Scaling JusticeIndia’s Supreme Court and The Rights to Health and Education

Creating the Dataset The puzzle

How others have answered the puzzle

Incomplete answers?

Your hypotheses: how it answers the puzzle

Modality of testing the hypotheses

Variables required and how you plan to collect the information

Creating the dependent variable

Having a sense of the combination of independent variables that would produce the dependent variable

Testing it

Discuss the results and identifying further gaps

The Puzzle

What determines the choices that India’s judges make on socio-economic rights?

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How others have answered the puzzle: Conventional Explanations of Judicial Behaviour Merits of the case + judges as impartial interpreters (Legal Model)

Ideological preference of a judge (Attitudinal Model) Variation: Ideology of judge + preference of ruling regime (Strategic)

Law + institutional norms (Institutional model)

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My TheoryJudges as Embedded NegotiatorsThe perspective emphasizes a judge’s negotiation with

three external elements mediated through institutional norms: the presence and content of laws, political configurations, and public concerns.

Embedded Negotiations

Hypotheses: Socioeconomic Rights supported by judges when…

(iii) If no law, judges will craft social rights within the space offered by the political preferences of the ruling regime.

(iv) Collaborative approach, influenced by institutional norms and memories, judges

(i) Legitimacy quest after institutional crisis.

(ii) Already a law

Modality of testing the hypotheses:Methodology

2 Datasets The first dataset includes cases in the high courts and the Supreme Court that dealt with a

‘right to health’ or ‘a right to education’ (1950-2006) . Source: Manupatra The second dataset (judges’ dataset) has the characteristics of 116 Supreme Court judges

drawn from Supreme Court website. (1950-2006)

Keywords included several combinations such as ‘health/education and fundamental rights’, ‘right to health/education’, articles in the directive principles dealing with health and education, ‘public health’, ‘medical negligence’, ‘HIV/AIDS’, ‘medicines’, ‘drug policy’, ‘blood banks’, ‘primary schools’, ‘PILs’, ‘Public Interest Litigation’.

Used Probit Technique in STATA

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Probit Technique Measures variables where an event either occurs or it does not i.e. dichotomous

outcomes (0,1). For instance, in anti-terror cases where the government is a litigant, the outcome is either pro-state or anti-state.

The model gives us the level of significance i.e. p less than .10 or .05. which means that there are only 10 or five chances in a hundred that the relation between the dependent and the independent variables has occurred by chance; there is at least a 90% or 95% probability that the relationship is not simply due to chance.

The model, which holds other variables constant, allows us to examine, for instance, the relative importance of political, environmental, and personal attributes in determining whether a judgment is pro-state or anti-state.

The model also allows us to examine changes over time because our data spans the period 1950–June 2006.

Judges’ Biographical Dataset

(i)Basic traits: judge name, gender, date of birth, caste, religion, retirement age, home state, education (graduate or post-graduate), whether they had a foreign degree.

(ii) Career path before entering Judiciary: worked for government, worked for government just prior to induction into the high court, if so which government, date inducted into the high court and the Supreme Court.

(iii) Political influences: political party in power at the center and in the state on the date of induction into the high court and the Supreme Court.

(iv) Career in judiciary: which high courts did they serve in, and for how many years, specialization (constitutional, civil, criminal, social, and others including tax and the like), and whether they functioned as chief justices of the Supreme Court and/or high courts, whether judgments were delivered in the year of their retirement.

Independent Variables

Profile of the case

Create the variables that capture the dependent variable.

Profile of the litigants

Political landscape profile

Right to Health and Education Dataset

Problem: Creating a Dependent Variable How to capture the pro- rights nature of the impact.

Even though the state was a defendant in 70 per cent of the cases, it was hard to categorize anti-state rulings as pro-social rights. For instance, when liquor manufacturers challenged the state on the legality of orders banning the sale of liquor in polythene bags, the court agreed with the state authorities that these orders were conducive to public interest.

Dependent Variable for Health/Education We classified decisions according to whether the impact of the judgment favoured the

citizen or the polluter.

Favours Citizen: If a judgment favoured the provision of clean air, and potable water; banned hazardous waste; penalized doctors/hospitals for negligence; increased medical benefits for vulnerable groups like HIV patients, retired employees, and workers; mandated payment of salaries to teachers; and did not give permission to set up schools with poor infrastructure.

Favours Polluter: If a judgment allowed ineligible students to continue their course, and allowed students a right to strike; agreed with government that budgetary constraints were a good reason for not paying salaries or not improving infrastructure.

Though this introduces a measure of bias into the dependent variable, we tried to remedy it by testing the classification on other scholars to see if they made similar choices.

Profile of the Case From each case, we drew the following details from the judgments:

Characteristics of the cases: case name, date filed, date decided, judges deciding the case, disposition (appeal upheld or dismissed), decision in favour of plaintiff or defendant, description of case, decision for plaintiff or defendant (unanimous or majority or other), reasons given, type of case.

Be as detailed as possible. Code sub-categories.

Some examples of the classification We classified plaintiffs and defendants based on the description in the judgment. The

main categories were individual, NGO/public-spirited individual, state (including government institutions), private institutions, unions, and others.

We classified health cases based on whether they pertained to public health, medical negligence, medical reimburse- ment, HIV/AIDS, and others.

The main issues in education related to students, teachers, private sector, government, and other.

We classified the issues based on whether they dealt with admissions, fees, exams/student activities course, salaries, tenure/selection/conduct of teachers, educational infrastructure/facilities, new institute issues, autonomy of institutions.

Clarity Be clear about the limits of your sample: what it includes and what it does

not. For instance, in this case, the cases do not include ongoing petitions, environmental cases, the tens of thousands of cases in the lower courts, medical councils, consumer courts, lok adalats, National Human Rights Commissions, and a number of tribunals. We also do not examine out- of-court settlements/or cases that are negotiated outside with the threat of a court ruling.

Analyzing data First a descriptive analysis

Second, pose the questions that would test the hypothesis

Use different methods to test: cross tabs, probability

While using datasets, also use ethnographic material (interviews/diaries/speeches etc) to supplement the narrative

Characteristics of Pro-Social Rights Judges

A judge from a poor state did not act differently from his counterparts in richer states.

Lower caste judges were 14 per cent more likely to favour these rights even in the face of opposition from their brethren

A pro-social rights judge was significantly more likely have worked for over five years with the government before entering the high court.

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The Health and Education Dataset We merged the two datasets in a STATA file to create one database that had

all the cases heard by a Supreme Court judge during his tenure in the high court and the apex court.

NOTE: Please get expert assistance to set it up.

The health and education dataset assesses the behaviour of Supreme Court judges (including their rulings as high court judges). For instance, the conservative trend displayed by the Supreme Court after 1993 implies that the majority of Supreme Court judges chose to issue more conservative rulings in their stints at the high court and apex court, as compared to the pre-1993 judges.

Overall Patterns of Litigation in Health and Education Of the 382 cases on health and education in the high courts and the Supreme

Court, the government was a defendant in 70 per cent of the cases.

Individuals (43 per cent), NGOs/public-spirited citizens (19 per cent), private institutions (16 per cent), and unions (12 per cent) were the main plaintiffs.

Poor (BIMARU) states had significantly lower rates of litigation on health and education, and PILs were used in only in 12 per cent of all cases (and 20 per cent of cases in public health).

Over 70 per cent of the cases were decided within two years of being registered in the relevant court, but appeals could increase the time taken to over five years

Patterns in Health Public health cases (43 per cent) accounted for the majority of health cases, followed by

medical negligence and hospital management (26 per cent), medical reimbursement (14 per cent) and HIV/AIDS (6 per cent).

Cases dealing with regulation by the state (44 per cent) topped the list on the type of issue, followed by cases pertaining to obligations of public and private providers and/or clients (35 per cent) and lastly cases on financing (18 per cent) concerns (mainly government related ones).

The State was the defendant in 86 per cent of the cases, but was likely to win only around 30 per cent of the time.

Public health concerns were reflected predominantly by NGOs or public-spirited individuals who were plaintiffs in over half of these cases and won over 80 per cent of the time.

Results: Judgments Overall, 80 per cent of the judgments had a favourable impact on the citizen rather than the polluter.

Over half the cases in rich and poor states pertained to the failure of state institutions to fulfill their obligations while around 40 per cent of cases addressed breaches by the private sector.

Private providers were 10 per cent more likely to be penalized than government providers, who were 15 per cent less likely to be held to task

The pro-citizen, anti-polluter trend of judgments was uniform across health issues.

Individuals won 73 per cent of the time against the State, doing so overwhelmingly in medical reimbursement, HIV, and less so in medical negligence. But had only a 50 per cent chance of winning in public health cases.

NGOs won 80 per cent of their cases, while private institutions (27 per cent win rate) and unions (33 per cent wins) were less likely to win against the state.

Hypothesis 1 Post-Emergency Judges are more Likely to Support Social Rights in their

Quest for Public Approval

First Hypothesis Test Judges who served in the higher courts from 1977–88 had a vivid memory of the Supreme

Court’s crisis of legitimacy during the emergency; many had experienced it first hand. These judges retired by 1988; hence we chose that year as the cut-off point. NOTE: We did not have any cases that talked of a ‘right to health or education’ from the pre-77 decades. So we had to use a proxy.

Judgments after 1988 were 17 per cent less likely to favour health/ education rights that those issued before 1988, thus validating our hypothesis that Supreme Court judges in the decade after the Emergency were more likely to favour social rights than their successors.

Judgments after 1993 were 16 per cent less likely to favour an outcome beneficial to a citizen’s right to health or education. Shift towards conservatism?

Judges appointed before 1993 were significantly more likely to favour such outcomes

Implication The result seems to back our hypothesis that after the Emergency judges

were keen to use social rights to enhance the institutional prestige of the courts, but a decade later the courts did not need to do so and reverted to seeing affordability of the state as a key criteria for delivering social rights judgments.

Hypothesis 2

Judges Focus on those Social Rights that were Already Transformed into Legal Rights by the Legislature

Laws

Several judgments referred to a constitutional right to health/education as a reason for giving relief, but this is less useful as a proxy in education because a judgment could connect a right to education with a right to life with dignity even if there was no legislation on the issue.

Overall trends in health and education cases indicate that a judge was more likely to grant relief due to a constitutional right and/or safety of citizens, and much more likely to do so in health cases.

Evidence from speeches by judges and the text of the judgments suggest that the emphasis on Directive Principles came at the prodding of the executive. NOTE: While using datasets, also use ethnographic material (interviews/diaries/speeches etc) to supplement the narrative.

.- Our proxy for a legal remedy was the reason given by the judgment for granting relief; if it granted relief because incompetence was proven, then we assumed that a right existed in the law. NOTE: when you create your database, make it as detailed as possible.

- Examples of incompetence include the violation of infrastructural norms, drug regulations, and hospital procedures, among others.

- Among the reasons cited, a judge was more likely to cite proof of incompetence as the reason for favouring the citizen. Implication: Judges were following the law rather than forcing the government to make new laws.

Hypothesis 3

The judgments will reflect a collaborative approach with the other arms of the state , influenced by institutional norms (low dissent) and history

Test Remedies can be strong or weak. Strong

remedies involve fines and/ or time limits with penalties for non-compliance.

Weak remedies, as Tushnet (2004) points out, are of several types: declarations that identify the strength of the right rather than the remedy; or mandating the government (through committees or other ways) to develop plans to eliminate constitutional violations within a reasonably short but unspecified time.

We expect the courts to prefer weak remedies to strong ones in dealing with a government’s failure in meeting its statutory obligations.

(i) Remedies outlined in the judgments

Test

The court typically used two types of supervision for weak remedies.

(a) A supervising ministry/authority had to report to the court from time to time, following which the court would issue new directions;

(b) In some cases (clean air cases in Delhi), the court monitored the implementation thereby making it easier for the petitioners to appeal if the directives were not implemented.

(ii) Supervision Used

Implications Of our cases 38 per cent dealt with government failures, 19 per cent with private

provider failures, and 12 per cent with demands for the government to take on more responsibilities

In the hierarchy of mechanisms used by the court, judgments were 24 per cent more likely to prefer committee-style collaborative measures to elicit actions from the erring parties, followed by no enforcement (22 per cent) and, only lastly, strong enforcement measures with fines and time limits (19 per cent).

The court was 10 per cent less likely to penalize the government and 15 per cent more likely to discipline private providers who failed to fulfil their obligations

Implications Continued Conciliatory attitude of judges towards failures by the other state agencies -- judicial pragmatism.

In designing the enforcement mechanisms, judges seem to be aware of their dependence on the political and bureaucratic wings of the State; any move to pass strictures would put them in direct collision with the very wings that are supposed to enforce the judgments.

Even when the judgments found fault with the government, the judges employed conciliatory phrases such as ‘unfortunate’, ‘policy matter’, ‘conscious attempts must be made to increase budgetary allocations.’

The court was more effective with specific types of non-compliance such as when the transgressor was from the private sector, or in cases where the error was observable. For instance, the court imposed fines on a chemist for selling spurious drugs and reprimanded the government for not prosecuting the accused; it found a hospital guilty of purchasing contaminated IV fluids.

Attitude to PILs PILs had a 20–35 per cent lower chance of getting a favourable judgment as

compared to non-PILs and writ petitions.

Suspicious of PILs

Conclusion Supreme Court judge negotiated with the laws, political configurations,

institutional, and societal concerns to construct judgments that were perceived as legitimate by these elements.

The only significant finding was that judges who decided larger number of anti-terror cases were more likely to change their mind as compared to judges who decided fewer cases.

The picture that emerges is of a pragmatic judge who negotiates his way out of confrontations with the state; he/she hauled up private actors rather then the government for non-performance.