There is an important distinction between pleadings that are filed in a suit and affidavits and counter affidavits in a writ petition. Under the Code of Civil Procedure (CPC), 1908, a plaint or a written statement must contain only the facts, but not any evidence. However, in an affidavit or the counter affidavit in a writ petition, it is necessary that not only the facts, but also the evidence as proof of the facts, have to be pleaded and annexed to it. [Bharat Singh v. State of Haryana (1988)]
This basic distinction has to be borne in mind when drafting a writ petition or responding by way of a counter-affidavit. This leads us to the importance of the Brandeis Brief, particularly in cases involving constitutional law, taxation, environmental law and regulatory issues.
The term ‘Brandeis Brief’ has its origin to the submissions made by Louis D Brandeis, who had to argue a case that supported a law limiting the working hours for female laundry workers. This was the historic case of Muller v. Oregon (1907). Brandeis faced a formidable challenge because two years earlier, the US Supreme Court had struck down a New York statute that limited working hours in bakeries on the ground that such limits amounted to economic regulation that interfered with the liberty of contract guaranteed by the 14th Amendment to the US Constitution. The Lochner case was the zenith of constitutional formalism - where the judiciary decided cases merely on the textual provisions and precedents but had no concern for either the social or economic impact of the law.
Brandeis overcame this challenge by preparing a 113-page brief, which had only two pages of legal arguments and citations. The remaining pages contained extensive expert evidence, scientific data and testimony from doctors, social and labour experts, which recorded the negative effect of working longer hours on women’s health and safety. The empirical and scientific data made a compelling case of the adverse effect that was likely to result if the Oregon statute was struck down. The strategy of Brandeis proved successful and the Oregon statute limiting the work to 10 hours per day was unanimously upheld by the United States Supreme Court. Justice Brewer, who wrote the opinion of the court, specifically referred to the scientific data and expert testimony compiled by Brandeis that justified limiting the working hours.
The Brandeis Brief is defined as a legal brief that contains information and statistics that relate not only to the statute, but also to economics, sociology, medicine and other scientific disciplines. The Brandeis Brief often contains statistical data to demonstrate the arbitrariness or harmful effect of a statutory provision or, conversely, to demonstrate its necessity and reasonableness.
In later years, the Brandeis Brief was used effectively in the historic Brown v. Board of Education (1954), wherein extensive scientific testimony from child psychologists was placed before the US Supreme Court to demonstrate the adverse psychological impact that segregation had on African-American children.
The Brandeis Brief was also extensively used in Roe v. Wade (1973), and included scientific data, inputs from medical associations and social science organisations in the challenge to Texas laws that criminalised abortion.
Brandeis was elevated to the US Supreme Court in 1916 and adorned the Bench till 1939. He was the first Jewish judge of the US Supreme Court.
In India, it is necessary to use the methodology of the Brandeis Brief to present scientific and empirical data in support of one’s case. Such data should be part of the pleadings under Article 226 and the reports/affidavits can be enclosed as annexures. A mere reliance on statutory interpretation and precedents will not enable the court to come to a proper conclusion.
In Shivashakti Sugar Ltd v. Shree Renuka Sugars Ltd (2017), Sikri J. emphasised that courts should examine the economic impact of a decision wherever warranted. The courts must avoid outcomes which have the potential to create an adverse effect on employment, growth of infrastructure, or on the economy or revenue of the State. The Court held that the economic analysis of the potential impact of a decision becomes imperative.
The Brandeis Brief is a useful method of setting out the economic impact of a particular statutory provision. If the consequences are very drastic, it may be a ground to challenge the provision on grounds of arbitrariness. In situations where two interpretations are possible, the Brandeis Brief can help courts decide cases so that adverse economic consequences are avoided. It is equally helpful to enable the courts to understand the sociological or environmental impact of a statutory provision, an executive order or a policy decision.
Most fiscal, labour and regulatory laws are made with a particular object in mind. But, when implemented, they may be defective and, sometimes, defeat the very objective that the law seeks to achieve. The Brandeis Brief can help analyse the error and the inequities of the legislation by highlighting its adverse economic, social or environmental impact. Indeed, the successful outcome of a case may well depend more on the contents of the Brandeis Brief, than on mere rules of interpretation.
Arvind P Datar is a Senior Advocate practicing before the Supreme Court of India.