Edited By Bikram Raghavan and Vasujith Ram
Any historian or political scientist writing about the Supreme Court of India is confronted with a paradox, namely that the judiciary, which is regarded as the weakest branch of the state, with neither the power of the sword nor of the purse, is in effect and reality pretty powerful owing to the impact of its decisions on the life of the nation.
The zenith of judicial supremacy, or overreach if you please, was in the Keshavanand Bharati case in which the SC ruled that the power of amendment of the Constitution conferred under Article 368, which is not subject to any limitations, is nonetheless not absolute and the Constitution cannot be amended so as to damage its basic structure or to destroy its essential features. The consequence: Parliament is not supreme even when it exercises its constituent power of amendment; the last word rests with the Supreme Court. It is an Alice in Wonderland situation. For any person to research in this area is a formidable task which George H Gadbois Jr. has performed commendably in Supreme Court of India: The Beginnings.
Special mention must be made of Gabois’s excellent analysis of the composition and the functioning of the Federal Court of India, the precursor of the Supreme Court. Gadbois rightly points out that the real importance of the Federal Court lay in the fact that it was a stable and respected institution which functioned according to the terms of its charter during a critical period in the history of modern India. Gadbois recounts that the Federal Court was inaugurated on October 1, 1937, on which date the Viceroy administered the oath of allegiance to the Court’s first three judges: Chief Justice Sir Maurice Gwyer, and puisne judges Sir Shah Muhammad Sulaiman and Mukund Ramrao Jaykar. Gwyer was an Englishman who had no previous experience in India but had been involved in various stages of the preparation of the Government of India 1935 Act; Sulaiman was a Muslim who had earned distinction as chief justice of the Allahabad High Court, and Jayakar was a Hindu and a successful Bombay lawyer. During the ten years in which the British appointed judges of the Federal Court, the chief justice was always an Englishman and the puisne judges at all times were a Muslim and a Hindu.
Gadbois rightly asserts that the Federal Court earned the respect and inspired great confidence and when the Supreme Court replaced it in 1950, it inherited this invaluable legacy—a tradition of the highest standards of independence, integrity and impartiality.
The true merit of Gadbois’s book lies in his incisive account of the SC’s endeavour to reconcile freedom and justice for the individual with the needs of a modern government charged with the promotion of far-reaching social and economic reforms. Gadbois deplores that ’special leave’ is granted very liberally by the SC. He concludes that the ease with which the Indian Constitution may be amended in order to overcome the effect of Supreme Court decisions indicates that while the Court’s jurisdiction is extraordinarily wide, its ultimate power is limited. He trenchantly and controversially states that the Constitution means what the Congress Party says it means, and not what the Court wills. Gadbois criticises the rigid insistence on the seniority principle in selecting chief justices. He points out that seniority-based selections invariably lead to shorter terms for incumbent chief justices and this affects their ability to reform the Court’s practices or transform its jurisprudence. However, later he concedes that the seniority principle does help prevent patronage-based appointments.
Though one may not agree with Gadbois’s conclusions, cannot question his thoroughness and brilliance in analysing the SC’s judgments. One reads with interest about the personalities and outlook of the several judges he interviewed with tact and candour. Thereby, Gadbois has enlightened us about the philosophy and outlook of judges, which inevitably play a significant part in their judgments.
There are some amusing anecdotes too. Gadbois was denied a visa in 1973 to spend a sabbatical year in India. Although he was hurt and frustrated, he later rationalised that the Indian government suspected him to be a CIA agent, as India-US relations were frosty in the early 1970s.
This book is a must for judges and lawyers, administrators, and professors and students of political science and also for every Indian who cherishes the goals enshrined in our Constitution and reposes his faith in an independent judiciary entrusted with the function of protecting and enlarging fundamental rights of our citizens and maintaining the rule of law in our country.