S Muralidhar's book spotlights SC's fault lines and judicial fallibility

[In] Complete Justice? The Supreme Court at 75, Critical Reflections

by S Muralidhar (ed) 

Published by Juggernaut

xl +584 pages ₹1,499

 

The Indian Constitution has turned 75 this year. Political leaders of any consequence, editorial writers, legal scholars, and public intellectuals, renowned or otherwise, have had much to say about this momentous occasion.  But the main interpreter and guardian of that “holy book of our Republic,” as Prime Minister Narendra Modi has repeatedly called it, the Supreme Court of India, which is also of the same vintage, has not received such attention.  Its various judgments and arguments have been frequently commented upon, but the institution as a whole, its dramatis personae  and its overall approach have not been comprehensively analysed. Hence the volume under review is a welcome addition to the literature, however limited its coverage (by design) and partial its approach (by default) may be. 

Justice S Muralidhar, a former chief justice of Odisha with a 17-year career as a member of the higher judiciary is the editor of the volume. The 25 contributors constitute a galaxy of legal luminaries: Retired judges A P Shah, Madan Lokur, and K Chandru; practising advocates Indira Jaisingh, Arvind Datar, Raju Ramachandran, and Gopal Subramaniam; legal scholars Gautam Bhatia and Faizan Mustafa; and even a noted journalist, P Sainath. Some of them often grace the media opinion spaces.

But that list is not representative of the entire judicial ecosystem.  Prominent by their absence are legal eagles such as the former Chief Justice of India D Y Chandrachud, Harish Salve, former Attorney General Mukul Rohatgi, Mahesh Jethmalani and Pinky Anand, to mention just a few. The Indian legal community is as polarised as the rest of  society, as was evident from the debate on the vice-presidential nominees. Contributors to the volume appear to belong to the camp that does not espouse establishmentarian views.  

Justice Muralidhar begins with some interesting and pertinent facts: The Supreme Court with its sanctioned strength of 34 (against the original eight), is the largest such body in the world, as is its administrative staff of 3,770.  On an average, it has seen 37,000 cases instituted annually and 35,000 disposed of; its pending case load has increased from about 700 in 1950 to 82,000 now.  Unlike the United States Supreme Court, our highest court never sits as one Bench.  Most cases are dealt with by smaller Benches of one, two or three judges; the largest ever comprised 13 judges hearing the 1973 Kesavananda Bharati case.  Views of a larger Bench prevail over those of smaller ones.  These numbers may appear gargantuan, but the Court has in its ambit the longest Constitution and the largest population in the world. On the whole, Indians appear more prone to litigation than others, with central and state governments being the largest litigants.  Against this backdrop, the higher judiciary seems disproportionately small. 

The volume omits by choice subjects such as human and property rights, inter-state water disputes, family law, intellectual property rights, insolvency, competition, among others.  But what it does cover is still a vast panorama: Higher judiciary appointments, judges’ misconduct, delays in legal systems, public interest litigation, equality and substantive laws including labour, among others. 

Most of the essays point out deficiencies and inadequacies of the system, including the Collegium for legal appointments, arbitrary behaviour of several chief justices of India, equivocation on judicial misconduct, including at the highest level, unpardonable delays, at times stretching into years after the first reference, serious dilution of procedural safeguards, eroding the rights of the accused in criminal cases (quite likely unintended), are among the main pronouncements. 

 

Justice Muralidhar poses the key concern: “How has the SCI responded to the demand of interpreting the Constitution per se and specific laws…in light of the overarching…constitutional values of liberty, equality, fraternity and dignity?” The answer is not flattering, as evidenced by the editor’s own “what-if” scenarios for cases that include Indira Gandhi’s election in 1971 leading up to the Emergency, the Bhopal gas tragedy arbitration award, the Babri Masjid kar sevak activities and the final verdict on the Ram Janmabhoomi dispute (not attributed to any judge).  His preference for what did not happen in these situations is quite clear. 

Legal opinions and briefs (an oxymoron for sure!) are not known for their brevity; they are also subject to diverse interpretations. Fortunately, contributions in this volume do not display these traits. The editor and most contributors deserve the reader’s thanks for their clearly enunciated prose. 

In the current discourse on the basic law of the country, the Constitution, leaders of both the ruling and the Opposition blocs are engaged in its competitive veneration, pronouncing it sacrosanct.  But detailed parsing of the Constitution by scholars such as Gautam Bhatia and Faizan Mustafa have highlighted its inherent pro-establishment and pro-majority biases.  And as the volume shows, the court itself is not infallible. Our quest for the Rule of Law must be circumscribed by the fact that the Constitution framers and the higher judiciary members share the same gene pool as the rest of us argumentative Indians, with our own sense of right and wrong, which is neither divine nor beyond reproach.

 

The reviewer is a Baroda-based economist