The Method of Sociology

Facts. Private unaided professional colleges challenged State legislation regulating capitation fees, and the Court reconsidered how far Mohini Jain v. State of Karnataka, AIR 1992 SC 1858, had gone in recognising a fundamental right to education.

Held. The right to education flows from the right to life under Article 21, but its content is to be determined in the light of the directive principles in Articles 41, 45 and 46. Every child therefore has a fundamental right to free education up to the age of fourteen years; beyond that age the right is subject to the limits of the State's economic capacity and development. A scheme regulating admissions and fees in private professional colleges was framed.

Why it matters here. The Court did not ask what education policy it preferred. It read Part III in the light of Part IV, which is the method of sociology performed against a standard the Constitution itself supplies. And it produced a limit as well as a right, which is the mark of the method being used honestly.

Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715, shows the method importing standards from outside.

Facts. A public interest petition complained that tanneries and other industries in Tamil Nadu were discharging untreated effluent into agricultural fields, waterways and drinking water supplies, rendering land unfit for cultivation and water unfit to drink.

Held. Sustainable development is part of the law of the land, and the precautionary principle and the polluter pays principle are essential features of it. The precautionary principle requires the State and statutory authorities to anticipate, prevent and attack the causes of environmental degradation, and where there are threats of serious and irreversible damage, lack of scientific certainty is not a reason for postponing measures, the onus lying on the actor to show that his action is benign. The polluter pays principle makes the polluter liable for the cost of reversing the damaged ecology as well as compensating individual victims.

Why it matters here. Neither principle is in any Indian statute the Court was construing. They were adopted because the social consequence of the alternative, waiting for scientific certainty while irreversible damage occurred, was unacceptable. That is the method of sociology in its purest form.

Subhash Kumar v. State of Bihar, AIR 1991 SC 420, shows the same method producing a right and refusing relief in one judgment.

Facts. The petitioner filed a public interest petition under Article 32 alleging that West Bokaro Collieries and Tata Iron and Steel Company were polluting the Bokaro river by discharging slurry, and sought directions restraining them. He also asked to be permitted to collect the slurry himself. The pollution boards showed that directions had been issued and permissions granted under the Water (Prevention and Control of Pollution) Act 1974.

Held. The right to life under Article 21 includes the right of enjoyment of pollution free water and air, and a citizen may move the court under Article 32 to remove pollution detrimental to the quality of life. But the petition was dismissed with costs of five thousand rupees: it was not a genuine public interest litigation, having been brought to satisfy a personal grudge and to secure the petitioner's own interest in obtaining slurry, and public interest litigation cannot be invoked to satisfy a personal grudge or enmity.

Why it matters here. Social welfare supported the right and equally supported refusing this petitioner. The method is a criterion, not a side.

The objections, which are serious

It is indeterminate. "Welfare of society" does not say whose welfare, measured how, over what horizon. In Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, the welfare of the pavement dwellers and the welfare of the city pointed opposite ways, and the formula did not resolve it.

It licenses the judge's politics. If the judge decides what social welfare requires, then under cover of an objective-sounding criterion the judge's own view decides. This is the realist objection and the strongest one.

Courts are poorly equipped to assess consequences. A legislature can commission evidence, consult interests and revise. A court has two parties, a record built for a dispute, and no way of knowing what its rule will do at scale. Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, is the Court's own warning that judges must not try to run the government.

It costs certainty. If a settled rule can yield to social consequence, advice becomes prediction.

The Indian answer, so far as there is one, is that the ends are not the judge's to choose. The Preamble, Part III and Part IV state them, and a court that measures consequences against those is applying the Constitution rather than its own preferences. The answer is partial, because those provisions state several ends that conflict, and choosing among them is again the judge's.

A worked example

A State notification bans the sale of a pesticide. Manufacturers challenge it under Article 19(1)(g); farmers' organisations intervene to support it.

By philosophy. Analogy with other trade restrictions suggests the notification stands or falls on whether it is a reasonable restriction under Article 19(6).

By history. The parent Act was enacted to regulate quality, not to prohibit products, which supports the manufacturers.

By tradition. The pesticide is in general use and farmers expect it to be available, which also supports the manufacturers.

By sociology. The evidence is of chronic poisoning among agricultural labour, with the harm falling on people who are not parties and cannot choose. Articles 21, 47 and 48A state ends that this evidence engages.

The result. On Cardozo's ranking the last governs, so the notification is upheld, and the reasons will be written in the language of reasonable restriction, which is the language of the first method. The gap between the operative reason and the stated reason is the honest difficulty of the whole scheme.

What beginners get wrong

"It means the judge decides what is good for society." It means the judge prefers, among legally available readings, the one that better serves ends the legal order has already declared.

"It always favours the poor." Subhash Kumar and Unni Krishnan both used it to refuse or to confine.

"It is the same as judicial activism." Activism is a description of how far a court goes; the method of sociology is one of the reasons it goes there. A restrained court also weighs consequences.

Quick revision

1. Method of sociology: decide by reference to social consequences, preferring the result that serves the welfare of society.
2. Cardozo ranks it highest because the other three are backward-looking and because the end of law is social welfare.
3. It asks: what are the consequences, which serves the declared ends, and is that result legally available?
4. India supplies what Cardozo lacked: the Preamble, Part III and Part IV state the ends, so welfare is measured rather than intuited.
5. Unni Krishnan, AIR 1993 SC 2178, read Part III in the light of Part IV and produced both a right and a limit.
6. Vellore, AIR 1996 SC 2715, adopted the precautionary and polluter pays principles on consequential grounds.
7. Subhash Kumar, AIR 1991 SC 420, declared a right and dismissed the petition with costs in the same judgment.
8. Objections: indeterminacy, the judge's politics, institutional incompetence, loss of certainty.

Test yourself

1. Why does Cardozo rank the method of sociology above the other three? Because philosophy, history and tradition all consult the past, and none of them asks what the decision will do. Since the final cause of law is the welfare of society, the method that consults that end must prevail where the methods conflict; the others are means to it.

2. What does the Indian Constitution give this method that Cardozo's own system lacked? A written statement of the society's ends. The Preamble, the fundamental rights and the directive principles declare what the legal order is for, so an Indian court measuring consequences has a standard supplied by the Constitution rather than one supplied by the judge, as Unni Krishnan shows in reading Article 21 in the light of Articles 41, 45 and 46.

3. Give a case where the method produced a limit rather than an expansion, and one where it produced a right and refused relief together. Unni Krishnan confined the fundamental right to free education to children up to fourteen years, the rest being subject to the State's economic capacity. Subhash Kumar v. State of Bihar, AIR 1991 SC 420, held that Article 21 includes the right to pollution free water and air and dismissed the petition with costs as a personal grudge dressed as public interest.

4. State the realist objection and the partial Indian answer to it. The objection is that if the judge decides what social welfare requires, the judge's own political preference decides under an objective-sounding name. The partial answer is that the ends are not the judge's to choose, being declared in the Preamble and Parts III and IV. It is only partial, because those provisions state several ends that conflict, and choosing among them is again a judgment.