A divided bench

Taking up ten forgotten cases, a writer explains how the judiciary in India has at times been ‘more executive-minded than the executive’

[Book Review first published in The Hindu ]

At a time when faith in the independence of the judiciary in India has diminished, Chintan Chandrachud provides us with a historical perspective on the uneven legacy of the courts in his new book. He elaborates the course of decision-making in ten ‘forgotten cases’ that may have faded from public memory but left an indelible imprint on the course of justice in India, nonetheless. 

Lost opportunities

With the apex court entering its seventieth year in 2020, the book is timely in its critical assessment of the functioning of the courts. Unlike commemorative volumes, this book demonstrates how the court has not always risen to the occasion to safeguard us from the “indiscretions and misadventures of Parliament and the government”.

For instance, in Keshav Singh v State of UP (1965), when an opposition party member was charged with breach of legislative privilege for political pamphleteering, it sparked a conflict between the Uttar Pradesh assembly and the Allahabad High Court concerning the separation of powers. When the Supreme Court intervened, it allowed the high court to prevail in the matter but missed a vital opportunity to codify the privileges as per the Constitution. This could have helped strike a balance between elected representatives exercising their privileges and citizens enjoying their fundamental rights. The high court went on to uphold the assembly’s decision and Singh was imprisoned for contempt.

An opportunity to make the state policy of reservations a facet of the right to equality was similarly lost when the Supreme Court placed fundamental rights as a stumbling block before the advancement of the backward classes in the State of Madras v Champakam Dorairajan case. This helped propagate the vocabulary of binaries such as ‘reservations versus merit’ that has endured.

Justice delayed, denied

The courts have also failed to deliver justice to women abused by government employees often reinforcing patriarchal values in the process. In the Tukaram v State of Maharashtra case (popularly known as the ‘Mathura case’), though two policemen had raped Mathura while in custody, the Supreme Court acquitted her perpetrators arguing that a lack of consent could not be established. In the R.D. Bajaj v K.P.S. Gill case, the law machinery dragged its feet on sentencing the IPS officer for sexual misconduct, with the SC convicting Gill only 17 years later, without imprisonment, and demanding a token amount of Rs. 2,00,000 as compensation.

The courts are also guilty of using real and imagined threats to national security to shield state excesses as seen in Kartar Singh v State of Punjab and Naga People’s Movement of Human Rights v Union of India. In these instances, the police and the Army had abused provisions of the Terrorist and Disruptive Activities (Prevention) Act and the Armed Forces Special Powers Act (AFSPA) respectively against terror accused individuals. However, in both cases, the Supreme Court upheld draconian aspects of the law in favour of the government.

The book demonstrates how, in the end, it falls on civil society, the Parliament and rights’ agencies such as the National Human Rights Commission to pursue the course of justice when the courts fail. For instance, public pressure in the aftermath of the Mathura judgment led to the Law Commission recommending changes to rape laws to address aspects of consent given under pressure. Likewise, the NHRC intervention in 1994 and the mobilisation of political support to discontinue TADA beyond 1995, stopped that law from being enforced.

The author has done a fine job of disabusing us of the notion that the courts are the ultimate guardians of the Constitution.

The book is a must-read for anyone interested in aspects of law and politics in the country. The author has done a fine job of disabusing us of the notion that the courts are the ultimate guardians of the Constitution.