Anil Divan shows how the Constitution became a living organism in the hands of the Supreme Court

Among the few senior lawyers who often write for the popular press on matters relating to the Bar, Bench and constitutional governance, Anil Divan occupies a prominent place because of his forthright views and ability to interrogate the decisions of those in authority. As he puts it, “I have played my innings on the front foot”. Inspired by great lawyers and judges across the globe, he sought to imbibe the courage to stand up and be counted particularly during times of crisis. Fortunately for the country, India has had quite a few lawyers and judges in government as well as in the profession who were prepared to make sacrifices for the cause of justice and the rule of law founded on Human Rights. This is the India story that Anil Divan penned in his numerous articles put together in the volume under review. As former Chief Justice J.S. Verma remarked in his introduction, the book does qualify to become a text book on “comparative study on rule of law in liberal democracies, focusing on the Indian experience”.

There are three broad themes around which the 50 pieces included in the volume can be analysed. Firstly, the Supreme Court and the way it dealt with landmark cases which came before it during the six decades of its functioning. What the reader gets out of these articles is not only a deeper understanding of the development of constitutional law in the country, but also the contribution of eminent lawyers and judges who traversed that great institution with glory and professionalism. A second theme which stands out prominently in the book is about corruption in public life including the judiciary and why the country’s legal and judicial system could not make any significant headway in combating corruption. Given the fact, that the author himself was in the forefront fighting many high-profile corruption cases in court, mostly as amicus curiae, it is interesting to read the insider’s story given in the articles written at different times and regimes. The third theme that pervades the writings is about personalities who have impressed the author most from within the profession and outside.

Much has been written about the Indian judiciary generally and the Supreme Court in particular both in the popular press and in scholarly studies. While the judiciary is justly criticised for its inability to tackle mounting arrears and long pendency, it has won universal acclaim and respect for its independence and creativity in structuring a human rights-friendly jurisprudence which is the envy of liberal democracies elsewhere in the world.

Personal liberty issues

In reviewing this record of the Supreme Court, Divan gives critical insights into the initial view taken by the court in personal liberty issues (preventive detention) and property rights which the court abandoned in later decisions contributing to a balanced development of civil rights together with social and economic rights. In the process, the Court, as some people argue, re-wrote the Constitution significantly, yet in a manner acceptable to the changing times. The Constitution, unlike other laws, became a living organism in the hands of the court. Between A.K.Gopalan (AIR 1950, S.C.27) and Minerva Mills (AIR 1980, S.C.1789), the Supreme Court brought “due process” (expressly excluded in the text of Article 21) in place of “procedure established by law”, read Directive Principles into Fundamental Rights, and discovered inherent restrictions on the amending powers of Parliament by virtue of what it called the “basic features” of the Constitution. In a dozen articles in the book, the author narrates the story with rare insights.

Public Interest Litigation (PIL) is today much derided and despised because of its abuse at the hands of some lawyers and litigants. In its initial phase in the 1970s and 1980s, it was indeed a powerful tool in the hands of the judiciary to reach out justice to millions of disadvantaged people who for different reasons could not come before the court to ventilate their rights. The court liberalised the doctrine of loucs standi in favour of public-spirited citizens, appointed commissions to gather facts and evidence, gave remedies and relief unknown to earlier jurisprudence and evolved the technique of continuing mandamus to monitor implementation of court orders. Anil Divan appeared on behalf of NGOs advocating public interest in many causes, particularly those involving political corruption which brought PIL again into the mainstream to the advantage of transparency and accountability in governance. The Jain Hawala case (Vineet Narain v. Union of India, AIR 1998 S.C.889) is unique in this regard where the author of the book made a significant contribution in taking the court to the root of the problem of corruption and revealing the limits and limitations of judicial processes in combating the evil. In doing so, the author brought out the inadequacies of the existing mechanism and the need to amend the law for empowering institutions of investigation and prosecution free from political interferences.

While most parts of the writings of Divan are subscribed to by the reviewer also, there are difficulties in agreeing with the views of the author in respect of the Bhopal litigation.

Bhopal case

Disapproving Justice Bhagawati’s dictum of absolute liability on hazardous industries, the author seems to think that such a principle will boomerang on Indian operations abroad. He thinks that foreign industry and technology would be reluctant to invest in India if such stringent standards of liability are visited upon hazardous technology. This, it is submitted, is a misconceived approach. Indian lives are taken cheaply and differential standards of liability are canvassed though human rights adopt universal standards. To reason that such an approach will defeat development is to belittle human dignity and national pride.

In the same vein, the author is critical of the interim compensation ordered by the District Judge, Bhopal against the Union Carbide Corporation “even before the commencement of the trial or recording of evidence”! His concern is whether this line of reasoning is acceptable in other jurisdictions? It is submitted that the jurisprudence both on liability and on damages evolved by Indian courts in Bhopal litigation and the Shriram case (1987)1 SCC 395 which followed it, is the one that received appreciation from several developing countries which have been for long at the receiving end of hazardous technologies and industries of the developed countries. It is unacceptable to argue as the author does that the concept of damages in hazardous torts is intended to be compensatory and not punitive. It is faulty reasoning to say that since absolute liability is no fault liability, there cannot be any deterrent punishment. Irrespective of whether the same principle would apply to Government corporations or public sector undertakings, one would argue that the standard and measure of damages evolved by the Bhopal litigation are now prevailing law for hazardous technologies of the nature employed by UCC in Bhopal.

On the Front Foot is a well-researched and well-written commentary on the course of events in independent India wherein the principal player was the judiciary. Reading the book one gets the impression that despite being a votary of Indian judicial enterprise and innovation, the author is more appreciative of what the English and American courts have done in the field of public law. This, of course, is a mindset which Divan shares with many of his contemporaries at the Bar.

In all fairness, the author’s track record justifies his writings and the arguments he advances to support his conclusions. One may disagree with his findings but one cannot question the honesty of his views.

(N. R. Madhava Menon is Honorary Professor, National Law School, Bangalore)

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