Musings on the Constitutional Czars in the Hall Hall of Fame Narasimhan Vijayaraghavan Venkatachari Lakshminarayanan

Musings on the Constitutional Czars in the Hall
Hall of Fame
Narasimhan Vijayaraghavan
Venkatachari Lakshminarayanan

Prologue

For the academic and the practitioner, the Supreme Court being the final arbiter of our constitution under Art.145, it is undoubtedly ‘the most powerful institution in the world’ as Justice Antonin Scalia never tired of telling. It was on Jan 28, 1950, our Supreme Court came into being, as the top court in Republic India. In Art.141 of the Constitution, our framers have mandated that what Supreme Court said would be ‘law of the land to be adhered to meticulously and scrupulously by all, including the other two branches of a democracy’, as Justice V R Krishna Iyer said. 



We know that there are 85 Federalist Papers in the US, which are often referred to in jurisprudence, as their Constituent Assembly debates. In Federalist No. 78, Alexander Hamilton said that the Judiciary branch of the proposed government would be the weakest of the three branches because it had “no influence over either the sword or the purse,… It may truly be said to have neither FORCE nor WILL, but merely judgment.” Federalist No. 78 quotes Montesquieu: “Of the three powers the judiciary is next to nothing.”



There was little concern that the judiciary might be able to overpower the political branches; since US Congress controlled the flow of money and the President the military, courts did not have nearly the same power from a constitutional design standpoint. The Judiciary would depend on the political branches to uphold its judgments. Legal academics often argue over Hamilton’s description of the judiciary as the “least dangerous” branch. Hamilton also explains how federal judges should retain life terms as long as those judges exhibit good behaviour.
 
That makes amusing reading in the India of today.

Our Supreme Court today towers well above other institutions as the most powerful one. Not in the least, it is so, because ‘the other institutions have failed miserably and seen to be withering’ as Harish Salve ruthlessly argued recently. Particularly, the political class representing the Executive and Legislature have demeaned themselves so much, that the fall in standards being precipitous, it has all but firmed up the foundations of the Supreme Court, to become stronger and firmer, as more and more powerful. In reality, not all that is attributable to the steep and despicable fall in standards of the other two pillars. The Supreme Court has done well enough for itself, since 1950, in these 72 years- ‘even if there have been small, medium and huge slip ups in between’ wrote a friend on the Bench of a High Court.



To illustrate- in India, the army enjoys the highest level of “effective trust”, followed by the Supreme Court (SC) and the high courts (HC), according to a 2018 study. Political parties were at the bottom in a list of 16 elected and non-elected institutions and offices. The study, covering eight states by Azim Premji University (APU) and Lokniti (Centre for the Study of Developing Societies (CSDS)), defines effective trust as the difference between percentage of respondents who opted for a “great deal of trust” at one end of the scale and “no trust at all” at the other. The study as accessed was conducted in 22 assembly constituencies with 16,680 respondents. Nearly 77% respondents showed the most trust in the military, followed by 54.8% in the SC and 48% in the HCs. Interestingly, Lord Jonathan Sumption says, “Recent Hansard reports suggest that Judiciary has trumped politicians. I beg to disagree it reflects the real, as United Kingdom has its Parliament, as the supreme institution and what it says is law”, in his Reith Lectures over BBC Radio. 



Further, unlike in the past, the Supreme Court today is not ‘a far off, esoteric and elite institution even if escalating litigation to it appears to be the exclusive preserve of the rich and mighty’ said Prof. N R Madhava Menon. Add the Pandemic times, which has brought the Supreme Court Virtually into our living rooms.
 
The Supreme Court of India, as a critical institution, gained credibility quiet quickly. Yes, there have been major hiccups along the way. The Internal Emergency, in its wake exposed the pusillanimity of our robed brethren on the bench. It was sad and bad to see them give in without a fight. ‘Focusing on their personal career prospects’, as Nani Palkhivala was straight on target. Yet, in the last 72 years, if we take an audit on the credibility algorithm, it may be good, if not excellent.
 
What is the reason for it?

The institution is not the monolith or the building it is housed in. It is made up of men and women. Not merely as Judges, but as lawyers too. The Bar and Bench, together comprise the Judiciary, as an institution. In the context of’ Constitution and its Making- Musings,Anecdotes and Episodes, OakBridge,2020, one of these authors had selectively picked up heroes from the Constituent Assembly. It was a subjective ranking, as if in a Hall of Fame, with no precision tools or parameters. Ambedkar, B N Rau, Alladi Krishnaswamy Aiyar, K T Shah, K M Munshi, Hari Vishnu Kamath, T T Krishnamachari, K Santhanam and from the distaff side Durgabhai Deshmukh, Ammukutty Swaminathan, Hansa Mehta, Anna Mascarenhas, Dakshayani Velayudhan and a few others.



The Constitution was made by 299 members of the Constituent Assembly. “For, it to ‘work’ the ‘workers’ had to be good and able as” as K T Shah put it. He was only echoing from the famous Grammar of Anarchy (winding up) speech of B R Ambedkar on 25th day,1949, a day before the Constitution came to be adopted. To muse on the ‘working’ of the constitution, we would do well to get to the biographies of a few of the Judges and lawyers who contributed hugely to the ‘working’ of the Constitution. So one did. In ‘Constitution and its Working- Musings,Anecdotes and Episodes,OakBridge, as a sequel. 



India became a Republic on 26th Jan,1950. Supreme Court with ‘six Justices ascending the throne’ as a contemporaneous news report suggested, on 28th Jan,1950, came alive . It was an all men’s team, as the first woman justice in Justice Fatheema Beevi adorned the top court bench only on 14th May,1984. At least, India can feel good and proud, that it happened within 34 years, while in the oldest democracy since constitution was adopted on Sept 17,1787, their first woman Justice in Sandra Day O’Conor happened only on Sept 25, 1981, after 192 years. While out of the strength of 34 Justices in India, we have just one woman in Justice Indira Banerjee left, after the retirement of two Justices R Banumathi and Indu Malhotra recently, on the SCOTUS, there are three in Sonia Sotomayor, Elena Kagan and Amy Coney
Barrett, out of The Nine.


 
Without being apologetic, the authors admit the selection as their own. Obviously, it is relatable to the landmark constitutional cases. Those that were iconic and possibly set the law for the nation which has endured. Much like picking an all time eleven cricket players in India, the selection could be questioned as controversial. The choice had to be made, in the context of this work. Barring, missing the most obvious of candidates from the Bar and Bench and an academic, if the chosen few, largely pass the litmus and constitutional test, yours’ truly would feel vindicated.



The reader may have his choices. It may not match the selection made. But that is only because the authors had the editorial last word. In the absence of any partisan interests, if the chosen candidates pass the basic smell test, that may suffice. For instance, no one would protest or disagree, if Hormasji “Homi” Maneckji Seervai, Motilal Chimanlal Setalvad, Nanabhoy Ardeshir Palkhivala, Soli Jehangir Sorabjee and Vaidyanathapuram Rama Iyer Krishna Iyer are chosen; there could surely be no dissent or demur. One may have to confine oneself to as many from the Bar and as many, we could, from the Bench, within obvious constraints. Almost all of them have gone to meet the maker, except six. 



To appeal to laymen and lawmen alike, we have cut out the legalese and gone the anecdotal route. And made a couple or more of inevitable visits to the United States of America and United Kingdom and Australia h, with whom we share the democratic ethos. We choose to call them our Constitutional Czars in the Hall of Fame.

( Authors are practising advocates in the Madras High Court)