Eukti Garg

There have been many authors who have written about the Supreme Court, its evolution, its criticism or just simply about the highlights of this great institution serving the nation but a few dare to write and disclose the unheard. Supreme Whispers is one-of-a-kind, deftly prepared book which will steal a person’s mind by telling him or her stories painted on the walls of the biggest court of the country. The book provides ample of sample stories about judicial rivalries, lobbying, dissent, the pre-collegium system, Special Leave Petitions and what not. Based on George Gadbois’s seminal research work, it almost seemed as if Chandrachud had a pensieve to narrate stories which we ought to have known earlier.

Before I begin to analyse the book, the author gave a disclaimer which I find is, also, important for the review readers to know. Although the book is a well- researched piece and has been written by an acclaimed writer and advocate, its foundation is attributed to an American law student’s research conducted in 1980’s, the sole proof of which is his typewritten notes. So, more or less Chandrachud’s reference is based on the interviews taken by a single man. That said, Gadbois was a “reputable, serious and established scholar” who had come to India on more than one occasion to research on Indian Judiciary and its various nuances.

The book, uncannily, explores the inside out of the judges of the Supreme Court which not just includes their attitude towards fellow justices but also towards government. For instance, Justice Shelat, in order to torpedo Justice Bhagwati’s nomination to the Supreme Court,  gave Chief Justice Sikri an impression that Justice Bhagwati was interested in ‘pleasing the government’. The very idea of knowing the secret lives of famous and infamous, known and unknown, male and female justices is so overwhelming that it deserves to be read not only by law students but also by students enrolled in different courses. To understand it in modish scenario, wouldn’t we want to know why the former Chief Justice Dipak Misra has one of the most debatable track record as a judge. Had the author written the book for 2018 Supreme Court judges, the readers would have got an untold insider explanation. In another incident in the book, the author answers as to why the biggest dissenter of the Supreme Court of India, Justice Subba Rao, did not dissent in a single case after becoming the Chief Justice of India.

The Undercurrent

Abhinav Chandrachud has divided the book in six chapters in which, according to me, arises “360 degree independence of Supreme Court” as its fundamental line of thought. He starts off by telling interesting stories of judicial rivalries between two Judges. One incident of judicial rivalry, more so jealousy, happened to occur between Hidyatulla and J.C. Shah. In My Own Boswell, Hidyatulla told the readers but did not disclose the name of ‘one colleague’ who wrote a separate opinion every time he wrote what others considered a well – written judgement. The author says that Hidyatulla was referring to Justice Shah. Shah is, till date, the only Judge against whom impeachment motion was introduced and that included his anti-government stand against the Bank Nationalisation case. And, consequently, a rumour spread that the senior most judge after Hidyatulla that is Shah would be superseded. Hidyatulla took the credit of ‘saving Shah from being superseded’.

Dissent = Independence

The next chapter, might leave many of us in bewilderment as to how the judges did not use the single most effective weapon to show his or her rivalry with a judge; dissent. The author attributed two reasons for this. Firstly, the judges were overworked and so did not have enough time to write separate dissenting opinion. Secondly, the judges preferred to speak in one voice like the Privy Council. Another feature about dissent was that it was left for exceptional cases. This can be understood by the view of Justice Khanna who felt that it was important to maintain cordiality in the Supreme Court but did not hesitate the very next minute to give one of the most appreciated dissent in the history of the Supreme Court of India in the Habeas Corpus case. Moreover, this came at the time when Justice A.N. Ray was the Chief Justice of India and India was ruled by the Indira Gandhi government. What I understand with this incident is that no matter how hard the government tries to own the judiciary, the Supreme Court cannot be owned completely.

Once it so happened that two judges, who were appointed to the court because of Chief Justice Hidyatulla, wrote dissenting opinion to his judgement in the very first case they heard together. Although Hidyatulla admits ‘ragging’ them, he is proud of the independence that they exercised. As put in words by Voltaire, “I disapprove of what you say, but I will defend to defend to death your right to say it”, Indian Judiciary seems to be replete with instances like these.

Are we sure that Pendency is all to Blame?

The subsequent chapter is special not because it deals with Special Leave Petition but because it provides an acute angle to understand the most obnoxious marsh our Judiciary has ever been in; pendency of cases. In the very first year of the Supreme Court’s establishment it had pendency of 900 cases. By 1959, Chief Justice B.P. Sinha estimated that it would take the Supreme Court two and a half years to clear all pending cases, if did not take any new cases at all. Although Supreme Court admits a wide variety of cases apart from SLP’s but the major part of a judge’s docket came from admitting SLP’s. The latest report of Supreme Court of India provided that out of nearly 71,000 cases admitted yet pending, about half of them were SLPs.  Justice A. C. Gupta confessed that four out of his seven working days were “always mortgaged for homework on SLPs”. The author does not just cease by giving the name of one judge who was fed up of the SLP admitting system. Hidyatulla, A.P. Sen, P. Jaganmohan Reddy, Justice Madon, all of them found themselves fatigued or overwhelmed or too overburdened by the SLP system.

Now, it is important to understand that independence of judiciary does not always involve breach by the government and bureaucracy. It involves constant confrontation with the Bar too. The author in the book has argued that the Bar did not allow any reforms to be taken to the SLP system as each case just took few minutes and, consequently, this enabled lawyers to take up various scores of cases at a time. Many judges including Chief Justice Y.V. Chandrachud believed that any decision which would affect the earnings of the Supreme Court lawyers would not be accepted and appreciated. Many Supreme Court judges agreed that many of them got bullied by the Bar.

“You Don’t like the view from the Top?”

The author turns to the next chapter with an interesting hypothesis of how and why many High Court Judges and talented senior advocates declined Supreme Court offers. One of the ways the government can  pressurize the judges is by asking the exchequer to tighten up their pockets and, to our dismay, this is exactly what happened back in 1950. The salary of the Chief Justice was lowered to Rs. 5000 per month, as an instance. The lower salaries of judges was one reason because of which the “quality” advocates did not wish to become supreme court judges.

Another cause for the same was, and still remains is, the transfer of judges policy under which the judges could be transferred at the whims and fancies of the executive. This was, at a time, complimented with Ms. Indira Gandhi’s will to control every institution, possible, in the country. Not just that, the government tried avoiding the appointment of independent – minded advocates and legal luminaries to the Supreme Court, one example being Soli Sorabjee.

The Nemesis of the Supreme Court

The last two chapters of the book can, easily, be considered as clear and current. The chapter ‘The Fictional Concurrence of the Chief Justice’ would, definitely, leave the reader mesmerized and satisfied for the author adduces to the commonly understood but not factually known as of how, indeed, are the judges appointed to the Supreme Court. Starting off from pre- 1950 era, Chandrachud briefly yet crisply discussed the various methodologies adopted by many authorities as to how these appointments happened until he places the pieces which finally lead up to the not-to-be-fiddled with collegium system. The one reason for the happening of the Collegium system, he suggested, was by transforming the fake consensus or concurrence of the Chief Justice in Judicial appointments into reality. The author agrees that collegium system has, undoubtedly, granted more independence to the judiciary but also accepts that government can influence some by promising Supreme Court judges employment after retirement. Recently, former Justice Madan B. Lokur (retd.) commented upon this by saying that some tribunals and statutory bodies are required to be chaired by retired judges and if all the judges refuse post- retirement appointments then things would come to a standstill.

However, the author misses out on a crucial aspect in this regard and that is the collegium system can prove quite effective for a lobbyist. What if the master of roster doesn’t allow a particular judge on the coaster? To put it simply and explicitly, there is factually no check on judicial appointments from the executive and legislature. But this raises yet another complex issue as independent judiciary has, from decades, been considered its epitome which might (not will) get hampered if there even an inch of executive comes in judiciary.

That said, the author in his last chapter discussed in detail about all the factors taken into consideration before appointing him/ her to the Supreme Court. From ‘communal and religious considerations’ to ideological leanings to health, gender and family background, factors like these were and, maybe, are considered till date.

My Diatribe

Throughout the read I have told you how amazingly this book has been compiled and efforts put in, literally, ooze out in the pages of Supreme Whispers. However, while I was reading this book I jotted down certain points which I think did not strike a chord with me.

Firstly, the kind of narrative used in the book might, after some time, get bland for two reasons. First, it might be tough for a person, who doesn’t know much about judiciary, to get the hang of the book. Second, the narrative, eventually,  gets a tinge of repetitiveness.

Secondly, when the author discusses the famous judicial rivalry between Justice Chandrachud and Justice Bhagwati, he, of no mistake of his, seems to incline more towards the former. That is so because throughout the portion the author did not mention a single contradictory statement about the Hon’ble Justice Chandrachud like he did for the Hon’ble Justice Bhagwati.

Finally, I believe that the author seems to have rushed up a little bit as we start reaching the end of the book. For instance, he could have discussed more of gender inequality at the Supreme Court.

Conclusion

From the conceptualisation to its relevance, the book deserves to be on the shelves of those who are interested in lawyers and judges and what goes behind in making them what they are. As in everyone knows Fali Nariman as one of the tallest lawyers in the country but few know that he was offered to become a Supreme Court Judge which he declined. Chandrachud giving  the why, how, why not of these small aspects, relies on untold stories to tell a grand story with a message out there.

It is not easy for a book to tell something about the past and still hold relevance in the current times. And although I know that there is abundance of legal literature on the principle of separation of powers and independence of judiciary, the novel way with which 360 degree independence of judiciary has been dealt in here is quite remarkable and, of course, as Justice Ruma Pal said, “fascinating and unputdownable”.

Eukti Garg is a 2nd year B.A., LL.B (Hons.) student at the Rajiv Gandhi National University of Law, Patiala.