Frontlist | Book Review: “Supreme Court” by Senior Advocate Ashok Panda
India’s socio-political fabric is closely tied to its judiciary. Disputes ranging from matters of public importance like religion, gender, and free speech to private disputes like arbitration and insolvency, all find their way to the courts for resolution.
The courts are at the heart of every controversy ensuing in the country and have played a pivotal part in its development. The Supreme Court, as the final court of appeal, is an institution that has fundamentally shaped the political and jurisprudential architecture of modern India.
However, how did the Supreme Court — originally meant to function as an interpreter of the Constitution — assume such a central role? How did the Supreme Court’s interpretative methodology shift from showing a strict adherence to textualism, to one favoring a creative reading of the Constitution to broaden the purview of fundamental rights? And, how has the Court kept pace with India’s rapidly changing cultural and political landscape? These are some questions that form the basis of enquiry in senior advocate Ashok Panda’s new book — Supreme Court.
This book surveys the development of the Supreme Court in independent India and attempts to locate its revamped position in Indian constitutionalism.
The book is divided into twenty five short, but wide, chapters ranging from the process of justice dispensation under the British rule to the challenges presented before the Supreme Court by the COVID crisis.
The Supreme Court begins with tracing the origins of Indian judiciary and how the present legal system has been influenced by the British common law. The book shows how establishment of the first Law Commission in 1833, headed by Lord Babington Macaulay, laid the groundwork for codification of important statutes like Code of Civil Procedure, Indian Penal Code, and Code of Criminal Procedure.
Even today, majority of the litigation in the country is based around the statutes codified by the British. The author then proceeds to show how India’s march towards self-rule and the subsequent attainment of independence led to members of the Constituent Assembly vesting the custodianship of the Constitution in the hands of an independent and impartial judiciary. The author believes that the Supreme Court “was not envisaged as just another institution or only a court at the apex, but was seen to be a champion of democracy, defender of the citizens’ rights and liberties.”
In the chapter titled, ‘Personal Liberty’, Ashok Panda explains how the ‘Due Process’ clause was dropped from Article 21, after B.N. Rau — India’s constitutional advisor — was counselled to do so by Justice Frankfurter of the US Supreme Court. Justice Frankfurter believed that inclusion of the due process clause would be a heavy burden on constitutional courts.
The author then proceeds to highlight how despite an absence of the phrase in the Constitution, due process has found an important place in Indian constitutional jurisprudence through doctrines like reasonableness and arbitrariness. In the same chapter, the author discusses the A.K. Gopalan case with an emphasis on Justice Fazl Ali’s dissent.
Ashok Panda suggests that this was the first time where a judge opined that the term “personal” did not qualify “liberty” and that fundamental rights are “overlapping and not compartmentalised”. Stressing upon the importance of dissenting judgements from Supreme Court justices, the author says, “the purpose of dissent is so that a progressive court of the future may look back and remedy a wrong in the system”.
This is true as two decades later Justice Ali’s dissent became the foundation for overruling the majority verdict in A.K. Gopalan.
While discussing the Kesavananda Bharati case, Ashok Panda presents two extremely interesting, yet overlooked points. Firstly, he shows that the final order affirming the basic structure doctrine had signatures of only 9 out of the 13 judges. Secondly, the author explains that there was a clandestine attempt to overturn the judgement in Kesavananda Bharati when the then Chief Justice of India, A.N. Ray, abruptly set up a review bench. However, crises was averted when the bench was unilaterally dissolved as it was found that no review of the judgement had been filed.
The author believes that the judiciary’s work towards transformative justice came to a grinding halt during the period of the National Emergency. Not only did the Supreme Court lose its credibility in the public eye due to appalling judgements like ADM Jabalpur, the institutional independence was also severely undermined.
This was visible through punitive transfers of high court judges for passing judgements unfavourable to the then government. However, the post-emergency period, Ashok Panda argues, was one of structural reforms. The 79th Law Commission Report, under the chairmanship of Justice H.R. Khanna, recommended measures for improving the process of judicial appointments and transfers.
Furthermore, through judgements like Maneka Gandhi v. Union of India the Supreme Court sought to put the turbulent days of Emergency behind, and attempted to do complete justice as the guardian of the Constitution.
After comprehensively dealing with the institutional history of the Supreme Court, Ashok Panda proceeds to analyse the functioning of the Supreme Court in recent times. It is the author’s argument that the Court has actively sided with deprived stakeholders and attempted to work for the upliftment of the weak and marginalised sections.
The author cites various judgements to substantiate his point. In the Disability Rights Group case, the Court ordered all higher educational institutions to reserve not less than five percent seats for persons with disabilities. Furthermore, to preserve the environment and the right to clean air of citizens, in Arjun Gopal v. Union of India, the Supreme Court banned an indiscriminate use of firecrackers.
To increase transparency within the judiciary and to make the courts more accessible, the Supreme Court in Swapnil Tripathi v. Supreme Court of India allowed live-streaming of courtroom proceedings.
The Supreme Court has also been adept at keeping pace with the changing perception of our cultural norms. Out of the many judgements cited to buttress this point, two of them stand out. Firstly, the case of Josep Shine v Union of India. In this case the Supreme Court decriminalised adultery by holding that this offence does not constitute a public wrong.
Ashok Panda, however, argues that, “the Supreme Court refused to make the adultery laws gender neutral, instead highlighting the right to privacy and dignity by refusing to criminalise consensual acts that did not outrightly victimise any innocent individual. Secondly, the case of Shayara Bano v. Union of India, where the Supreme Court held the practise of triple talaq to be unconstitutional.
While the judgement is revolutionary for protecting the rights of Muslim women, the author criticises the court for taking an easy way out. Ashok Panda argues that, “the bench mainly considered whether or not triple talaq was an essential part of Islam instead of focusing on women empowerment.
It would have been preferable if the Court had firmly acknowledged that Article 25 of the Constitution expressly provided that any practice that is inconsistent with fundamental rights is liable to be struck down, irrespective of, whether or not, it is an essential religious practice.”
The analyses of various progressive judgements in the book reveals that despite the Supreme Court working towards ensuring equal opportunities to all sections, a long road still lies ahead.
The final segment of the book deals with emerging issues — like the pandemic and rapid advancements in technology — before the Supreme Court. One discussion from this segment is of contemporary relevance, that is, the issue of technology corporations collecting and processing data.
Ashok Panda suggests that corporations are permitted to do so due to an absence of a data protection law in India and the long-winded and incomprehensible nature of user terms and conditions. To uphold the integrity of contracts in today’s digital era, Ashok Panda suggests that, corporations could emphasise the important clauses for the users and, secondly, a committee of consumer protection bodies could be set up to draft norms of online contract writing.
A criticism of academic legal writing is that it is often difficult to access for those with no training in law. Therefore, due to the lack of any discernible scholarship, a layperson might find herself at sea while trying to understand the complex workings of the judiciary, especially the Supreme Court.
Ashok Panda, with his simple and lucid writing, has addressed that complaint. From this concise, yet comprehensive, account of the Supreme Court, anyone can easily understand the history of the Court, how it has developed, some landmark judgements of the Court, nature of contemporary issues that the Court is presently involved in and the Court’s significant role as the custodian of the Constitution of the world’s largest democracy.
Supreme Court by Ashok Panda is an accomplished book in every sense and must not be missed by lawyers, students of law, or anyone who is curious to know more about the Supreme Court.
Source: Barand Bench