Politics of judiciary
V. VENKATESAN IN THE HINDU
On how politics and judiciary influenced each other during the 60 years of the Indian republic.
IN his classic book Politics of the Judiciary, first published in 1977, Professor J.A.G. Griffith exposed the myth of judicial neutrality in the United Kingdom. Griffith, who passed away on May 8, 2010, at the age of 91, had many admirers, among them India’s own nonagenarian jurist, Justice V.R. Krishna Iyer. Citing Griffith, Justice Iyer wrote in The Hindu recently that to have political views and beliefs is not a form of guilt; to hide it is guilt.
An obituary carried in The Sunday Times, London, pointed out that it was because of his belief in their bias that Griffith wished to limit the influence of judges on public policy, opposed a Bill of Rights and would not rely on judicial activism to safeguard liberties. He preferred to trust the democratic process, with a strong House of Commons to hold Ministers to account, and a more open government, the writer opined. Like Griffith, Krishna Iyer too is a trenchant critic of the class bias in the Indian judiciary but might still endorse the judiciary’s activist role to safeguard liberties.
Many readers will find this subtle distinction in the perceptions of the two greatest critic of the contemporary judicial system relevant to understand how politics and the judiciary influenced each other during the 60 years of the Indian republic. B. Sen’s memoir, Six Decades of Law, Politics and Diplomacy, fills a gap in unravelling this mutual influence.
Sen is an octogenarian and the senior-most among Senior Advocates in India, having been designated by the Supreme Court in 1956 in the 10th year of his practice. After his call to the Bar in England, he began his practice before the Judicial Committee of the Privy Council, the then highest Court of Appeal for India, and later shifted to New Delhi to be one of the early entrants to form the nucleus of a resident Supreme Court Bar.
Sen also had a stint in diplomacy; he served as Legal Adviser to the Ministry of External Affairs for 10 years during the formative years of India’s foreign policy. He later took up the position of Secretary-General of the Asian-African Legal Consultative Organisation, an intergovernmental organisation associated with the United Nations, on a full-time basis. He is currently a member of the Governing Board of the International Institute for the Unification of Private Law in Rome and is also a member of the Permanent Court of Arbitration at The Hague. He was decorated with the Order of the Rising Sun, Gold and Silver Star by the Emperor of Japan for his contribution to the development of international law within the U.N.
Disillusioned by the vagaries of international politics, Sen returned to active practice in the Indian Supreme Court in 1988. “Where machinations of nation-states prevail over any notion of fair play, what better option could I have other than coming back?” he asks in Six Decades of Law, Politics and Diplomacy. His ability to recollect even minute details about what happened 60 years ago is astonishing. The first chapter, “Call to the Bar; Privy Council Practice; Life in Post War Europe”, is a fascinating account of his early interactions with those who shaped his professional life.
The second chapter, “The Supreme Court in the Formative Years; the Emergency and After”, carries his nostalgic impressions as an Indian lawyer in the 1950s and 1960s. Sen describes the conversations he had with the first six judges of the Supreme Court on the eve of the inauguration of the Supreme Court in 1950, and the first Attorney-General, M.C. Setalvad. With the coming into force of the Constitution on January 26, 1950, the six judges of the Federal Court became the judges of the newly constituted Supreme Court of India. The inauguration of the Supreme Court was marked by a solemn ceremony, without much fanfare, on January 28, 1950, in the Princes’ Chamber of the Parliament building – the same chamber where the Federal Court had sat for 12 years and where the Supreme Court was to function for eight years more.
Sen says: “The solemnity of the occasion was in evidence when Chief Justice H.J. Kania, with his purple Gujarati headgear, and the judges in their robes took their seats on the bench. Then Mr M.C. Setalvad, who had been appointed Attorney-General, the very same day, rose like a Roman Senator to address the court in a fashion that seemed to resemble the opening of the Senate in bygone days. With a voice that resounded throughout the Chamber, he outlined the extensive powers and the functions that were being entrusted to the court under the Constitution. The Chief Justice responded, expressing the resolve of the court to uphold the rule of law.” The vivid description of the event makes the reader imagine every detail of the historic occasion. Sen’s reference to the hearing of the first landmark case in the Supreme Court, A.K. Gopalan vs State of Madras, is equally fascinating. The question of detention without trial, or preventive detention, was an issue in the case and involved the interpretation of Articles 14, 19, 21 and 22 of the Constitution. Sen says: “The constitutional questions raised were new, both to the judges and the lawyers, and when M.K. Nambyar (father of Senior Advocate of the Supreme Court K.K. Venugopal), appearing for Gopalan, the detenu, went on expounding his arguments, day after day, citing case law from all over the globe with comparisons between the Indian, Irish and American Constitutions, the entire courtroom seemed to be completely spellbound. There were neither interruptions nor questions – the silence in the room broken only by Nambyar’s voice and the rustling of the pages of the Law Reports.”
Four of the judges held the Preventive Detention Act to be valid as conforming to the provisions of Article 22, whereas two others came to the contrary conclusion. Although many of the principles relating to fundamental rights and constitutional construction were not accepted at that time by the court and the challenge to the Preventive Detention Act failed in the A.K. Gopalan case, the legal trend set by the case was noticeable in the subsequent years. While the court would tend in favour of upholding the validity of a preventive detention law, the judges would be readily inclined towards personal liberty to the extent permissible within the four corners of the law, and did so in many cases even by stretching the language of the rule.
Sen writes that each judge, by reason of his background or past experience, had a pattern of thinking of his own – some inclined more towards the interests of the state, including law and order, whilst others favoured protection of the rights of children.
One common feature noticeable among the judges in the early days of the Supreme Court, Sen recalls, was their humility, their patience in hearing counsel in an unhurried manner and their willingness to give themselves sufficient time for reflection and consultation, which alone could find expression in those monumental judgments that have stood the test of time.
According to Sen, the judgment in Kesavananda Bharati vs State of Kerala in 1973 provided the last straw on the camel’s back and prompted the government to strike at the court forthwith. The dominant question in this case was whether Parliament, in exercise of its powers to amend the Constitution, could take away or abridge the fundamental rights embodied in Part III of the Constitution. The court, by a majority of 7:6, held that the power to amend did not include the power to alter the basic structure or framework of the Constitution so as to change its identity.
Chief Justice Sarv Mittra Sikri and his senior-most successor-in-waiting, Justice J.M. Shelat, were part of the majority Bench that delivered the judgment. The powers that be were closely following the proceedings in the Kesavananda Bharati case, and it was even rumoured that a daily report on the case was being called for by the Prime Minister’s Office, Sen recollects. Thus the coterie around Prime Minister Indira Gandhi was not prepared to take the risk, and the announcement came a day before Justice Sikri was due to retire that Justice A.N. Ray would be the Chief Justice of India, overtaking the three senior-most judges, namely, Justices Shelat, K.S. Hegde and A.N. Grover, who soon resigned.
Sen says the camaraderie between the Bench and the Bar seemed to have snapped overnight, never to be restored following the supersession of the three judges and the appointment of Justice Ray as the CJI. Many people blamed Ray, but Sen wonders what he could have done in the matter of his appointment, which was a political game meant to frighten the judges into submission to the executive will.
Sen’s account of the Supreme Court’s role during the Emergency is insightful and offers young readers unfamiliar with the period a shocking revelation about how the Supreme Court (compared with the courageous High Courts) crawled when the executive merely asked it to bend. On Justice Y.V. Chandrachud, who took over as the CJI in the post-Emergency years, Sen writes: “He had the longest tenure of seven-and-a-half years in the history of the court. He was a good Judge, full of humility, courteous and kind, but he was a weak administrator and made no effort to improve the functioning of the court.”
On the functioning of the External Affairs Ministry, Sen says: “Unlike many other countries, foreign policy was not a subject matter of national debate, it was not even formulated by the Cabinet, there were no think tanks in the real sense, it was left purely to Pandit [Jawaharlal] Nehru and his advisers to work out things as they thought fit. That is why one noticed a great deal of contradiction in our policy pronouncement as well as the way they were implemented.”
In the last chapter, “Supreme Court Revisited”, Sen writes about the Supreme Court, which he rejoined in 1988. The then Chief Justice R.S. Pathak, he says, was no longer the person whom he had known so closely for years. “The elevation to the high office had simply turned his head. He seemed to prefer the pomp and glamour of his office and the social life around it, than delivering judgments, which could have given credit to him. He gave the impression of being a ‘Judge’s Judge’, quite contrary to the fact that he was an astute politician who knew which side his bread was buttered,” he writes. However, Sen adds, “Justice Pathak maintained decorum in his court, and no one complained of not getting a fair hearing – something which was getting to be rarer and rarer in our courts – almost on its way to extinction.”
Burdened by petitions
According to Sen, Supreme Court judges in the 1990s and beyond are simply burdened under the load of public interest litigation (PIL) or special leave petitions (SLP), some with no merit at all, allowing little or no time for reflection or leisure. Sen may be correct in this assessment as far as SLPs are concerned but way off the mark in the case of PIL petitions, which form a negligible proportion of the pending cases. Indeed, judges are criticised for dismissing PIL petitions without following the guidelines in letter and spirit.
The author recalls that he had suggested to Indira Gandhi (and canvassed in vain with the then Chief Justice of India) that to reduce the backlog of SLPs, these could be disposed of in the High Courts themselves, with a couple of Supreme Court judges making a circuit every few months and forming a Bench with the Chief Justice or a senior judge of the High Court sitting as an ad hoc judge of the Supreme Court. This pattern was in vogue in Canada and Australia and is followed in Malaysia and Pakistan. Sen had told Indira Gandhi that while the Supreme Court Bar would oppose the proposal, High Court Bars and litigants would welcome it.
Sen’s observations on two key cases during this period will be of interest. In the Indira Gandhi assassination case, he says the irony of Rajiv Gandhi – the son of the victim – as the head of the government advising the President to reject her assassin Kehar Singh’s mercy petition should have been a factor for the court to consider Kehar’s Singh’s legal challenge to the rejection of his mercy petition. He observes, after pointing out this irony, that our courts did not believe in the dictum that justice must not only be done but it must also appear to have been done.
Referring to the Supreme Court-engineered settlement in 1989 in the Bhopal gas disaster case, which was no more than a flea bite as far as Union Carbide was concerned, he recalls the conversation he had had with a lawyer of Carbide in Washington a few months after the settlement. When Sen congratulated the lawyer on his victory, he smiled and said, “We were fortunate to get a good fixer,” and walked away without entering into any further conversation. In the context of the mystery over how the Supreme Court approved this settlement, this conversation is indeed revealing.
The author regrets that no government has been firm enough to pursue seriously the reform of the appointment and transfer of judges through a National Judicial Commission. Each government, he says, vied with the other to pamper judges by enhancing their emoluments and privileges.
Litigation before the Supreme Court has always been a bit of a gamble – its outcome depending on the Bench before which the matter would come up as the judges have their own perspectives, prejudices and preferences, Sen writes. Griffith was concerned both with the personal and corporate bias of the judges. While Sen is embarrassed by the lavish lifestyle of contemporary Indian judges, he appreciates the fact that the court is unpretentious and has made a pronounced shift in favour of the common man in matters of life and liberty. What really bothers him is the absence of an independent Bar, free from the shackles of corporate culture, to withstand the pressures of globalisation.
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