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There is a widely held belief among Indian academics, political and civil society activists, and public-spirited citizens that the Indian Supreme Court is both capable and uniquely structured to help the relatively disadvantaged. The broad scope of rights granted by the Indian Constitution and the relative institutional independence of the Indian Supreme Court bolster this optimistic view of the Court.1 This view also draws support from the perceived inability of the Indian political system to respond to chronic denials of human rights. Political infighting, corruption, inert bureaucracies, and an ossified yet resilient cultural system render the political system structurally incapable of decisive and progressive social change. In contrast, the Indian Supreme Court is free from these constraints.
The chapter examines the relationship between India’s higher judiciary judgments on affirmative action benefits and the response of the Hindu Right to religious conversion. It makes three arguments: First, progressive court interventions can be impeded by restrictive constitutional provisions. India’s judges are hamstrung by the embedded contradiction in the law, which, in its pursuit of one constitutional goal (social justice) has undermined another (religious freedom). Second, even if judges aspire to implement the spirit of the law, and try to provide an equitable result to these groups, their efforts need not produce positive social change. Third, contrary to the view that apex courts produce moderating effects in the arena of religious freedom, judgments have unintended and deleterious impact on religious toleration and may deepen polarization. The empirical analysis highlights this argument by examining the impact on the access of religious converts from Scheduled Caste and Scheduled Tribe groups to affirmative action benefits in 80 religious conversion cases from 1950-2006 in India's higher judiciary. It scrutinizes the Hindu Right's historical and contemporary responses (in parliamentary debates, newschapter reports, and interviews), to these judgments and highlights the unintended consequences of the courts' decisions, namely religious polarization.
By the 1990s, India’s appellate courts had become closely involved in the regulation of street vending in several metropolitan cities. However, despite the frequent use of legal mechanisms by street vendor collectives, there has been little progress towards “formalization” of the street vending economy. To understand the limited impacts of legal intervention, it is necessary to examine the timing and the circumstances under which street vendor collectives first turned to judicial forums for protecting their livelihoods. Based on a historical examination of street vendor politics in Bombay and Madras, I show that legal mobilization in both instances was a response to serious threats faced by the political regimes that had previously shielded street vendors from dispossession and exploitation, rather than being a direct result of new legal opportunities (such as the emergence of public interest litigation). Since organized street vendors had a strong preference for maintaining the status quo, litigation was used as an effective method for buying time in the face of a hostile or uncertain political environment, even when the ultimate verdict was not likely to favor street vendors.
The preceding chapters explored the effects of leading decisions of the Indian Supreme Court on the lives of India’s marginalized citizens. They addressed the question of whether the Indian Supreme Court is an effective agent of progressive social change or is constrained in furthering the rights of the relatively disadvantaged. We suggested in the that the Indian Supreme Court might be capable of playing a progressive role because it has several advantages that other national high courts, particularly the US Supreme Court, lack. These include the broad sweep of constitutional rights in the Indian Constitution, the procedural improvisations the Court has made such as its public interest litigation (PIL) docket, its suo moto jurisdiction, its continuing mandamus process, and its heightened structural independence from the other branches of the central government. These suggest that Indian Supreme Court decisions might have the ability to make a real difference in the lives of India’s most disadvantaged citizens.
The Indian Supreme Court sits in panels and can have up to 31 judges. This chapter explores how the Indian Supreme Court developed its current structure and the impact of this structure on its functioning. It argues that the Supreme Court’s structure has a range of inter-related effects that includes increasing access to the Court, producing a “polyvocal” jurisprudence that destabilizes stare decisis, spurring experimentation among judges, fostering a “Chief Justice dominant” Court, and reducing the perceived partisanship of judges. Mapping the structure of the Court, as well as the Court’s relationship with the rest of the judiciary, helps us appreciate how judges ultimately interpret the law and the Constitution not in isolation, but within a larger judicial architecture.
This chapter critically evaluates the impact of the Indian Supreme Court's interim orders in the Right to Food case, a Writ Petition seeking better implementation of the Midday Meal Program (the largest school nutritional program in the world). We cite significant and varied empirical and social science evidence demonstrating that the Program expanded significantly – from a quantitative as well as a qualitative standpoint – in the years immediately following the Court's orders. The harder question is whether the expansion in the Program was "caused" by the Court's intervention, or was largely the consequence of changed political circumstances. We argue that while the supportive political environment was undoubtedly a significant factor, the evidence available seems to indicate that the Court played an important role too. These orders helped in improving the scheme in certain specific respects, in bringing sustained media attention to the issue, in entrenching the Program against subsequent shifts in political priorities, and in providing a platform for the broader social movement to coalesce around. The experience suggests that there is room for "qualified hope" as to the ability of courts to help realize socio-economic rights, albeit in certain limited situations and in partnership with other actors.
The Indian Supreme Court is widely seen as a vanguard of progressive social change. Yet there are no systematic studies of whether its progressive decisions actually improve the lives of the relatively disadvantaged. This book presents the first collection of original empirical studies on the impact of the Indian Supreme Court's most progressive decisions. Combining original datasets with in-depth qualitative research, the chapters provide a rigorous examination of the conditions under which judicial decisions can make a difference to those in need. These studies reveal that the Indian Supreme Court, like its US counterpart, is largely constrained in its efforts. Yet, through the broad sweep of constitutional rights in the Indian Constitution, the Court's procedural innovations, and its institutional independence, the Indian Supreme Court can sometimes make a difference - in the lives of those most in need.
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