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August 14, 2011

Page: 22/29

Home > 2011 Issues > August 14, 2011

Supreme Court Judges: Men who upheld civil liberty and those who compromised
By Dr R Balashankar
Judges of the Supreme Court of India 1950-1989, George H Gadbois, JR, Oxford University Press, Pp 456 (HB), Rs 795.00

DEMOCRACY in India would be dysfunctional but for a strong judiciary, which has come to the rescue of the aggrieved Indian several times. The Supreme Court as an institution offers redress from political, administrative and constitutional high-handedness of the establishment. Says George H Gadbois, JR in his fascinating book Judges of the Supreme Court of India 1950-1989 that all the judges “brought to the SCI a reputation for integrity and rectitude and left with that reputation intact. They served their nation well. India would not be the vibrant democracy it is without them.”

The lives of the judges have never come into the public life in India. In fact, the judges are held in some awe as dispensers of nyaya, the interpreters of dharma. The village councils called panch were often referred to as panch parameshwar. It consisted of the representatives from each caste and on the seat of justice they sat equal.

Gadbois has portrayed the life of the judges — he interviewed 64 of the 68 judges who sat at the Supreme Court of India (SCI) during this period. This is not an account of their personal lives but a profession-related profile. He discusses their education, family background, caste, religion and region. What makes the account interesting is the author’s contextualising the tenure of each judge with the (then) prevailing political scene. He discusses why some judges were chosen over the others, why some were ‘ignored’ for elevation into the SCI for long. There is not a single woman judge.

Gadbois makes interesting observations about the caste of judges. He says that brahmins have dominated the court for the first four decades of independence. “During most of 1988, for the first time, a majority of SCI’s judges were brahmins… in the middle of the same year, all of the following were also brahmins: President R Venkataraman, Vice-President SD Sharma, and Prime Minister Rajiv Gandhi. During the four decades every Prime Minister was a brahmin. So brahmin dominance on the SCI was in keeping with their over representation elsewhere.” However, the scene dramatically changed. Following the appointment of ND Ojha in January 1988, there was not a brahmin among the next dozen appointees. “The explanation for this turnaround was the fact that B Shankaranand of the Scheduled Caste community, and P Shiv Shankar of the OBC community, were law ministers in 1988 and 1989. By the end of 1989, a spate of appointments had increased the number of judges to twenty-five. Only seven of these were brahmins.”

The other data relates to economic status of judges, with over sixty per cent coming from ‘wealthy classes’ and over 30 per cent coming from upper middle class. Muslims always had a ‘seat’ in the SCI, a convention set before independence. The other religions had representation proportional to their population. Till the 80s, no judge hailed from Haryana, Goa, Arunachal Pradesh, Tripura, Manipur, Meghalaya, Nagaland, Mizoram, and Sikkim, representing three per cent of India’s population. The highest number came from West Bengal (13 per cent), followed by Tamil Nadu (11 per cent), Punjab (10 per cent) and Gujarat (nine per cent). While most judges were apolitical, some entered into politics later and those who came into the profession after political involvement sought to bury it deep. The exception to this was probably V K Krishna Iyer, who remained a declared committed leftist throughout. He inaugurated the Public Interest Litigation and Epistolary Process.

Some of the judges of the Supreme Court of India became public figures following verdicts. One such most sensational judge was H R Khanna. His dissent verdict in the now famous Habeas Corpus case in 1976, at the peak of emergency earned praise not just in India but abroad also. “In an unprecedented lead editorial, the New York Times said, ‘If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen (sic) years as an independent nation, someone will surely erect a monument to Justice HR Khanna of the Supreme Court of India.” Khanna resigned when the government appointed MH Beg as Chief Justice superseding him. Though he was invited by the Janata Party to contest elections and later to head several commissions he declined. The only foray he made into politics was to contest as presidential candidate of the opposition against Zail Singh. He lost. The memorial did not come. But there is a life-size portrait of him hanging in courtroom No 2 of SCI.

The elevation of YV Chandrachud and PN Bhagawati were opposed vociferously by the legal fraternity. In a never-before-never-again action, prominent Bombay lawyers, retired judges, journalists and intellectuals issued a statement saying they had both “disqualified themselves because of their opinions supporting the executive in the 1976 Habeas Corpus decision.”

India is a country of ‘commissions’ says Gadbois. Multitude of commissions function inquiring into some issue or the other, all headed by retired judges. One CJI called it the ‘commission culture.’ Gadbois says that judges accept these appointments, mostly because of monetary compulsions. The judges received as pension Rs 2000 (in the 80s), which hardly helped them maintain any level of social status they were accustomed to.

Godbois, Professed Emeritus of Political Science, University of Kentucky, USA has authored several researched publications on the Indian judiciary. A thoroughly researched book, Godbois has made the reading interesting, by presenting them in short and crisp sections. It’s a kind of ‘know your judges’ work, commended for reading.

(Oxford University Press, YMCA Building, Jai Singh Road, New Delhi 110 001)

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