Monday, February 17, 2014

Book Review: 10 Judgements that changed India

In order to test the general knowledge of children, adults often ask - "Who is the president of India?" or "Who was India's first vice president?". But rarely they ask "Who is the Chief Justice of India?" Judiciary, the third pillar of democracy, has always been an under rated player in Indian context. As kids we grew up on the names of Gandhis, Nehrus and to some degree Patels and Vajpayee. But names like A N Bhagwati, Fali Nariman are lost on us.  But if the roles of legislative and judiciary of post independent India are kept on a beam balance, it will not tilt towards legislative.

If we consider the set of books that talk about India post independence and then look for books that talk about Indian judiciary, the percentage would be abysmal. Zia Mody's book - 10 Judgements that changed India  improves this statistic. There have been many other cases that have had ever lasting impact on India but yours truly agrees with her selection of this being the ten most influential ones.

The cases discussed reflect the ingenuity of our courts. Mody opens her book with the Kesavananda Bharti vs State of Kerala case which is unarguably the most impactful case in our relatively short history. In 1970, mere two decades of Independence, the parliament is making laws that are in conflict with the idea of India. But whatever it may be, it is a law passed by democratically elected representatives of India, representatives that have sworn the oath to serve the interests of its citizens. Unlike today, it is also not a case where parliamentarians are working in their self interests or trying to legislate something that will benefit a few. This was a case of land reforms passed by Govt. of Kerala that imposed restrictions on management of property. The law imposed government interference on religious property owned by Swami Kesavananda Bharti. The case was a classic example of existentialism - what is the primary purpose of courts? Democracy was started on the tenet of "nobody is above the rule of law" and hence came judiciary. But in this case, there is a law passed by a majority, so why there is even an objection?  What are courts supposed to do in such a case?

 India with its vast history, was still very new to the ideas of constitution, democracy and rule of law. That too, at the scale of Indian population, democracy has not been tested much. The system of checks and balances at a very high level makes complete sense but when nuances have to be etched out, there is confusion and scope of ambiguity. The constitution and this law were both in conflict with each other but both were still laws. What is to be done if there are two laws which stand against each other? Which law gets priority? What is the right course of action? What is the "just" course of action?  It is known that  we deliver our best when facing our strongest opponent. Such was this case for Supreme court of India. The court came out with a 7:6 judgement ruling in favor of Bharti by inventing a Basic Structure doctrine which says that the legislative can not pas laws that goes against the basic structure of Indian Constitution. It was a matter of big debate of what is this basic structure? Each of the judge had a different opinion about the basic structure but there were a few similarities and they were deemed good enough to apply in this context. The Basic Structure Doctrine is India's contribution to world legal fraternity. It is not the only contribution.

Each of the case in Mody's book has an interesting history behind it. But what makes these cases special are the challenge that they pose. Consider the case of Olga Tellis which is a case of people living on footpaths. If they are forcefully evicted then their livelihood is taken away which is a direct threat to their right to life. On the other hand, for people living near those footpaths, it is a question of safety, hyegine  and access to public spaces.  The human rights factor adds another angle to this whole puzzle because both sides are victims here. What is the right thing to do?

Whenever there is a question of "the right thing", we look up to our courts. The courts have truly earned this. Supreme court have not ducked away from difficult questions. Instead, time and again, they have came out with answers that have been respected by everyone.  The cases in Mody's book highlight how the court have addressed few of such questions.  In each of the case Mody shares the case history and sets up the context. It will be difficult to understand courts' actions in 80s without understanding what happened in the period of Emergency.

The book covers the pre-case (context), during and post-case (after effects) of each case. However, it fails on multiple levels. It fails to convey the gravity of each case. Perhaps, in its attempt to keep the length small, the context part is covered like a cheat-sheet. Each case poses a dilemma question, a quandary for which there is a no right, no wrong answer. Behind each case lies the fundamental question - "What is justice?" What are the philosophical basis of justice, what are its aims and what are its means. The book does a poor job in bringing this to the forefront. The chapter on Bhopal Gas Tragedy glosses over the multiple nuances of legality which even makes this straightforward case such a blot on Indian Judiciary. At the very best, this is an introduction level book for someone who is interested in Indian Judiciary but it betrays its readers by not evoking the spirit of  curiosity to probe further. The book also falls short of acknowledging  its actors - the lawyers and judges, who were instrumental in delivering such judgements. I had to check  wikipedia in several places to understand who fought that case and who was the judge which provided the majority opinion. For students of Constitutional law, or for people who are familiar with the writings of Seervai, this book comes off as a big disappointment.

This under the carpet treatment of judiciary can be mostly attributed to the way judges are selected - by appointment rather than election.  We need to change this. No, not the selection process but the treatment. We need more books on our legal system, on our courts and its actors. With all its negatives, Zia Mody still deserves all the credit for writing such a book. For non-readers of non-fiction, this book serves to be a first step.

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