Institutions that Shaped Modern India: Supreme Court – Ashok Panda

Institutions That Shaped Modern India: Supreme Court: Panda, Ashok:  9789390547043: Amazon.com: Books

The doyen of the Indian Constitution Dr. B.R.Ambedkar is venerated for his immortal quote on the efficacy of any Constitution. Ambedkar in an exhibition of oratorial brilliance said, ““However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However, bad a Constitution may be, if those implementing it are good, it will prove to be good”. The Supreme Court of India, as the apex arbiter of justice and the guardian of the principles of equality and liberty has, since its inception striven to ensure that the tenets of the Constitution are being permeated in a manner that facilitates the greater good of the Indian populace. Senior Advocate Ashok Panda in a quasi-biography of sorts of the Supreme Court, traces in a compelling manner the staid birth and the accelerated evolution of this premier legal institution in the world’s biggest democracy.

Ashok Panda begins in an engaging manner by outlining the origins of Indian judiciary and demonstrates how the current contours of the legal jurisprudence was shaped by the British common law. The First Law Commission established in 1833 and headed by Lord Thomas Babington Macaulay, constituted the edifice for a systematic codification of important statutes like Code of Civil Procedure, Indian Penal Code, and Code of Criminal Procedure. Statutes which still continue to function in a form materially undisturbed from their original context and content. Subsequent to the birthing of the Indian Constitution in 1950, the country and its judiciary faced the imminent challenges of making the transition from colonial domination to self-rule. Article 136 of the newly framed Constitution granted overarching powers to the Supreme Court, “in the form of a discretionary grant of special leave, to appeal from any judgment, decree, determination, sentence or order, in any cause or matter, passed or made by any court or tribunal in the territory of India.” However as, Panda elucidates in an articulate fashion the judiciary found its powers scuttled and wings clipped by a power hungry executive on more than one occasion.

Enraged by the verdict of the Supreme Court in the case of State of West Bengal vs Mrs. Bela Banerjee (AIR 1954 SC 170), wherein the Court ruled in favour of respondents by interpreting the provisions of Article 31 of the Indian Constitution as standing for the provision of compensation representing a ‘fair equivalent value’ to the landowners whose lands have been compulsorily acquired, the Government began a process of systematically diluting the power of the Supreme Court by a combination of both legislative amendments and judicial ‘supersessions.’ The Supreme Court by this time in a landmark decision in the Golaknath case had more or less stitched up the shape and structure of a fair and equitable compensation in the case of all forced land acquisitions. A head-strong Indira Gandhi abrogated the ruling in the Golaknath decision by passing “the infamous Constitution (24th Amendment) Act, 1971, wherein Article 13(4) was added, and Article 368 was amended to expressly provide that Parliament would have power to amend any provision of the Constitution.”

Panda also spends quality time in dissecting what arguably has to be the most famous, if not the most influential Supreme Court judgment in the annals of India judicial history – The Kesavananda Bharati case. This was the case that conceptualised the “Basic Structure Doctrine” in the context of amendments to be made to the Constitution. A whopping 13-judge Bench was set up by the Supreme Court, the biggest to date, and Judges heard the case over the course of 68 working days. Eleven separate judgments were delivered by The Bench and a majority judgment of seven judges was deftly and assiduously together by then Chief Justice of India S M Sikri. The Basic Structure doctrine itself was penned by Justice H R Khanna. The touchstone of the verdict was that, no ruling could deprive any individual of the fundamental rights accorded by the Constitution by way of any amendment. However, Parliament had vast powers to amend the Constitution, except for those tenets that were inherent and intrinsic to the Constitution.

The repercussions of the eviscerating Kesavananda Bharti judgment was almost immediate. A rapacious Government engaged in a slew of actions bordering on the ludicrous.  “Justice A.N. Ray was appointed the Chief Justice of India in supersession of three Supreme Court judges holding seniority over him, Justices J.M. Shelat, A.N. Grover and K.S. Hegde. The supersession in the apex judiciary was resorted to by the executive of the day just to assert its supremacy over the other wings of the state. The supersession was perceived to be punitive for the senior judges having delivered judgments against the executive wing of the state.” Incidentally as Panda informs his readers, Justice Ray was the lone dissenting voice in the Bank Nationalization Case wherein the Supreme Court by a majority of 10:1 struck down the Bank Nationalization Acts incurring the wrath of the then Prime Minister, Mrs. Indira Gandhi. “In the Rajya Sabha, Mr C.K. Daphtary, former Attorney General for India, then a nominated Member of Parliament, quipped: ‘The boy who wrote the best essay got the first prize.’”

Panda also illustrates how the Supreme Court has been at the forefront of upholding the principles of gender equality, equal employment opportunities and advancing the cause of the underprivileged. The power medium of Public Interest Litigations (“PIL”) although having a chequered history has elevated the Supreme Court to a pedestal of respect and unbiased neutrality. In the case of PUCL vs Union of India(2004) 12 SCC 104, acting upon a PIL filed by PUCL a Non-Governmental Organisation, the Supreme Court expressed its displeasure and anguish over the fatalities induced by starvation and castigated the failure of the Food Security and Supply Chain mechanism in delivering the rations to the ultimate beneficiary—the starving people. “The Supreme Court, through this PIL, laid down that the ‘right to food’ is a basic human right and thus, a fundamental right, guaranteed under the Constitution. In continuation to this, the Court directed for the implementation of the government’s poverty alleviation schemes and also appointed a commission to monitor the compliance of the orders in a time-bound manner.”

Till the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the comprehensive and elaborate guidelines and directives issued by the Apex Court in the case of Vishaka vs State of Rajasthan (AIR 1997) SC 3011 to accord protection to women and ensure their dignity in the workplace stood the test of time for almost two decades. These directives were popularly known as the Vishaka Guidelines.

Similarly in the Disability Rights Group case, the Supreme Court directed all higher educational institutions to reserve not less than five percent seats for persons with disabilities. In keeping with the changing times and also with a view to enhancing transparency within the judiciary and to make the courts more accessible, the Supreme Court in Swapnil Tripathi v. Supreme Court of India allowed live-streaming of courtroom proceedings.

Shayara Bano v. Union of India is also a stirring example where the Supreme Court placed pragmatism and practicality over religious compulsions when it held that the practice of ‘Triple Talaq’ was unconstitutional. This judgment came as a refreshing relief to many Muslim women who otherwise were at the mercy of being divorced by their spouses by taking recourse to the reductionist means of uttering the Arabic word for divorce ‘talaq’ thrice. However Panda expresses his reservations on certain aspects of the judgment rendered by the Honourable Apex Court. He claims that the Court took the easy way out and that “the bench mainly considered whether or not triple talaq was an essential part of Islam instead of focusing on women empowerment. It would have been preferable if the Court had firmly acknowledged that Article 25 of the Constitution expressly provided that any practice that is inconsistent with fundamental rights is liable to be struck down, irrespective of, whether or not, it is an essential religious practice.”

As Panda demonstrates, the Supreme Court is not averse to prosecuting its own fraternity in the case of proven misdemeanours and misdeeds. In the year 2019, Chief Justice of India Ranjan Gogoi allowed the CBI to file an FIR against Justice S.N. Shukla, a sitting judge of the Allahabad High Court, who was being investigated for allegedly indulging in corruption and favouring a private medical college in a case arising out of an MBBS admission scam.

“Supreme Court” is a welcome and refreshing read for all those who are curious to know the stature, position and functions of the highest judicial authority in India.

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