Updated: Feb 12
Thank you very much for coming to suffer what I have to say. I’m afraid the heart of this session will lie not in my meagre presentation but in your questions which I hope to answer. Feel free not to confine yourself to questions, but to offer comments and observations.
Let me begin by noting that neither the Constitution nor the judiciary is what the Constitution framers expected it to be. Both have gone out of hand for various reasons. Jawaharlal Nehru, and to a certain extent Vallabhbhai Patel (though he didn’t show it),were disgruntled with the judiciary. Nehru especially was deeply distressed when he found the Supreme Court asserting itself. Something which also prompted Patanjali Shastri to say: ‘If we strike down orders, it is not because we take pleasure in it but because the Constitution makes us a centre.’
Jawaharlal Nehru respected the judiciary, though on one occasion when he disliked a judge and feared he was corrupt, he had no qualms about going to Allahabad and asking him to resign, which led to a bit of fracas between him and Chief Justice H. J. Kania. However, things settled down to an even keel between them, but something else cropped up. And that was the tendency of judges to curry favour with the ministers. The worst was Chief Justice P.B. Gajendragadkar. You can read all about it in the memoirs[i]of the Chief Justice himself—how he cozied up to Lal Bahadur Shastri, advised him on what would happen at Tashkent and all that . . . so there was that undercurrent also.
The real issue arose with Indira Gandhi. Not the post-Emergency Indira Gandhi, but the early Indira Gandhi, during her first tenure, beginning in 1967 when the opposition decided to stop her in her tracks. At the Faridabad Session (1969), the president of the Congress, S. Nijalingappa, tried to stall her and imposed on her a president she didn’t want, Neelam Sanjiva Reddy. At this point, the Supreme Court decided to deliver a blatantly political judgement on the Golaknath Case, in which it said that fundamental rights cannot be altered even by a constitutional amendment. This was obviously rubbish.The judgement was divided: Chief Justice Mohammad Hidayatullah said that a constitutional assembly can be convened by a residuary power. But this is bad law, because residuary power cannot be used to override the Constitution itself. Then came Nath Pai’s Bill to override this.Then the Congress split, and in the middle of that troubled moment the Supreme Court decided to strike down the Banks’ Nationalization Act (obviously a political judgement). As if this was not enough, then came the Princess’ Case—also known as the Privy Purse case in which the Indian Princes were deprived of their constitutionally guaranteed Privy Purses by an executive fiat. Nanabhoy Palkhivala even advised this be taken to the International Court of Justice. Only an ignoramus would have said such a thing, because the International Court of Justice has no jurisdiction in a matter like this—it’s there to intervene between states, and the Princely States were not independent states. As soon as the act was struck down, Indira Gandhi went on radio and announced that in reaction to the Supreme Court’s actions she was having the Lok Sabha dissolved. The Supreme Court dug its own grave through its act of over-exertion. When she returned to power, she decided to amend the Constitution to make it impossible for the Supreme Court to do such a thing again.
Then came the Kesavananda Bharati case. The Supreme Court gave a balanced judgement, saying that the Constitution can be amended but not its basic structure,and thus overruled the Golaknath case. This was a sound judgement, but was vindicated at the time of the Emergency when Indira Gandhi brought in a law by which you could not prosecute the PM for breaching the law. Now, in Indira Gandhi’s election case, the Supreme Court struck down those provisions of the Constitution which gave her immunity. This was a good judgement, even though she had the law amended retrospectively to put her own election beyond challenge. That could not be struck down, but it might have been. However this is where it remains.
Indira Gandhi lost in the elections of 1977. Now the Supreme Court has earned a bad reputation for its infamous judgement in the Habeas Corpus case, where it decided to go in the offensive.The Public Interest Litigation was a very welcome innovation and was even appreciated in England. But the Supreme Court had, no doubt, become an unruly horse.
Our legal system is built on the Western model. We are not slaves of British traditions, but for god’s sake,we should at least learn from their mistakes or their progressive moves. Look at the House of Lords—where once it was regarded as a bastion of conservatism, today it has become a bastion of liberalism. You know the Pinochet Case? To the fury of Margaret Thatcher, a judge had a small interest because his wife was there in the Bench and they declared that he had no right to be in the Bench. The English Courts of Law held that you can’t waste funds, that you can’t have motivated prosecutions, and they handed out a whole series of liberal judgements. Our Supreme Court however seems to have regressed. It has now launched on a career of personal aggrandizement. It has, for example, ruled that you cannot prosecute a judge of the High Court or the Supreme Court without the consent of the Chief Justice of India, and this was done via a judgement where the presiding judge said: ‘Where the constitution is silent, the law is silent, we will fill it in and we have the power to do it.’ Worse, of course, lay in store. There is no doubt that, during the Emergency, Indira Gandhi transferred the judges for mala fide reasons that were struck down later on.There is equally no doubt that this power has been abused. But the Supreme Court gave one halting judgement after another. The upshot of it all was that the Supreme Court arrogated to itself the power to appoint judges and invented a collegium.
Now, if you read the Constituent Assembly Debates, Dr Ambedkar said the Constitution strikes a balance—it does not give the power to the executive to appoint judges at its discretion, nor does it give judges the power to strike out this balance. But bench after bench of the Supreme Court flouted this notion. The Supreme Court itself has said that the debates of the Constituent Assembly can be referred to in order to understand the clear text of the law. The text of the law is explicit. Now, when the judgement came, two former Chief Justices, P. N. Bhagwati and D.Y. Chandrachud said they must have a collegium. But a collegium must be by constitutional amendment—not by the ipse dixit of the Supreme Court itself.The collegium began to expand and contract. Today, the collegium has gone haywire, it invites no respect. You have seen the miserable state of things with Justice Dipak Misra and now Chief Justice Ranjan Gogoi . . . .
Far worse happened with Article 14. H.M. Seervai has warned that ‘You are interpreting Article 14 to give yourself subjective power. From reasonableness of equality, you have gone to the reasonableness of statutes. ’The collegium was built by the ipse dixit of the Supreme Court—it has no constitutional sanction. There is also no provision in the Constitution that a Supreme Court judge cannot be prosecuted without the consent of the Chief Justice. And you know the kind of Chief Justices we’ve had. What are they doing—is this what the Constitution wanted? There is an excellent book on the independence of the judiciary[i] by Prof. Robert Stevens, a practising lawyer and academic. He says that judges appointing judges is a scandal. One of the finest judges in recent decades, Lord Bingham, has said, ‘When the government is weak, the Supreme Court steps in.’ And this is exactly what the judges of the Supreme Court have said: that when the parliament has left it vague or unenacted, they’ll step in.
The correct approach is that followed in a brilliant judgement by a judge in a divorce case. He said: ‘It is true the couple hate each other and are forced to live together. But we are not here to legislate.’ Such was the impact on public opinion that legislation was brought in and the Divorce Law amended.
This is where I find fault with our legal academics, and the Bar too—it’s a money-making proposition, so why would they disturb this machinery? There is not a single law journal of such prestige (I mean no disrespect to the existing ones) as the Law Quarterly Review in England. An adverse comment there would make the judges blush. On the contrary, senior lawyers and academics for example, Justice P. N. Bhagwati himself told me that he consults Upendra Baxi before passing a judgement. He was close to Baxi, Chinnappa Reddy . . . this is the scandalous state of affairs. The judges of the Supreme Court have no compunction about socializing, barring one or two. The result is that the prestige of the Supreme Court is not what it used to be. The government is digging in its heels on this so-called collegium. And then you have a law minister like Ravi Shankar Prasad who delights in picking fights with the judiciary. This is not what was expected.
Now, what is the state of public opinion? It has become politicized. The government today is a political animal and has no respect for the law or the Constitution. In England, there was a concordat between the Lord Chief Justice and the Lord Chancellor on the appointment of judges. There is a collegium appointed by law in which a person of Indian origin participated. This could have happened in India also. But the Bar showed no spirit of statesmanship. They scuttled it, the law was struck down. As a result, there is this scandal of one collegium after another. We have a government which has scant respect for the judiciary, the judiciary has become politicized and the politicians take a political view of the judiciary. This is not how we began—we were in much better shape. But for this I blame not only the politicians and the judges but also the Bar and the academics and, above all, the polarizing politics of our country. It is the same thing with the civil servants, with several other institutions.
The relationship between the judiciary and the government, the adherence of both to the Constitution depends a lot on the state of politics. Since 1969, when the Congress split, we’ve had a split polity. It was Indira Gandhi versus the rest, now it’s BJP versus the rest. There is a brilliant judgement by one of the greatest judges who never sat on the Supreme Court Bench of the United States, Learned Hand, who said in an address in 1942: ‘A society so riven, no court can save, a society which is not so riven no court need save, a society which thrusts upon the courts the solution of its political disputes, that society will in the end suffer.’
This is exactly what is happening today.
QUESTION AND ANSWER SESSION
Ranita Biswas. Good afternoon, I am Ranita from Kolkata. You said that the judiciary has been compromised in the current scenario a lot. My question to you is: How can we resolve this?
Noorani. The solution lies in people like you, disinterested but interested, objective, independent and studious. You have to say: This is the solution. Please don’t politicize the judiciary. There is a Judicial Appointment Commission under an amendment of the Constitution, made up of top lawyers and judges and some academics . . . there are any number of precedents. The US judiciary is fully politicized, its judges appear before politicians, they are asked questions and are appointed, the Chief Justice is a politician . . .
Revati Laul. Hi, I am Revati and I am a journalist. I wanted to ask: How do we reverse this cycle of legal tyranny that happens when our freedom of expression as journalists is challenged? The government slaps lawsuits worth hundreds of crores on journalists for doing our jobs—how can we reverse this? Do we pressure lawyers to not take these cases, or display the names of those who are taking these cases? There should be some steps of redressal? Most media organizations which have struck out against this government are going to the courts and struggling.
Noorani. This is a very legitimate question. But let me tell you that the curb on freedom of expression comes not only from the government but also from the Supreme Court. I will give you one instance: the Tipu Sultan film. The Supreme Court would not pass its judgement until the producers added a rider that everything depicted in the film was fictional. These judges were illiterates. The film was a historical fiction film, and historical fiction is by definition a fiction based on incidents of reality. Every educated person should know this. Second: on book banning. The Supreme Court asked publishers to delete some sentences. Do you know that it took years for the Supreme Court to say that truth can be a defence to an action of contempt? And it could only do this because it knew that an amendment was being made to the Contempt of Court Act. The Supreme Court has not been a bulwark of freedom except for occasional cases. And as for the government—every single one has tried to bridle the Press. This one is the worst.
Murshid Alam. Sir, I am from Malda. There are a huge number of undertrials, sometimes from Muslim communities and the lower castes, awaiting justice, sometimes acquitted after as long as 20 or 30 years. How should this be addressed? Secondly, these days we have media trials—something happens, the media names some Muslim organization and that in a way influences the verdict. The judges give the verdict in a way that satisfies popular consensus. How do we address these things?
Noorani. About those undertrials—the length of their suffering in prison is a gross violation of the fundamental right of personal liberty. Lawyers should act in concert with the Press, they should build a formidable body of case laws, present it to the court. Like the American humorist Finley Peter Dunne said: ‘Whether Noorani / Constitution and Judiciary the Constitution should follow the flag or not, the Supreme Court follows the election returns.’ The judges of the Supreme Court read newspapers too. I have no respect for those activists who delight in slogan-mongering or flamboyant activism. Rather, I respect people who are committed to scholarship and who build up a formidable body of case laws. Take the Yakub Memon case—I wrote about it after borrowing the case law from an American professor who had come to Delhi then (there’s a formidable existing body of case law on death sentence).A day after my article was released, a member of the Supreme Court Bar who was close to Justice Anil Dave, the judge in the case, wrote an article against mine. And his main point was that they heard the case at midnight, what else did we want? Now you put two and two together about the judge and the advocate, and you won’t be far wrong. The Bar is divided with regard to Bhagwati’s letter to Indira Gandhi congratulating her return to power. He was the Chief Justice. The Bar wanted to pass a resolution, it’s what Justice G. A. Desai himself told me. He said: ‘You know, we value Justice Bhagwati, he is a brilliant judicial craftsman, so we called up some members of the Bar to organize a campaign in support of him.’ This is the state of our judges . . .
Valerian Rodrigues. Noorani-sahib, the Pakistan Supreme Court has often displayed enormous courage in handling political cases coming before it. Where does this source of confidence or legal culture come from since we come from a common tradition?
Noorani. In my opinion, the judgement in Nawaz Sharif’s case is a political judgement and the fact that the Special Investigation Committee includes two members of the army and the judges’ body shows 61 where the source of confidence lies.
Gitali Thakur. I’m from Assam where, right now, the NRC is in process. It was implemented after a Supreme Court Judgement and has displaced and rendered stateless almost 30 lakh people, or 10 per cent of the population of Assam, many of whom are now in detention centres. So how constitutional is this judgement? Those citizens who have been living in this country for 30/40 years now have to prove their citizenship through a piece of paper. And all this without a solution for those who cannot produce the necessary documents. We know that this is targeted mostly at the Muslim minority community in Assam. I don’t understand how the Supreme Court could pass this judgement—are we not undermining the Constitution and the basic right to life?
Noorani. I completely agree with you. I’m sorry, I have not taken an active interest in this matter. My advice to you is: build up your case with the help of dicta,hold seminars and bring out well-documented pamphlets and circulate them, send them to the judges, build up public opinion. Our judges are very sensitive to public opinion, let me tell you that.
Vanchi Nathan. Sir, my question is: Is it possible to declare India a Hindu Nation through constitutional process?
Noorani.The answer is: No. Because in the S. R. Bommai case, the Supreme Court has held that secularism is a part of the basic, unalterable, unamendable structure of the Constitution. Incidentally, there were two judges who were silent on this and one of them was Justice J. S.Verma, a hero to some. He delivered some highly communal judgements in the Ayodhya case.
Nathan. In the present scenario, when BJP is in the majority, is it possible for them to form a separate Bench and interfere in the judiciary?
Noorani. It is not possible, unless the judiciary sheds its role. In my opinion, the judiciary is going haywire in the Ayodhya case. The case is not subject to judicial arbitrament. There’s a case in England with the Guildhall where the judge adjourned the case because he felt a fair trial was impossible in the kind of atmosphere that had been built up. The Supreme Court should do the same for the Ayodhya case. It should say that one of the parties have flatly declared that it will not be bound by the court’s judgement, namely, the Hindu side. So it will be a waste of time. Second, the Allahabad High Court flouted the Supreme Court judgement. The Supreme Court,in the major Ayodhya judgement, said that the Muslim side should not be deprived of the right to plead limitation. They struck down the Narasimha Rao government’s reference to the Supreme Court about whether a temple existed earlier. This is exactly the is