A verdict on judgments
G. MOHAN GOPAL
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An insider’s account of the role of the Supreme Court in contemporary public law
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THE COURT AND THE CONSTITUTION OF INDIA — Summits and Shallows: O. Chinnappa Reddy; Oxford University Press, YMCA Library Building, Jai Singh Road, New Delhi-110001. Rs.795.
This is not your standard uncritical paean to the court — of which there are far too many. It is a brutally honest assessment of India’s highest court by a highly respected insider.
Candid evaluation
Justice O. Chinnappa Reddy was a judge of the Supreme Court of India from 1978 to 1987 and a judge of the High Courts of Andhra Pradesh, and of the Punjab and Haryana prior to that. He is the youngest of the legendary quartet of Supreme Court judges (along with Justices V.R. Krishna Iyer, P.N. Bhagwati and D.A. Desai) who, some three decades ago, changed the course of India’s judicial and political history by seeking to radically transform the Court, in the words of Upendra Baxi in his brilliant foreword to this book, “from the Supreme Court of India into a Supreme Court for the Indian impoverished.” One or another of this quartet was on the Supreme Court during a historic 14 year period between July 1973 and September 1987. They generated a new rights-based, pro-poor, pro-green socialist jurisprudence that brought great glory to the Indian judiciary and influenced not only Indian law but the law of many countries in the world.
The book is not written as a scholarly treatise on constitutional law. It is a judgment on judgments of the Supreme Court. Epochal decisions of our apex court are described concisely and evaluated candidly from Justice Reddy’s well known and openly acknowledged socialist perspective.
One has the sense that through this book he also seeks to nudge the Supreme Court in the right (actually, left!) direction in a number of critical areas at an important time in which there is much speculation (and differences of opinion) about the response of the Court to globalisation and liberalisation. He calls on the judiciary to “descend from the ivory towers to the crowded mud huts and littered pavements” and usher in “participative justice” and “people’s participation in the judicial process” through judicial activism and public interest litigation so that justice may be brought to the doorstep of people.
Directness
The most striking feature of the book is the breathtaking directness of the criticism of the Court’s work. Here is a sampling. The decision of the Supreme Court in 1967 in the Golaknath case (denying Parliament the right to amend fundamental rights) “was a tragedy” whose effect “was to stop Constitutional progress and fossilize the Constitution.” The Emergency-era decision of the Court in the ADM Jabalpur case—holding that our life and liberty were gifts of the State that could be taken back by it at its pleasure—is “dreadful and calamitous”, an instance in which the Supreme Court of India “touched the lowest point that could ever be touched by any court with a conscience.” The decision of the Court in punishing the late E.M.S. Namboodiripad in 1970 was “a serious blot in the Supreme Court’s history.” Justice Reddy takes the view that the Court should not have punished Arundhati Roy. “The demolition [of the Babri Masjid] took place with the Supreme Court almost a mute spectator. The Court failed to take any positive steps to save the situation.” The 50 per cent limit on reservations imposed by judicial fiat “may indeed be considered an amendment of the Constitution by the judiciary which, of course, is beyond its competence.” There is a scathing criticism of the Supreme Court cases on Hindutva and on the decisions restricting the right to strike and bandhs; and on matters internal to the judiciary, including current processes for appointment of chief justices. The greatest figures in the judicial pantheon are not spared clinical scrutiny —the late Y.V. Chandrachud, Chief Justice of India for some eight years, is described as having “failed to achieve anything exceptional”; and Chief Justice M.N. Venkatachalliah is described as a judge for “whose judgments one would search in vain.” Whether or not one agrees with his views, his book is a welcome move towards greater openness of judges in discussing the role and work of courts.
Need for openness
The book has a scintillating foreword by Upendra Baxi, in which he argues that it is “necessary for justices to make their fighting faiths both legible and intelligible” because democracy demands openness in acknowledging and recognising individual judicial ideologies. He compliments Justice Reddy highly for doing just that.
Politics is not all about law; but, notwithstanding great protestations of neutrality, law is all about politics. As is evident in this book, in the much quoted words of American judge Benjamin Cardozo, “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by. The sooner we recognise this as a society, the better off we will be.”
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