Tag: Jurisprudence

Decent overview of important judgements that have shaped India’s legal discourse

Zia Mody is a well-known leader in corporate law in India. The daughter of Soli Sorabjee, one of India’s most eminent jurists of the previous generation, Mody has tried to give an overview of ten judgements that have had a lasting impact on not just how our Constitution is interpreted, but on how it has brought large-scale changes on the ground, mostly good and, on certain rare occasions, bad (albeit, unintentionally).

In reality, it’s not just ten judgements but many more, and Mody has, quite smartly, clubbed related judgements together into single chapters.

For example, Golak Nath judgement (Fundamental Rights cannot be amended by the Parliament) is mentioned in the run up to the Kesavananda Bharti judgement (undoubtedly the most important judgement in the history of independent India, where Golak Nath was overturned and, among a host of observations, the most important one was the introduction of the basic features doctrine – some parts and ideas in the Constitution are so sacrosanct that they can’t be amended by the Parliament); S.P. Gupta vs President of India, 1981, (commonly known as First Judges Case, the most important takeaways from this judgement were, among other things, that firstly, the Executive had the final say in the appointment of judges, even if the CJI was against such an appointment ; secondly, locus standi was extended forever, meaning that a person did not have to be directly involved in a case to knock on the doors of the courts, a decision that can be said to have given birth to PILs; and, thirdly, that official correspondence between government departments could be asked to be produced in a court of law as transparency is an essential element of a democratic society, an observation that can be said to have sown the seeds of the Right to Information Act ) finds its mention in the chapter on Supreme Court Advocates-on-Record Association vs Union of India, 1993 (commonly known as the Second Judges Case, it introduced the Collegium system, where Chief Justice and the two senior-most judges (extended to four in the Third Judges Case in 1998) appoint the High Court and Supreme Court judges, thus giving to the Judiciary the final say in the appointments process).

This approach is not only smart but also constructive as each judgement is seen in the context of the time in which it was passed – what necessitated it, what was the climate, and the like.

As an instance, one cannot hope to understand why there has been so much hullabaloo over the Collegium System in the last couple of years, if we don’t know why it was introduced in the first place (in Second Judges Case, as a response to certain issues in the First Judges Case). Our understanding of the present is inevitably linked with that of the past.

The book does a decent job of covering the important cases in its understandably narrow scope. It discusses Shah Bano (which allowed female Muslim divorcees a recourse to claim maintenance from their husbands without resorting to CrPC; more importantly, it also opened up the discussion on adopting a Uniform Civil Code), Aruna Shanbaug (the debate between passive euthanasia and active euthanasia) and Indra Sawhney (reservations, and the creamy layer), among others.

However, the one complaint I have with the book is that it is not very comprehensive. Maybe that was the very aim of Mody – to give an introduction to the important judgements, without indulging in too many technical details that may repel the average reader. It is her literary freedom, and I am no-one to question that.

But, since this review is about how I experienced the book, I did feel that, without taking anything away from Mody, for judgements that changed the legal, judicial, social and cultural climate of India in such profound ways, the chapters are relatively short. That is not to say they do not cover the topics well. But it’s more like reading the contents of a really important book, rather than reading the book itself. Or like reading the recipe without tasting the dish.

In short, the book is a good introduction for those who might be interested in having a bird’s-eye view of the various cases that have shaped India’s legal environment over the years, but those looking for something a little more comprehensive should look elsewhere.

The Constitution has not failed us, we have failed it

AG Noorani is one of the most respected Constitutional experts of our time. In his long and distinguished career as a lawyer and historian spanning over 50 years, he has had the opportunity of observing many events that raised pertinent Constitutional questions. His voice serves as a beacon to all those errant politicians and Constitutional dignitaries, who, due to their arrogance, ignorance or sheer ineptitude, have failed to live up to the ideals of the Constitution.

This book is a collection of articles written by Noorani that appeared in various newspapers – mainly The Statesman and the fortnightly magazine Frontline – during the 1990s. They cover a host of issues – the role of the President , the position of the Governor, hung assemblies, anti-defection law (enshrined in the Tenth Schedule of our Constitution), Centre-State relations and the role of the Speaker in the Assembly, among many other things.

A country’s Constitution provides the basis for its functioning. Our founding fathers came up with our Constitution after detailed discussions and deliberations over a period of almost three years – they wanted to provide as complete a framework for the functioning of our country as possible because, being a federal state and a land of people with cultures as varied as chalk and cheese, difference in opinion was inevitable. That is why our Constitution has turned out to be the longest in the world.

However, any Constitution will also, naturally, be a snapshot of the economic, social, political, legal and scientific milieu of the time when it was made. The most the members of the Constituent Assembly can do, is to make the Constitution flexible enough that it can incorporate changes according to the requirements of the times, and rigid enough to not lose its basic ideas, philosophies and structure in the face of short-sighted and mistaken legislations and decisions.

A few patterns clearly emerge if we observe the political developments since independence, especially in the post-Nehruvian era –

1. States ruled by parties different from the one ruling at the Centre have often gotten a raw deal. The Centre has tried to extend influence in areas where it does not have legitimate powers by, for example, pressuring the Governors, using provisions under Article 356 of the Constitution for President’s Rule, extending its jurisdiction by an unjustifiably wide interpretation of the Concurrent Powers, and staying silent on matters it ought not to (and failing to keep its mouth shut where it should have) – all as required by its political or ideological interests.
2. In continuance of the aforementioned, the office of the Governor has been widely abused by the Centre which has appointed Governors close to its ideology. It has wilfully mis-interpreted the phrase that a Governor occupies his office “during the pleasure of the President”. This misinterpretation would have been funny if not for the serious consequences it entails.
3. The breed of honest politicians are dwindling day-by-day. Defections (sudden switching of loyalties by (an) elected legislator(s), mostly for some kind of a gain), as opposed to splits (a gradual, genuine ideological fork in a certain percentage of the members in a party), became increasingly common, leading to the Anti-Defection Law in 1985 (the problem hasn’t disappeared, though).

Noorani correctly points out that a Constitution is not meant to be interpreted literally. He quotes from somewhere that it is actually “applied politics” and any conscientious authority that applies or uses its provisions must be aware of its power to affect ground realities.

Noorani cries himself hoarse explaining, for example, that during a hung assembly, the Governor is not meant to determine if a given party or leader has a majority or not. He is only to invite the person who he thinks “is most likely to command majority”.

That any test of majority must be done in the house, as also ruled by the Supreme Court in the Bommai verdict of 1994.

That the Speaker of a house should ideally be impartial, but may not practically always be so. The authority he has under the Anti-Defection Law, where his decision is final, is antagonistic to his election by a majority vote in the house. Will he be able to rule against someone who actually voted him to the seat?

That there are double standards in treating the President and the Governor even though, under the Constitution, “The position of the Governor is exactly the same as the position of the President”, as said by B.R. Ambedkar in the Constituent Assembly on 30^th December, 1948. The Governor is often pushed into situations where no party or politician can even dream of pushing the President.

That President’s Rule can only be invoked when the administration of a state “cannot be carried out in accordance of the Constitution”. Notice the word “cannot” which obviously doesn’t imply a mere “difficulty”.

And so on…

The Constitution is lengthy no doubt, but it is certainly not as ambiguous as our politicians would want us to believe. Anybody with even basic logical capabilities will be incapable of so widely misinterpreting our Constitution, as they often do. As for the understandably technical parts, our judiciary, through its various verdicts, has mostly done a superb job of explaining and clearing them up.

Noorani’s book is a delight to read. He unravels the intricacies of Constitutional interpretation for the lay-man with finesse. Remember that these are actually articles that appeared in the newspaper, so Noorani was fulfilling, as I am sure he saw it, his duty to present the facts to the electorate and prevent them from misunderstanding the Constitution. Unfortunately, even today, a fiery speech by a leader can influence a lot of people even if it is completely incorrect in substance. Noorani has tried to correct this wrong.

The only downside, however, is that there are many repetitions. Some comments or quotes appear up to 5 times in the course of the book, many others twice or thrice. That is understandable though, as the articles were written over the course of more than a decade.

This also shows what a great medium the newspaper is for spreading ideas and educating the masses. Sadly, however, the market share of the really informative newspapers which present such incisive analysis is low. I lament at the thought that a major chunk of our growing population is missing out on such erudite articles, which could have held them in a good stead in handling the kind of problems India is going to face in the future.