The Cases That India Forgot – Chintan Chandrachud

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The Supreme Court of India has been accorded an institutional status that is hallowed, and a respect that borders on the reverential. While the Apex Court has distinguished itself with a plethora of judgments, ranging from the seraphic to the sublime, there have also been instances where the highest judicial body of the land has found itself taking positions antithetical to the general tenets of not just the expositions of the Constitution, but also, expediency itself. It is in these latter instances that the last bastion of justice and the bulwark of righteousness has displayed a surprisingly scant regard to the principles of even handedness and righteousness. Thus, the iridescence of a Maneka Gandhi is accompanied by the intransigence of a Mathura, and the dazzling brilliance of an Olga Tellis is dampened by the disappointment of a Kartar Singh. In a concise yet lucid compilation, Chintan Chandrachud, an associate at the London Office of Quinn Emanuel Urquhart & Sullivan LLP, and a PhD from the University of Cambridge, sews together a summary of ten cases where the Courts failed to find their métier. Nine out of ten cases cobbled together in the book are settled at the level of the Supreme Court whereas the remaining verdict was issued by the Bombay High Court. So here goes the hall of infamy:

A case of a pamphlet ‘distributing’ havoc, Mr. Chandrachud begins his book with the discussion involving a case which, considering the phalanx of characters involved and the confounding confusion enveloping it, makes it singularly unique. In Mr. Chandrachud’ s own words, “Who would have thought that a pamphlet distributed by a local politician would paralyse administrative machinery, strain relations between state institutions and provoke a constitutional crisis? This is precisely what happened in 1964. It took the collective efforts of several Supreme Court judges, high court judges, MPs and MLAs, and, ultimately, the prime minister and chief justice of India to restore equilibrium.”

The offending pamphlet in question, bearing the dramatic title ‘Exposing the Misdeeds of Narsingh Narain Pandey’ cast aspersions and corruption allegations on Pandey, a Congress party MLA. Signed by its three authors, it was distributed locally in Gorakhpur as well as in the vicinity of the legislative assembly in Lucknow. Following recriminations and consternation, the pamphleteer, Mr. Keshav Singh was initially arrested and then let out on bail. What followed was absolute mayhem. The speaker of the Lucknow Assembly, indicating that those directly associated with the order – including Singh, his lawyer Solomon, and Justices Beg and Sehgal – had breached the privileges of the assembly. The assembly passed a resolution by an overwhelming majority that Singh remain in prison and be brought back to the assembly to answer for the petition filed in the high court. The resolution also ordered that Solomon and the two high court judges be brought in custody before the assembly. Astoundingly, a Bench of twenty-eight judges was allocated to hear this case. This was the largest number of judges allocated to decide a case in a high court or the Supreme Court at the time. This record still stands over five decades later. A presidential reference made under Article 143 of the Constitution to enable the President to seek the opinion of the Supreme Court on questions of law or fact. Mr. Chandrachud dissects how the legislature is bereft of authority to initiate proceedings against a judge. As the author concludes, “This case is worth remembering – if for nothing else, to demonstrate how easily constitutional institutions can turn against one another and, equally, how difficult problems are best solved through statesmanship rather than brinksmanship.

A damning example of nauseating patriarchy, this case involved the custodial rape of a helpless woman, which when highlighted to the highest Court of the country, attained a misogynistic colour.  The Supreme Court acquitted the rape accused, banking its rationale on the victim’s past sexual history. A throwback to chauvinism, this case represented all that is wrong with the judicial system of out country. Stung by an overwhelming public uproar and outrage that followed, years after the abominable verdict, a Law Commission was instituted to reform the law relating to rape. The Commission recommended a minimum sentence for rape to be seven years in most instances, and ten years in some others – with the maximum sentence being life imprisonment.

A very interesting case that dwells on the perennially touchy subject of “reservation”, State of Madras v Champakam Dorairajan led to the State passing the First Amendment of the Constitution in order to permit caste-based reservation.  Intervening in the matter, the Supreme Court, placing the fundamental rights on a pedestal over and above that of the Directive Principles of State Policy, decided that such reservations were in gross violation of Article 29(2) of the Constitution of India. The Supreme Court also held that \reservations were an exception to, rather than a part of, the fundamental right to equality.

“On Wednesday, 27 July 2005, senior civil servant Rupan Deol Bajaj’s quest for justice finally ended. The Supreme Court confirmed the conviction of K.P.S. Gill, the ‘supercop’ who ended the militancy and Khalistan separatist movement in Punjab, for slapping her on the bottom at a party in 1988. This was the culmination of a legal process that was neither swift nor easy. It involved no less than eight judgements over a period of seventeen years; decisions by several senior judges; complaints to bureaucrats, by bureaucrats, against bureaucrats; and claims of government secrecy and privilege. In the time that the case meandered from one court to the next, India had seen eighteen chief justices and nine prime ministers. And yet, the legacy of this case remained highly contested.”

It is downright obnoxious to note that a person enjoying the privileges accorded by the highest echelon of power was able to bring its entire machinery to bear in overpowering, to a significantly unfortunate extent, unparliamentary deeds and behaviour unworthy of any gentleman.

Following a spate of separatist movements in Punjab, the dreaded Terrorist and Disruptive Activities (Prevention) Act was passed by the Parliament. A draconian piece of legislation, “TADA altered existing procedural safeguards by making confessions to senior police officers admissible. Defendants anticipating arrest could ordinarily apply for ‘anticipatory bail’ (a direction for release of the person on bail even before they are arrested). TADA not only negated the right to apply for anticipatory bail, but also made it more difficult to secure bail after arrest. Criminal appeals would normally proceed from the subordinate criminal courts to the state high court, with a further appeal to the Supreme Court. TADA eliminated one layer of appeal, by denying rights of appeal to state high courts and providing for direct appeal to the Supreme Court.”

The Supreme Court however upheld the legality of TADA by citing national security to be of paramount importance and nothing could compromise the same. Feeble overseeing measures were attempted to be institutionalized so that a proper watch could be implemented upon the potential nefarious deeds of law enforcers.

What TADA was to Punjab, the AFSPA was to the North Eastern States. Enacted in 1958 in response to insurgency and demands for self-determination in the Northeast, the law was justified by G.B. Pant, the then home minister on grounds of necessity and quelling of armed rebellion. All of seven sections, this tiny piece of legislation enabled the governor of the state (and later, also the central government) to declare any part of any state (or indeed, the whole of the state) to which it applied as a ‘disturbed area’. However, the deadliest outcome of this enactment was the quartet of doom. The licenses to kill, destroy, arrest and search.

The same rationale as employed in the case of TADA was also used to justify the legality of the AFSPA as well. Under the garb of national security, the Supreme Court tuned a blind eye to a raft of human rights transgressions committed by the law enforcers that induced a sense of trepidation amongst the North Eastern populace.

The only case in Mr. Chandrachud’ s book that is not the part of Supreme Court deliberation, the judgment of Narasu Appa Mali was delivered by two judges of the highest caliber, Justice M.C. Chagla and Justice Gajendragadkar from the Bombay High Court. This case involved an analysis of personal law and whether they ought to be insulated from the fundamental rights in the event of a conflict between the two. “Several Hindu men were charged with offences of bigamy under Bombay’s bigamy law – the Bombay Prevention of Hindu Bigamous Marriages Act of 1946. This law not only made bigamous marriages invalid among Hindus, but also made it a criminal offence (punishable with up to seven years in prison) for those that entered such marriages. The cases involving these Hindu men yielded a range of different outcomes.”

The distinguished judges choose to accord priority to religion-based personal laws over the enshrining and fundamental principles and rights as enacted by the Constitution.

Argued by the brilliant and incomparable Nani Palkhivala, Minerva Mills is a landmark decision in the annals of Indian judicial history. Having a timeless relevance, the case dealt with the unfettered powers of The Parliament to amend the constitution through sections 4 and section 55 of the 42nd Amendment Act 1986. With an avowed objective of preserving and protecting the basic structure of the Constitution, the Apex Court struck down those sections in this case. “The hearing took place before a bench of five judges of the Supreme Court, headed by Chief Justice Y.V. Chandrachud. Justice Chandrachud formed part of the group of judges that rejected the basic structure doctrine in the Kesavananda case. Also, on the bench were Justices A.C. Gupta, N.L. Untwalia, P.N. Bhagwati and P.S. Kailasam. The hearing lasted twenty days, from 22 October 1979 to 16 November 1979.” The incandescent Palkhivala posited three pillars of arguments in trying to convince the Supreme Court to dismantle the amendments. First, ‘the donee of a limited power cannot, by the exercise of that very power, convert the limited power into an unlimited one’. Doing so, would permit Parliament, a creature of the Constitution, to become its master. Second, the limited amending power was itself a basic feature of the Constitution. Following the court’s decision in the Kesavananda case, Parliament had no authority to disturb that feature. Third, by emphasizing that no court would have the power to pronounce upon the validity of a constitutional amendment, the amendment damaged the balance of power between the judiciary and Parliament.

The Supreme Court, in this case had the opportunity to review the constitutional validity of the Union’s dissolution of the Bihar State legislative assembly and the consequent proclamation of President’s rule under Article 356 of the Constitution. The Court held that the dissolution of the State assembly and the proclamation of President’s rule was unconstitutional and declared that it had the power to restore a dissolved assembly in an appropriate case. But in a peculiar twirl of events, since elections to the Bihar assembly had been notified prior to the decision of the Court, it refrained from restoring the State assembly in this case. One of the criticisms of the decision, as expostulated by various learned jurisprudence experts is that the Apex Court not only incorrectly identified the stage at which a legislative assembly comes into existence, but also incorporated a hierarchy into the Constitution thereby making a legislative assembly dependent on the executive.

The book ends with a case where scant heed was paid to the directives issued by the Apex Court and where the highest decision-making body in the country was thoroughly rendered helpless in giving effect to its own pronouncements. The compliance took the form of mere lip service as the offending parties continued relentlessly with giving teeth to an armed civilian movement to counter the pernicious threat of Naxalites.

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