Saturday, 14 September 2013
Zia Mody is one of the most well-known corporate lawyers in India. She is in Business Today’s Hall of Fame as one of India’s most powerful businesswomen.
What is less well-known is that before donning the mantle of a corporate lawyer, Zia Mody, the daughter of former Attorney General Soli Sorabjee, was a litigator practicing in the Bombay High Court. Mixing her well-honed drafting skills with an extensive knowledge of Indian constitutional law, Zia Mody has written a delightfully insightful book which, as its name suggests, dissects and analyses ten judgements which have had a significant impact on India. The foreword to this book has been written by Soli Sorabjee who says that ‘the Judiciary, at one time, was considered and projected to be the weakest branch of the state because it possessed neither power of the purse nor power of the sword. This myth has been demolished.’
10 Judgements That Changed India has ten chapters, each dealing with a judgement, though it actually covers a lot more than ten judgements since each chapter covers a number of judgements leading up to the title judgement and in many cases, follow on cases, which are equally important. Thus the chapter on the Maneka Gandhi case also covers the ADM Jabalpur case where the Supreme Court ruled that a detenu could not file a habeas corpus petition challenging the legality of his detention during an emergency. The chapter on the Shah Bano judgement also covers the Danial Latifi case which succeeded it. In Danial Latifi, the Supreme Court set right many of the flaws in the Shah Bano judgement, whilst taking care not to put its foot in the mouth, as it had in the Shah Bano case with its contemptuous tone and uncharitable comments and by unduly criticising Islamic law and practices.
Many a time when reading a judgement, I have felt that the judge made up his mind about the outcome and then justified the verdict with appropriate reasoning. Zia Mody says as much when she suggests that in Kesavananda Bharati and Golak Nath, ‘the decisions were the kind where judges primarily decided on the ends and then set out to discover the means to achieve those pre-determined ends.’ The Indian government was so angered by the Kesavananda Bharati judgement that when Chief Justice S. M. Sikri retired (the day after the judgement was pronounced), the government superseded three judges who had ruled against the government, who ranked immediately after C. J. Sikri and appointed Justice A. N. Ray, who had ruled in favour of the government, as the Chief Justice.
Interestingly, in some of the cases reviewed by Zia Mody, the petitioner did not get much relief from the court even though important and interesting questions of law were settled. For example, in the Maneka Gandhi case, the court did not pass any formal order and accepted the government’s assurance that Maneka Gandhi would get an adequate opportunity to be heard. The majority of the judges actually upheld the impounding of Maneka Gandhi’s passport and ordered that her passport should remain in the court’s custody in the meantime. Many a time, the ruling came about after ‘the Supreme court embarked on an inquiry not necessitated by the facts before it,’ as in the cases of Maneka Gandhi and Shah Bano.
Zia Mody’s humanity shines through when she says that courts acting alone cannot tackle the challenge of slum development and rehabilitation. They need the support of well-executed social welfare policies and economic development strategies. Zia Mody says that years after the ruling in Olga Tellis there has been a symbolic shift in the Supreme court’s approach towards the displacement of disadvantaged sections of society and their fundamental right to shelter. This has been especially so in the case filed by the Narmada Bachao Andolan which petitioned the Supreme Court seeking a restrain on the construction of the Sardar Sarovar Dam on the Narmada River. Despite initially staying the construction of the dam, the Supreme Court allowed the dam’s height to be raised and allowed its phased construction at the expense of many tribals who were displaced. Zia Mody criticises the Supreme Court’s assertion that after rehabilitation the tribals would be in a better position than they were already in and they would have better amenities than which they enjoyed in their tribal hamlets, an assertion which Zia Mody rightly describes as ‘simplistic and myopic’. In Zia Mody’s view, the Supreme Court touched its lowest point in Almitra Patel v. Union of India where it ruled that ‘providing alternative accommodation to slum/pavement dwellers was comparable to rewarding a pickpocket and suggested that landgrabbers should be dealt with an iron fist.’
If the Bhopal gas leak was a tragedy on a monumental scale, its aftermath saw callousness on a similar footing. The Indian government decided to sue Union Carbide in a New York court, on behalf of the victims, claiming that Indian courts were inefficient. The Indian government’s suit was thrown out by the New York court. Back in India, the victims ended up with a meagre settlement at the hands of the Supreme Court in 1989, which also quashed all pending civil and criminal proceedings. The law school I went to devoted an entire paper on the Bhopal gas leak case and I still remember the shame and anger the entire class felt as we waded through reams of pages setting out the sordid affair in excruciating detail, especially the manner in which the Indian government and the Supreme Court let the victims down. Thankfully, a few years after the Supreme Court’s 1989 settlement order, the Supreme Court revived the criminal cases, though it wasted a golden opportunity to revise the compensation awarded. Zia Mody says that ‘the Bhopal debacle was not enough of a wake-up call for lawyers, judges, politicians, activists and the media. In fact, they appeared to have pressed the snooze button and gone on to repeat mistakes of the past.’ Zia Mody compares the Bhopal gas leak case with the 2010 BP oil in the Gulf of Mexico. ‘Within weeks of the incident, BP created a 20 billion dollar fund to deal with the accident.’ Zia Mody asks poignantly, ‘had the accident occurred in Indian waters, would BP have paid even half the compensation it eventually did?’
When Zia Mody’s narrative reaches the controversial waters of the Reservation Ocean, all of a sudden Zia Mody reveals a dry sense of humour. There are sub-headings such as “And Along Came The Mandal Commission”, “The Mandal Challenge”, “Off With The Creamy Layer” etc. There’s a nice and neat summary of the Indian caste system, the history of reservations in India, developments after India’s independence and then the grand arrival of the Mandal Commission. Zia Mody stays easy and neutral till the very end when she expresses her view on what she expects Indian policymakers to do regarding reservation. No, I’m not going to give this one away. Please read the eminently readable 10 Judgements That Changed India to find out for yourself.
As mentioned above, Zia Mody does not hesitate to call a spade a spade. When discussing custodial deaths, Zia Mody tells us that the judiciary’s approach to awarding compensation has been erratic and inconsistent. There was an instance in 1991 when the Supreme Court awarded Rs. 10,000 as compensation for public humiliation and loss of dignity and a case where the Calcutta High Court awarded Rs. 10 lakhs to a rape victim.
Of the ten chapters, the one on the independence of the judiciary is a masterpiece in its own right. In this Chapter, Zia Mody details the legal developments relating to appointments to the higher judiciary in a simple and concise manner, followed by her sensible and forthright comments. The First Judges Case is important not only for ruling that the executive had the final say in appointing judges, but also because the concept of public interest litigation took root in India on account of this case. In the Second Judges Case, the Supreme Court swung the other way and ruled that judicial appointments should be integrated, participatory and consultative. If there was a conflict, the judiciary would prevail. This was endorsed in the Third Judges Case, with a minor modification. Justice Bhagwati had lamented in the First Judges Case that the judicial appointment process was shrouded in mystery. Zia Mody shares this lament and tells us that the situation continues to be so even now, ‘only the identity of the high priests has been altered.’ Zia Mody clearly disagrees with the Supreme Court’s interpretation of the law, calling the decision a rush ‘into unchartered constitutional territory, arrogating to itself the unprecedented power of carrying out judicial appointments.’ She (rightly in my opinion) says that ‘the decisions, though well intentioned, have upset the balance of power as envisaged by our constitution.’
Zia Mody quotes Alexander Bickel to explain that the judiciary’s role is counter-majoritarian and anti-democratic. Unlike politicians, the judiciary is not answerable to the populace, yet it has the power to review decisions of the elected representatives and even overrule them. This counter majoritarian nature of the judiciary is tolerated on account of lack on alternatives, but when the judiciary usurps the power to appoint judges, such counter-majoritarian nature becomes particularly pronounced, Zia Mody tells us. Zia Mody endorses the proposals for creation of a National Judicial Commission which would have representatives from the executive and the judiciary and says that ‘such a commission seems to be the only solution to restore the system of checks and balances in judicial appointments and infuse transparency and accountability into the process.’ Zia Mody’s words have turned out to be prophetic. On 5 September 2013, the Rajya Sabha passed a Constitution Amendment Bill to create a Judicial Appointments Commission which will replace the existing collegium system of appointing judges to higher courts. I do wish Zia Mody had commented on the proposal to create an Indian Judicial Service, but she didn’t.
The Aruna Shanbaug case in which the Supreme Court elucidated its views on euthanasia is another chapter which examines very interesting questions of law, morality and public policy. In the course of its examination into the pros and cons of euthanasia, the Supreme Court screened a video recording of Aruna’s condition to be screened in to the courtroom. Support for such a practice, which clearly violated Aruna’s right to privacy, was found by the Supreme Court in the practices followed during the Nuremberg trials, where Nazi war criminals were tried! Not surprisingly, Zia Mody turns up her nose at such an exercise of (in)discretion by the Supreme Court. In this case, the Supreme Court took the very controversial view that whilst active euthanasia was wrong, passive euthanasia (allowing a person to die by not giving medicines or food) was not. Zia Mody tells us that the moral justification for allowing passive euthanasia, as opposed to active euthanasia, is not convincing. Zia Mody has a number of interesting arguments to buttress her position and rather than reproduce them here, I’ll leave it to you to read this wonderful book and find them for yourself.
Zia Mody (unsurprisingly) writes very well, her English simple, to the point and elegant too in the bargain. She uses her adjectives and adverbs in a low-key, understated manner, with devastating effect. When talking of the ADM Jabalpur case, she says ‘the Supreme Court had unhappily held’ that a detenu could not file a habeas corpus petition challenging the legality of his detention during an emergency. At times Zia Mody finds a ruling by the Supreme Court ‘disquieting,’ and sometimes it is ‘refreshingly progressive’. All in all, 10 Judgements That Changed India is an excellent book, a must-read for anyone interested in understanding India’s legal system and finding out how it reached its present state.
The reviewer is a corporate/banking lawyer who has never appeared in court and considers himself a layperson in constitutional law. Like a few hundred lawyers scatted all over the world, the reviewer had the privilege of starting his legal career under Zia Mody’s tutelage.