A theatre of Justice? a reflection on George H. Gadbois Jr’s Supreme Court of India: The Beginnings

I. Unpacking the court through the book 

Seated on the extreme right in the photograph on the front cover of the book is a gentleman who distinguishes himself by his sartorial choices. While the remaining justices are adorned with the customary wig, he appears content with only his dark robe. Yet he appears symbolic of the gradual change that would be embraced by our highest court, as it would emerge from the shadow of its colonial predecessor (the Federal court) to carve an identity of its own.

The book is aptly titled Supreme Court of India: The Beginnings, for despite Gadbois’ authoritative voice, his text prods us to examine the genesis of the imperious court from multiple perspectives.Devoid of any rhetorical flourish, Gadbois’ parsimonious prose sees his scholarship shine through the tome.

An elaborate introduction by the editors(Ram & Raghavan) reveals both Gadbois’ motivation(an infatuation with the court borne out of a marvelous first impression of its architecture)and the method behind his manuscript(an exhaustive study of archives housed at the Indian Law Institute and the Supreme Court Libraries).

They mention how Gadbois later eschews bare textual reading of academic material by coloring his subsequent efforts with anecdotes from judges themselves(he conducted only one interview for this thesis) which gives them a fuller texture. This juxtaposes beautifully with the evolution of the court itself, which is originally a forum of appeal only to later acquire sinews which embrace all corners of our polity.

II. An inheritance of irreverence: Before the court was supreme 

The first two chapters of the book are devoted to the federal court, a predecessor of our Supreme Court established vide the Government of India Act, 1935.The Federal Court is granted mere 

advisory powers over the High courts, while it works under the supervision of the Privy Council. Prior to its creation Gadbois mentions that the demand for an indigenous court of ultimate appeal (by advocates like Hari Gour) is rejected by fellow Indians (Nehru and Sapru) who value the impartiality of the Privy Council as the final arbiter, due to its detachment from the local politics of the day. 

Gadbois details the Federal Court’s opposition to the preventive detention of political prisoners during the Quit India movement,even amidst harsh opposition from its own executive. This endears it to the native freedom fighters. The Privy Council’s respect for its judgements further enhances its reputation. The Council upholds the Federal court’s judgement in five out of ten cases which are referred to it by the Federal court itself, and grants Special Leave to Appeal in only four cases (out of which it overturns the verdict in only one instance). The endorsement strengthens the case for establishing a domestic supreme court (amongst the natives) which could be trusted to remain impartial when subjected to severe pressures from an otherwise deeply fractured society. That the original reservation regarding the creation of an indigenous court is on the wane becomes clear when the Indian jurists reject Chief Justice Spens’ offer allowing litigants to choose the forum of appeal(either Federal court or the Privy Council) in 1943. 

III. Conflict and conciliation: A tumultuous relationship between the Judiciary and the Legislature

Despite the codification of powers possessed by the judiciary in the Constitution itself (24 Articles are devoted exclusively to the Supreme Court) Gadbois contends that his contemporaries were wrong to proclaim it as the most powerful in the world. According to him a wide jurisdiction does not equal unquestionable power, an observation borne out by the exclusion of the due process clause in Article 21 and the bar on judicial review of the compensation given by the government when it acquired private property (the first has been diluted by a progressive reading of the statute by the court in subsequent cases[1] while the second has been removed Completely).

The final chapters of the book outline the tussle between the two pillars of the state; the legislature and the judiciary, with the constitution acting as the backdrop. The contrasting attitude of the two organs is best demonstrated through the speeches of their respective chiefs. Prime Minister Nehru denounces private property as an abomination, while Chief Justice Bose maintains that “public good is possible only when private rights are protected by municipal law.” These quotes encapsulate the confrontation between an omniscient government restless for social engineering and a court mindful of the citizens’ rights, yet which waivers in its commitment to protect them.

Initially the court seems unduly deferential towards legislative intent(especially in preventive detention cases like AK Gopalan[2]. It does however resolutely defend individual rights, when it comes to expropriation of property. This frustrates the welfare agenda of the ruling party which resorts to precluding judicial review of Article 31 [A] and 31[B]. The logjam ensues also because of how the court parses the legislation. It takes a rigid originalist stance by privileging the founders’ vision, disregarding statements of objects and reasons accompanying the laws, to better understand their broader import. This leads to an unpredictable jurisprudence as discerned from the application of original-ism to Article 21(dangerous for civil liberties) and Article 19(expansive hence problematic for the executive). The subtext to these chapters is the uncovering of the nature of the constitution itself and the powers(and responsibilities) it confers on individual parts of the state. 

The legitimacy of the court is also brought into the docks. As the interpreter of the constitution it assumes the risk of falling afoul of Indian ethos(as purportedly represented by the Legislature). Is this a perennially existential dilemma for the court? These questions are left unanswered for it remains unclear (even to this day) if the court construes itself as the apex judiciary of India, or as the apex Indian court? A resolution is necessary for the former values fidelity to a code that goes beyond parochial nationalism, the latter refers to a strict adherence to the cultural mores unique to a society. 

As for the judges, those who initially housed the Supreme Court hadn’t participated in the freedom struggle. Hence they were deemed agreeable to the application of legal principles laid down by their colonial forebears. While their civility granted them(a perception that persists even to this day) a degree of respect amongst the political leaders, they were not considered to be acute judges of the people’s aspirations. A tantalizing question ensued: Are judges doomed(for eternity) to be deemed as impediments to a constructive national project? 

Amidst this struggle for supremacy, Gadbois also manages to expound on some grounds of reconciliation. He alludes to the harmonious co-existence between Part III and Part IV of the constitution(Fundamental Rights and Directive Principles of State Policy). While Part III has primacy(over Part IV), and the latter is not justiciable, he contends that the court can invoke Part IV for realizing Part III hence facilitating collaboration between the judiciary and the legislature(and by extension the executive).How this interpretative tool would later empower the judiciary to usurp the legislature’s (and by extension the executive’s) mandate, to crown itself as the sole custodian of the public welfare(through measures like Public Interest Litigation) could not have been foreseen by Gadbois. 

IV. A prelude to reform 

The book is a veritable repository of problems plaguing the court. A couple are discussed in detail(with possible rectifications) below. 

First is reducing undue exclusivity of the court. The Supreme Court is deemed to have failed in formulating a uniform policy for admitting matters through special leave to appeal under Article 136 of the constitution. Subjective metrics like impact on a large section of society or including a substantial question of law for admittance not being conducive for consistent application. This tethers admittance to the whims of individual judges, which makes the knowledge about their proclivities a prized possession for the litigants. Since the advocates interact regularly with them, they amass significant power by virtue of being the sole possessors of this informal information. 

This puts them in a privileged position while conferring on them a responsibility to keep the judiciary in check. However, there isn’t much incentive for the litigators to pursue reform[3] and push for standardization of the court’s procedures because it can lead to a loss of pre-eminence (and remuneration). In any case more research needs to be undertaken with respect to how the  bar does and can better regulate the functioning of the bench. 

Second is the question of ‘Quotas’ in judicial selections. Gadbois had described the judges of the incipient Supreme Court as mostly upper-caste Hindu males. Little has changed since then. 

Considering they adjudicate over matters pertaining to affirmative action(reservations for economically or socially underprivileged sections) shouldn’t the court respect the principle of positive discrimination while selecting its own members? Or is legal acumen the only barometer of a jurist’s capabilities?If judging isn’t entirely apolitical (as evinced from the book) then shouldn’t diverse viewpoints echo in the court’s chambers? Or is it necessary to insulate the judiciary from communal considerations?These are questions which call for immediate introspection, especially in light of the recent order passed by the court modifying the scope of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989. 

V. The coda 

Gadbois’ treatise is a testament to both the resilience of our polity and the flexibility of judicial doctrine. It is a fascinating introduction to how the court navigates the former by relying on the latter. It exhorts us citizens to cerebrally engage with our supreme watchdog so that we can fortify our democracy by bettering its guard. In The Nine[3], a comprehensive chronicle of the US Supreme Court, Jeffrey Toobin mentions how steps were used to elevate the appearance of that court, which inspired awe amongst all visitors. In stark contrast our Supreme Court’s building wasn’t universally lauded, with some calling it a‘’cubistic structure devoid of any majesty”. For Gadbois it was a marvelous first impression which led him to construct this monumental thesis which will forever remain the ledger for Indians to access its august chambers. 

The author Mr. Rahul Mohan is a student of Campus Law Centre, University of Delhi.

Gun Island: History, Myth and a Non-linear conception of time

The word history is derived from the Latin word historia which means account of past events. History can be seen as a systematic written account comprising of a chronological record of past events, circumstances, and facts. But the word history could also imply a story or a narrative of events connected with a real or imaginary object or a person. These two meanings of history pervade the novel Gun Island by Amitav Ghosh.

Fiction writers generally approach the historical past from the latter perspective. They try to sort out historical materials with an attempt to translate and recast them in an imaginary milieu. This is a process of defamiliarization and realigning documentary data into various kinds of matrices. In this work, the protagonist Dinanath Dutta is a dealer in rare books and other Asian antiquities. Placing the protagonist in such an occupation helps Ghosh to impart innumerable historical facts but he uses these facts to further a narrative that is rich in mythical and supernatural elements. The novel itself is a journey of finding historical basis to the myth of gun merchant. He demonstrates the joint power of imagination and discovery.

American Historian Hayden White in his essay “Metahistory: the historical Imagination In 19^th century” argued that ‘historiography cannot be objective or truly scientific in itself, unaffected by anything. Historical writing has strong reliance on narrative for meaning. He proposed that history was above all writing, that its form was vital to its content. The novel, Gun Island has an abundance of historical facts and scientific truths such as climate change, but the form and structure of the narrative resemble a myth.

 It is filled with supernatural elements and prophetic visions of the future. The protagonist Deen, seems to be haunted and chased by the ghost of a gun merchant and Mansa Devi. Characters such as Tipu and Rafi seems to be undergoing the cycles of rebirth. Character of Cinta acts as a wise sage and guide to our hero Deen in finding the truth behind the story of Gun merchant. She tells Deen that the strange depression he is feeling is a kind of awakening and a gift. The novel ends with the occurrence of a miracle and the sacrifice of an innocent. The Blue boat is rescued but the price is Cinta’s life. However, Cinta seems to have gained otherworldly wisdom during her ‘final’ moments, she says “time itself is in ecstasy. I had never thought I would witness this joy with my own eyes…”. Gisa her sister says that “Cinta’s gone” highlighting the western perspective of considering death as a final departure. The novel seems to refute this notion by presenting us with the ghostly presence of Cinta’s daughter Lucia, gun merchant and Mansa Devi.

Ghosh seems to envision time not as chronological and linear but cyclical and spiral. In that sense, he showcases an Indian understanding of time and history. It seems to flow in circular cycles instead of a linear structure. Ghosh compares the word “Bhuta” which, generally, means the term ghost to its other denotations- past, as well as, existing presence. It highlights the tendency that past constantly shows it’s vestiges in present times. This can be seen in the lines- “But if the same word means both existing and existed wouldn’t it mean that the past wasn’t past? That the past was present in the present?” The novel presents a fluid and intermingled sense of time and history, where the time is not alienated from each other but flows together.

In contrast to this, if one considers Biblical creation myth in the book of Genesis as a window in the western conception of history, it shows that the narrative of the myth starts at the beginning and ends with a view of ‘end of time’-an apocalypse. This conception of history provides a linear structure of time with a beginning, middle and a definitive end. In the novel, at the conference in L.A. a speaker talks about climate change and apocalypse. He refers to apocalypse as the end of the world scenario and says -“It has fallen to us, centuries later, to bear witness to the last turn of the wheel.”

The western perspective seems to expect a final end. Indian perspective seems to highlight the repetitive nature of struggles for survival against time. In The Hungry Tide, published in 2004, Ghosh writes – “It is common knowledge that almost every island in the tide country has been inhabited at some time or another. But to look at them you would never know: the speciality of mangroves is that they do not merely recolonise land; they erase time. Every generation creates its own population of ghosts.”

There is a constant struggle with time and trying to create and sustain your memory in history. In Gun Island, past is referred to as a beast that haunts the present times. “it was memory itself…it was much older than me, some submerged aspect of time that had been brought suddenly to life”. He calls this memory of the past as “something fearsome, venomous and overwhelmingly powerful.”

This intense metaphor is used in the novel as a cautionary statement. The actions of the past will have consequences in the future and one should learn from their history.  However, history as a collection of factual data seems inadequate in dealing with the changing times. For example, in the novel, Deen attends a conference at a museum in L.A. and the opening speaker talks about ‘Climate and Apocalypse in the 17^th century’ the reaction of the audience is that of disdain and disbelief. However immediately wildfires break out nearby questioning this sense of complacency in the world. The reaction of the audience in the museum is in stark contrast to the panic of the people of 17^th century who were witnessing climate change. Historical facts about catastrophic events are no longer enough to invoke action from people. Fiction and imagination are required to weave these facts into stories. Ghosh echoes this sentiment in the novel “Only through stories can invisible or inarticulate or silent speak to us; it is they who allow the past to reach out to us”.

Edward Casey in his essay ‘Imagination and repetition in Literature’ writes- “imagination can concern itself with possibilities which stem from the past, and repetition can direct itself into the future, and both acts take place in the present.” Amitav Ghosh in his novel gun Island tries to render the unknown future and the devastating past in the present.
‌In an interview with post magazine Ghosh said that “A standard trope when writing about the unknown we face today is to project it into the future. But we can’t see into the future, all we can look to is our human past, to earlier periods of catastro­phic change. If we’re going to pin all our hopes on the future, then we must also look to our past.”He again highlights this sentiment in the novel “from the beginning salvation comes” and “the possibility of deliverance lies not in the future but in the past.” This highlights that past doesn’t need to be seen in disjoint with the present or the future. It needs to be one connective cohesive flow. The stories that concern with the present and future, should include past, not as factual history or a background setting but rather as an invigorating narrative presence.

WORKS CITED:

Casey, Edward. ‘Imagination and repetition in literature: A Reassessment.’ Yale French studies (1975)

Ghosh, Amitav. ‘Gun Island’ (2019)

Ghosh, Amitav. ‘The Hungry Tide’ (2004)

White, Hayden. ‘Fictions of Factual Representation’. Columbia University press (1976)