Sital Kalantry | Cornell Law School (original) (raw)
Papers by Sital Kalantry
SSRN Electronic Journal, 2020
SSRN Electronic Journal, 2021
Several judges on the U.S. Federal Court of Appeals have also argued that prohibitions on reason-... more Several judges on the U.S. Federal Court of Appeals have also argued that prohibitions on reason-based abortions prevent the elimination of certain groups of people. See Planned Parenthood of Ind. & Ky., Inc., 917 F.3d at 536 (Judge Easterbrook dissented from the denial of en banc review); Little Rock Family Planning Services v. Rutledge, 984 F.3d 682, 694 (8th Cir. 2021) (Judges Erickson and Shepherd framed the reason-based bans as anti-eugenics states); Preterm-Cleveland v. McCloud, 994 F.3d 512, 536, 547, 549-50 (6th Cir. 2021) (en banc) (Judges Sutton, Griffin, and Bush arguing the prohibition on termination of pregnancies on the basis of Down Syndrome is an anti-eugenics statute and further a compelling state interest).
This article in the Americas Quarterly presents statistics on the number of women in the judiciar... more This article in the Americas Quarterly presents statistics on the number of women in the judiciary and argues for gender parity to further equality, enhance courts' legitimacy, and strengthen the rule of law.
Jindal Global Law Review, 2020
As the law becomes increasingly globalised and online education is increasingly emphasised, clini... more As the law becomes increasingly globalised and online education is increasingly emphasised, clinical legal education presents new opportunities for transnational collaboration. With more law schools introducing global clinical experiences into their curriculum, clinicians, students, clients, and practitioners are facing a host of new questions, challenges, and obstacles. These challenges are practical, logistical, ethical, and cultural. As research has found, finding a means of addressing these issues in ways that advance social justice has proven difficult. Striking a balance between client service and student learning, navigating relationships between different learning institutions, and setting ambitious but attainable goals are important elements of any clinic, but become increasingly vital for the success of a transnational clinical programme. Despite these obstacles and foundational questions, we argue that transnational clinical education presents benefits to all parties involved. This article assesses the methods, strengths, weaknesses, and outcomes of a collaboration between Cornell Law School's Human Rights Clinic and National Law University (NLU), Delhi, that took place in 2017. This clinic focused on advocacy in favour of lifting bans on compensated surrogacy in both India and New York, culminating in two reports, an event at the United Nations, and testimony before the New York State Assembly. Twelve students from Cornell Law School and eight students from NLU, Delhi met weekly in a 'global classroom' equipped with video and chat functions to discuss the goals of the clinic, background readings, and their respective projects within the clinic. Eight students from Ithaca travelled to Delhi for eight days, conducting interviews and engaging in fact-finding with NLU, Delhi students. Together, students and clinicians from Cornell Law School and NLU, Delhi authored two reports, one focused on the U.S., and one focused on India, which were disseminated to each country's governments. Our reflections on this programme are meant to serve as a learning experience for other clinicians considering implementing a transnational clinical legal education opportunity.
Significant scholarly attention has focused on the strong role played by the Supreme Court in the... more Significant scholarly attention has focused on the strong role played by the Supreme Court in the Indian constitutional democracy. Exercising its powers of judicial review, the Court will invalidate legislation if determines it to be in violation of the constitution. In the judicial appointments case, for example, it invalidated legislation that would have reformed the judicial appointments system. When there is no law, but the Court finds that certain circumstances in society violate the fundamental rights of certain groups of people, it may issue its own legislative-like guidelines. It did this in the internationally famous Vishaka case, in which it created guidelines on sexual harassment.
The published version of this book review appeared in vol. 34, no. 3 of Nordic Journal of Human R... more The published version of this book review appeared in vol. 34, no. 3 of Nordic Journal of Human Rights (2016). Sections of the book reviewed may be viewed at:…
After the gruesome terrorist attack that killed eighty-four people in Nice, many beach towns in F... more After the gruesome terrorist attack that killed eighty-four people in Nice, many beach towns in France began to ban Muslim women from wearing the "burkini" on beaches. The burkini, which was created by an Australian designer, is modest swimwear that covers the body and hair. The Nice attack occurred on the heels of a series of attacks in France. The timing of the French burkini ban suggests it was targeting Muslims due to the anger over the attacks. The argument that burkinis are not hygienic is a fig leaf for other more pernicious justifications. Others argue that religious garb generally contravenes the French vision of secularism. Another line of attack against the burkini relates to gender equality. For example, the French Prime Minister argues that the burkini reinforces the "enslavement of women." In this article, I will focus on arguments that justify bans on Muslim women's religious clothing on the basis that they are oppressive to women.Published: Th...
Citizens of foreign countries are increasingly using international treaties to assert claims agai... more Citizens of foreign countries are increasingly using international treaties to assert claims against Federal and state governments. As a result, U.S. courts are being asked to determine whether treaties provide litigants with individually enforceable rights. Although courts have no consistent approach to determining whether a treaty gives rise to individually enforceable rights, they often apply the textualist methodology derived from statutory interpretation. However, instead of using textual theories of statutory interpretation, I argue that courts should use intentionalist theories developed from contract interpretation in determining individually enforceable rights under treaties. Two positive arguments and one negative argument support my approach. First, the question of whether a non-party can enforce a treaty is structurally similar to the question of whether a non-party can enforce a contract, but structurally different from the issue of whether there is a private cause of a...
The Supreme Court of India has long been thought of as a court for the common people. This percep... more The Supreme Court of India has long been thought of as a court for the common people. This perception is rooted in the Indian constitution, which grants the Supreme Court original jurisdiction to hear cases alleging violation of fundamental rights. The Court has also embraced this vision of its role, and conceives of itself as an institution of “last resort for the oppressed and bewildered.” In a judgment from 1987, it expressly notes that it gives greater access to certain marginalized groups:this Court has always regarded the poor and the disadvantaged as entitled to preferential consideration than the rich and the affluent, the businessmen and the industrialists. The reason is that the weaker sections of Indian humanity have been deprived of justice for long, long years: they have had no access to justice on account of their poverty, ignorance and illiteracy. . . . The majority of the people of our country are subjected to this denial of access to justice and, overtaken by despai...
SSRN Electronic Journal, 2018
International Legal Materials, 2019
On July 17, 2018, the Human Rights Committee, the monitoring body of the International Covenant o... more On July 17, 2018, the Human Rights Committee, the monitoring body of the International Covenant on Civil and Political Rights (ICCPR), rendered decisions in two similar cases brought by two French nationals against the French state. Both petitioners were Muslim women who challenged Act No. 2010-1192 of 11 October 2010, a French law under which wearing of the niqab, also known as a “full-face veil,” in public spaces is prohibited. These seminal cases constitute the first time that an international arbiter of human rights has ruled that France's face-veil ban violates the human rights of its citizens.
Verfassung in Recht und Übersee, 2018
There has been a national debate raging in India about the system of appointments for Supreme Cou... more There has been a national debate raging in India about the system of appointments for Supreme Court and High Court judges. At the founding of the Indian Supreme Court, the executive had primary authority over judicial appointments. In 1993, the Supreme Court created a new system of appointments known as the collegium system, whereby the Chief Justice of India and senior judges of the Supreme Court make new appointments to the Supreme Court as well as the High Courts. In 2014, Parliament amended the Constitution and passed a bill to create a commission to appoint judges, but the Indian Supreme Court declared the law unconstitutional. In this article, we ascertain whether the nature of the appointments procedure impacts the biographical and other characteristics of the judges that are eventually selected. We do this by comparing the biographical characteristics of judges appointed by the executive-appointments system (prior to 1993), on the one hand, and the judges appointed by the collegium (on or after 1993) to the Supreme Court of India. We find that both the pre-collegium and the collegium system maintain the geographical and religious diversity of India in the candidates that are appointed. However, both have failed to account for gender diversity. In addition, the path to the Supreme Court appears to have narrowed-typically those who are appointed as judges by the collegium spend longer periods in private practice and on the bench than pre-collegium judges.
![Research paper thumbnail of Socio-Economic Rights: Adjudication under a Transformative Constitution. By Sandra Liebenberg. [Cape Town: Juta & Co Ltd.2010. xxv, and 541pp. Paperback £62.99. ISBN 9780702184802.]](https://attachments.academia-assets.com/97903563/thumbnails/1.jpg)
](The Cambridge Law Journal, 2011
Ucla Journal of International Law and Foreign Affairs, Nov 5, 2013
Seven states in the United States have passed sex selection abortion bans, bills are pending in s... more Seven states in the United States have passed sex selection abortion bans, bills are pending in several other states, and a bill has been reintroduced in the U.S. Congress. In analyzing state legislative hearings, this article documents how the widespread practice of sex selection in other countries, particularly India and China, is being used by anti-abortion groups as a way to restrict women's right to autonomy in the United States. The dominant feminist paradigm in the United States takes a universal position on sex selection bans-these bans contravene women's right to autonomy and should not be permitted in any country. But engaging with the true realities of the situation in India, it is clear that sex selection in favor of boys does raise concerns for women's equality. This article develops a feminist framework to understand sex selection from a global perspective. This approach prioritizes individual women's autonomy, but suggests that the context in which sex selection occurs should be taken into account and the impact of sex selection on women as a group must be considered. Statutes in the United States that ban sex selection abortion are framed as protecting the fetus from sex discrimination. The contextualist feminist approach, on the other hand, focuses the conversation on the equality of women and girls who are already born. The intent of the individual woman 61 who sex selects is no longer the focus, but the impact (if any) that it has on the equality of girls and women as a group should be the relevant criterion for determining whether or not sex selection should be limited.
The South African Constitution is heralded for the broad protections it affords social and econom... more The South African Constitution is heralded for the broad protections it affords social and economic rights. In Socio-Economic Rights: Adjudication under a Transformative Constitution, Professor Sandra Liebenberg offers a thoughtful examination of the socioeconomic rights jurisprudence developed by South African courts since the adoption of the country’s current constitution fifteen years ago. In meticulous detail, she describes how the jurisprudence of the Constitutional Court and other South African courts has evolved in the area of socioeconomic rights. At the same time, she offers an incisive critique of this jurisprudence, identifying how it has too often been shaped by a narrow and formalistic conception of rights that overlooks their social justice purposes and reinforces deeply unequal social and economic relationships. Finally, Liebenberg offers suggestions for the future development of this jurisprudence in ways that would be more consonant with the transformative purposes ...
Women & Criminal Justice, 2017
SSRN Electronic Journal, 2011
The Correctional Association of New York (CA) is a non-profit criminal justice policy advocacy or... more The Correctional Association of New York (CA) is a non-profit criminal justice policy advocacy organization. One of four projects at the CA, the Women in Prison Project works to stop the misuse of prison as a response to the social problems that drive crime, to ensure that prison conditions for women are more humane and just, to facilitate the involvement and leadership of currently and formerly incarcerated women in efforts to reform policies that directly affect their lives, and to create a criminal justice system that addresses women's specific needs, protects women's rights, and treats people and their families with fairness, dignity, and respect. Under the CA's legislative mandate, the Project has the unique authority to monitor conditions inside correctional facilities that house women in New York State. The Project also manages ReConnect, a semiannual leadership training program for women recently released from prison and jail, and coordinates the Coalition for Women Prisoners, a statewide alliance of more than 1,600 individuals and over 100 organizations. For more information, please visit: www.correctionalassociation.org.
SSRN Electronic Journal, 2012
Clinical legal education is essential to preparing law students to practice law effectively. Indi... more Clinical legal education is essential to preparing law students to practice law effectively. Indian law schools, however, do not generally offer robust clinical legal education programs. In the United States, "clinics" are small law school classes taught by full-time faculty where students learn lawyering skills by undertaking legal services, typically on behalf of poor or marginalized people and communities. Even though most Indian law schools do not offer clinics defined in this way, many have "legal aid cells" where students, largely without faculty supervision, perform legal services for poor communities. Clinics are important because they prepare students to practice law by teaching them valuable skills such as fact-finding, investigation, interviewing, and legal research and writing. In the United States, law students learn these skills by undertaking projects or cases on behalf of individuals, always under faculty supervision and guidance. Students also develop a sense of social justice and empathy through their work with disenfranchised groups. In India, the Bar Council, Law Commission, and other important government and non-governmental agencies have recognized the importance of clinical legal education, yet it has not been adequately developed. Among other things, this is Executive Summary Above: Cornell and Jindal Law students in the Cross-National Rural Governance and Human Rights Clinic Cover: Cornell and Jindal students interviewing a teacher in a school in Sonipat, India.
SSRN Electronic Journal, 2020
SSRN Electronic Journal, 2021
Several judges on the U.S. Federal Court of Appeals have also argued that prohibitions on reason-... more Several judges on the U.S. Federal Court of Appeals have also argued that prohibitions on reason-based abortions prevent the elimination of certain groups of people. See Planned Parenthood of Ind. & Ky., Inc., 917 F.3d at 536 (Judge Easterbrook dissented from the denial of en banc review); Little Rock Family Planning Services v. Rutledge, 984 F.3d 682, 694 (8th Cir. 2021) (Judges Erickson and Shepherd framed the reason-based bans as anti-eugenics states); Preterm-Cleveland v. McCloud, 994 F.3d 512, 536, 547, 549-50 (6th Cir. 2021) (en banc) (Judges Sutton, Griffin, and Bush arguing the prohibition on termination of pregnancies on the basis of Down Syndrome is an anti-eugenics statute and further a compelling state interest).
This article in the Americas Quarterly presents statistics on the number of women in the judiciar... more This article in the Americas Quarterly presents statistics on the number of women in the judiciary and argues for gender parity to further equality, enhance courts' legitimacy, and strengthen the rule of law.
Jindal Global Law Review, 2020
As the law becomes increasingly globalised and online education is increasingly emphasised, clini... more As the law becomes increasingly globalised and online education is increasingly emphasised, clinical legal education presents new opportunities for transnational collaboration. With more law schools introducing global clinical experiences into their curriculum, clinicians, students, clients, and practitioners are facing a host of new questions, challenges, and obstacles. These challenges are practical, logistical, ethical, and cultural. As research has found, finding a means of addressing these issues in ways that advance social justice has proven difficult. Striking a balance between client service and student learning, navigating relationships between different learning institutions, and setting ambitious but attainable goals are important elements of any clinic, but become increasingly vital for the success of a transnational clinical programme. Despite these obstacles and foundational questions, we argue that transnational clinical education presents benefits to all parties involved. This article assesses the methods, strengths, weaknesses, and outcomes of a collaboration between Cornell Law School's Human Rights Clinic and National Law University (NLU), Delhi, that took place in 2017. This clinic focused on advocacy in favour of lifting bans on compensated surrogacy in both India and New York, culminating in two reports, an event at the United Nations, and testimony before the New York State Assembly. Twelve students from Cornell Law School and eight students from NLU, Delhi met weekly in a 'global classroom' equipped with video and chat functions to discuss the goals of the clinic, background readings, and their respective projects within the clinic. Eight students from Ithaca travelled to Delhi for eight days, conducting interviews and engaging in fact-finding with NLU, Delhi students. Together, students and clinicians from Cornell Law School and NLU, Delhi authored two reports, one focused on the U.S., and one focused on India, which were disseminated to each country's governments. Our reflections on this programme are meant to serve as a learning experience for other clinicians considering implementing a transnational clinical legal education opportunity.
Significant scholarly attention has focused on the strong role played by the Supreme Court in the... more Significant scholarly attention has focused on the strong role played by the Supreme Court in the Indian constitutional democracy. Exercising its powers of judicial review, the Court will invalidate legislation if determines it to be in violation of the constitution. In the judicial appointments case, for example, it invalidated legislation that would have reformed the judicial appointments system. When there is no law, but the Court finds that certain circumstances in society violate the fundamental rights of certain groups of people, it may issue its own legislative-like guidelines. It did this in the internationally famous Vishaka case, in which it created guidelines on sexual harassment.
The published version of this book review appeared in vol. 34, no. 3 of Nordic Journal of Human R... more The published version of this book review appeared in vol. 34, no. 3 of Nordic Journal of Human Rights (2016). Sections of the book reviewed may be viewed at:…
After the gruesome terrorist attack that killed eighty-four people in Nice, many beach towns in F... more After the gruesome terrorist attack that killed eighty-four people in Nice, many beach towns in France began to ban Muslim women from wearing the "burkini" on beaches. The burkini, which was created by an Australian designer, is modest swimwear that covers the body and hair. The Nice attack occurred on the heels of a series of attacks in France. The timing of the French burkini ban suggests it was targeting Muslims due to the anger over the attacks. The argument that burkinis are not hygienic is a fig leaf for other more pernicious justifications. Others argue that religious garb generally contravenes the French vision of secularism. Another line of attack against the burkini relates to gender equality. For example, the French Prime Minister argues that the burkini reinforces the "enslavement of women." In this article, I will focus on arguments that justify bans on Muslim women's religious clothing on the basis that they are oppressive to women.Published: Th...
Citizens of foreign countries are increasingly using international treaties to assert claims agai... more Citizens of foreign countries are increasingly using international treaties to assert claims against Federal and state governments. As a result, U.S. courts are being asked to determine whether treaties provide litigants with individually enforceable rights. Although courts have no consistent approach to determining whether a treaty gives rise to individually enforceable rights, they often apply the textualist methodology derived from statutory interpretation. However, instead of using textual theories of statutory interpretation, I argue that courts should use intentionalist theories developed from contract interpretation in determining individually enforceable rights under treaties. Two positive arguments and one negative argument support my approach. First, the question of whether a non-party can enforce a treaty is structurally similar to the question of whether a non-party can enforce a contract, but structurally different from the issue of whether there is a private cause of a...
The Supreme Court of India has long been thought of as a court for the common people. This percep... more The Supreme Court of India has long been thought of as a court for the common people. This perception is rooted in the Indian constitution, which grants the Supreme Court original jurisdiction to hear cases alleging violation of fundamental rights. The Court has also embraced this vision of its role, and conceives of itself as an institution of “last resort for the oppressed and bewildered.” In a judgment from 1987, it expressly notes that it gives greater access to certain marginalized groups:this Court has always regarded the poor and the disadvantaged as entitled to preferential consideration than the rich and the affluent, the businessmen and the industrialists. The reason is that the weaker sections of Indian humanity have been deprived of justice for long, long years: they have had no access to justice on account of their poverty, ignorance and illiteracy. . . . The majority of the people of our country are subjected to this denial of access to justice and, overtaken by despai...
SSRN Electronic Journal, 2018
International Legal Materials, 2019
On July 17, 2018, the Human Rights Committee, the monitoring body of the International Covenant o... more On July 17, 2018, the Human Rights Committee, the monitoring body of the International Covenant on Civil and Political Rights (ICCPR), rendered decisions in two similar cases brought by two French nationals against the French state. Both petitioners were Muslim women who challenged Act No. 2010-1192 of 11 October 2010, a French law under which wearing of the niqab, also known as a “full-face veil,” in public spaces is prohibited. These seminal cases constitute the first time that an international arbiter of human rights has ruled that France's face-veil ban violates the human rights of its citizens.
Verfassung in Recht und Übersee, 2018
There has been a national debate raging in India about the system of appointments for Supreme Cou... more There has been a national debate raging in India about the system of appointments for Supreme Court and High Court judges. At the founding of the Indian Supreme Court, the executive had primary authority over judicial appointments. In 1993, the Supreme Court created a new system of appointments known as the collegium system, whereby the Chief Justice of India and senior judges of the Supreme Court make new appointments to the Supreme Court as well as the High Courts. In 2014, Parliament amended the Constitution and passed a bill to create a commission to appoint judges, but the Indian Supreme Court declared the law unconstitutional. In this article, we ascertain whether the nature of the appointments procedure impacts the biographical and other characteristics of the judges that are eventually selected. We do this by comparing the biographical characteristics of judges appointed by the executive-appointments system (prior to 1993), on the one hand, and the judges appointed by the collegium (on or after 1993) to the Supreme Court of India. We find that both the pre-collegium and the collegium system maintain the geographical and religious diversity of India in the candidates that are appointed. However, both have failed to account for gender diversity. In addition, the path to the Supreme Court appears to have narrowed-typically those who are appointed as judges by the collegium spend longer periods in private practice and on the bench than pre-collegium judges.
The Cambridge Law Journal, 2011
Ucla Journal of International Law and Foreign Affairs, Nov 5, 2013
Seven states in the United States have passed sex selection abortion bans, bills are pending in s... more Seven states in the United States have passed sex selection abortion bans, bills are pending in several other states, and a bill has been reintroduced in the U.S. Congress. In analyzing state legislative hearings, this article documents how the widespread practice of sex selection in other countries, particularly India and China, is being used by anti-abortion groups as a way to restrict women's right to autonomy in the United States. The dominant feminist paradigm in the United States takes a universal position on sex selection bans-these bans contravene women's right to autonomy and should not be permitted in any country. But engaging with the true realities of the situation in India, it is clear that sex selection in favor of boys does raise concerns for women's equality. This article develops a feminist framework to understand sex selection from a global perspective. This approach prioritizes individual women's autonomy, but suggests that the context in which sex selection occurs should be taken into account and the impact of sex selection on women as a group must be considered. Statutes in the United States that ban sex selection abortion are framed as protecting the fetus from sex discrimination. The contextualist feminist approach, on the other hand, focuses the conversation on the equality of women and girls who are already born. The intent of the individual woman 61 who sex selects is no longer the focus, but the impact (if any) that it has on the equality of girls and women as a group should be the relevant criterion for determining whether or not sex selection should be limited.
The South African Constitution is heralded for the broad protections it affords social and econom... more The South African Constitution is heralded for the broad protections it affords social and economic rights. In Socio-Economic Rights: Adjudication under a Transformative Constitution, Professor Sandra Liebenberg offers a thoughtful examination of the socioeconomic rights jurisprudence developed by South African courts since the adoption of the country’s current constitution fifteen years ago. In meticulous detail, she describes how the jurisprudence of the Constitutional Court and other South African courts has evolved in the area of socioeconomic rights. At the same time, she offers an incisive critique of this jurisprudence, identifying how it has too often been shaped by a narrow and formalistic conception of rights that overlooks their social justice purposes and reinforces deeply unequal social and economic relationships. Finally, Liebenberg offers suggestions for the future development of this jurisprudence in ways that would be more consonant with the transformative purposes ...
Women & Criminal Justice, 2017
SSRN Electronic Journal, 2011
The Correctional Association of New York (CA) is a non-profit criminal justice policy advocacy or... more The Correctional Association of New York (CA) is a non-profit criminal justice policy advocacy organization. One of four projects at the CA, the Women in Prison Project works to stop the misuse of prison as a response to the social problems that drive crime, to ensure that prison conditions for women are more humane and just, to facilitate the involvement and leadership of currently and formerly incarcerated women in efforts to reform policies that directly affect their lives, and to create a criminal justice system that addresses women's specific needs, protects women's rights, and treats people and their families with fairness, dignity, and respect. Under the CA's legislative mandate, the Project has the unique authority to monitor conditions inside correctional facilities that house women in New York State. The Project also manages ReConnect, a semiannual leadership training program for women recently released from prison and jail, and coordinates the Coalition for Women Prisoners, a statewide alliance of more than 1,600 individuals and over 100 organizations. For more information, please visit: www.correctionalassociation.org.
SSRN Electronic Journal, 2012
Clinical legal education is essential to preparing law students to practice law effectively. Indi... more Clinical legal education is essential to preparing law students to practice law effectively. Indian law schools, however, do not generally offer robust clinical legal education programs. In the United States, "clinics" are small law school classes taught by full-time faculty where students learn lawyering skills by undertaking legal services, typically on behalf of poor or marginalized people and communities. Even though most Indian law schools do not offer clinics defined in this way, many have "legal aid cells" where students, largely without faculty supervision, perform legal services for poor communities. Clinics are important because they prepare students to practice law by teaching them valuable skills such as fact-finding, investigation, interviewing, and legal research and writing. In the United States, law students learn these skills by undertaking projects or cases on behalf of individuals, always under faculty supervision and guidance. Students also develop a sense of social justice and empathy through their work with disenfranchised groups. In India, the Bar Council, Law Commission, and other important government and non-governmental agencies have recognized the importance of clinical legal education, yet it has not been adequately developed. Among other things, this is Executive Summary Above: Cornell and Jindal Law students in the Cross-National Rural Governance and Human Rights Clinic Cover: Cornell and Jindal students interviewing a teacher in a school in Sonipat, India.
A Qualified Hope: The Indian Supreme Court and Progressive Social Change, 2019
Human Rights in India (Routledge Research in Human Rights Law), 2019
Judicial Review: Process, Powers, and Problems (Essays in Honour of Upendra Baxi), 2020
Significant scholarly attention has focused on the strong role played by the Supreme Court in Ind... more Significant scholarly attention has focused on the strong role played by the Supreme Court in Indian constitutional democracy. Exercising its powers of judicial review, the court will invalidate legislation if it determines it to be in violation of the basic structure of the Constitution. In the judicial appointments case, for example, it invalidated legislation that would have reformed the judicial appointments system. When there is no law, but the court finds that certain circumstances in society violate the fundamental rights of certain groups of people, it may issue its own legislative-like guidelines. It did this in the internationally famous Vishakha case, in which it created guidelines on sexual harassment.
In some cases, the court may decide that it would be more effective to retain jurisdiction in a case over a long period of time and prod the executive to create policy or design legislation rather than fashion its own remedies. Professor Baxi has famously described this as ‘creeping jurisdiction’. The court uses creeping jurisdiction, according to Professor Baxi, when it holds numerous hearings over the course of a long period of time without dismissing the case quickly. The court essentially takes over the administration of an issue or a matter to make sure that its orders to various agencies are implemented.
The court often exercises creeping jurisdiction in the context of ‘social action litigation’. While the ‘public interest litigation’ is commonly used, Professor Baxi objects to the use of that terminology because (in part) it gives too much credence to (failed) American techniques and vocabulary. In honour of Professor Baxi, I use the term ‘social action litigation’ (‘SAL’) to describe litigation brought by impacted parties or social activists seeking redressal for a violation of their fundamental rights.
The heyday of SAL was the post-Emergency era where the Supreme Court began to assert a role in rectifying the large-scale inequalities in Indian society. In an article published in 1985 for a global audience called ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’, Baxi gave many examples of social activists who read media stories and brought claims to the courts. For example, a Supreme Court advocate filed a writ based on a series of articles in a national daily, the Indian Express, exposing the plight of Bihar undertrial prisoners.
A Qualified Hope: The Indian Supreme Court and Progressive Social Change, 2019
The Indian Supreme Court has been called "the most powerful court in the world" for its wide juri... more The Indian Supreme Court has been called "the most powerful court in the world" for its wide jurisdiction, its expansive understanding of its own powers, and the billion plus people under its authority. Yet no up-to-date, empirical account exists of who is being heard by the Court, for what purposes, and with what levels of success. Both due to its fragmented bench structure (where cases are usually decided by only two or three out of thirty-one judges) as well as the large volume of cases (nearly 1000 merits judgments per year), scholars and policy makers have a very uneven picture of the court's functioning: deep knowledge about the more visible, "high-profile" cases, and near-absolute silence about more mundane, but potentially equally important, decisions. This paper aims to fill this gap with a rigorous, empirical account of the functioning of the Court. We have collected, hand-coded, and analyzed data on over 5000 Indian Supreme Court opinions rendered from 2010 to 2015. This is the most extensive original dataset on the Indian Supreme Court yet created. In this paper, we use this data to provide a broad, quantitative overview of the social identity of the litigants that approach the court, the types of matters they bring to the court, the levels of success that different groups of litigants have before the Court, and the opinion-writing patterns of the various judges of the Supreme Court. This analysis provides foundational facts about the Court for future studies on the role of the Court in the Indian polity.
The Future of Indian Universities: Comparative and International Perspectives, 2017
Human Rights Quarterly, 2019
Human Rights Quarterly, 2012
Nordic Journal of Human Rights, 2016