A BASIS FOR HOPE

A generation has passed since the publication of Gerald Rosenberg’s (Reference Rosenberg1991) The Hollow Hope. Its controversial thesis about the judiciary’s limited capacity to produce significant social reform can plausibly be viewed as confirmation for the argument made some seven generations earlier for why that branch of government “is beyond comparison the weakest of the three departments of power” (Hamilton Reference Hamilton1788, The Federalist, The Gideon Edition, George W. Carey and James McClellan, eds., Liberty Fund, Indianapolis, 2001, 402). Unlike the more recent effort, Alexander Hamilton’s reflections on the “least dangerous” branch lacked the support of empirical scholarly findings, but as part of an essay series that often evinced a deeply informed familiarity with the experience of other places, they benefited from a more comparative sensibility than was typical of a public law inquiry in the late twentieth century. No less than “the celebrated Montesquieu” is invoked in Federalist no. 78 for saying: “Of the three powers … the judiciary is next to nothing” (Ibid., 402).

Rosenberg has rightly pushed back against critics who accused him of going as far as Montesquieu, which is to say casting the judiciary as essentially an institutional irrelevance. In A Qualified Hope, Rosenberg, Sudhir Krishnaswamy, and Shishir Bail (Reference Rosenberg, Sudhir and Shishir2019) build comparatively upon the earlier book’s limited focus on “the role of the courts in the American political system” (Rosenberg Reference Rosenberg1991, 35). Their exploration of the judicial role in India—a place where the courts are commonly held to possess wide-ranging power—provides an additional setting for the rigorously empirical approach used in The Hollow Hope. The scholars they have assembled to produce twelve impeccably crafted chapters, each pursuing a pertinent topic for assessing judicial capacity, enable their curators to embellish and refine the insights of what had been until their intervention a study of a singular and perhaps highly idiosyncratic case.

Rosenberg, Krishnaswamy, and Bail (Reference Rosenberg, Sudhir and Shishir2019) have made effective use of their contributors’ research, extracting from the various inquiries instructive conclusions about how and when the Indian judiciary can be expected to make a real difference in people’s lives. As might have been predicted from the title of the volume, theirs is a mixed assessment, providing assurance to those who fear their hopes for a formidable judicial presence will be shown to be hollow as well as a clear reminder of the factors that inhibit such hopes from being fully realized. Then again, the reader might be forgiven if she discovers in the finding that “the Indian Supreme Court has much in common with its US counterpart” a reason for retroactive wondering about the title of the earlier book (356). Why use language that connotes a lack of substance or value if it turns out that investigation into an equivalent institution with a record of significant, if limited, achievements in effecting social reform reveals considerable impact commonality?

Semantics aside, A Qualified Hope does much to highlight and advance the appeal of Rosenberg’s contrasting constrained and dynamic models of judicial power (Rosenberg, Krishnaswamy, and Bail Reference Rosenberg, Sudhir and Shishir2019). His much debated assessment of the US Supreme Court’s ability to bring about social change, to the effect that “the constraints derived from the Constrained Court view best capture the capacity of the courts to produce … reform,” provides an ideal point of reference for the new scholarly Indian undertaking (Rosenberg Reference Rosenberg1991, 336). And so the framework for comparative evaluation embraces the contrary expectation that several structural features—the broad sweep of constitutional rights, the procedural improvisations of the Indian Supreme Court, and the formal independence of the judiciary—will establish a less constrained environment than exists in the United States for the law’s capacity to address the country’s relatively disadvantaged population.

All of this is amply demonstrated in the case studies as well as the associated insight that context matters and that impactful judicial intervention is often mitigated by the failures of state competence and the resistance embedded in traditional religious and cultural values. The book’s first part is an institutional overview of the Indian Supreme Court that offers convincing empirical support for its accessibility and inefficiencies. An important chapter on the evolution of India’s public interest litigation (PIL) does not vindicate the high hopes that accompanied the introduction of this expanded jurisdiction, as over the years the benefits of PIL for the country’s marginalized populations have increasingly declined. Still, as Poorvi Chitalkar and Varun Gauri show in their chapter, even as the court’s focus has moved away from the lives of the poor and disenfranchised, the jurisprudence that has accumulated around PIL can be a wellspring of continuing hope for meaningful social and economic amelioration. As Chitalkar and Gauri demonstrate, the same can be said of the related suo moto intervention by which the judiciary may take up a matter of public concern on its own initiative.

This mixed appraisal is evident also in the chapters devoted to specific policy questions that have received extensive judicial consideration. Thus, for example, it is difficult not to find in Robert Moog’s analysis of the Delhi pollution case or in Alyssa Brierley’s discussion of the right to food case substantial reason to think that the judiciary can have an appreciable impact in alleviating some of the harsher burdens of life in India. Still, in these instances, as well as in others where the Indian Supreme Court has not had the benefit of an environment so conducive to dynamic court achievement, confidence in the record of tangible social and economic progress is often weakened by the emergence of constraints that are not immediately apparent in the wake of initial legal successes. Then, too, what the appropriate measure of progress should be is further complicated by the frequent appearance in these studies of the indirect effects of judicial decisions, perhaps most vividly described in M. Mohsin Alam Bhat’s chapter on the famous Indra Sawhney reservations case, where the authors detail that ruling’s “attractive symbolic resources for social movement mobilization” (Rosenberg, Krishnaswamy, and Bail Reference Rosenberg, Sudhir and Shishir2019, 197). Here and elsewhere, the ultimate impact of judicial intervention with respect to social reform will remain uncertain until it becomes clearer if and to what extent such mobilization can influence the behavior of other state institutions.

While this uncertainty will doubtless be with us as an enduring component of our efforts to assess the extent of judicially driven social reform in India, the contributors to this volume have done much to diminish the magnitude of what we do not know. More specifically, they are adept, as the editors point out in their summary chapter, in illuminating both the direct and indirect impacts attributable to Indian Supreme Court decisions. For example, with respect to the latter, Bhat’s research is nicely complemented by Karthik Rao-Cavale’s detailed examination of street vendor politics, which illustrates how disadvantaged groups can leverage their partial short-term success in the courts to keep open the possibilities for greater long-term progress. And, as an example of the former, the direct effect findings in the Delhi pollution case are consistent with the work of Rosalind Dixon and Rishad Chowdhury, who show in their study of the right to food case—though not as decisively—that the intervention of a dynamic court can produce measurable results for the disadvantaged. Taken together, this impressive collection offers the reader a depiction of the range of large, potentially transformative, challenges present in the Indian legal context as well as a more nuanced account of the constraint/dynamism antinomy than is to be found in Rosenberg’s (Reference Rosenberg1991) earlier pathbreaking work.

THE CONSTITUTION WE ARE EXPOUNDING

While this most recent iteration of the limits and possibilities of the dynamic court view provides some welcome comparative perspective, its broader analytical lens could be widened further to appreciate the full dimensions of the problem. In an early parliamentary debate, a manifestly frustrated Prime Minister Jawaharlal Nehru said: “[T]he whole purpose behind the Constitution which was meant to be a dynamic Constitution leading to a certain goal step by step, is somewhat hampered and hindered by the static element being emphasized a little more than the dynamic element and we have to find out some way of solving it” (quoted in Kashyup Reference Kashyup1982, 147).Footnote ¹ His frustration had been provoked by the constrained view of a Supreme Court that Nehru thought to be incompatible with the spirit of the newly adopted Constitution. As Nick Robinson (Reference Robinson2009, 4), one of the contributors to A Qualified Hope, has elsewhere contended, “[t]he original, narrow judicial role of the Court … sits in incongruity with the Constitution’s transformative vision for Indian society.” Or consistent with Granville Austin’s (Reference Austin1966, 80) oft-cited account of the judiciary, for Nehru, the court had failed to fulfill the expectation of the document’s framers that it function as an “arm of the social revolution.”Footnote ²

The point to be made here is that Rosenberg’s pivotal two-views-of-judicial-power account might profitably be situated within a larger framework of constitutional meaning and identity. Thus, consider what is perhaps the most familiar judicial assertion in American jurisprudence: John Marshall’s simple but profound declaration in McCulloch v. Maryland: “[W]e must never forget that it is a constitution we are expounding.”Footnote ³ To which we might add that what should also not be forgotten is this: that whether one expounds the constitution in a constrained or dynamic way is very much dependent upon the specific character of the constitution. If it is a dynamic constitution, as Nehru suggested about his own document, then a dynamic court would not necessarily be an activist court. Moreover, how we view the socially disruptive decisions of an institution that is functioning in accordance with the militant spirit of the document it is enforcing is very different from how we might assess the disruptive achievements of a judiciary operating under the auspices of a compliant constitution.

As the court not so long ago concluded in what may be its most expansive set of reflections on Indian constitutional identity, “State intervention is a categorical imperative, both morally and within our constitutional logic.”Footnote ⁴ The great challenge for Indian constitutionalism has been to deliver on the promise of its transformative aspirations. This goal arguably requires not only a court performing more ambitiously than in the familiar role of the orthodox judicial review model but also one that is attuned to the limitations of judicial power and the hollowness that is so often the fate of the more grandiose hopes for judicial interventions in policy-making. Although there are occasional references in A Qualified Hope to the wider constitutional landscape on which courts must traverse—specifically, in relation to the “broad sweep of constitutional rights in India”—additional attention to its comparative significance should be a part of subsequent exploration of the book’s central concerns.

Elsewhere, I have discussed contrasting models of constitutionalism: militant and acquiescent (Jacobsohn Reference Jacobsohn2010). Generally speaking, the framing of governing documents does not culminate in a finished product that is antagonistic to the very societal structures that provide support for the constitutional experiment. But, in the militant conception of constitutionalism, exemplified by the Indian case, the constitution is a potentially subversive presence in the social order. Here, the institutions of civil society are vulnerable to transformative attacks emanating from a constitution that is, in important respects, hostile to the status quo. To be sure, as Nehru was made painfully aware, a militant constitution will include preservative attributes, just as an acquiescent constitution will incorporate transformational elements (for example, the post-Civil War amendments in the United States), and so the success of such a constitution in delivering on its promise of radical change is by no means assured. Indeed, some of the disappointments so well detailed in the book, such as the unfulfilled potential of PIL, are at least partly attributable to the presence of the ample political and legal (including constitutional) resources with which defenders of the status quo are able to secure themselves from the ravages of social reconstruction.

As much as Nehru’s somber reference to the “static element” was a recognition of the impediments to be overcome for achieving meaningful social reform, the Indian leader’s broader framing made clear that a constitutional presumption favored such an achievement. By way of contrast, American progressives, most of whom celebrated the dynamic successes of the Warren court and then pushed back against the challenge posed by Rosenberg’s empirically grounded critique of their ideologically inspired reasons for doing so, were later to concede retrospectively that the court they held in high regard for its benevolent activism was an institution markedly out of sync with its more historically typical support of dominant societal interests. Unlike in India, the activist label that came to be associated with the judicial output of the Warren court was a fitting descriptive nomenclature for the reform-driven achievements of a judiciary functioning under the auspices of a generally acquiescent constitution.

Perhaps the best explanation for why hopes for ambitious social reform must be qualified is to be found in a condition that is endemic to the constitutional experience—namely, the embedded internal tensions or disharmonies that confront those charged with enforcing a constitution’s provisions. In the Indian case, a clearly articulated guarantee of formal equality co-exists uneasily with provisions designed to produce a greater measure of substantive equality by enabling officially sanctioned preferential treatment for disadvantaged groups. These specific dissonances were incorporated in a constitutional text embodying an even more capacious disharmonic reality reflecting two powerful claims on Indian constitutional identity, both firmly rooted in centuries of conflict and contestation. In this connection, Shylashri Shankar’s insightful chapter, in which she discusses the “embedded contradiction” in Indian law that limits progressive court interventions on behalf of groups that have historically been subject to religiously based discrimination, deserves particular notice. Thus, the constitution’s commitment to both social justice/affirmative action and religious freedom often generates judicial activity that culminates in the inadvertent legitimizing of reactionary social forces.

Still, this sobering account of the limits of “the ameliorative powers of law” should not deflect from the larger picture of a dynamic constitution that can provide a dynamically inclined court with the legitimating authority to exceed the expectations linked to disharmony. The most visible constitutional expression of the aspirations that stamped the document with a progressive ethos is present in Part IV of the Indian Constitution, the Directive Principles of State Policy. The provisions contained in this section were at the time of their inclusion considered unenforceable by the judiciary, but, as stated in Article 37, “the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”

Lawmaking institutions in the United States are not constitutionally directed to pursue particular social and political ends. They might have been so structured had the logic of the original draft of the Declaration of Independence prevailed, in which the government was instituted to “secure … ends.” But, as Morton White (Reference White1978, 249) has demonstrated, the replacement of “ends” with “rights” entailed only the obligation to guard rights already enjoyed by the people rather than to attain ends not yet in their possession. It is therefore difficult to imagine an American attorney general making the argument that was advanced by the official holding that office in India, in what may be the most famous case in that country’s constitutional jurisprudence: “[The State] is under an obligation to take steps for promoting the welfare of the people by bringing about a social order in which social, economic and political justice shall inform all the institutions of the national life” (quoted in Baxi Reference Baxi1985, 91).Footnote ⁵

Without a specific constitutional mandate to direct the policy-making process, the reluctance of the American judiciary to encroach upon the prerogatives of the political branches is therefore understandable. Arguably, its role is to make secure what already exists rather than to secure a just society that exists only as a constitutional aspiration. As the quite different scripted narratives play out in the US/India comparison, the disharmonic dynamics that are ubiquitous in all constitutional orders may yield results in these places that are often similar in magnitude and significance. That, however, should not obscure the fact that the differences in the constitutions we expound have important implications for anyone whose hopes for a more just society are tethered to the interpretive options available to those charged with enforcing their respective constitutional provisions. And therein may lie the difference between a hollow and a qualified hope.