Scholarly discourse and the cementing of norms: the case of the Indian Supreme Court - and a plea for research.

• Date: 22 September 2007
• Author: Krishnan, Jayanth K.
• Published date: 22 September 2007
• Author: Krishnan, Jayanth K.

1. INTRODUCTION

   For Americans, India has been a country of intense interest in recent years. Less than ten years ago India alarmed many around the world, including then-President Clinton, after it (and neighboring Pakistan) conducted a series of nuclear tests. (1) But even before this military display, India was on the radar of observers in the United States. Since opening its markets in 1991, India has been fertile ground for American entrepreneurs engaged in outsourcing and for other foreign investors as well. (2) With the exception of a two-year period between 1975 and 1977, India has served as a light of democratic rule in the developing world since it gained independence from Britain in 1947. It is a constitutional republic with a representative Parliament; it has a free and flourishing media; and in certain ways it has sought to emulate the American way of governance. (3) And for decades there have been interchanges between groups of Americans and Indians on issues ranging from agricultural development to legal education reform to various social, religious, and cultural matters. (4)

   Despite all of India's past, current, and no doubt future successes, a pervasive, competing problem has long plagued this country. The state and its agents--including politicians, bureaucrats, and the police--are routinely held in low regard by the mass public. Empirical evidence suggests that the source of this disdain is the public's perception that corruption runs rampant among these state actors. Transparency International is a leading independent non-governmental association that has made fighting corruption around the world its central mission. (5) One of its most highly cited, methodologically reputed publications, the Corruption Perceptions Index (CPI), is a survey of 150-plus nations where it measures "the degree to which corruption is perceived to exist among public officials and politicians." (6) (The survey includes the views of respondents both within and outside of each country, (7) and the scoring is done on a scale of one to ten, where one is perceived as most corrupt and ten as least corrupt. (8))

   Between 1995 and 2007 India's CPI score ranged from 2.63 to 3.50 with a median score of 2.80 and a mean of 2.83. (9) Soberly, India's 2007 score (3.50) was its highest since the survey began, tying it for seventy-second with six other countries. (10) Compare these data with that of Finland, Denmark, New Zealand, and Sweden--four other parliamentary democracies--which had medians and means of higher than 9.0 during this same time period. (11) The CPI score for the United States between 1995 and 2007 remained rather consistent, ranging from 7.30 to 7.80 with a median score of 7.60 and a mean of 7.59. (12) But maybe most telling is that among longstanding consolidated democracies, India's CPI repeatedly ranked the lowest. (13)

   Admittedly, the CPI is open to the criticism that the survey respondents are business leaders and what Transparency International refers to as "country analysts," (14) or those experts who have a deep understanding of the political, economic, and socio-cultural practices of the society in question. But other empirical work by Transparency International, focusing on the views of ordinary citizens, confirms that Indian governmental institutions are indeed held in low regard because they are perceived as corrupt. Since 2003, Transparency International has administered what it refers to as the Global Corruption Barometer. (15) Each year this Barometer has probed the sentiments of mass populaces in over sixty countries that range from one extreme to the other in economic development.

   As the data indicate, the perceptions from the ground level regarding corruption in India differ little from the responses in the CPI. (16) For example, between 2003 and 2005 roughly three-fourths of Indians stated that corruption in public services and civil society was likely only to increase in the future. (17) Although the 2006 survey shows some softening of this position, Indians still perceive that most of their institutions "are significantly affected by corruption." (18) Add to this the point that Indians still report being asked to pay bribes in order to obtain the majority of governmental services. (19)

   While perceptions of corruption are seemingly endemic to this democratic nation, interestingly, there is an expressed norm, found namely within scholarly discourse, that one institution is not part of this negative stereotype--the Indian Supreme Court. Scholars in India and in the West have tended to view the Court with admiration and respect. Of course there has been disagreement with and anger towards the Court when it has issued judgments contrary to specific agendas. Rarely, though, within scholarly discourse is the Court's reputation placed in the same category with other state institutions. Moreover, the expressed reverence from scholars is frequently imputed to the mass public. (20) We often hear, for example, that the general public has a high opinion of the Court because it is uncorrupted and because of its willingness to stand up on behalf of the powerless and against the powerful.

   But here is the puzzle. To date, there has been no serious, systematic public opinion data on the Court. On occasion, polling organizations have inquired about the public's views towards the judiciary. The problem is that in these few isolated instances the "judiciary" is treated as a single entity rather than as a series of separate and hierarchical courts. In India, it is especially necessary to investigate what the public thinks of the different levels because while the Supreme Court is lauded by scholars, the lower courts (particularly at the district level) are depicted in a highly negative manner. Therefore, without differentiating among the layers of courts, the little information we do have on the public's attitudes towards the judiciary is virtually meaningless. (21)

   So why then is there a strong scholarly norm indicating that the Indian Supreme Court possesses such integrity? One explanation might be that the case made by scholarly observers has been so persuasive--and correct--that any alternative argument is simply not tenable. Another more unsettling hypothesis is that the scholarly based perception of the Court may not be the perception held by the mass public, which would suggest the existence here of what social psychologists call pluralistic ignorance. That is, there may be those, perhaps even a plurality of the public, who individually disagree with the norm expressed by scholarly elites. However, because the power of this norm is so overwhelming, this plurality is unwilling to express its sentiment for fear of social, political, or legal sanction. If this is indeed the case, there is a lack of knowledge--or ignorance--on the part of scholars vis a vis the mass public's real belief structure, and among people within the mass population vis a vis each other.

   I hasten to emphasize that I hope there is no mismatch between how scholars and the general public see the Court; it would be a tremendous testament to India's highest legal institution if no disconnect exists. But given the stark absence of public opinion data or other large scale empirical evidence affirming this congruence, the fact is that we simply do not know. And the ramifications of this observation, I believe, are especially relevant for those in India and in the West who routinely assert that the Indian Supreme Court is a widely revered institution, one that is both effective and legitimate in advancing a social justice, rights-based agenda.

   With that background, this article will proceed as follows. In Section II, I explain how and why within scholarly discourse the Supreme Court of India has been able to retain such high regard. Admittedly, there will be some disagreement and certain limitations as to how I define "scholarly discourse." (22) Conceding this point, for this project I see the term as constituting the normative views of the Court expressed primarily (a) in journals, books, and internet blogs that are academic in nature; (b) in popular newspapers and magazines (which in India are frequent venues for scholarly commentaries); (c) on television news broadcasts; and (d) through academic lectures or speeches. In Section III, I suggest that because it is an open question as to whether the views of these elites reflect the attitudes of the mass public, there is a possibility that a pluralistic ignorance phenomenon is occurring in India. I then conclude in Section IV by discussing the implications of this study and then proposing a set of research questions that future scholars of the Indian Supreme Court--as well as others interested in rights discourse, public opinion, and judicial politics more generally--may wish to engage.

2. PERCEPTIONS OF THE SUPREME COURT: A DIFFERENT, MORE COMPLICATED STORY

   1. Carving out an Independent Reputation: The Early Years

      The Constitution of India became effective on January 26, 1950, and two days later an inaugural ceremony was held for the country's Supreme Court. (23) Articles 124 and 147 provide the constitutional basis for the Court. Under these provisions, the Court is empowered with original, appellate, and advisory jurisdiction. (24) The Court initially seated eight justices (including the Chief Justice), but over time that number has grown, where today there are twenty-six justices on the Court who usually hear cases in panels determined by the Chief Justice. (25)

      Article 124 also states that in order to be eligible as a justice, an individual must have served at least five years on a state supreme court, or what is called a "High Court," (26) or practiced as a lawyer in front of a state High Court or the Supreme Court for at least ten years. (27) In addition, the constitution sets forth a mandatory retirement age of sixty-five. (28) And justices are selected to the Court by the...