The Cases that India Forgot- An Analysis


An excellent and fluently analytical book by Dr. Chintan Chandrachud that fulfills its objective which is what Mr. Salve calls ‘demystifies the court’ on the front page. And as the author has clearly highlighted, the book sheds light on the reality that courts categorically don’t have the final decision in most matters. The author has exquisitely compiled and scrutinized the cases in demonstrating the ‘iterative game of action-response-rejoinder’ between the institutions of Parliament, Government and the Judiciary. He says that Parliament and other public institutions often try to subvert constitutional morality to establish its supremacy and nullify the judicial opinion. So, courts as a ‘haven of justice’ is quite an anachronistic presumption which Chintan has made explicitly evident in his case analysis. The book does a fantastic job to help the general public develop a different narrative of the Indian judiciary in general and the Supreme Court in particular.
Here is a review/case analysis of certain cases that I felt were important, discussed in the book by Dr. Chintan Chandrachud.

The Keshav Singh case-
Keshav Singh, a member of the Socialist Party of Uttar Pradesh criticized Narian Pandey a Congress MLA in the UP State assembly by circulating a pamphlet. Though the pamphlet in legal terms amounted to slanderous defamation, the State Assembly led by the Speaker and CM Sucheta Kriplani summoned Keshav Singh to justify his actions by arresting him and bringing him to Lucknow. As he denied to speak in the assembly, he was sentenced to 7 days of imprisoned by the assembly and not a competent court of law. The executive action taken by the legislative assembly exceeded its constitutional purview. To decide its legality, an advocate filed a petition in the Allahabad High court before a bench of Justice Nasirullah Beg and Justice G.D Sehgal. The bench condemned this act of the assembly (whose lawyer significantly remained absent in the court) and granted bail to Keshav Singh. The speaker who was party to the misuse of powers paradoxically lectured the HC judges on separation of powers doctrine and summoned the police to take Justices Beg and Sehgal into custody. The 2 judges consequently filed a reverse petition in the High Court which constituted a full-strength bench of 28 judges to express solidarity, alleging gross abuse of power by the assembly and violation of Article 211 of the Constitution. The bench ruled in favor of the judges adjudicating that judges cannot be arbitrarily summoned to an assembly. The executive was sandwiched between the dispute of the HC and the State assembly and was left with a choice of either contempt of court or defying assembly orders.
A presidential reference under Article 143 was made to the Supreme Court which was all set to hear the dispute between the Allahabad High Court and the State of Uttar Pradesh. The State had tried to override constitution to establish its hegemony.
The Supreme Court majorly focused on two aspects of the case. The first one being the constitutional provisions that defined the powers, privileges and authority of legislature and in absence of a clear definition the inherited prevalence of the House of Commons’ powers. Secondly, the 3-judge bench scrutinized if parliamentary privileges were legitimate to be exercised at the altar of the infringement of fundamental rights and separation of powers doctrine. The majority opinion led by Chief Justice Gajendragadkar upheld the constitutional competency of the Allahabad HC in deciding Keshav Singh’s petition and that the assembly exceeded its limits. Justice Sarkar’s dissenting opinion was anachronistic. It ignored the inherent constitutional ethos that restricted the powers of legislature. The Supreme Court calibrated between parliamentary privileges and fundamental rights and decisively held that the latter constitutional institution would prevail.

Minerva Mills vs Union of India-
Minerva Mills as a judicial decision can only be understood if one has the knowledge of the aftermath of the Kesavananda Bharati judgement which was delivered in 1973 and what Mr. Chandrachud describes as an ‘iterative game of action-response-rejoinder’ between the Supreme Court of India and the Indian Parliament. The Kesavananda verdict in a 7:6 ratio propounded the basic structure doctrine refraining the Parliament from amending the Part III i.e., fundamental rights which formed the basic structure of the Constitution. To undo and undermine the doctrine and establish its supremacy, Indira Gandhi unleashed her brainchild, the draconian 42nd amendment or the Mini Constitution conferring it absolute powers to amend the law of the land and inducting clauses 4 and 5 in Article 368(governing Parliament’s amending powers). The Parliament believed that its majoritarian force gave it unfettered authority to alter the Constitution brazenly without any accountability. And the Supreme Court had made it evident that it operated to appropriate these constant changes in the Kesavananda verdict by exercising its constitutional custodianship. Indira Gandhi attempted to reverse it by sanctions (punishing the judges), judicially (constituting a Kangaroo 13 judge bench to reconsider Kesavananda during the Emergency) and legislatively (the 42nd amendment). Clause 4 of Article 368 negated judicial review of constitutional amendments and Clause 5 converted its authority to amend the Constitution unlimitedly.
The facts of the Minerva Mills dispute that challenged its nationalization and confiscation of right to property were completely sidelined in the Supreme Court when Nani Palkhivala turned it into the greatest constitutional courtroom of all time after Kesavananda Bharati and astutely argued to restore the democratic ethos of the Indian Constitution. Palkhivala contended that the Constitution grounds in its language the limited powers of the Parliament and the Parliament used those very limited powers to transgress them authoritatively. Secondly, he argued that the restrictions on the Parliament formed the very inherent basic structure transcending which would impinge the Kesavananda verdict. Hence, the impugned clauses turn a ‘creature of the Constitution’ into its ‘master’.
The second aspect of the case was the imbalance between directive principles of State policy and fundamental rights which had risen due to amendments to Article 31C of the Constitution. Palkhivala called it a ‘quintessence of authoritarianism’ disregarding individual liberty to accomplish the means of DPSP. But Venugopal, who defended the State argued that fundamental rights would be meaningless without DPSP which ameliorated the conditions of the marginalized and the poor. The majority decision authored by Justice Y.V Chandrachud seconded Palkhivala’s claim while the dissenting judgement written by Justice P.N Bhagwati struck down clauses 4 and 5 but upheld Venugopal’s premise with regard to Article 31C. Nullifying and reversing clauses 4 and 5 meant reinstating judicial review and legitimately restricting the Parliament’s powers.
Ironically, Minerva Mills brought to limelight the rivalry between Justice Chandrachud and Justice Bhagwati considerably. Justice Chandrachud in Kesavananda had struck down the basic structure doctrine while Justice Bhagwati the opposite. And Minerva Mills produced exactly the contrary result. This discrepancy allowed the Congress government a leeway to re-examine Minerva Mills that necessarily had axed its powers by citing Justice Bhagwati’s criticism that no judicial consultation occurred before the judgement. But the resulting political chaos led to no culmination and Palkhivala’s efforts ensured that the sanctity of Minerva Mills is maintained and the Justice Chandrachud vs Justice Bhagwati fallacy is dissolved.

Rameshwar Prasad vs Union of India-
To summarize Rameshwar Prasad vs Union of India in literal sense is almost impossible after examining its backdrop. The case concerns the assembly elections of the State of Bihar in 2005 which culminated in such a situation where no party involved i.e., the RJD, BJP, JDU, LJP and the Congress was able to assert its majority. Therefore, Governor Buta Singh ordered a floor test for the parties willing to prove a majority and form a government. Since, no party succeeded in doing so, President’s rule was imposed on Bihar. As the typical dirty political games in Bihar mandated, there was a lot of horse trading and use of unethical means to form a majority. Hence the governor sent some reports to the then President APJ Abdul Kalam requesting him to take stringent action and dissolve the assembly. Unfortunately, President Kalam was on a tour to Russia and had halted at Moscow. When he received a phone call from the central government, he was left with 3 options- discard the file for reconsideration, delaying the decision by eight days and signing the file to dissolve the assembly. Kalam chose the third choice and consequently the assembly was dissolved and fresh general elections were ordered. This presidential decision was challenged in the Supreme Court by BJP MLA Rameshwar Prasad. The apex court held that the Constitution didn’t authorize the President to dissolve a state assembly that had not even commenced. Dissolution of an assembly merely based on governor reports was held to be inherently unconstitutional. The verdict derailed the political plans of the UPA government and indirectly pressurized President Kalam to resign. But PM Singh convinced him not to do so as it would result in a turmoil. It directly affected the governor and the State Government but nearly saved the President from public embarrassment.

Tukaram vs State of Maharashtra-
The case of Tukaram vs State of Maharashtra is a classic case that highlights the miscarriage and transcendence of executive duties by the police and going to the extent of brutality and raping a civilian and still attracting no accountability due to institutional failure and rigged system. The facts occur in a remote town of Desaiganj where a tribal and rather promiscuous young girl named Mathura had married her love interest Ashok. One of her relatives, Gama filed a police complaint in the local station claiming that Mathura had been kidnapped by Ashok. When the police officials summoned Ashok and Mathura for enquiry late at night, two policemen one of them who was inebriated called Mathura inside, reportedly locked the door and raped her. After the incident, Mathura tried to raise her voice many times but was suppressed by the corrupt functionality of the State. She finally decided to register an FIR against Tukaram and Ganpat (the accused) and astonishingly the first investigative step taken by the police was not to question the accused but to delve into Mathura’s sexual history (which would disturbingly) go on to have a great influence over the case. The sessions court delivered a disastrous, scandalous and rather slanderous judgement that not only acquitted Ganpat and Tukaram but also termed Mathura as a ‘shocking liar’ who was very much willing to engage in sexual intercourse with the accused and turned her into a whore. The subsequent appeal filed in the Bombay HC’s Nagpur bench overturned the session court’s verdict and interpreted the factual matrix quite logically to establish rape. The HC firstly adjudicated that the locked doors indicated unlawful detention of a civilian and forcing themselves on her amounted to outraging her modesty. Secondly, the bench established rape by effectively holding that mere inaction to resist the coercion be under any circumstances can’t be construed as consent whatsoever. This learned judgement however would go on to be helplessly redundant as a regressive verdict was passed by the Supreme Court of India, evidently the last court of appeal for the ‘aggrieved’.
The Supreme Court bench led by Chief Justice Y.V Chandrachud diabolically destroyed its image as the guardian of fundamental rights and constitutional values by delivering a grossly grotesque and anachronistic judgement in the Mathura case. The apex court ignored the persuasive value of the High court verdict and the ascertainment of facts was done on colonial, male chauvinistic judicial standards by overlooking the consensual factor.
Rape, its gravity, its heinousness was disseminated in the public consciousness of post-independent India due to SC’s erroneous decision in Mathura. The widespread protests demanded legislative reforms, judicial transformation and changes in evidence assessment with respect to rape as an offence. It culminated in several legislative amendments to the IPC and the concept of ‘statutory rape’ being raised to the age of 18 which attracted criminal liability in consensual sexual intercourse if the involved parties are minors. Although the case triggered a women’s rights movement and developments in the legal landscape, Mathura herself was devoid of justice she deserved. The Court that is inherently meant to be counter-majoritarian and the final court of appeal had failed Mathura.

Champakam Dorairajan vs State of Madras-
The early traces of the reservation vs merit battle that has been fueled legally, socially and most of the times politically can be found in a Madras High Court case in 1951. The Madras government had passed a Government Order (GO) way back in 1927 which came to be known as Communal GO guaranteeing caste-based reservation in government jobs and colleges. 18 months after the Constitution came in force, the alleged GO was challenged in the Madras HC by an aspiring engineering student (CR Srinivasan) and an aspiring medical student (Champakam Dorairajan). The direct causal link was the GO due to which, the students scoring higher were essentially denied admission due to the Communal GO. Had the admission parameters been purely merit-based, they would’ve secured admission in their desired colleges. The peculiarity in case of Dorairajan was that she had petitioned in the HC even though she had not applied for admission in any medical college. Her contention was that if she had applied, she would’ve not secured admission. A 3-judge bench was constituted by the Madras HC to hear the case. V.V Srinivasa Iyer, arguing for the petitioners relied on the newly enacted Constitution and Article 15(1) which formed an integral part of the Part III of the document. Article 15 mandated the State not to discriminate on the basis of religion, caste, sex, race etc. He also contended that Article 29(2) of the Constitution propounded that no citizen shall be denied admission in any educational institution aided by the State on the basis of the aforementioned criteria. The Madras government however believed it to be their moral obligation in uplifting the marginalized sections of the society for social welfare under Article 46 of the Constitution, a directive principle of State policy which requires the State to endeavor in establishing comprehensive development. Eventually, the Madras HC verdict effectively meant to discard the GO for being violative of Articles 15(1) and 29(2) and declared it as unconstitutional.
The majority opinion comprising of Chief Justice PV Rajmannar and Justice Sastri agreed over the judicial thought that the GO expunges ‘equal protection under law’ and the parameters of religion and caste make admissions severely unjust. The third judge Justice NP Somasundaram however dissented in a very bulky way. He reluctantly struck down the GO resonating the majority opinion but at the same time held it to be the State’s responsibility in implementing DPSP to devise and issue policies in public interests that alleviate the marginalized and lead to social welfare under Article 46. Justice Somasundaram’s ambiguous opinion would go on to culminate and develop into arguments of numerous proponents of caste-based reservations and the current stand of the State for it being by the virtue of ‘protective discrimination’, an exception of equality the State is legitimized to execute. But the majority verdict striking down the GO launched the frequent duels between the constitutional courts and the legislature as to who possess the superior authority to guard the Grundnorm.
The Madras government dissatisfied by the judgement decided to file an appeal in the Supreme Court of India which marks a ‘substantial question of law’ being heard by the apex court in its nascent stage. An eight-judge bench led by CJI HJ Kania was constituted to hear the appeal. The bench necessarily held that in case of a conflict between Article 15 (fundamental rights) and Article 46 (DPSP), the former would sustain. Here, the Supreme Court also examined a factual merit that was inadvertently overlooked by the High Court. The bench scrutinizing the peculiar position of Champakam Dorairajan in the case held that her proposal echoes the similar concern of many students like her even though she has not applied for admission and held her petition to be maintainable. The history of Public Interest Litigation (PIL) can be traced through this observation of the SC. The effect of SC’s decision affected the Parliament’s intention to amend the Constitution for the very first time and the judgement was heavily slammed by the then law minister Dr. BR Ambedkar. He questioned the veracity of Supreme Court’s interpretation of the Constitution in terming that reservation is an exception of, rather than a facet of equality. He debated extensively in the Parliament and initiated the official process of the First Constitutional Amendment Act, 1951. Nehru initially was hesitant to pursue Ambedkar’s cause but ‘electoral fortunes’ persuaded him to promote it. The ineffectiveness of the 1st Amendment in interpreting Dr. Ambedkar’s valid and argumentative analysis to nullify the SC judgement and the absence of nuanced legal reasoning in amendments to Articles 15(1) and 29(2) are the causes of the extremity caste-based reservations have reached to. Ambedkar in my opinion failed to envisage the potential misuse of the 1st Amendment and that the very structure of society in India would allow the State to undermine fundamental rights in order to perpetuate DPSP instead of harmonizing the two.

State of Bombay vs Narasu Appa Mali-
This particular case is unique from other cases discussed in the book due to the court that decided the case, its significance and the essence of the judgement. The Narasu Appa Mali case was decided by the Bombay High Court in 1951 pertaining to the ‘personal laws’ that govern the private domain of citizens at the altar of the fundamental rights guaranteed by the freshly promulgated Constitution of India. Now the significance of this case and the incidental role of Bombay HC is too interesting to miss. Bombay High Court is one of the oldest Presidency judicial offices established in Bombay, one of the oldest Presidency towns established by the British Raj thereby conferring it spectacular prestige, antiquity and (colonial) tradition. Another significant aspect of this case is the involvement of Bombay HC Chief Justice M.C Chagla who is considered as one of the few legal legends to have missed the position of a Supreme Court Justice. And Justice Chagla is known to have declined the offer purposefully. He was offered the job of a SC judge after the Federal Court of India (1937) became the Supreme Court of India after the enactment of the Constitution. But he refused to accept it because he regarded the position of a judge at the newly formed Supreme Court with greater powers, jurisdiction and authority than the Bombay HC, far too menial than the position of the Chief Justice of Bombay HC; a court prestigious than the SC.
The bone of contention of the dispute concerning the case was the Bombay Prevention of Bigamous Marriages Act,1946. The Act not only prohibited bigamy among Hindus but also criminalized it with up to 7 years of imprisonment. It was challenged in the Bombay High Court as violative to the provisions of the Constitution, particularly Part III. A bench of CJ M.C Chagla and Justice P.B Gajendragadkar was constituted to hear the case. The impugned law was challenged on the basis of Article 25 of the Constitution that grants religious freedom but at the same time obligates the State to ensure social welfare and reform. But after a certain point the arguments centered around a linear question- whether ‘personal laws’ are excluded from Article 13 which directs that any law inconsistent with the fundamental rights enshrined in Part III of the Constitution is null and void. In a unanimous judgement both the judges answered it as affirmative and paradoxically held the Bombay bigamy law as constitutional. This very discrepancy in the judgement rendered it ambiguous and contradictory to the prevalent public opinion. The bench struck down the petition against the Bombay bigamy law, a legislation that progressively and liberally eradicated and eliminated a social evil but at the same time propounded absurdly that ‘personal laws’ howsoever discriminatory, derogatory and irrational are immune from Article 13, essentially placed those uncodified laws beyond the ambit of fundamental rights and made their functionality indefinite. Also, the logical reasoning for the same by invoking the colonially imperialistic Government of India Act, 1915 in a constitutional legal template was seemingly preposterous. Personal laws cannot supersede constitutional principles although consistent with those principles and their exclusion form the purview of Article 13 is practically impossible to be enforced in a democratic setup. Personal laws can be valid and constitutional only when they are in consonance with the document and democratically enacted legislations.
The unfortunate Narasu verdict serves as a causal link to countless trivial petitions being filed in the constitutional courts to grant personal laws a special status. Another facet to the perpetuality of Narasu is the Supreme Court’s inefficiency to overturn it albeit two opportunities, one of them being Sabrimala. Hence Bombay HC’s inherent incapability to examine the case in a non-colonial way led to Narasu’s birth and the resulting intricate culpability of the Constitution and its fundamental rights.

Kartar Singh vs State of Punjab-
This case chapter has a wonderful introduction about three landmark Supreme Court judicial dissents by 3 remarkable judges of United Kingdom, India and the United States respectively. All of these instances involved the State defending its barbaric actions by playing the national security card. In England, the government had ordered preventive detention of civilians during the second World War and shockingly, the Supreme Court seconded the government’s order. Lord Atkin in a celebrated dissenting opinion termed it as ‘more executive minded than the executive’. In the United States during the same time period, FDR ordered to relocate the Japanese Americans ‘coincidently’ after the Pearl Harbor attack to internment camps with little or no access to ordinary life where again the SCOTUS failed to protect civil rights. Justice Robert Jackson is known for his condemnation that the ‘court had validated the principle of racial discrimination’. And as far as India is concerned, we all know Justice H.R Khanna’s storming dissent against the majority opinion of Chief Justice Y.V Chandrachud that upheld Indira Gandhi’s most transgressive order of suspending right to life; Constitution’s most cherished liberty according to Dr. Ambedkar. These 3 dissents against national security as an alibi are revered by the legal fraternity globally.
But in Kartar Singh vs State of Punjab, there was no dissenting opinion in the Supreme Court that ‘valved’ democracy from a majoritarian State law. The legislation concerning this case is the Terrorist and Disruptive Activities Act, 1985 or commonly known as TADA. Though it was originally designed to be temporary, the Parliament constantly renewed it every time as it suited its political and electoral interests with utter disregard for individual liberty. TADA was challenged in the Supreme Court on the basis of some contentious provisions that repudiated some basic protections accorded by the Constitution and criminal law principles. Unlike normal circumstances, TADA placed the burden of proof on the defendant to show his/her innocence. And for the purposes of TADA, evidence procured by police in custody was permissible in a court of law. The provision of anticipatory bail was absent and it was almost negligible to seek bail after arrest. Disproportionate to the no. of cases filed, the conviction rate was an appalling 1-4 %. This reminds me of nothing but the PMLA and the Supreme Court’s disappointing verdict in validating and approving it. TADA was similarly used as a weapon by the executive and police agencies to invade personal liberty and rights of the accused.
This was the argument made by a group of legal luminaries appearing for the petitioners led by Ram Jethmalani who opposed the punitive operation of TADA. They contended that Section 15 of the Act impinges the accused’s right to silence and violates his right against self-incrimination (unwilful testimony) by making custodial evidence admissible. Interestingly, it was argued that it is unclear whether the motive to enact TADA was national security (Union list) or public order (State list) which highlights the legislative incompetency of the Parliament to pass the Act. It was conceptualized before the court that TADA grossly undermines procedural safeguards.
The Supreme Court’s judgmental response to these arguments was unclear in its very sense. Though the majority opinion heavily lamented the custodial torture that was facilitated by Section 15, ironically it didn’t care to invalidate the section itself thereby making its acerbic criticism futile. Though the bench issued guidelines to prevent its misuse and abuse, a tangible order would’ve gone a long way in eliminating it and actually performing its constitutional duty. The institution that somewhat succeeded in mitigating TADA’s oppressive regime was the newly formed National Human Rights Commission (NHRC). The Justice Ranganath Misra led committee accomplished its duty in ensuring that the Parliament doesn’t renew TADA again. So, the aftermath of Kartar Singh and not Kartar Singh is the reason TADA is repealed. But had the Supreme Court fulfilled its constitutional duty to protect rights like- individual liberty, right against self-incrimination, right to anticipatory bail, right to procure bail after arrest etc., TADA would’ve been nullified and scrapped ‘because of its decision’ and not ‘in spite of its decision’ as Chintan writes in the book.

So, in conclusion this book is a narrative, analytical, descriptive and somewhat expository account of the Supreme Court’s abdication and axiomatic refusal to perform what it’s inherently meant to i.e., be counter-majoritarian. In simple words it’s a critique of the Supreme Court. And it exemplifies as an appeal to the Supreme Court in defending the Constitution as ingeniously visioned by its forefathers.

-Anish Padhye

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