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What is Wrong With Our Supreme Court?
by S.C. Manchanda*

Cite as : (1977) 2 SCC (Jour) 17

The Supreme Court of India :Socio-Legal Critique of its Juristic Techniques by Dr. Rajeev Dhavan, Foreword by the Rt. Hon'ble Lord Denning, Master of the Rolls. Published by N. M. Tripathi, Bombay, 1977, Rs. 75.00.

"In the end we must regard the attitude of the Supreme Court judges as typical of the decision-making habits of middle-class metropolitan Indians : technically unpredictable, not uninfluenced by imitative cosmopolitan habits, conditioned by native instinct to a depth not yet predictable by the psychologist or documented even by the novelist, the dramatist or the fiction-writer, and suffering from an over-sensitive opinion of their lonely and unparalleled position."

Technically unpredictable

This is how an academic jurist, Dr. Rajeev Dhavan, Lecturer in Public Law and Jurisprudence in Brunel University, England, and formerly Lecturer in Jurisprudence in Queen's University, Belfast, sums up his assessment of the calibre of the Judges who have manned the Supreme Court of India during the first quarter Century of its functioning. Now if a jurist describes a court as "technically unpredictable", it is a severe indictment. But this verdict is based not simply on the Supreme Court's decisions in one or two "sensational" cases like Golak Nath and Kesavananda Bharati (which too have been discussed in detail) but by an analysis in depth of the juristic techniques used by the Supreme Court in nearly 500 decisions in such widely different branches of law as the Hindu Joint Family (including Hindu Women's Rights, Adoption and Pious Obligations, Obscenity ; Contempt of Court by Scandalising Judges, Official Secrecy and State Privilege as to documents ; Secularism, Freedom of Religion and Minority Protection (including Cow Slaughter cases) ; Industrial Law, Law and Order (including Preventive Detention) ; Right to Property ; Doctrine of Eminent Domain including the concept of public purpose and the Meaning of Compensation.

Status-oriented thinking

The Author explains why, at times, he has been severe in his criticism of the court's approach. "If judge-made law is to improve and make progress, it must be under constant scrutiny and critical comment." This may explain Dr. Dhavan's severe criticism, for example, of the court's attitude in cases involving contempt of court by scandalising judges. After examining the court's decisions in eleven leading cases Dr. Dhavan concludes that "status-oriented thinking (to borrow ex-Chief Justice Sikri's phrase) is an important part of the court's thinking". He strongly criticises, in sober dignified language, the court's judgement in Namboodripad case1, affirming the decision of the Kerala High Court which had held that any allegation (by a Marxist Chief Minister of Kerala in that case) that in a capitalist society "judges are guided by class hatred, class interest and class prejudice" is Contempt by Scandalising.

Inconsistency in Contempt cases

Dr. Dhavan accuses the court of inconsistency : "The Supreme Court", he points out, "has emphasised the sanctity of fundamental rights which includes freedom of expression and criticism of public authority ; but when it deals with the exercise of a fundamental right directed against itself it loses the broad perspective it appears to have taken elsewhere. The result was that the importance of critical comment in developing judge-made law was overlooked". He endorses the pertinent warning given by Mathew, J., in his dissenting judgment in the Kerala High Court : "The court by its pronouncement today is interfering with free trade in ideas and their competition in the market and to that extent with democratic process". (my emphasis). He is amused by Hidayatullah, J's. pronouncement : "Respect is expected not only from those to whom the judgment is acceptable but also from those to whom it is repugnant", and dismisses it with the remark, "It reminds us of the proverb, Zabardasti mare bhi aur rone bhi na de :—he beats me but does not let me cry".

Problem of fusing English law with indigenous law

In his Introduction Dr. Dhavan explains this yardstick by which he proposes to measure the achievement of the Supreme Court :

"The question posed in these earlier Chapters is : Do Indian Judges—the Supreme Court being used as a model—deciding complicated issues of law and fact, rely solely on their Western training or do they also receive theoretical inspiration, instinctive or otherwise, from indigenous sources ?".

Supreme Court unable to solve problem

The Author comes to the regretful conclusion that the Supreme Court has not been able to solve the problem of "fusing English law with the indigenous law". To quote Dr. Dhavan :

"The present judicial system of India, planted by the British, is founded mainly on the English Common Law, which has its own jurisprudence and juridical techniques — which were invented and developed in the course of 800 years by successive generations of English Judges under changing social conditions in England. It is very largely a judge-made law. For example, "the whole process of trial, civil or criminal, has been moulded at all stages by the judiciary with the object of eliciting the truth in accordance with judicial conceptions of fair play". Most of the principal rules of evidence including the exclusion of hearsay were developed by judges, and so is the rule of natural justice which permeates the jurisprudence of British Courts."

English Common Law not static

"English common law has not remained static. In modern times, in the second half of the nineteenth century, a small body of distinguished judges transformed the nature and spirit of English law in the forty years between the Judicature Acts and the outbreak of World War I. It became a long and progressive adaptation to the needs of a rapidly changing society." Outstanding examples of this adaptation are Donaghue v. Stevenson by which the area of the tort of negligence was extended and the manufacturer of a deleterious article of consumption was made liable to the ultimate consumer, and Rex v. Northumberland Compensation Appellate Tribunal which extended the scope of the common law writ of certiorari to decisions which are wrong in law. In the celebrated case of Shaw v. Director of Public Prosecutions, the House of Lords discussed the power of the courts to recognise the criminal offence of "conspiring with the prostitutes to corrupt public morals" independently of any statute, and Viscount Simonds, expressing the view of the majority, said :

In the sphere of criminal law I entertain no doubt that there remains in the courts of Law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.

But Common Law grew on English soil

"But the Common Law techniques grew on English soil and have their limitations which were imposed by conditions peculiar to England. The British Constitution is founded on the doctrine of sovereignty of Parliament and no court in Britain can question the validity of an Act of Parliament. To control the acts and decisions of Government departments and administrative bodies under the authority of a law passed by Parliament, the courts have created a new body of principles that has come to be called administrative law, but is a part of the common law technique forged by the judges."

Supreme Court inherited Common Law traditions

"The Supreme Court of India inherited the Common Law traditions and techniques, though it has had to function under very different conditions, social, political and legal. India is governed by a written Constitution which has distributed power between the Union and the States and among different agencies — the power of each being limited. The legislature is not sovereign in the sense in which the British Parliament is sovereign, and is forbidden to pass certain kinds of laws. The courts have the power of judicial review of laws."

Contrast between Indian and English social conditions

"More important is the contrast between the social conditions in India and England. India is a country of many races, languages, religions and communities in different stages of development from the most primitive to the very modern. The reality of actual conditions may be assessed from the fact that though 25 years ago, Article 44 of the Constitution enjoined that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India, no government has dared to take any step in this direction for fear of opposition from the minorities which have the vote."

Supreme Court's juristic techniques inadequate for India

"In Cow Slaughter Case2, the rights of Muslim butchers guaranteed under Article 19(1)(g) of the Constitution may clash with the sentiments of the Hindus. Then again the policy of the State as regards relations between employers and workmen in industry is frankly interventionist and paternalistic and the Industrial Disputes Act empowers the Government to establish Labour courts and Tribunals which can give awards (which are enforceable) in all kinds of industrial disputes regardless of any contract between the parties, and have the power to set aside the discharge of a workman and order his reinstatement. The courts have to interpret the provisions of this Act, and in the course of interpretation have built up a set of principles which has come to be called industrial jurisprudence. Then again, the personal laws of Hindus and Muslims and other communities and the enforcement of ancient rights and obligations under these laws in rapidly changing social conditions create problems for the solution of which the common law techniques may not be effective. But the courts must face these problems as their primary function in civil matters is to enforce private rights and, in the process, define the extent of such rights where necessary — as, for example, where the legislature has not defined it. Thus the Supreme Court, equipped with the juristic techniques of the English Common Law, has had to function in conditions very different from those in which these techniques evolved."

Why Supreme Court failed : Problem too complicated

In the 460 pages that follow, the Author supports his thesis by analytically scrutinising the juristic techniques adopted by the Supreme Court in several hundreds of decisions. But he fairly concedes that perhaps the problem and not the court was to blame.

"If the Supreme Court of India has not solved this problem which has arisen in an entirely different civilisation alien to the Common Law, it may partly be due to the exceptionally complicated nature of the problem. But it was necessary to draw attention to the seriousness of the problem and to emphasise that something must be done about it."

"Get rid of sacred cows of Common Law" — Krishna Iyer, J.

It is important to note that many eminent jurists, notably Justice Krishna Iyer of the Supreme Court, have also drawn attention to the seriousness and urgency of this problem. Justice Krishna Iyer takes the view that it is high time that the Indian legal system should cut the umbilical cords of the English Common Law and get rid of some of the "Sacred Cows" inherited from it and consider whether the other legal systems prevailing in some European countries may be more suitable. Reminding the reader that the achievements of any court depend "on the calibre and outlook of the judges who man it", Dr. Dhavan gives a background of the 55 Supreme Court Judges appointed so far, (40 per cent of them had received their training in England), he comments on their tendency to use the court as a forum "to pontificate" and certain other peculiarities.

The "Supersession" controversy

Dr. Dhavan discusses the "supersession" of the three senior Judges when Justice A. N. Ray was appointed Chief Justice of India. He is fair to the then Government but criticises the "timing and manner of doing it". He observes :

"Perhaps, in this first cases of departure from established convention, it would have been better to import a Chief Justice of India from outside the list of sitting Judges of the Supreme Court. For if junior judges in the Supreme Court were to feel that Chief Justiceship of India can be a reward for pro-government decisions, the independence of the judiciary may be affected, and it may be difficult for judges to decide against the Government, and equally difficult for a fair-minded judge, mindful of his sense of integrity, to decide in favour of the Government. Unfortunately, too much politics was introduced into an otherwise non-political decision-making process."

"Most stimulating work" — Lord Denning

In his Foreword introducing the Book, Lord Denning, Master of the Rolls, says "This book by Dr. Rajeev Dhavan is a most stimulating work. He has done immense research. He has collected much information. He has put it together in a most readable way. He has presented us not only with a review of the first 25 years of the Supreme Court of India but also given us a critique of its work and much food for thought".

Lord Denning remains "a staunch admirer" of the Supreme Court of India. He rightly points out that it is not necessary to agree with Dr. Dhavan on every point. For example, his view that seniority should not be the criterion for the selection of the Chief Justice is perhaps due to insufficient appreciation of the realities of the Indian conditions. One evil result of the "supersession" was a competition among junior judges in the High Courts to be considered eligible for Chief Justiceship. "With seniority you were safe", observed a retired judge, shaking his head sadly at what he called "the rat race for Chief Justiceship" in several High Courts.

* M. A. (Cantab), Bar-at-Law, Senior Advocate, Supreme Court. Return to Text

  1. (1970) 2 SCC 325. Return to Text
  2. (1961) 2 SCR 610 : AIR 1961 SC 448. Return to Text
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