Comment: Judicial behaviour. (1993, 20 Marks)
Judicial behaviour is the study of why judges decide as they do — treating the judge as a political actor whose votes can be counted and explained, not as a neutral voice of the law. It entered political science with C. Herman Pritchett‘s The Roosevelt Court: A Study in Judicial Politics and Values, 1937–1947 (1948), which traced the sudden rise of dissent on the American Court to the justices’ differing values.
Intellectual roots
- Legal realism first doubted that rules alone decide cases: Oliver Wendell Holmes Jr. wrote in The Common Law (1881) that “the life of the law has not been logic: it has been experience”.
- The behavioural revolution supplied the method — votes as data. Glendon Schubert, in The Judicial Mind (1965), used cumulative scaling of votes to place justices on liberal–conservative attitude dimensions.
Three rival models
| Model | Core claim | Key statement |
|---|---|---|
| Legal | Text, precedent and method determine outcomes | The profession’s own account of itself |
| Attitudinal | Judges vote their sincere policy preferences on the facts before them | Jeffrey Segal and Harold Spaeth, The Supreme Court and the Attitudinal Model (1993) |
| Strategic | Judges pursue policy goals but anticipate colleagues, the other branches and the public | Walter Murphy, Elements of Judicial Strategy (1964); Lee Epstein and Jack Knight, The Choices Justices Make (1998) |
Judicial behaviour in India
These models were built for a nine-member court voting together. India’s Supreme Court of 38 judges (34 until 2026), sitting mostly in benches of two or three, shifts attention to structure, recruitment and incentives.
- Recruitment. George H. Gadbois Jr., Judges of the Supreme Court of India, 1950–1989 (2011), a collective biography, shows a socially narrow bench with short tenures under the seniority convention; Abhinav Chandrachud‘s The Informal Constitution (2014) uncovers unwritten selection criteria — seniority, region, religion.
- Bench composition. Aparna Chandra, Sital Kalantry and William H. J. Hubbard, Court on Trial (2023), find the Chief Justice far more likely than the next senior judge to sit on constitution benches and almost never in the minority. The January 2018 press conference of four senior judges on the allocation of sensitive cases made the master of the roster a public controversy.
- Career incentives. Madhav Aney, Shubhankar Dam and Giovanni Ko (Journal of Law and Economics, 2021), using 1999–2014 data, link pro-government authorship to prestigious post-retirement posts; a former Chief Justice’s nomination to the Rajya Sabha (2020) keeps the concern alive.
- Temperament. ADM Jabalpur (1976) split 4:1 with Justice H. R. Khanna alone upholding liberty; Justice V. R. Krishna Iyer and Justice P. N. Bhagwati carried a social-justice philosophy into PIL.
Significance
It demystifies mechanical neutrality, explains doctrinal instability — judgments turning on who happens to sit, a point Pratap Bhanu Mehta makes about the Court’s unpredictability — and turns vague worries about independence into testable claims. A reform agenda follows: transparent listing, larger constitutional benches, a post-retirement cooling-off period.
Limits
- Reductionism. Dissent is rare on Indian benches; precedent, hierarchy and professional norms narrow choice even where values decide the margin.
- Measurement. India lacks a stable ideological axis; the same judge may be statist on security and liberal on dignity.
- Correlation is not motive. Bench-composition data such as Court on Trial‘s cannot show that any judge changed a vote.
- Normative hazard. Treating judges as politicians can license attacks on independence.
Conclusion
Judicial behaviour is a corrective, not a replacement for legal analysis: law sets the range of defensible outcomes; values, structure and incentives choose within it. Where rosters, small benches and early retirement magnify individual discretion, as in India, the remedy is institutional — a Court designed so that who sits matters less than what the law requires.