Thread by @Priyankish

Reading this much-recommended book now. It's about an American scholar's notes of his conversations with five judges of Indian Supreme Court. Looks exciting, will post interesting info in this thread.

Beginning with the blurb. This book's author has fashioned George H. Gadbois Jr's personal notes into a book. This man, the blurb says, was a young American scholar of the time. He met five judges of the Supreme Court.

They gave him vivid details of what they thought of their colleagues, the inner working and politics of the court, their interaction with the government and judicial appointments process.

I was quite astonished by this. There's a natural question here. Why are the judges of India's highest court talking about all of this to this person? Surely their positions carry great gravities?

The book tells that Gadboia Jr. had published about Indian constitutional law in some well regarded journals, but his scholarship still does not seem reason enough to divulge such details to a person, while being still in office. The book actually answers my question....

The author says that it was on account of his good reputation and academic credentials that he was able to meet the judges, but many agreed to meet up with him because they thought of him as a useful contact in the US.

This is all astonishing information. Some merely wanted foreign reading material for them, copies of judgement and the like. Some hoped that Gadbois's university will invite them for a lecture and they will be able to meet their children, who were settled in US.

Some others wanted Gadbois's help in sending their children to the US. Yet others asked him if he could secure a lectureship for them after their retirement. Among these latter, a union law minister was also included.

Gadbois has all of this information, which has been told to him directly, in person. Some of it is politically sensitive too. Good enough to armtwist a few very influential people of the time. Now consider this.

The three trips of Gadbois were all funded by American Institute of Indian Studies, which is funded by the US State Department.

A few connections to be made here.......? Anyway, going ahead with the book.

The government apparently used to have a lot of say about appointments made to the SC. Officially, the CJI had to consent but when the government was powerful, he simply went along with their choice.

Indiraji asked a sitting SC judge to personally take care of some legal work concerning her family property in Allahabad. When he died, shortly after his appointment, some people rushed to his office to whisk away files.

Indiraji, then PM, rejected M.N. Chandurkar's elevation, despite Justice Chandrachud's wishes because the former had attended the funeral of RSS leader MS Golwalkar. He was deemed ideologically unsuitable.

Justice R.S. Sarkaria used to pronounce 'lawyer' as 'liar'. 😂😁

Indian judges' adulation for the American legal system is almost a tradition. Gadbois noted that Justice Venkatachaliah had photographs of two American judges in his office and "virtually worshipped them".

Important observation by Gadbois in one of his papers. Justice K. Subba Rao dissented 48 times when he was a normal judge in SC. After his promotion as CJI, he didn't dissent even once.

This suggests that CJI has a critical role in determining the outcome of a case by selecting which judge will go on the bench.

Heading on to Chapter 1 - Judicial rivalries.

Heading on to Chapter 1 -Judicial rivalries.

Indira Gandhi wanted to supercede the seniormost judge Justice Shah for promotion to CJIship when Hidaytullah was retiring. The latter went to Gandhi and told her that all judges but one would resign en masse if she did so.

This exception who said he could not afford to resign was Justice A.N. Ray.

I found from some wikipedia research that this is the same person whom Indira Gandhi made CJI by superseding 4 other senior judges.

He was also the only person on the 11 person bench to write favourably in support of the Indira government in the Bank Nationalization Case.

When Indira Gandhi came back to power, Justice Bhagwati (obviously ambitious) wrote to her in a letter, "Today the reddish glow of the rising sun is holding out the promise of a bright sunshine". 🙄

Interesting bit. "Chandrachud and Bhagwati tried to convey that they got along fine. In his judgment in the First Judges case, for example, Bhagwati had cited an article written by Chandrachud's son, then a law student"

We now know who that son is.

On the ideology of the judges.

Justice Pathak said that thee were three distinct groups in the court. First, the British style legalists, second, the centrists. The third, these were the judges who considered themselves to be lawmakers.

Justice Krishna Iyer, who described himself as a judicial activist, said that he favored the approach of 'benign discrimination' i.e. virtually twisting the law and constitution to help the downtrodden.

The author is of the opinion that the ideas of judicial activism and living constitution gained wings in the emergency period. In the Habeas Corpus case, the majority judgment upheld the goverment's right to suspend personal liberties during emergency.

This is also the idea espoused by the constitution. But the lone dissenter, Justice Khanna, with his activist judgement, invoked the idea that right to life existed before the constitution itself and couldn't be taken away in any circumstance.

This judgement went beyond the constitution but gained legitimacy during emergency time, essentially giving credence to the ideas of judicial activism and living constitution doctrine.

Another interesting thing to note is that Gadbois records the judges styling themselves as pro-labour (in labour vs management cases) and pro-tenant (in tenant vs owner cases).

Another interesting thing. Justice Khanna (lone dissenter ⬆️) himself did not subscribe much to judicial activism. He thought SC judgements were unsettling settled principals, and was critical of left-leaning pro-labour judges.

Justice Tulzapurkar thought the activism had gone too far when the pro-labour activist judges awarded back pay and damages to a bus-conductor who had been convicted of a fraud for taking money without giving tickets.

Oh, here is a men after my own heart. Justice A.P. Sen.

Justice Sen said that he was brought up in the old trations of the judicial role, and could not keep pace with the expansive legal interpretations of his colleagues.

Justice Sen felt that matters of policy were best left to the government.

He also described himself as a 'complete misfit' at the Supreme Court in the 1980s.

How foresighted!

Justice AP Sen thought that public interest litigation would ruin the supreme court, and make it a parallel government.

Reading this legal history, one is convinced that courts being places to paddle social and political philosophies is not new. The alleged 'pro-women', 'pro-indivudual' judgements of today are in the same tradition as the pro-labour and pro-tenant positions of the yesteryears.

This change might have happened around 70s. Legalists of old left the field open to centrists and activists to come later. The book speaks of people critical of activists as the "older generation of retired judges".

Justice SK Das said that "public interest litigation is really, 'publicity interest litigation"'.

He warned the judges against playing to the gallery and giving speeches to various audiences.

"Justice Varadarajan could not understand why Indian judgements cited so much foreign law".

"One judge was critical of Justice Krishna Iyer for citing too many American sources".

The more things change, the more they stay the same.

Justice Venkatachaliah confessed to Gadbois that he thought American and English judges were of a higher quality than Indian ones, not merely in terms of command over the English language but also in terms of thought process.

Gadbois records "All Indian judges seem to speak highly of English judges who were here." "I detect a note of inferiority complex".

Isn't that natural? How can you out-english the english in an english legal system?

This is the end of chapter 1. Will tweet the important points from chapter 2 tomorrow.