Musings on law and justice

A SURFEIT of books by practitioners of law, all published in a single year, must make any reader, including those with a cursory interest in law and the Constitution, sit up and take notice. When the books seek to offer the readers glimpses of history, accompanied by the authors’ own accounts of their contribution to the making or interpretation of law, the results are fabulous.

The term “practitioners of law”, in a literal sense, would include legislators, civil servants, lawyers, litigants, judges and persons with rights, as distinct from students and teachers of law. The practitioners confront the law day in and day out, and are familiar with the practical concerns that emerge in its making, interpretation and enforcement. The teachers and students of law, on the contrary, approach their subject in an abstract sense and therefore have limitations in understanding the complexities of certain legal conundrums, even though their claims to objectivity are greater than that of the practitioners.

Of the seven books under review, two are by former judges and four by practising lawyers. One book is a collection of articles written by academics and offers an interesting counterweight to the perceptions offered by the practitioners of law.

Lawyers and judges have their own spheres of influence in contributing to the understanding of law. Yet, while judges are either reviled or admired for the quality of their judgments, the role played by lawyers in persuading the judges to swing from one position to the other is hardly recognised. Lawyers bring to the fore a plurality of plausible legal interpretations of a dispute or an issue, from which the judges choose the ones that convince them or appear convincing enough. Both lawyers and judges do err, and it is for history to judge whether their understanding of legal issues before them advanced the cause of justice.

Three Judges and Their Times was written in Marathi by Narendra P. Chapalgaonkar, a former judge of the Bombay High Court, and translated into English by Sharadchandra Panse. The three judges referred to are from the pre-Independence era: Justice Kashinath Trimbak Telang, Justice Mahadev Govind Ranade, and Justice Narayan Ganesh Chandavarkar. Succeeding each other in that order, they were judges of the Bombay High Court in the late 19th and early 20th century. The book takes a broad look at the work and contribution of the three judges in their times.

All the three were educated at Elphinstone College, Bombay (Mumbai), and actively participated, both before joining the Bench and while being on the Bench, in various social, religious, educational, and even political activities, and also in the important debates of the day on issues relating to social and religious reforms. They founded and actively supported a number of institutions. They were, at one time or the other, members of the Council of the Governor of Bombay, and were associated with the University of Bombay. Ranade was one of the graduates of the very first batch and later became a Fellow, while Telang and Chandavarkar became Vice-Chancellors of the university. All the three were associated with the founding of the Indian National Congress in 1885 and were present at the first Congress session in Bombay.

Justice Ranade is considered the father of India’s political economy. He provided a substantive academic and intellectual framework for the discussion on economic issues of the time. His public life began around 1863. He took the initiative in founding the National Social Conference, and attended its annual sessions regularly until 1899. Although all the three were liberals by conviction, to the author, Ranade stood out among them. For the reader, however, the subtle differences among them explain the significance of their times. Despite their liberal convictions, there was something that connected their attitude towards British rule with that of the extremist nationalists such as ‘Lokmanya’ Bal Gangadhar Tilak, for whom Swaraj was a birthright. Chandavarkar did not wish that British rule in India should continue indefinitely.

Ranade described the British rule as a fortunate occurrence only insofar as it opened up for Indians the opportunity to learn the English language, which was necessary to acquire the knowledge of the world. Even Tilak wrote about the advantages of British rule. The author says that the difference between the liberals and the extremists was in the respective roles adopted by them: Tilak resorted to political agitation, while the three judges avoided it.

The institutions formed to nurture civil society in this period in Maharashtra —to which all the three judges had contributed in various ways—did not directly demand that the British leave India immediately. But they made a number of political demands: that the number of elected members of the legislatures be increased; that the powers of the legislatures be enhanced; that the Indian Civil Services (ICS) examination be held in India, too, and the age limit for it be increased; that more and more Indians be appointed to higher and responsible positions in the administration; that land revenue be lowered and waived during famine conditions; that India’s interests be borne in mind while levying import and export duties; and so on. When British voices held that Indians did not have the capacity to have political freedom, Ranade and Telang countered them fearlessly.

The three judges played a historic role in the social and religious fields to loosen the stronghold of custom and promote a modicum of individual freedom. Ranade asked how we could demand good treatment from the rulers if we ourselves ill-treated a whole class of people describing them as untouchables. He was also in the forefront of the struggle for women’s emancipation, so were Chandavarkar and Telang. Ranade was extremely restrained and tolerant towards his bitter critics and acknowledged the worth of his opponents as well as the importance of their work. More important, the three judges, unlike the judges of today, did not think keeping aloof from the socio-political questions of the day was an essential component of their supposed neutrality.

In a sense, the transformation that took place in Maharashtra in the 19th century is similar to what happened in the rest of the country. The author notes that this transformation was facilitated by the emergence of organisations in religious, social and political fields and newspapers which provided a platform for people to express their views about social reform. A democratic system and a civil society both presuppose a civic life independent of the government, says the author, in the context of the 19th century. What transpired in the public debates of those days is immaterial; the fact that people with different points of view started to come together and listen to one another is significant, he adds.

One wonders whether the myriad voices at prime time on television channels and on social media today had their parallels in the 19th century, the only difference perhaps being that those debates were orderly, whereas there is growing intolerance today against the expression of dissent.

Chapalgaonkar may be correct in his view that the liberalism of the 19th century does not exist in contemporary India. But the authors of the other books under review appear to rebut his view by articulating dissent in a myriad ways.

One such dissenting view finds a prominent place in Dr K.S. Chauhan’s Parliament: Powers, Functions and Privileges . He is an advocate in the Supreme Court and his defence of Raja Ram Pal in the cash-for-questions scam and in the controversy over the expulsion of 11 Members of Parliament involved in that scam following an in-house inquiry by Parliament is at odds with the mainstream public opinion which favours tough action against such MPs. Chauhan was counsel for Raja Ram Pal, who challenged his expulsion in the Supreme Court. The Supreme Court did not give Pal relief from expulsion, but he was re-elected in the subsequent Lok Sabha elections. Chauhan’s academic analysis that expulsion is not one of the specified grounds for disqualifications under the Constitution is brilliant. His conclusion that the decision of the 14th Lok Sabha to disqualify some of its members by expelling them through a simple majority was unconstitutional is contrary to the Supreme Court’s judgment in the case, and therefore, carries elements of courage and conviction.

Like the author, many lawyers who dealt with this case felt that there was no sufficient legal or constitutional research material available in India to substantiate the opinion taken by the petitioners. The book aims to fill this void. It justifies the dissenting opinion of Justice R.V. Raveendran in the Raja Ram Pal case in a separate chapter.

Women-centric

Zia Mody, the author of 10 Judgements that Changed India, is one of India’s foremost corporate attorneys. Daughter of the legal luminary Soli J. Sorabjee, who has written the foreword to the book, Zia Mody’s selection of the 10 judgments is based on a criterion which is difficult to unravel. Each of these judgments demonstrates the central role courts play in democratic governance in India, she says.

To the curious reader who may ask whether there are just 10 such judgments, she says each chapter discusses all related judgments. Women form the central figure in four of them: Maneka Gandhi vs Union of India (1978), Mohammed Ahmed Khan vs Shah Bano Begum (1985), Vishaka vs State of Rajasthan (1997), and Aruna Ramachandra Shanbaug vs Union of India (2011).

To the readers’ surprise, however, these are not the only four women-centric cases in her selection, if one looks at her list carefully. Olga Tellis vs Bombay Municipal Corporation (1985), Indra Sawhney vs Union of India (1992), and Nilabati Behera vs State of Orissa (1993) were all filed by women petitioners.

If one includes the remaining ones, too, Union Carbide Corporation vs Union of India (1989), Supreme Court Advocates-on-Record Association vs Union of India (1993) and Kesavananda Bharati vs State of Kerala (1973), each one of these would certainly have a gender dimension, in terms of the outcomes. In the case of UCC, women survivors of the Bhopal gas tragedy were the worst hit. In the Advocates-on-Record case, the Supreme Court introduced the collegium system of appointments to the higher judiciary, resulting in serious gender imbalance among the judges appointed by the collegium. The description of the basic structure doctrine, delivered in the Kesavananda Bharati case, as a safety valve to preserve Indian democracy and the counter-majoritarian character of the Indian Constitution, implies an understanding of gender equality as part of this doctrine.

This is not to suggest that the author’s gender, either consciously or unconsciously, prevailed in her choice of the 10 judgments. This is rather a result of a reader’s search for an overwhelming factor that might have determined the choice of the judgments, if one considers the author’s criterion of the “central role played by the court in the democratic governance” too vague to be considered. This is also not to suggest that gender is less satisfactory than other plausible factors in the choice of the 10 judgments, let alone the argument that the number 10 itself may appear to be an arbitrary and irrational choice by the author.

But the reader does understand that in a book of this genre, there has to be a definite number, and some criteria to determine inclusion and exclusion, and the decisions regarding these are best left to the author. The book will no doubt help the layman’s understanding of the court, even though it could be said that it still does not shed enough light on the “changes” that these judgments have brought about. Can anyone seriously dispute the claim that India has not yet “changed” despite these 10 judgments?

Story of a Chief Justice by Justice U.L. Bhat, former Chief Justice of the Kerala High Court, gives an account of how a High Court Chief Justice missed his elevation to the Supreme Court because of the collegium system. Justice V.R. Krishna Iyer, retired Supreme Court judge, says in his foreword to the book that Justice Bhat lost his appointment because he was irreverent and not obsequious to his seniors. Justice Bhat’s account shows how he was superseded by his juniors while being considered for elevation to the Supreme Court by the collegium headed by the then Chief Justice of India, Justice M.N. Venkatachalaiah. Although Justice Venkatachalaiah was personally in favour of his elevation, his colleagues on the collegium opposed Bhat’s elevation because of his irreverence, and the CJI was helpless. Justice Bhat also refers to the collegium’s gender bias in not elevating competent women members from the Bar to the High Court Bench.

Both Anil Divan and P.P. Rao have been senior advocates in the Supreme Court for a number of decades. Anil Divan’s On the Front Foot purportedly seeks to illuminate the spirit of courage behind his advocacy. The book, a collection of his writings and speeches which appeared in the media over the years, however, fails to reveal the contribution of Divan adequately. Divan was the amicus curiae in the hawala case, which was monitored by the Supreme Court. The case collapsed as the Central Bureau of Investigation could not corroborate entries made in the diaries relating to bribes paid to politicians by industrialists.

The book has nothing to say on Divan’s experience during this phase of the court’s activism. Also, Divan, despite including three chapters on the Bhopal gas tragedy, torts, and hazardous technology, is silent on his role as counsel for UCC in the litigation. Perhaps, Divan needs to write another book without relying on newspaper articles, which by their very nature have only passing relevance.

The Supreme Court’s judgment in S.R. Bommai vs Union of India (1994) is today hailed as a great victory for secularism, as the court unanimously upheld the imposition of President’s Rule in Bharatiya Janata Party-ruled States for their support to kar seva in Ayodhya before the demolition of the Babri Masjid in 1992. Not many know that it was P.P. Rao, who, as counsel representing the States of Madhya Pradesh and Himachal Pradesh conceived, developed and presented the arguments based on secularism and convinced the court that all the four BJP governments, in Madhya Pradesh, Himachal Pradesh, Rajasthan and Uttar Pradaesh, had acted in concert and violated the basic feature of secularism by mobilising, encouraging and supporting the kar sevaks who demolished the Babri Masjid. In Reclaiming the Vision, Lokendra Malik, an academic with the Indian Institute of Public Administration, has put together 36 selected articles authored by Rao on different topics relating to constitutional law and governance at various times. Rao’s writings are persuasive, even if one may wish to disagree with his convictions.

The Shifting Scales of Justice: The Supreme Court in Neo-liberal India is edited by Mayur Suresh and Siddharth Narrain. While Suresh is sessional lecturer at the School of Law, Birkbeck College, University of London, Narrain is a legal researcher and lawyer with the Alternative Law Forum, Bangalore.

The essays in this volume, written by legal academics, examine the role of the Supreme Court in the 1990s. As the editors observe: “The court of the 1990s has gradually dismantled the procedural and jurisprudential changes made by the post-Emergency court, helping refashion citizenship and creating a political consensus around global capital.” The essays analyse public interest litigation (PIL) in its various forms to explore whether the court has indeed turned conservative. The book suggests that the opinion on this issue is divided.

One gets a feeling that the practitioners of law are blind to the shifting scales of justice, while academics are able to discern them.