Of Courts & Judges

The Courts in India have an unenviable task of trying to clear the backlog of cases in a litigation friendly country. As per reports there are nearly 4 crore ( 40 million) cases pending before the Courts in our country, with 10 % of them dating back to over a decade! Yet, while one cannot generalize, about Courts or Judges, as an ordinary citizen of India I am surprised by some of the things reported from the Courts.

In the past decades, what happened in the Court largely remained a mystery as the ordinary person had no idea of what went on and who said what. In the area of Industrial Disputes, in which I have some experience, it was common knowledge that between the two lawyers dates were often ” fixed”to suit their convenience. If A asked for an adjournment this week, the opposing lawyer B would ask for one on the next date which was some weeks away. Hence cases dragged on for months together, if not for years.

The pandemic brought about many changes. Most courts these days have taken to having virtual hearings. This is a welcome move. At least cases do go on and in some Courts large number of cases have been settled during the year or more of the pandemic. Also I notice that online portals such as Bar and Bench give almost ball by ball commentary of court cases, much like in a cricket match. The reader gets to know what the lawyers said, what the judge observed and so on. This is totally new to many of us as we would never have had access to such information before.

This new found transparency has sometimes embarrassed the judges and the advocates! A post that went viral on social media in August 2020 showed Senior Advoacate Rajeev Dhawan caught on camera taking puffs on his hookah while arguing a virtual case before the Rajasthan High Court ! One doesn’t know whether the learned Judge had anything to say to the senior advocate. Perhaps he didn’t as the much respected Mr Dhawan is in his ’70s, a graduate of the University of Cambridge, and a Commissioner of the International Commission of Jurists. Still, so much for setting a good example to your juniors and the world at large!!

In a more recent case, the Madras High Court made scathing observations about the Election Commission of India saying it was “singularly” responsible for the second wave of Covid. It even went to the extent of observing “Its officials should be booked for murder.” In a situation where deaths are mounting all over the world due to Covid- around 3.2 million as of date- even the casual reader would find these remarks rather puzzling, if not petulant.

The Election Commission naturally was stung by these observations and took the case to the Supreme Court which a few days ago agreed the “murder charge” remarks of the Madras High Court were “harsh” and the “metaphor inappropriate “. It was good that they did so! Sadly, over 230,000 people have died in India as of date due to this pandemic. Holding the Election Commission responsible for the deaths during the political rallies has become fashionable but more people are accountable too. What about the politicians – of all political parties- who organized and held these rallies? What about the people themselves, who flocked to them ? What about the media which gave the rallies such extensive coverage making each political party vie for higher eyeballs? All of them knew fully well these could be super spreader events for the Corona virus.

As mentioned earlier, we are these days becoming privy to what actually happens in Courts. Thanks to Bar and Bench, I am reading with great interest the remarks of the Supreme Court and the Delhi High Court in the matter of oxygen supply to Delhi during this pandemic. While it makes for interesting reading I couldn’t quite make out what the point in law was for the Courts to decide. Surely, deciding on the amount of oxygen needed for each hospital, city, and State; the methods of reaching oxygen to hospitals; is the job of the executive rather than that of the judiciary?

The Keshavananda Bharati Case

I read today about the sad demise of Sri Keshavananda Bharati Swamiji of the Edaneeru Matha, Kasargodu at the age of 79. His name will always be associated with the Supreme Court Judgment of 1973 in what has come to be known as the ‘Keshavananada Bharati Case’ . This case was mentioned to us frequently by Professor K Karunakaran ( who taught us Labour Laws in XLRI in 1972-74) as being a landmark judgement. This led me today to go back decades in time and understand what that case was about.

To recapitulate, in 1960, Sri Keshavananada Bharati Swamiji became the Head of the over 1200 year old Edaneeru Matha in Kasargod. It was founded by Sri Thotakacharya , one of the first four disciples of Sri Adi Sankaracharya. In 1971 or so, the Government of Kerala sought to impose restrictions on the Matha property which led Sri Keshavananada Bharati Swamiji to take the case up to the Supreme Court. He questioned the right of the Government to alter the fundamental rights of the citizens of India.

The case was argued for 68 days before a Full Bench of 13 Judges of the Supreme Court of India. It became the centre of attraction during those times for the principles being argued before the highest Court of the land. The Government of the time ( headed by Prime Minister Smt Indira Gandhi) argued that Parliament was supreme in India and the Government of the day could amend the Constitution if it was for the benefit of the people. The illustrious lawyers Nani Palkhivala, Fali Nariman, and Soli Sorabjee represented the petitioners against the government.

The Supreme Court held by a narrow margin of 7-6 that while admittedly the Parliament had wide powers it did not have the power to alter the basic structure of the Constitution. The judges who upheld Swamiji’s plea were then Chief Justice of India S M Sikri, and Justices K S Hegde, A K Mukherjea, J M Shelat, A N Grover, P Jaganmohan Reddy, and H R Khanna.

In the decades that followed this judgement of 1973 has served to be the cornerstone for determining the ” basic structure” doctrine in constitutional law in India. It covers the supremacy of the Constitution, the independence of the judiciary etc. It was often alleged that Smt Indira Gandhi was very annoyed at the outcome of the case and consequently the judges who ruled against the Government were not given promotions due to them. It is a fact that Chief Justice Sikri retired the day after the verdict, and the Government appointed Justice A M Ray in his place. He superseded Justices Shelat, Grover, and Hegde who had ruled against the Government in the process.

While the residents of Kasargod will for long remember Sri Keshavananada Bharati Swamiji for all the good work he did for the Edaneeru Matha, students of law, politics and the Constitution, all over India will never forget him for this landmark case, settled 47 years ago.

Om Shanti, Shraddhanjali to Srimath Swamiji.