Yesterday’s Telegraph carries Pratap Bhanu Mehta’s evaluation of Chief Justice Lahoti’s tenure at the helm of the Indian judiciary. (Click here for a related post on this blog). Referring to Chief Justice Lahoti’s impact on jurisprudence, Mehta observes: “ [Chief Justice Lahoti] catalysed some significant opinions that range from indefensible to potentially revolutionary. For instance, the court’s judgment upholding a Haryana government order that having more than two children should disqualify a candidate for running in local elections displayed neither constitutional sense or policy sagacity. In the Jharkhand affair, he overdid matters enough to raise concerns about trespassing on legislative prerogative. The decision on the Illegal Migrants (Determination by Tribunals) Act also waded into choppy political waters. The decision in Inamdar to take Article 19 seriously was potentially liberating, but marred by some ad hoc observations. He certainly kept the Supreme Court interesting, but made both politicians and constitutional experts nervous. But other than recounting specific judgments, can one describe him as having a judicial philosophy?
… … … Like with so many recent judges, he engages in what might be called the jurisprudence of exasperation. The function of law in this view is to express, both literally and figuratively, exasperation at the state of affairs. This is not a jurisprudence based on a concern for the formal allocation of powers. Nor does it consider carefully the actual consequences of law. Rather, it expresses a certain impatience with reality. So for instance, the judgment upholding the disqualification of candidates with more than two children was not interested in justifying the constitutional principle; nor did it really ask whether preventing a small number of people from running for office would have such an impact on our procreation propensities as to justify a drastic abridgment of rights. It ended up deriving a position from consternation at the rising population. Or take Inamdar. Much of it, especially the invocation of Article 19 was argued on principle but in the end the observations about the relationship between reservation and merit was more about an exasperation with what the judges think of as mediocrity, than a considered argument. Much in our society would prompt us to tear our hair out in exasperation. Judges now see it as their job to give these sentiments expression in law. But how far a jurisprudence of exasperation will sustain the authority of the court remains to be seen.” These are provocative words, and I hope that others who have been following the current Supreme Court’s work as closely as Mehta will also weigh in. Elsewhere in the same piece, Mehta notes the difficulties involved in assessing the judicial philosophies of Indian judges, and laments the fact that few Indian jurists have attempted to do so, making jurisprudence “almost completely moribund in India”. Mehta does note that there have been honourable exceptions among Indian legal jurists, and identifies Upendra Baxi, Rajeev Dhavan and SP Sathe specifically. In this post, I will briefly describe the attempt of the late Prof PK Tripathi to evaluate the legacy of Chief Justice Gajendragadkar (who, as noted by Mehta, was closely identified with social reform). Chief Justice Gajendragadkar was the 7th Chief Justice of India, became a Supreme Court judge in 1957, and occupied the highest post (CJI ) between 1964-66. Soon after he retired, Prof Tripathi authored a massive 108 page review of his tenure as a Supreme Court judge, which was published in the Journal of the Indian Law Institute (Vol 8, Oct-Dec 1966, pp 479-587). The Journal of the Indian Law Institute was the leading law journal in India, with an outstanding reputation globally, reflected in the fact that some leading contemporary jurists of the world published their academic work in its pages. PK Tripathi’s review, titled ‘Mr. Justice Gajendragadkar and Constitutional Interpretation’, encompasses a vast terrain, and analyses Justice Gajendragadkar’s judgements on the following topics: agrarian reform, religion and state, separation of powers between the executive and the legislature, relations between the State and its employees, freedom of trade and the taxing power of states, supremacy of the judiciary, and the Judiciary and legislative privileges. The last topic is especially focused on (occupying 43 pages), as Tripathi is extremely critical of Chief Justice Gajendragadkar’s majority opinion in Keshav Singh’s case (a landmark ruling seeking to strike a balance between powers of legislatures in respect of privileges and that of courts). Tripathi’s review is no exercise in hagiography. As noted, he is extremely critical of several aspects of Justice Gajendragadkar’s judicial philosophy (though, in keeping with the times, such criticisms are prefaced throughout with this phrase: “It is submitted with great respect”). Equally, Tripathi showers praise on Gajendragadkar’s rulings in the Balaji and Makhan Singh cases. In the concluding section, Tripathi praises the “great qualities of balance and restraint” which “predominantly marked the entire range of the judicial pronouncements of Mr. Chief Justice Gajendragadkar.” He then offers this prescient comment (at page 586): “Possibly the most vulnerable aspect of Mr. Justice Gajendragadkar’s opinions has been the process of decimating the sanctity of the constitutional text that they seem to have inaugurated. … …. As is well-recognised, the dividing line between interpretation and alteration is tenuous and deceptive. Constitutional interpretation, therefore, can easily take the place of constitutional amendment, and the interpreter, that of the sovereign authority invested with the power of amending. As evidenced by his spirited defence of the amending power in the Sajjan Singh case, towards the end of his tenure in the Court, the learned Chief Justice seems to have sensed with some discomfiture the projected possibilities of the technique he himself had evolved and applied with such singular effectiveness. Whether or not it was too late by then will be for history to unfold.” If you recall that these words were written in 1966, it becomes clear exactly how far-sighted they were, as events that unfolded over the next few decades did indeed demonstrate. One may or may not agree with Prof Tripathi’s philosophy of constitutional interpretation, but there is no doubt that this particular piece – and his scholarship in general – exemplifies the type of jurisprudence that Mehta seems to be advocating for in his stimulating essay. In seeking to revive jurisprudence in India, perhaps we should commence the task by uncovering, and learning from, previous attempts to establish a creative, socially relevant jurisprudence for India.