Pratishtha Shrivastava
Introduction
Recently, Gautam Bhatia, a legal scholar and commentator, has ignited a crucial dialogue regarding the pervasive influence of judicial ideology. Bhatia’s thought-provoking discussions urge us to scrutinize how judges interpret the law, especially when their decisions impact the lives of vulnerable and marginalized communities. In contemporary times, understanding and assessing the ideological underpinnings of the judiciary has gained paramount importance, urging legal scholars and practitioners to delve deeper into this intricate realm. Judicial ideology, a fundamental aspect shaping legal interpretations and decisions, often remains elusive and complex to measure directly. Consequently, scholars have devised three measures, each striving to shed light on this enigmatic facet through varied means.
This article will explain judicial ideology and delve into the three ways of measuring it. The article also emphasizes why there is a need to talk about judicial ideology in contemporary times.
Judicial Ideology
The term “ideology” is frequently used in several ways without a uniform definition; so it is crucial to define it explicitly to effectively measure and evaluate it. The ambiguity, it is difficult to quantify and evaluate ideology in a meaningful and trustworthy manner. Technically speaking, judicial ideology is defined as the set of views, attitudes, and principles that govern a judge’s decision-making and form the basis of their interpretation of the law. It includes the judge’s political beliefs, attitudes, and preferences, which may impact their decisions on legal issues. Judicial ideology can be defined as the prism through which judges perceive and apply the law, and understandably, it changes between judges depending on their specific perspectives and histories.
The Three Measures
The primary approach to assessing judicial ideology involves the utilization of proxy measures—indirect indicators of ideology which are used when direct measures are challenging to obtain. For instance, one proxy measure, useful in the United States, is the political affiliation of the President who appointed the judge, assuming that judges appointed by Democratic presidents are more liberal, while those appointed by Republican presidents are mostly conservative. Other proxy measures encompass the judge’s demographic attributes such as race, gender, religion, and prior professional experience.
In the Indian context, the collegium system, responsible for appointing judges, excludes any executive involvement. This might suggest that these proxy measures would be irrelevant in the Indian scenario. However, the non-appointment of Saurabh Kripal as a judge in the Supreme Court challenges this presumption. In 2017, the Delhi High Court collegium unanimously endorsed Kirpal’s recommendation, subsequently approved by the Supreme Court collegium on November 11, 2021. However, the law ministry referred the recommendation back to the collegium on November 25, 2022, for review, citing Kripal’s sexuality as the reason for rejection. This situation underscores the irony that the Court, which advocates for substantive equality, lacks a single judge from the sexual minority community. While other proxy measures are convenient and straightforward to use, they may not always accurately mirror a judge’s true ideological convictions. An illustration of this is evident in the dissenting opinion of Justice Indu Malhotra in the Sabarimala Case, where she stood alone in not advocating for the entry of women into the temple, choosing to not interfere with the age-old practice. In this case, the gender of the judge did not effectively serve as a proxy measure.
The second method for gauging judicial ideology involves assessing it based on the judges’ actual behavior in specific contexts. This approach treats each judge’s ideology as a latent variable to be deduced from data concerning the judge’s observed actions. Techniques for behavioral assessment of ideology span a spectrum of complexity, ranging from simple vote-counting approaches to intricate structural models. The advantage of this approach lies in its ability to mitigate the inherent measurement errors present in proxy variables. However, its practical application necessitates a substantial volume of data and may pose challenges.
In the Indian context, implementing this measure would entail an impartial examination of judges, followed by an analysis of all their actions to estimate their ideological inclinations. While this is an efficient approach considering judges can hold differing opinions on various matters, its viability in India is constrained by the need to compile extensive and consistent data. Additionally, potential inconsistencies within the data may impede the accurate identification of the factors influencing judges’ varying ideologies in a specific judgment.
The third method of gauging judicial ideology involves transplanting ideology measures developed in one context into other contexts that may have partly or wholly different data. This approach entails utilizing established ideology measures from one setting and applying them to another. In context of measuring judicial ideology, it would mean transplanting behavioral measures, i.e., using a judge’s past voting record on a particular issue to measure their current ideological preferences on the same issue. However, a judge’s past voting record in cases may not accurately predict their current ideological preferences, especially if their ideology has changed over time or if the questions they face now are different from those in the past.
In India, there have been many instances when the judges have changed their opinions regarding a judgment in later years. Justice P.N. Bhagwati, for instance, was with the majority judgment in the ADM Jabalpur Case. However, he changed his stance later and said in an interview that “The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice Khanna did.” Therefore, past decisions of a judge cannot be an absolute measure to predict the ideology of a judge.
What is the need?
Gautam Bhatia in his book Unsealed Covers delves into a thorough examination of court decisions in which judges strayed from a logical and apparent interpretation of the law, rendering judgments that disadvantaged the most vulnerable groups. In the specific chapter concerning the analysis of refugee rights,[i] he highlights, “Refugees are the most vulnerable and marginalized group one can imagine. By definition, they have no political power (as they do not have the vote), and as both history and the present have shown, it is the easiest thing in the world for governments to whip up contempt and loathing of refugees. It is precisely these groups of people—whose entrenched political powerlessness makes them ripe targets of abuse—that independent judiciaries exist to protect.”
This represents just one of numerous instances when the judiciary fell short of providing accountability for its actions. Upendra Baxi eloquently noted that the Supreme Court is the last refuge for refugees and the perplexed. [ii] Over the years, the Court has substantiated this claim. Judgments have grown increasingly foreseeable due to the prevalence of judicial ideology within the judiciary. The outcome of a judgment now hinges on the judge presiding over the case. This trend is detrimental to the esteemed reputation of a judiciary that professes to be independent. The time has come for the judiciary to acknowledge and define it.
Defining judicial ideology would help in establishing a framework for decision-making that is consistent and fair. It will maintain independence by making explicit the principles and values that should guide judicial decision-making, irrespective of individual judges’ personal inclinations. It can also enhance transparency, making it easier for the public to understand the principles that guide judicial decisions and thus fostering confidence in the judiciary. Further it will encourage legal scholars, practitioners, and the public to engage in meaningful discussions about the principles that should underpin judicial decisions.
Moreover, the process of defining judicial ideology would involve articulating the principles, values, and legal philosophies that should guide judges in their decision-making. It must include commitment to the rule of law, equal protection, human rights, and fairness. The process of defining judicial ideology should involve public consultations, scholarly input, and the establishment of clear guidelines within the legal community.
Concluding Remarks
In the realm of contemporary legal discourse, the influence of judicial ideology looms large and demands urgent attention. Gautam Bhatia’s insightful discussions have stirred vital conversations, propelling a deeper understanding of how judges’ perspectives on the law impact the lives of vulnerable communities. Judicial ideology, a fundamental force guiding legal interpretations and decisions, remains challenging to quantify directly, necessitating the development of nuanced measurement approaches. This article elucidated the complex concept of judicial ideology and explored three distinct measures to assess it. Understanding and evaluating judicial ideology is essential because it dictates how judges interpret and apply the law, impacting the course of justice. Recent instances, such as the non-appointment of Saurabh Kripal and dissents like Justice Indu Malhotra’s in the Sabarimala case, highlight the inadequacies of conventional proxy measures. The need for a robust framework to measure judicial ideology becomes increasingly crucial, especially concerning issues affecting marginalized communities.
Gautam Bhatia’s work emphasizes the imperative of protecting the most vulnerable, like refugees, through an impartial and ideologically aware judiciary. The evolution of judicial ideologies has influenced the predictability of judgments, potentially compromising the integrity of an independent judiciary. Thus, the judiciary must acknowledge and define its ideological underpinnings, ensuring fairness and equal protection of rights, as envisioned in the core principles of justice and democracy. Only through a comprehensive understanding and appraisal of judicial ideology can we strive for a legal system that truly serves all members of society.
[i] Gautam Bhatia, Unsealed Covers: A Decade of the Constitution, the Courts and the State, pp 227-233 2023.
[ii] Id.
The author is a third year student at Institute of Law, Nirma University
Image Credits: The Times of India
Constitutional Law Society 
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