This essay was published in “The Shifting Scales of Justice: The Supreme Court in Neo-Liberal India” , a volume of 8 essays that explain the trajectory of the Supreme Court in the last quarter of the 20th century, edited by Mayur Suresh and Siddharth Narrain. A major theme running through several of the essays is the “conservative turn” that the Supreme Court apparently takes from the 1980’s to the 1990’s.
Sudhir and Madhav Khosla’s essay, “Social Justice and the Supreme Court” draws attention to the protection conferred on socio-economic rights, and questions whether the Supreme Court indeed grew less progressive in the 90’s. They offer a test to evaluate a shift in the Supreme Court’s position. The test requires that there is reliable evidence to suggest that a claim made before the 1990’s Supreme Court would have a less chance of succeeding than if it had, under similar facts and circumstances, been framed in the 1980s.