by Vasujith Ram
In paragraph 160 of the judgment striking down the National Judicial Appointments Commission as unconstitutional, Justice Khehar writes:
“A little personal research, resulted in the revelation of the concept of the “legitimate power of reciprocity”, debated by Bertram Raven in his article – “The Bases of Power and the Power/Interaction Model of Interpersonal Influence” […] In addition to having dealt with various psychological reasons which influenced the personality of an individual, reference was also made to the “legitimate power of reciprocity”. It was pointed out, that the reciprocity norm envisaged, that if someone does something beneficial for another, the recipient would feel an obligation to reciprocate.”
The Justice further uses similar psychology based research by scholars Dennis Regan, Robert Cialdini and Laura Little to argue that the ‘favour’ of judicial appointment would induce feelings of ‘reciprocity’ (or loyalty) towards the executive (the person/body involved in the judicial appointment) – and hence it must be ensured that the executive has the least possible nexus with the final appointment of judges.
Here, I do not wish to point out any logical fallacy or an error in legal reasoning. Instead, I would like to highlight the use of social science research by the Supreme Court. The Courts must generally avoid the usage of social science research for two primary reasons – (i) Court are not competent to interpret and apply social science research: the simply do not have the requisite expertise; and (ii) social science research itself is constantly evolving, changing and is not completely reliable. Simply put, it is not a hard science. Recently, when a large team of international experts tried to replicate a 100 experiments published in the top psychology journals, it was found that only 36% of the studies could be replicated with results consistent with the original findings. The study was published in the prestigious Science magazine and led to considerable debate.
The Supreme Court itself has used social science to come to diametrically opposite conclusions on many occasions. In the context of commercial speech, there have been two landmark cases, Hamdard Dawakhana and Tata Press v MTNL. Both cases conceived of a democracy-based justification for free speech, and accordingly ruled on the constitutional protection available for free speech. In the Hamdard Dawakhana case, it was held that commercial speech is not constitutionally protected since it did not further democracy or any democratic ideas. The Supreme Court opined that a restriction of commercial speech was only equivalent to “depriving a trader from commending his wares” (there is contrary enormous literature, however debatable, arguing that economic freedom is useful for political freedom. In Milton Friedman’s magnum opus, Capitalism and Freedom, it is argued that strong dissenting thoughts could be disseminated only in a system with adequate resources – a market economy). On the other hand, in Tata Press v. MTNL, the Court identified advertisements as a cornerstone for a democratic market economy and opined that free flow of commercial information was crucial to a ‘democratic’ economy. It was argued that advertising revenue or subsidy was the ‘lifeblood’ for a democratic press and free media (to borrow the words of Justice Rehnquist from the Virginia State Board of Pharmacy case, the State is being asked to “hew to the teachings of Adam Smith”).
Scholarly opinion is not unanimous with respect to the use of social sciences in judgments. In the United States, ‘fact’ is classified in a twofold manner – as ‘legislative fact’ and ‘adjudicative fact’ (mentioned in Kenneth Davis’ influential article in the Harvard Law Review, ‘An Approach to Problems of Evidence in the Administrative Process’ (1942)). The latter refers to facts that pertain only to the immediate litigation or the respective parties. The former refers to facts which are used to determine broad questions of law or policy by the Courts. The argument has been that Constitutional or Appellate Courts can take ‘judicial notice’ of ‘legislative facts’ by disregarding rules of evidence. Therefore, social science material, which are ‘facts’ in one sense, could be introduced without the need to resort to traditional methods of introducing or settling facts. This theorization was in the backdrop of the introduction of the Brandeis Briefs, where the counsel (Louis Brandeis, who later became a Supreme Court Justice) introduced social science materials to justify a regulation on working hours for females.
Even in India, the issue has been debated before. Seervai famously argued that “The Constitution of India does not enact Mr. Justice Krishna Iyer’s Social Sciences”. According to Seervai, social science data was to be introduced only by way of expert testimony. Prof. Baxi, on the other hand, characterized Seervai’s model as “theoretically underdeveloped” and “misleading”. Seervai adopts the view of the legendary Justice Oliver Wendell Holmes from his decision in the 1905 case of Lochner v State of New York (the Supreme Court of the US struck down labour laws pertaining to limiting the number of working hours for bakers), where Justice Holmes held that the Fourteenth Amendment “does not enact Mr. Herbert Spencer’s Social Statistics”. Prof. Baxi relies on Justice Homes’ famous lecture from 1897, “The Path of the Law”, where he said, “the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV”.
In this blog, Senior Advocate Mr. Raju Ramachandran had opined that social sciences are an “important input” in the adjudicatory process. He however (and importantly) noted that it must be ensured that judges have a “proper and comprehensive” understanding of social science theories. This is particularly crucial since one of our basic premises here is that Courts do not have the requisite expertise to apply social science research.
Admittedly, the use of social science findings or assumptions may be unavoidable in many cases. For instance, cases dealing with socio-economic rights or discrimination as well as constitutional law principles such as narrow tailoring or proportionality usually necessitate the use of social science material.
In light of scholarly disagreement and the inevitability in many cases, a useful policy may be to evolve a doctrine of “social science avoidance”, similar to what is known as the doctrine of “constitutional avoidance” in constitutional law (see the opinion of Justice SK Das in Basheshar Nath v. CIT: “this Court should indeed be rigorous in avoiding to pronounce on constitutional issues where a reasonable alternative exists…”). In the US case of Ashvander v TVA, Justice Brandeis in his concurring opinion laid down several facets of constitutional avoidance. A key rule is that the Court is to decide a case on grounds of constitutional law only if there is no other ground on which the case can be disposed of. In case of social sciences, we may say: unless the case at hand cannot be adjudicated without reference to social science evidence, the Court must avoid recourse to social science research (or social science arguments). Moreover, if at all social science research is used, it must be done in a clear and transparent manner, such that scholars and future courts are able to critique, rebut or counter the findings or assumptions used in the judgment. To his credit, this something that Justice Khehar does in the judgment.
(I thank Upendra Baxi, Gautam Bhatia, Shambo Nandy and Sohini Chatterjee for discussions.)