
are designating as classical liberals, are jutdge's final or composite policy posi- Moreover, by observing this kind of be-
sometimes called simply "Iil)ertarrians" tion, one major and two minor hypothe- haviour we are able to bring into the
or incdividcialusts. ses wvill be tested. We wvill test the ma- analysis judges such as Gajendragadkar,
CLASSICAL CONSERVATIVE: directly jor hypothesis that there will be a high who are evidently reluctant to express
opposite the classical liberals, these are correlation between the outcomes the individualistic behaviour. Though Ga-
the judges whose voting behaviour slig- ji(lges choose in their solo dissents, ancd jendragadkar manifested individualistic
gests a predisposition to accept govern- their overall, combined individualistic behaviour only once in 993 participa-
mental restrictions of both personal and behaviour and behaviour in non-unaini- tions, he was a participant (in the
economic freedom.s. When conflicting mouis decisions. This hypothesis is ad- rriajority) in 39 other divided decisions,
claims of freedom and authority are vanced becauLse the solo dissent is clear- thuis enabling us to observe the choices
raised for resolution- by the Court, these ly the most extreme form of individiia- he irtade in these.
judges incline towards upholding the listic behaviour - in doing so, a lone Plotted in Figure I is the policy posi-
authority of the Government. justice sharply breaches the consensujs tion of each justice who registered at
These labels are, somewhat arbitrary, norm and is obliged to account for his least two solo dissents in civil liberties
lbut whether one chooses to call aberrant behaviour in the sense that he and/or economic freedom cases. One is
a judge who accepts 1)oth civil and muist enter in the records his reasons able to plot six justices (Bose, Subba Bno,
economic freedom deprivations a classi- for disagreeing with the outcome de- Hidayatullah, Sarkar, Dayal and Shah)
cal conservative, a collectivist, or an au- creed by his colleagues who participated on both dimensions because these six
thoritarian - or something else - is in the same decision. Hence there is registered at least two solo dissents in
of no major consequence in this explo- reason to anticipate that only intensely both yvpes of cases. And we are able to
ration, for what is important is simply held attituldes will provoke a judge to plot fourteen others on one of the two
the directionality of each justice's voting dissent by himself, and that the attt- reference axes. (Though Sinha dissented
b)ehaviour in the two types of cases. tides renresented bv the solo dissents by himself twice in economic cases, he
These labels were chosen not because will l)e reflected in his other individual- is excluded because one supported the
they are especially appropriate to, or in ]stic behaviouir, and in the choices 1w private party and the other upheld the
common usage in India; they were se- makes in divided decisions generally. government, resulting in a 0. 0 posi-
lected because they have a universal The two minor hypotheses are (i) that tioll.)
meaning, which facilitates cross- there wvill be a positive relationship be- The manner by which each justice's
ciulttural comparisons. twveein the choices a judge makes in his position was plotted may be shown by
NVe are now ready to determine solothe
dissents, anl(l the choices represent- using Subl)a Rao and Shah for illustra-
location, or what shall be termned th e(l in his otlher individualistic behavioir; tive purposes. Subba Rao (lissented by
"policy positioIn", of each judge solely and (ii) that there will also be a positive himself fouirteen times in civil liberties
according to the nature of his voting relationship between the kinds of choices cases, an(l in every one of these instan-
responses to the stimuli presented by thea jutdge makes in all his individutalistic ces h is was the lone voice in support of
civil liberties and economic freedoom l)ehaviotlr, anid the kinds of choices bh the individutal, claimant against majori-
cases. Although Table 1 was built upon makes in the split decisions in which be ties which uipheld the deprivation of
only the first 8,272 decisions of the is a participant, but in which he is n(ot civil libe-ties. Hence he is i)laced at
Court, the analysis which follows makes expressing any indivicldualistic behavioLr.pluls 100 on the horizontal (civil liber-
use of all individualistic behaviouir ancl To illuistrate, in a fouir-to-one (non- ties) axis. (Liberal behaviouir in the civil
divided decisions reported in the unaniimouis) clecision, there are usuallylil)erties and economic freedom ca. .s
Sutpreme Court Reports through volumi-e just two written opinionis - the has been denoted as plus on each axis,
II of 1969, which is the most recently minority opinion of the solo dissenter, and conservative behaviour as minus.)
published volume, and which reports and a second opinion Purporting t(, In the econiomic freedom cases, Subba
decisions announced throuigh early De- represent the vie,ws of the four-jutsticeRao registered fifteen solo dissents, of
cemiiber of 1968. Not that makinig use mnajority. Per our definition of in- which twelve supported the private
of the most current data adds very much clividualist:c behaviour, only one form partv's claim, and three the restrictions
(10 nmore clivided decisions and 27 ex- (the sol( dlissent) is present in this on economic freedom. Thus 80 per cent
pressions of in(dividualistic behaviotur), (lecision. But in a very real sensc, of these solo dissents represent what has
for there has been a marked redtuction in the four juldges in the minority bef n (lefined as conservative (in contein-
dissensus since (but not clearly because are exp)ressing their preference for a porary terms) economic voting behav-
particular ouitcone, juist as the solo
of) the departuLre of Subba Rao from iourl, and 20 per cent represent liberal
the Bench in early 1967. Exnanding the lissenter, albeit more dramatically, is voting behaviour. To arrive at Siubba
data base also brings in two additionai e'vpressing his own preference for a liao's policy nosition on the economic
ju(lges (1-legde and Grover), making a dlifferent ouitcome. If in a particulair freedomn (the vertical) axis, w%ve acld the
total of thirtv-seven. case the dismite is betwveen a private minuts 80 au(I the pluis 20, giving him
Perhaps it wotuld be wTise, at this junc- b)usinesslnan an(l the licensing author a net score on1 this diimension of mil.
tulre, to smunmarise the magnitude of the ities (the State), anld the solo rlissenter 30. Diagonally across fr oml .Subb)a Thlo
dazta to le usedl. Of the 284 dividled dle- si ipporltedl thej butsinessmnanlls c1laini,n is Shah, who regristereil ele:ven solo usi-

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ECONOMIC AND POLITICAL WEEKLY Annual Nuinber January 1970

sciits in economic freedom cases, nine the samiie in each Figure, in three in- of the 32 justices plotted. It should
in support of the economic regulation, stances a justice moved to a neutral posi- be emphasised that the data used
and two in support of the private clainm- tion, and in five other instances a jus- in Figure IV are entirely different from
antit. This behaviour gives him a net tice's position as a liberal or conserva- the data used in constructing Figure III.
score of plus 64 (i e, the sum of pluts tive was reversed. Omitting the three Thus a separate concurring opinion sup-
82 anid minus 18) on this dimension. inistances of a shift from.some position porting the outcome decreed by the ma-
EIis position at minus 100 on the civil to none, the fact that the policy posi- jority in a divided decision is counted
liberties axis results from the fact that tions in the two Figures are the same in Figure II, but not again in Figure
each of his three solo dissents in civil eighteen fimes and different in, five re- IV.
liberties cases supported the deprivation suilts in a correspondence ratio between What is the correspondence ratio be-
of liberty. The positions of the remain- the two Figuires of 78 per cent. The tween the policy position of these judges
ing eighteen judges have been deter- five "errors" involve four judges: Shah in the two Figures? This ratio can be
mined similarly. The fourteen plotted shifts from the "strong" segment of the observed for 24 of the 28 judges who
(lirectly on one of the two axes are those classical conservative quadrant into the appear in Figure III. Excluding the six
who registered solo dissents in only civil "weak" area of the classical liberal instances of a judge moving from or to
liberties or economic freedom cases. quiadrant (his nolicy position shifted a 0.0 position, one cani compare .38 poli-
Figture I shows two justices as modern on both dimensions); flidayatullah cy positions of 24 justices (14 on both
liberals, two as classical liberals, retains his clesignation as an economic (limensions, 10 on one). Twenty-nine of
two as classical conservatives, an.-d liberal but shifts to a conservative the policy positions are the same in
none as a modern conservative. position on the civil liberties axis; both Figures, and 9 are different. Note-
Of the fourteen plotted on but Kaptur's solo dissents showed him as an worthy, however, is the fact that no
one of the axes, five are identified economic liberal, but Figure TI finds judge's position changed on both climen-
as economnic liberals, five as economichim slightly on the conservative si(lc sionls; the shifts were lateral an-d not
conservatives, one as a liberal in civil of that axis; and finally, Fazl Ali dliagonal. Sastri, Kapur, Shah, Sinha and
liberties cases, and three as conserva- moves from a conservative to -: Sikri moved from one side to the other
tives in civil liberties cases. The policy liberal position on the civil liberties axis. in the economic freedom cases, an(l
positions of these twenty judges were But these five position reversals must Mukhej 'ea, Sarkar, Ayyangar andl Bacha-
dletermined on the basis of a total of not obscure the fact nearly four timcs wvat move from onie side to the other on
only 139 solo dissents, which is obvi- in every five, the policy positions ar-e the civil liberties axis. Thus the correla-
ously a very small amount of data. But the same in both Figures. There is, tion between the policy positions base(d
this Figure has been constructed princi- then, a moderately high correlation be- upon all individualistic behaviour, and-
pally in order to provide a basis for tween the solo dissent policy positionis all nion-inidividualistic behaviour in
testing the hypotheses mentioned ear- and the "all other individutalistic be- divided decisions, 76 per cent, about
lier. haviour" policy positions. the samlle as it was between Figures I
Plotted in Figure II is the policy po- Plotted in Figure III is the policy po- and IJ.
sition of each of the twenty justices sition of every jutstice whose voting be- Whereas the foregoinig Figures lhave
plotted in Figure I, anid their positionshaviouir dliscloses at least two expres- beent con.strulcted oni the basis of various,
are based upon all their other individu-sions of individualistic behaviour on at I)ut distiinet, portions of the total niumli-
alistic behaviour, excluding, of course,least one of the two dimensions. Seven ber of behavioural observations, in
the solo dissents. With the additional jucdges (Kania, Imam, Menon, Gajen- Figurle V all of the available data have
data, one could plot almost all of the dragadkar, Mitter, Grover and Rajto) been uitilise(l in order to determine the
judges who have served since 1950, but are excluded for failing to meet this final, comiposite policy position of each
in order to avoid confusion, I have criterion, and Hasan and T L V Ayyar judge. Plotted are all the jtustices for
plotted in Figure II only the twenty are omitted because, thouigh each whom at least six behavioural observa-
plotted in Figure I, and on only the registered iindividualistic behaviour tions are available. Thirty-three of the
same dimensions on which it was pos- twice on one dimension, these votes 37 meet this criterion - omitted are
sible to plot each in Figure 1. Figure were split. For the 28 justices plotte(d Menon, Raju, Grover and Bhargava.
II is based upon 214 behavioural (most on both dimensions), a total of Of the 33 plotted, all but Hegde and
observations. 455 observations of individualistic Mitter are plotted on both the civil
Comparing the two Figures, it is evi-
behaviour were used in determining liberties and economic freedom dimen-
dent that there is a relatively high their
cor- policy positions. sions. The data upon which this
respondence between the policy posi- In Figure IV is plotted the policy Figure has been constructed are
tions in each Figure. Of the nine jus- position of each justice as determined summarised in Table 2. The voting
tices plotted as economiic liberals in by his non-individualistic behaviour in behaviour of the 33 judges has been
Figure I, seven are similarly identifiecldivided decisions, according to the same observed 1,087 times, or an average of
in Figure II. Of the seven plotted as criteria emnployed in Figure III. Here 33 observations per judge (the median
economic conservatives in Figure 1, five the data permits us to plot all justices is 28).
imaintain their position, and Bose anid except Menon, jagannadhadclas, Bajni, We are niow in a positioni to test the.
[Iegde move to a completely neutral Grover and Bhargava. Moreover, all principal hypothesis extended earlier -
(0.0) position. Of the five denoted as except Kania, Fazl Ali, Vaidialingam that solo dissents alone will be accurate
civil liberties' liberals, four retain that and Hegde are plotted on both dimen- indicators or indices of a predisposition
designation in Figure II. And of the five sions. Although three others appear towards liberalism or conservatism in all
shown as conservatives on civil liberties directly on one of the two axes, andc the civil liberties and/or economic fre-e-
issues in Figure I, two retain that posi- N C Aivar on both, this reflects com- dom cases in which a judge has regis-
tion, two shift to the liberal side, and pletely neutral behaviour. Figure IV tered individualistic and non-individual-
Dayal moves to a neutral position. Jn is based upon a total of 614 observa- istic beh.aviour. Or, phrased somewhat
sulm, eighteen of the policy positions are tions of non-indlividiualistic behaviourdifferently, that a judge is ulnlikely to

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 ECONOMIC AND POLITICAL W-EEKLY Annual Nunmber January 1970

dlissent by himself unless he feels quite

FIGUIIE 1: SOLO DISSENTl POLICY POSIlIONS

strongly about a particular matter, and Civil Liberties

that these strong feelings or attitudes *100
will be reflected 'elsewhere in his other
individualistic behaviour, and in the
kinds of choices he makes in the non-
p
unanimous decisions.
How accurate were the solos in pre-
SHA
dicting the overcall policy preferences of
HI~~~~~~~~~~~~~0
these decision-makers? Very much so,
indeed. In Figure I, it will be recalled,
20 judges were plotted - 6 on both
dimensions and 14 on one or the other,
resulting in a total of 26 policy posi-
tion "predictions". Comparing Figures I E L ioa 0 ;10
and V shows that the solo dissent policy
positions and the composite policy posi-
tiorns are the same in 25 of the 26 in-
stances. Thus the correlation between
the policy positions in the two Figures is
1-4

slightly higher than 96 per cent, which

* $~~~1 0O~~ _ _ _ _ _ _ _ _ _ _ _ VA. 0
demonstrates that the solos are excep-
-1,qbo ~ ~ P
tionally accurate indicators of policy po-
0 ~ ~ ~~Abeitos sdi h iue
sition predispositions. The solos led us
astray only in the instance of Hidaya-
tullah. In Figure I Hidayatullah is de- Abbrviatons ,sedinA te Fiure
noted as a modern liberal (his position
on the liberal side oni the civil liberties
axis was determined, incidentally, on
only two solo dissents); in Figure V he
NCA Aiyar, N C JA Jagannadhadas, B
maintains his position as an economic
AYG Ayyangar, N R KAN Kania, H J
liberal, but moves to the right - to the TLVA Ayyar, T L V KAP Kapur, J L
conservative side - of the civil liberties BA Bachawat, R S MA Mahajan, M C
axis. As a result of this, he joins the BH Bhawati, N H MI Mitter, G K
heavily populated classical conservativeBHAR Bhargava, V MUD Mudholkar, J Ii
BO Bose, V MUK Mukherijea, B K
quadrant. SKD Das, S K RA Ramaswami, V
It is important to recall that Figure I SRD Das, S R SAR Sarkar, A K
was constructed on the basis of only DG Das Gupta, K (v SAS Sastri, M P
139 solo dissents, whereas in Figure V DAY Dayal, R SHA Shah, J C
FA Fazl Ali, S SHE Shelat, J M
the plots of the same 20 judges on the GA Gajendragadkar, P B SIK Sikri, S M
same dimensions are based on 696 be- HA Hasan, G SIN Sinha, B
havioural observations. Although com- HI Hidayatullah, M SR Subba Rao, K
prising only one-fifth of the data, the HIE Hegde, K S VA Vaidialingam, C A
IM Imam, S J WA Wanchoo, K N
solos accurately determined the policy
position preferences over 96 per cent of philosophy which was in vogue a cases. Either Hidayatullah or Gajendra-
the time. century ago, but which - in the gadkar provide reasonably good' illus-
Figure V shows that 14 of the jud- West at any rate - is out of phase trations of the moderate classical conscr-
ges are located in the classical conserv- in this era. Examining the modern con- vative type; the former, Table 2 shows,
ative quiadrant (10 of these in the servative quadrant, and the data upon supported the government in 42 of 55
strong or moderate segments), nearly as which it is based, one finds that only economic freedom cases, and in 13 of
many as there are in the other three Bhawati comes close to representing 20 civil liberties cases.
qtuadrants combined. Noteworthy is the well the modern conservative type.
CONCLUSIONS
fact that the least populated quadrant However, because his position is deter-
is the modern liberal. No justice emer- mined on the basis of only 19 observa- The foregoing has been an exploratory
ges as a strong modern liberal, and tions, one cannot feel very confident study of the behavioural patterns of
there is not even a good prototype of a Indian Supreme Court justices, as re-
about regarding him as a good illustra-
moderate modern liberal. Among the tion of modern conservatism on the vealed by the judges themselves in non-
classical liberals, Subba Rao is easily unanimous decisions and by their indi-
Bench. Finally, turning to the classical
selected as the best representative (thereconservative quadrant, we find Rama- vidualistic behaviour. Every effort has
are too few observations on Vaidialin- swami and T L V Ayyar located in the been made to be entirely objective; in
strong corner. But we have only 17 be-
gam). As Table 2 indicates, one has more attempting to meet this goal, the nature
data on Subba Rao than on any other havioural observations for each, and a of the data utilised, the methods used,
judge, and of these 91 behavioural total of only 8 observations for both in and the classification terms employed
observations, Subba Rao is seen sup- civil liberties cases. Added together, have been explicitly, and hopefully
porting the in(lividuial claimant no however, they suipported the govemment clearly defined and explained. There is,
lewer than 75 times. Indleed, he is an in 23 of 26 economiic freedom disputes, hiowever, one matter which has not been
excellent prototype of a political and in all eight of the civil liberties dealt with squarely as yet - do these

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ECONOMIC AND POLITICAL WEEKLY Annual Number January 1970
Fi uH1I1?; II: flo CY PlOSITIONS FO1R ALL INDIVID)UALISnIC BEHAVIOUiR Ex-
CEPT SOLO DISSENTS
Civil Liberties
U A~~~~~~~~~~~J
U+100 f
S ~~0 A OG
o~ BR WA
o 1)
FIGUIRE III: ALL INDIVIDUALISTIc BEHAVIOUII POLICY POSITIONS
Civil Liberties
0~~~~~~~+0
Q ~ ~ ~ ~ ~~I O A . _-Y -
DI dd aD
0 a participating judge, but without re-
soD
policy positions represent judicial atti-
tudes? Or are these policy positions in
the two-dimensional plots synonymous
with attitudinal syndromes? I believe
that they are, buit would prefer to with-
hold an unequivocal answer to this ques-
tion until these same data are subjecte(d
to more analysis with methods and tech-
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+1A00
HI
*4
SaV?? 4 iS 1- w o00
niques more appropriate to the study of
attitudes and values. Figure V repre-
sents what might best be designated at
this juncture as approximations of the
attitudes of the justices plotted.
It is important to recognise that wvill have registered more disagreement
than agreemnent in the split decisions in
eithecr Figure V, nor aily of the others,
which they b)oth participated. And if is
purports to measure the attitudinal rela-
All use subject to https://about.jstor.org/terms
tionships anw1rn0g or between various pairs
of justices. To illustrate this point, look
at the location of S R Das and T L V
Ayyar in Figure V. Both are found in
the classical conservative quadrant, with
Das in the moderate segment and Ayyar
in the strong corner. But these relative
positions do not necessarily mean that
the latter is more of a classical conserv-
ative than the former. This is because,
in this analysis, we have not observed
explicitly the relationship bettbeen Das
and Ayyar, or between any other parti-
cular pair of judges. This can, however,
be done very easily by simply looking
at those divided decisions in which thev
participated together. The record shows
that there were four divided civil liber-
ties and six divided economic freedom
cases in which they were both partici-
pants. In the former, they were in agree-
ment each time in upholding the depri-
vation of civil liberty, while in the latter
they were in agreement five times (up-
holding the govemment position each
time). They disagreed only in the im-
portant BENGAL IMMUNITY COMPANY
decision (55/2/603), where Das sup-
ported the company, and Ayyar (who
happened to be one of the three judges
in the minority) voted in support of the
State of Bihar. This illustration,
randomly selected, does confirm both
the location of each in the classical
conservative quadrant, and the position-
ing of Ayyar as a "stronger" classical
conservative than Das. However, it is
very doubtful that for every pair of
judges in the same quadrant this agree-
ment/disagreement analysis wouild cor-
respond as closely to the similarities
and differences between them. In
short, the policy positions represent
attitudinal approximations of each
justice, and these were determined
solely on the basis of each justice's be-
havioural responses to the stimUli pre-
sented by the litigation in which he was
gard for the identity of the other judges
who happened to be participating on the
same panel. Before one can suggest that
one particular judge is a stronger
modern conservative than another (both
being located in the modem conserva-
tive quadrant), additional analysis, mak-
ing use of more powerful tools (scalo-
granit analysis, correlation analysis,
factor analysis), must be undertaken.
Although this analysis has not inelud-
ed a focus upon the relationship be-
tween particular pairs of judges, the ex-
pectation is, of course, that a pair of
judges positioned in opposite quadrants
161
ECONOMIC AND POLITICAL WEEKLY Annual Number January 1970

1 1(;U IUE IV: Au. N0N-IANH 1J)UA,lsi ic1 BEHANIOUR1 POLICY POSITlIONS ties. This is wvhat one discovers. They
participated together in 14 divided
Civil Liberties
civil liberties decisions, and they were
in disagreement re the outcome in all
+100
but one of these. They were together
in 15 economic freedom split decisions,
TWVA disagreeing 10 times aned agreeing in 5.
Similarly, the expectation is that Subba
Rao and Hidayatullah wvould disagree
more frequently thani agree on 1)oth di-
mensions, but more so in the economic
-100
freedom cases than the civil liberties
cases. And this is what did occur - in
*SAS the 13 split economic freedom decisions
in which they were on the same panel,
they disagreed 11 times, while in the 5
lo0.0101 divided civil liberties cases they dis-
agreed in 4. On the other hand, Figure
V shows Subba Rao and Sarkar in
v _______ _ o o1A0 different, but adjacent quadrants,
*KP SIeBI
suggesting relative agreement in the
civil liberties cases, but rather sharp
LG
disagreement over economic issues.
Observing their joint participations
confirms this expectation also. Four
U
times they participated together on
divided civil liberties benches, and
agreed twice; in the 13 divided
economic freedom cases they dis-
agreed 11 times. One cannot, of course,
make such comparisons with all pairs of
judges for they were not all on the
Court at the same time. In Figure V
Dayal and S R Das are side by side,
*100 but their agreement/disagreement ratio
cannot be observed because Das
retired in 1959 and Dayal joined the
Couirt in 1960.
Returning for a moment to the Subba
Rao/Dayal ratio of agreement/disagree-
ment, perhaps it should be underscored
that in the 29 split decisions in which
they were on the same panel, but on
MIAN opposite sides in 23 of -them, the facts,
the laws and the Constitution involved
in all of these were identical. But when
TLV
faced with the same stimuli, these two
~~~~ ES ~ ~ Ao- men arrived at the same conclusion only
X 1S 1 ;X SH;
* MI~~01
e*0 six times. When any pair of judges,
OR HBDSHB~OA ~ confronted with the same factual re-
MA. .133~~~* 0 cords, differ so sharply over how to de-
_____________ EMc cide cases, it is obviously quite reason-
able to hypothesise that personal
attitudes a-re operative.
We have made use here of two varia-
bles -economic liberalism/conserva-
tism, and civil liberalism/conservatism
- which enabled us to make use of
some 75 per cent of the individualistic
behaviour and divided decisions. It
is certainly conceivable, however, that
is in fact what OtiC finds. Take, for il- 1)oth civil liberties aijnd economic free- there are other attitudinal variables
lustrative purposes, Subba Rao and dom issues. Further, it may be noted relevant to the decision-making behav-
Dayal, whose positions in Figurie V that their respective positions on each iour of Indian Supreme Court justices.
(classical liberal and classical conserva- dimension suggest that they were less One other that is suggested by the
tive, respectively), suggest that these txvo in disagreement on economiiic matters non-unanimnous dlecisions excludedl
inen differed in their attittides towards fromn this analysis is the sociall liber
than onl questions concerning civil liber-

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ECONOMIC AND POLITICAL WEEKLY Annual Number January 1970

ism/colnservatism variable. Perhaps

Of the governmiient's theI)e well nigh impossible to raise
policy of reserv-
designations of "equalitarian" for the ing seats for specified disadvantaged their standards if the doctrine of equal
social liberal, and "traditionalist" for groups, Subba Rao said that without opportunity was strictly enforced in
the social conservative are more it "all the backward communities their case. They would not have any
familiar. This variable would serve to would go to the wall in a society of chance if they were made to enter the
m:easure the extent to which individital uneven basic social structure . . . open field of competition without ad-
judges believe in the desirability of Centuries of calculated oppression ventitious aids till such time when they
changes in the status quo in order to and habitual submission reduced a could stand on their own legs" (p 700).
bring about a society in which there is considerable section of our community Thus social liberalism/conservatism
greater equality for all persons. The to a life of serfdom. It would may be an important variable which
social liberals would be those whose
behaviour reveals support for the social TABLE 2: DATA USED FOR POLICY POSITIONS IN FIGURE V
underdog-the socially underprivileged
Individ- In Ma- Total
in Indian society-while the social con- ualis- jority Behav- Economic Civil Liberties
servatives would be those whose behav- Justices tic Be- in Divid- ioural Lib Cons Lib Cons
iour over time suggests respect for haviour ed De- Obser-
cisions vations
traditional, restrictive social practices.
This variable might be relevant to the
reservation of seats cases, the landlord/ Sarkar 52 31 83 40 22 12 9
tenant disputes, the creditor/debtor Subba Rao 46 45 91 10 47 28 6
cases, perhaps the labouir/management
disputes, and perhaps also to the cases Hidayatullah 46 29 75 42 13 7 13
where the rights of Hindu women are
Shah 32 34 66 24 22 4 16
at issue.
Of the dozen solo dissents of Sarkar Mudholkar 28 29 57 26 14 4 13
which were not utilise(l in the analysis
Dayal 27 22 49 19 11 5 14
above (because in none of these was
any level of the government a party), Bachawat 22 13 35 17 9 2 7
seven pitted what might be conceptual-
ised as the "privileged" against the Das, S R 19 29 48 15 9 6 18
"underprivileged". Three were land-
Kapur 18 30 48 19 18 2 9
lord/tenant disputes; three others were
creditor/debtor disputes, and the Bose 18 10 28 5 9 13 1
seventh was a management/labour dis-
Ayyangar 14 25 39 8 17 7 7
pute. In all of these Sarkar's solo
dissents supported the claims of the Das,SK 13 35 48 it 24 5 8
underprivileged against majorities Sastri 13 13 26 6 5 2 13
whose votes stupported the landlords,
creditors and management. At least Mahajan 13 8 21 5 3 11 2
five of Stibba Rao's lone dissents which Wanchoo 11 42 53 13 21 7 12
failed to meet our selectioin criteria
Das Gupta l 21 32 5 li 11 5
might be similarly conceptualised, ancd
in each of these his solo dissent sug- Mukherjea 11 i 22 4 2 9 7
gests a sympathetic attitude towards Fazl Ali 9 4 13 3 1 4 5
the underdogs of Indian society.
Illustrative would be his solo dissents Jagannadhadas 9 1 10 5 1 1 3
on behalf of the injured in an auto- Bhawati 8 11 19 3 12 0 4
mobile injury case, and the wife over
Ramaswami 8 9 17 14 1 0 2
the husband in a Hindu marriage rift.
But the most powerful evidence for Sinha 7 34 41 12 15 3 11
what may well be a deep concern on Hegde 5 2 7 1 6 0 0
Subba Rao's part for changing the
Sikri 4 28 32 10
statuts quo in order to raise the status 19 1 2
of the underprivileged is found in hisAiyar, N C 4 8 12 3 1 5 3
solo dissent in the important DEVA-
Shelat 3 6 9 1 6 1 1
DASAN decision (64/4/680). Here the
four judges who formed the majority Ayyar,TLV 3 14 17 9 2 0 6
held that the "carry forward rule", Hasan 3 5 8 1 2 3 2
designed to carry over for the backward
Imam 2 17 19 4 S 2 5
classes allotments of rescrved posts un-
uised in earlier years, was an un- Vaidialingam 2 4 6 0 5 1 0
constitutional infringement of Articles
Gajendragadkar 1 39 40 17 7 5 11
14 and 16 of the Constitution. Subba
Rao's (lissenting opinion contains a Kania 1 8 9 2 0 2 5
powerfld and( mloving cndorsement of
Mitter 1 6 7 5 2 0 0
the policy of discrimination in reverse
Totals 464 623 1,087 359 345 163 220
in order to uplift the disadvantaged.

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Annual Number January 1970 ECONOMIC AND POLITICAL WEEKLY

ial-.y serve to accoutnit for the choices avenutes of analysis, s(ome leadiing, per- grounid except where compelled to do
particular judiges make in many of the haps, to new ancl useful insights about so" (54/30 at 49). In another of his
divided decisions conceprualised as Indian judicial declsion-making, have lone dissents he said of the majority's
raising neither civil lil)erties nor econo- had to be i(gniored. One such is the decision: "If it is pushed to its logical
mic freedom questions. question of how critical is the role of conclusion", Parlianment might "em-
One inescapahle conclusion from the Chief Justice in determining the power. . . a nolice constable. . . to
this stuidy is that the ju(dges themselves nature of the decisional output of the arrest you as long as he pleases, for
are very importlant variables in deter- Court. One of the powers of the Chief the duration of your life if he wants,
mining the naturec of the Supreme Tustice is that of deciding which parti- so that you may linger and rot in jail
Court's decisional ouitputt. Indeed, if cular judges will sit on the several di- till you die, as did men and women in
one wishes to acquire a reliable and visional benches. Prior to moving up the Bastille" (51/621 at 652). And one
scientific un(ler-standing of the Indian to the Chief justiceship in late June of can select almost at random from
Judicial process, the juldges themselves 1966, Subba Rao had been in the mi- Subba Rao's dissents and find himn
must be studied miiuch more carefully nority (dissenting) 48 times, more often hammering away at the same theme of
than they have been to date. And, than any other judge in the Supreme "inviolable", "transcendental", "inalien-
though in focusing upon how and why CouLrt's history. But during his nine able", "paramount", and "sacrosanct"
Indian judges make their decisions one and one-half month tenure as Chief Fundamental Rights. Undoubtedly it
is treading upon hallowed ground, the Joistice he never found it necessary to was these attitudes towards individual
purpose of research of this nature is write a dissenting opinion, nor was he freedom to which Chief Justice S R
neither to disrobe the judges nor to des- once in the minority in the 77 reported Das referred when, on the eve of his
troy the myth of judicial objectivity decisions in which he was himself a retirement, he observed that Subba
(this kind of research does, however, participant. Moreover, during his Rao "is extremely unhappy because all
pose serious, if not insurmountable, tenure as Chief Justice, there were 167 our Fundamental Rights are going to
problems for those who propagate this cases decided which pitted the individ- the dogs on account of some.ill-con-
myth). That Supreme Cou-rt judges utal against the State. The individuals ceived judgments of his colleagues
(lisagree simply shows that they, like (or private party) won 83 (49.7 per cent) which require reconsideration" (59/xvi).
the rest of us, are human. And to of these encounters. Under none of Some judgments were, indeed, "re-
find that attitudinal differences among Subba Rao's eight predecessors as considered" during Subba Rao's tenure
the justices may account for consistent Chief did the government fare so as Chief Justice, the well known GOLAK
differences in the choices some of theml poorly, and the individual so well. NATH' decision (67/2/762) being the
make again simply confirms their mem- This suggests that the role of the Chief best illustration of what happened after
bership in the coimmunity of honm.o Justice deserves more systematic study Subba Rao's Court reconsidered some
sapietns. A number of the judges have than it has received. earlier Fundamental Rights decisions.
acknowledged this fact themselves. For Another very interesting question is In conclusion, the close observer of
example, in an early year of the Court's that of why so few of the Indian Sup- India's paramounit judiciary will find
existence, Clhief Jutstice Patanjali Sastri reme Court justices are designated as that Indian Supreme Court judges are
observed in a major Fundamental modern liberals or modern conserva- men of more than ordinary talents
Rights decision: "It is important in this tives? And of why such a large nurn- whose elevation to the Court has done
context to bear in mind that the test ber are identified as classical conserva- much to enhance the Couirt's prestige.
of reasonableness, wherever prescribed. tives? These are especially interesting Most are men of vigorous minds, but
should be applied to each individu-ial queries for the student of comparative attitudinal eunuchs they clearly are not
statute impugned, and no abstract judicial (or political) behaviour. By nor does the Constitution, which care-
standard, or general pattem, of reasoni- way of brief comparison, during the fully spells out the qualifications pros-
ableness can be laid dowvn as appli- I)ast generation there has not been a pective Supreme Court judges must
cable to all cases. The nature of the single classical conservative, nor a meet, list that among the necessary qu.a-
right alleged to have been infringed, single classical liberal, on the Supreme lifications.
the underlying purpose of the restric- Court of the United States of America.
Notes
tions imposed, the prevailing condi- Other things that might be under-
I have iade one exception to this
tionis at the time, should all enter into takeit include a systematic analysis of definition. The landinark GOIAK
the judicial verdict. In evaluating the opinion behaviour of' the judges. In NATH decision has l)een counted
suich eltusive factors and forming the foregoing only the voting behav-
their among the non-unaniimous deci-
ou,n coniceptioni of wuhat is reasoniable, iour of the judges has been analysed. A sions because most observers (lo
regard it as a split (6 to 5) deci-
in all the circumstances of a given case, number of the judges have been quiite
sion. Yet all eleven participating
it i.s inevitable that the social philoso- candid in revealing their personal feel- judges xwere in agreement that the
phy and the scale of values of the ings in their written opinions. Take writ petition should he dismissed.
jucges participating in the decision Vivian Bose, for example, whose voting2 In the interests of conserving space,
should play atn importatnt part... Ibehaviour results in him being placed the case citations, all of which are
(STATE OF MADRAS V V GROW, 52/579 in the classical liberal quadrant. In from the Supreme Couirt Reports,
will be in this form. The case
at 607. Emphasis added.) More recent his written opinions Bose made no ef-
cited here is located in volume 2
evidence of a similar nature can be 0ort to mask his distaste for govern- of the 1961 Suipreme Court Re-
nental enieroachmenits upon what he re- portts, at page 679. Where there
fotund in ani exceptionally interestin(r
article written by the presenit Chief garlded as essential inidividual freedoms. is only one volume in a particu-
justice of India.3 In KEDAR NATiH BAJORIA S case, for lar year, only the year and page
vill be indicated.
Exploratory studies, perhaps inevita- ex.ample, he wrote, referring to the
1ly, often- raise more, Xqniestionis tlhaniFundamnental Rights: `My views about .3 M IIi(dayatuillah, "judticial Me-
i liods", JoI1Jrnial of Conistituitional
ti (V-N d05l.\V7ei, Bc;aulse' oft timel- amtl-em
I are so strong that: I cannot in all anid Parliamentary Stuidies, Vol III,
space limitations, many very interesting conscience yield a single inch of No 2 (April-June 1969), pp 1-14.

166

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