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As regular readers of this blog will know, an IACL roundtable, organised by the Faculty of Law, University of Oxford, Melbourne Law School, University of Melbourne and National Law University, Delhi on ‘Contemporary Issues in Indian Public Law: Transnational Perspectives’ was held on 12 April 2015 at National Law University, Delhi. This is the first of a series of reports on that event.
Day I: Friday, 10 April 2015
Following introductory remarks, the two-day workshop began with a discussion of two articles on Indian discrimination law. In her paper, Shreya Atrey explained how judicial interpretations of article 15 of the Indian Constitution (which prohibits the State from discriminating against any citizen ‘on grounds only of religion, race, caste, sex, place of birth or any of them’) had foreclosed routes to recognising intersectional discrimination, and how it could be re-interpreted to recognise such discrimination. Her paper included a thorough analysis of the text of article 15, and lamented the Supreme Court’s excessive focus on the first part of that provision. The opening discussant, Carolyn Evans, questioned first, whether there was any task that article 15 could perform that the general equality clause (article 14) could not; and second, whether the paper advocated a textualist or transformative interpretation of article 15. Nick Bamforth was the second discussant. His critique focused on whether the intersectionality issue lies more in the domain of socio-economic justice and the views of conservative judges, rather than in the interpretation of constitutional text. Gautam Bhatia’s paper on horizontal discrimination – which, drawing upon comparative materials, argued that the Indian Constitution contains the ‘the tools to address horizontal discrimination within its fundamental rights chapter’ – was discussed next. His paper considered, in particular, housing discrimination in India based on religious affiliation. The first discussant, Nick Bamforth, expressed skepticism about the role that the comparative material was playing in the argument. The second discussant, Cheryl Saunders, urged the author to consider whether the differences in the constitutional context of the jurisdictions considered had any bearing on the argument.
The post-lunch panel consisted of two papers dealing with press reporting of Supreme Court judgments. The first, by Varsha Iyengar, considered newspaper coverage of the Indian Supreme Court from 1950 to 1960 in the Indian Express. She argued that the Court was potrayed as a legalistic, apolitical institution during that period. Information about the Court and its judgments dominated the newspapers, and there was very little emphasis on the ideology of its judges. Sarah Biddulph was the first discussant. Her comments highlighted the value of comparing media reporting of judgments in India with that in China. The second discussant, M P Singh, commented that there were some important cases from the period that seemed to be missing. He also noted that there would be significant value in analysing newspaper reporting of the Court through other periods, as a way of understanding how people’s perceptions of the Court have changed – or indeed, remained the same. My paper was up next for discussion. In my paper, I argued that the diffuse structure of the Indian Supreme Court (the thirty-one member court sits in about a dozen panels of two or three judges) and its large docket requires us to develop a methodology to discover its politically salient constitutional cases. I thus developed the ‘Times of India measure’ based on the number of citations of a case in the Times of India within one year after the case was decided. This measure drew upon and modified the New York Times measure developed by Lee Epstein and Jeffrey Segal in the context of the US Supreme Court. The first discussant, Arun Thirvengadam, noted that there were differences between the Times of India and the New York Times which needed to be accommodated, or at the least acknowledged, in the analysis. The second discussant, Cheryl Saunders, questioned why political salience, rather than legal salience, was used as the benchmark. Further, she noted that the findings reflected in the paper were not necessarily surprising or counter-intuitive.
The final paper of the day, authored by Badrinarayan Seetharaman and Gaurav Mukherjee, argued, in the context of the Indian Supreme Court’s recent decision on the right to education (Pramati Educational and Cultural Trust v. Union of India), that considerations of republicanism are ‘important enough to be addressed in a process of adjudication by courts’. Tarunabh Khaitan and Farrah Ahmed were the discussants for this paper. Their comments focused on the role that philosophical arguments, particularly Dworkin’s notion of rights as trumps, played in the analysis. While commending the important issues addressed in the paper, they also critiqued its scope – which in their view, detracted from the strength of the arguments.
The fruitful and engaging discussions on day one of the workshop laid the foundation for a promising second day (a report of which will be published here soon).
Chintan Chandrachud is a PhD Candidate at Sidney Sussex College, University of Cambridge.