Judgements that changed India

A review of Zia Mody’s book 10 Judgements That Changed India.

Zia mody

Zia Mody’s book 10 Judgements That Changed India sets out to describe the background, socio-cultural circumstances, and reactions to 10 landmark judgements meted out by the Supreme Court in language that is not steeped in legalese. The author, educated at Cambridge and Harvard, and an expert in Indian corporate law, succeeds in showing us how the Supreme Court has played its role of being the ultimate interpreter of the Constitution.

As the author herself acknowledges, choosing 10 judgements amongst several important ones is a difficult task, but the book triumphs in the way each of the chosen judgements are presented. All the cases have a distinct constitutional angle and are chosen to show us the organic evolution of the Constitution and its protector, the Supreme Court of India.

The book starts with the landmark case, Kesavananda Bharati vs. State of Kerala (1973), which the author describes as the “pinnacle of judicial creativity”. The case established the “basic structure” doctrine, which holds that the essential principles of the Constitution are immune from amendments by Parliament. The judgement is explained by providing a short history of the precedent leading up to it: Shankari Prasad v. Union of India (Shankari Prasad) –  where the Supreme Court created a distinction between law made by the exercise of ordinary legislative power and constitutional amendments made by the exercise of constituent power.

IC Golak Nath v. State of Punjab (Golak Nath) – where the Supreme Court ruled that the distinction between the exercise of constituent power and legislative power, as laid down by Shankari Prasad, was unfounded. The court held that even a unanimous vote of all members of Parliament could not undermine the fundamental rights granted by the Constitution.

It is in the light of these precedents that the Kesavananda Bharati case was heard. The Kerala state government had tried to impose restrictions on religious properties held by Swami Kesavananda Bharati, through the Kerala Land Reforms Act (1963). The Swami consequently challenged this legislation in 1970. While that trial was being heard, the Parliament passed the 29th Constitutional Amendment which legitimised land reform statutes. Nani Palkhivala, the counsel for the Swami and also an eminent jurist, challenged this amendment as well as some other ones on the grounds that his freedom of religion (under Article 26) had been infringed. The Supreme Court was thus tasked with reviewing the validity of the 24th amendment (which was enacted to nullify the Golak Nath judgment), the 25th (which gave the socialist principles enshrined in the Constitution precedence over fundamental rights) as well as the 29th amendment. Palkhivala argued that the Kerala State Assembly could not draw authority from the Constitution to alter the very principles enshrined in it. The court ruled in favour of the Swami and concluded that though the Parliament had the power to amend any part of the Constitution, it could not use this power to alter or destroy the “basic structure of the constitution”.

The author goes on to explain the essential features of this “basic structure”, and discusses how the judgment was analysed by both its detractors and supporters. This chapter sets the tone and the structure for the remaining chapters of the book.

The book provides a mirror into how the Court untangles complex legal issues, if at all, when faced with questions regarding the Constitution. Some of the most insightful chapters from the book are first, the Mohammed Ahmed Khan v. Shah Bano Begum (1985). The chapter explains how vote-bank politics ensured that a landmark judgement was overruled legislatively. It also reveals how the Supreme Court, in the absence of a Uniform Civil Code,  interpreted the law in such a manner that Muslim women can today file divorce petitions under either the Code of Criminal Procedure, 1973, or the Muslim Women (Protection of Rights on Divorce) Act, 1986.

The second is the Supreme Court advocates-on-Record Association v. Union of India (1993). This case deals with issue of judicial appointments that has been a see-saw battle between the legislature and the judiciary for primacy. This chapter ends by again asking the perennial question of “Who will watch the watchmen?” with respect to the unprecedented power that the judiciary holds in appointing its own members.

The third is Olga Tellis  v. Bombay Municipal Corporation. This chapter explains how the Supreme Court ruled that the Right to Life granted under Article 21 includes the Right to Livelihood as well. In the process, the chapter demonstrates the evolving role of the Supreme Court in the democratic governance of the nation especially by “not providing specific relief to the parties but by directing state to ensure implementation of proactive policies for protection of destitutes”.

A noteworthy feature of the book is it shows how the Supreme Court has come to fill legislative voids as it did with the guidelines on Sexual Harassment in the Vishaka v. State of Rajasthan (1997). The author also emphasises transformation of the Supreme Court into an “institutional ombudsman of human rights”; be it in Maneka Gandhi v. Union of India(1978) where it dealt with the right to personal liberty, or in Union Carbide Corporation vs. Union of India (1989) where it could only secure meagre settlements for the victims of the Bhopal Gas tragedy.

Though women are central figures in four out of ten chapters in the book, Ms Mody also mentions how Courts have been insensitive towards women’s issues. Examples of this include the usage of ‘keep’ (Apparell Exports Promotion Council vs. A K Chopra, 1999) to refer to an unmarried partner and in another instance, the Court’s glib implication that a woman in a research position faces less pressure in reporting sexual harassment as opposed to an “ordinary working woman”.

As Soli Sorabjee (Mody’s father) points out in the foreword, “the book highlights instances of the manner in which the Supreme Court has performed its role and captures some of the significant moments in its long and sometimes troubled history”. In certain sections, the author accords a relatively high importance to the judiciary, the “troubled history” bits are not many in number, but it must be remembered that this is a natural consequence of an expert writing on a subject that is dear to them. As such, the book is an excellent primer for anyone who wishes to get an overview of legal history and workings in India.