From the courtroom

Published : Dec 19, 2008 00:00 IST

The two authors fill the void in the historical and contemporary understanding of the Indian judiciary.

TWO separate accounts of the Indian judiciary spanning nearly six decades by two insiders, one from the Bench and the other from the Bar, could not have been timed better as the courts are coming increasingly under public scrutiny for their omissions and commissions.

O. Chinnappa Reddy was a Judge of the Supreme Court of India from 1978 to 1987. He had earlier served as a Judge in the High Courts of Andhra Pradesh and Punjab and Haryana and as Chairman of the Karnataka Backward Classes Commission.

Shanti Bhushan, who is now in his eighties, continues to practise in the Supreme Court as a senior advocate. He has been in the forefront of the campaign for judicial accountability. He served as Law Minister in the post-Emergency Janata Party government at the Centre and also shares his experiences of that short stint in power in his memoirs.

Chinnappa Reddy opens The Court and the Constitution of India with the making of Indias Constitution. Dwelling on the inconsistency between the Fundamental Rights and the Directive Principles of State Policy, he reveals that B.N. Rau, the architect of the Constitution Bill, had suggested that no law made or action taken in pursuance of the Directive Principles should be deemed invalid merely because it was in conflict with one of the Fundamental Rights. Although the Constituent Assembly never considered this suggestion, it subsequently inspired the 25th, part of the 42nd, and the 44th Amendments to the Constitution.

The author makes a pointed reference to B.R. Ambedkars repeated assertion in the Constituent Assembly that the Directive Principles were binding on all organs of the state as Instruments of Instructions to the Legislature and the Executive. He observes that perhaps Ambedkar should have added that the Directive Principles should also serve as a code of interpretation to the judiciary.

While discussing the independence of the judiciary, the author observes that while the High Courts have powers of superintendence over their subordinate courts, the Supreme Court is not invested with any power of superintendence over the High Courts. He writes: Yet, subsequent events show that the Supreme Court has assumed to itself a virtual power of superintendence over the High Courts, and the High Courts seem to have accepted such a position with obeisance. This is of some significance since the stature of the High Courts has automatically reduced in the eyes of the public, which it should never be.

Citing the speech the first Chief Justice of India, Harilal J. Kania, made at the time of inauguration of the Supreme Court, the author says that Kania accepted the position that the role of the Supreme Court as a custodian of the Constitution was secondary to that of Parliament and that the court was not constituted as an authority to supervise the wisdom and propriety of the enactments of the legislature and the actions of the executive.

This view, according to the author, explains some of the judgments of the court and the views taken by some judges in the early days of the Supreme Court.

The author observes in the Chapter on Gopalan, Preventive Detention, and Habeas Corpus: While it is true that throughout the world terrorism has become a menace, growing like wildfire, and requires strong measures to eliminate it, the mere word terrorism appears to frighten laymen, including judges.

The author regrets that the Supreme Court has upheld the validity of anti-terror laws such as TADA (Terrorists and Disruptive Activities (Prevention) Act) and POTA (Prevention of Terrorism Act) which, according to him, negate the Fundamental Rights guaranteed by the Constitution under Articles 14 (Equality before law), 21 (Protection of life and personal liberty) and 22 (Protection against arrest and detention in certain cases). TADA has lapsed and POTA has been repealed, but the government is under pressure to re-enact POTA.

The author argues that the existing penal laws are sufficient to tackle terrorism and hopes that the Supreme Court will take a second look at any new enactment containing harsh provisions, such as POTA.

The Supreme Court decided in the A.K. Gopalan case in 1950 that the rights specified in Article 19 (Protection of certain rights regarding freedom of speech, etc.) were the rights of free men and both punitive and preventive detention were outside the range of Article 19. Gopalan, the veteran Communist leader, had been detained without trial under the provisions of the Preventive Detention Act. The court held that the detenu could not claim procedural fairness as a Fundamental Right.

It took the court nearly 23 years to reverse this regressive ruling in another case. The author says about the Gopalan case that the court did not rise to the occasion as the majority judges appeared to be still under the influence of the colonial jurisprudence. The court, he says, failed to appreciate that the chapter on Fundamental Rights contained a bundle of rights, each of which and all of which were intended to secure the fullness of the rights, not by isolating them but by reading them in such a way that each enlightened, enlivened and enriched the other.

On the enactment of the Ninth Schedule through the First Amendment, which granted immunity from judicial review to certain laws, the author says it would have been wiser if it was restricted, as originally intended, to saving land reform laws. Instead, he regrets, it was misused to include all manner of legislation. The court has subsequently held that laws included in the Ninth Schedule could be judicially reviewed if they infringed the basic features of the Constitution, subsequent to the pronouncement of the judgment in the Kesavananda case in 1973.

The Supreme Courts judgment in the Golaknath case in 1967, denying Parliament the right to amend the Constitution to take away or abridge a Fundamental Right, is described by the author as a tragedy. The judges, led by the Chief Justice of India K. Subba Rao, otherwise a liberal judge, showed a near-obsessive percipience of the Fundamental Rights that they were expounding, but no perception of the Directive Principles, which were also part of the Constitution, he says.

In the Kesavananda case, the court conceded to Parliament the power to amend the Constitution, but circumscribed the power by holding that this could not be exercised so as to alter its basic structure. The author says: Since there are no signposts signalling basic features of the Constitution, every attempt to discover a basic feature becomes a voyage of discovery.

Within Indian jurisprudence, the author traces the basic structure doctrine as having been first mooted by Justices M. Hidayatullah and J.R. Mudholkar of the Supreme Court in the Sajjan Singh case (1965), and subsequently by Subba Rao in the Golaknath case. In the Kesavananda case, Chief Justice S.M. Sikri did not refer to either of them as the source of the formula, as indeed he should have done, says the author.

Chinnappa Reddys seminal contribution can be said to be to the debate on the equality provisions of the Constitution and on the question of reservation for Backward Classes. He is known for his scathing critique of the creamy layer formula. Asking what about the creamy layer of the forward castes, he ponders whether the marks obtained in a competitive examination by the candidates belonging to the advanced sections of the forward castes should be reduced by 5 per cent so as to give a chance to candidates belonging to the less advantaged sections of the forward castes. He asks: If the answer is no, why then should the so-called creamy layer of the Backward Classes be pushed into the forward class group?

On the Supreme Courts fixing of a 50 per cent cap on reservation, the author agrees that it is well intentioned but points out that it is beyond the courts competence as it may be considered an amendment to the Constitution.

The author locates one of the shallows of the Supreme Court in A.D.M. Jabalpur vs Shivkant Shukla, decided in 1976 during the Emergency. In this case, the court abandoned any right flowing out of the right to life and implied that the mere existence of a human being was a bounty of the state.

The author is critical of the Supreme Courts judgment in T.K. Rangarajan vs State of Tamil Nadu (2003), declaring the right to strike illegal, and that in CPI(M) vs Bharat Kumar (1998), holding bandhs unlawful. The anti-strike judgment, according to the author, seeks to distance the state from the goal of socialism, while the anti-bandh verdict smacks of generalisations, not supported by factual evidence. By defining a bandh, and by seeking to punish the participants in the bandh, the court has only trespassed into the legislative function, he says.

The author is equally critical of the Supreme Courts judgment in Aruna Roy vs Union of India (2002), in which it justified the inclusion of religious philosophy as part of the curriculum to be taught in schools. The court, he feels, failed to draw a distinction between religion and morality and ethics.

Whatever is necessary to inculcate morality and ethics can be done without reference to religion and thus without offending the principle of secularism, he argues. Secularism, he explains, means the exclusion of religion from all acts or acts purporting to be done in the name of the state. However, on balance, Chinnappa Reddy is satisfied with the summits of the court and is not perturbed by its shallows.

In his memoirs, Shanti Bhushan offers an account of how he became a successful lawyer. Shanti Bhushans father, Vishwamitra was an eminent lawyer in the Allahabad High Court.

So Shanti Bhushans initiation into advocacy was a smooth affair. But pedigree alone could not have been behind his success. It was remarkable that early on he developed a keen interest in law and reasoning, and surprised many senior advocates with his analytical skills. Even today, when he argues in the Supreme Court, one can notice elements of simplicity and honesty in his analogies from daily life, which make his submissions comprehensible even to a lay person.

The secret of his success, as he claims in this book, is that he considered each disappointment in his career a blessing in disguise. Shanti Bhushan was offered the judgeship at the age of 37. Although he accepted the offer, he could not become a judge because the Chief Justice of India, P.B. Gajendragadkar, increased the age limit for consideration for the post of a High Court judge to 40. He was offered judgeship twice after he turned 40, but he declined it on principle.

The election petition against Prime Minister Indira Gandhi in the Allahabad High Court brought instant fame to Shanti Bhushan. He was counsel for the petitioner, Raj Narain, who had accused her of having indulged in corrupt electoral practices to win the Lok Sabha election from Rae Bareli.

On June 12, 1975, Justice Jagmohan Lal Sinha not only set aside her election but disqualified her from contesting for six years. The verdict set in motion a series of events, resulting in the imposition of the Emergency on June 26, 1975. (Justice Sinha, who retired in 1982, passed away on March 20, 2008.) Shanti Bhushan reveals that Justice Sinha did not succumb to the offers of promotion either before or after giving the verdict.

Shanti Bhushan also argued before the Supreme Court, which heard Indira Gandhis appeal. The court accepted his argument that judicial review by courts was an essential part of a democratic constitution and struck down the 39th Amendment to the Constitution, the first Amendment to be declared null and void by the Supreme Court. The amendment sought to give retrospective benefit to Indira Gandhi, by making her immune from disqualification.

The court, however, upheld the retrospective amendments to the Representation of the People Act, which made the finding of guilt on the grounds of corruption by the High Court untenable.

Shanti Bhushan led the arguments in the Supreme Court on behalf of the detainees during the Emergency in the ADM Jabalpur case. He notes that two of the ablest judges in this case had succumbed to political pressure. Justice H.R. Khanna, who wrote the dissent, was superseded as Chief Justice of India in 1977. It would have been useful if Shanti Bhushan had recorded in his memoirs a summary of his arguments in this case that marked a shameful chapter in the history of the Indian Supreme Court.

Both the books fill the void in the historical and contemporary understanding of the Indian judiciary.

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