India made Marc Galanter

One January afternoon in 2008, I sat down with Marc Galanter for an interview at Senior Advocate Rajeev Dhavan’s home in Delhi. Galanter was on a lecture tour and was staying there. Dhavan, who had edited Galanter’s collected Indian essays for Oxford University Press in 1989, was doubtful the interview would work. It did not. Galanter was friendly, and familiar with my byline. He answered every question, slowly, precisely, at length. When I later played back the tape, the recording was sketchy. I wrote to him a day later, asking whether he could send written replies to a revised set of questions. He agreed gently. “I enjoyed our interview,” he wrote from Madison on 28 January, “and I look forward very much to the publication in Frontline.” He promised written answers: “as soon as I can.” They never came. A reminder in February went unanswered. The interview, which Frontline had pegged to his India visit, never ran. He was in his seventy-seventh year and on a demanding schedule. I did not pursue it.

Marc Galanter died in Madison, Wisconsin, on 14 April. He was 95. Born in Philadelphia, he went to the University of Chicago as a teenager, taking degrees in philosophy and then in law. He spent most of his career at Wisconsin as the John and Rylla Bosshard Professor of Law and South Asian Studies. He had spent time in Chicago, Yale and Wisconsin. In 1957, a Fulbright fellowship sent him to India to study the abolition of untouchability. 

Galanter’s opening keynote at the second Law and Social Sciences Research Network Conference, Pune, in December 2010, described his arc directly. “India was the site and inspiration of my journey from law to law and social science.” The order, he noted carefully, ran from India outward. His American reputation, including the most-cited law review article in the United States, was itself an intellectual child of the Indian work that preceded it. The article, “Why the ‘Haves’ Come Out Ahead” (1974), grew from his observations of Indian courts.

The book that anchors his Indian legacy is Competing Equalities: Law and the Backward Classes in India (University of California Press, 1984). It is not a text our courts have dutifully footnoted and forgotten. In B.K. Pavitra v Union of India (2019), and again in Neil Aurelio Nunes v Union of India (2022), Justice D.Y. Chandrachud quoted Galanter verbatim to reconceptualise the meaning of “merit” in competitive examinations. In 1984, Galanter had elaborated the basis on which Indian reservation jurisprudence argues now: First, economic resources, such as prior education and training. Second, social and cultural resources, including networks, confidence and information. Third, intrinsic ability and hard work. On that framework, high examination scores cannot be a proxy for merit. A forty-year-old American analysis, developed from fieldwork on the Scheduled Castes and Scheduled Tribes community, has become load-bearing in the Supreme Court’s doctrine. Galanter argued that what India was practising was not American affirmative action, but a distinct idea of compensatory discrimination. He wrote of the limits of arithmetic quotas, and the tension between group recognition and individual claim.

Galanter’s comparative findings on the Untouchability (Offences) Act, 1955, had earlier supplied the evidentiary impulse for a key government inquiry. He showed that both prosecutions and conviction rates had collapsed between the early 1950s and the early 1960s. The Lal Bahadur Shastri government cited these findings when it constituted the Elayaperumal committee in April 1965. An earlier article, ‘Protective Discrimination for Backward Classes in India’ (1961), had seeded questions that Constitution Benches would have to reopen. From Balaji (1963) to Indra Sawhney (1992), they argued within the grammar he had laid down.

From the Pune podium in December 2010, Galanter sketched the Indian legal system in three tiers. At the top was the constitutional tier, meaning the Supreme Court and the high courts. This was “intellectually visible” and drew the best counsel and nearly all scholarly attention. Below it sat the “ordinary tier” of district courts, gridlocked and disdained, where most litigation actually happened. Below that was a “third tier” of Lok Adalats, gram nyayalayas and non-state forums, containing “brilliant initiatives” and “gruesome aberrations like the khap panchayats.” “We know a great deal about the constitutional lawyer,” he said, “little about the ordinary tier, and almost nothing about the third tier.” Fifteen years on, that remains largely true. He had made the same observation to me privately, that district courts were where Indian socio-legal research was most needed and least undertaken. He was unembarrassed to be saying this as a foreign scholar. His empirical work on Bhopal, when he appeared as an expert witness in the 1984 Union Carbide disaster, bore him out. In his final working decade, he initiated the Bhopal Digital Archive at Wisconsin’s law school. The archive gathers case papers from the United States and Indian proceedings into one searchable public collection.

He leaves a network of Indian scholars whose work is recognisably his. Dhavan edited and introduced his collected Indian essays in 1989. Upendra Baxi collaborated with him for decades. Jayanth Krishnan, his student at Wisconsin, co-authored a comparison of the Indian and Israeli approaches to religious personal law. Vasujith Ram co-authored a chapter with Galanter on the Indian judiciary in A Qualified Hope (Cambridge, 2019). In the acknowledgements to Caste Pride (Context, 2023), Manoj Mitta writes that a Washington fellowship brought him into contact with several American scholars. Of these, Galanter was the most notable. One moment lingered with him. Galanter, by then in his late eighties, received him at Madison airport and drove him to the hotel the university had booked for him. Galanter in turn called Caste Pride a fresh and penetrating addition to the literature. 

A generation of Indian legal scholars and journalists, including many who write for this publication, are his intellectual grandchildren, whether they name him or not. Toward the close of the Pune keynote, Galanter coined a word to describe how he read law and society: “possibilitarian.” He meant a disposition that resists the sense of inevitability, that treats every institutional arrangement as contingent and therefore open to change. It is, perhaps, his final bequest. In his last email to me, he wrote: “I will get it to you as soon as I can.” He did not. He lived another eighteen years, and wrote for millions of others in the meantime.