Of what value, one might wonder, would a doctoral thesis written in 1965, by an American scholar, on the Supreme Court of India be today? Rather substantial, if we’re talking about George Gadbois Jr.’s work. His dissertation, which was published late last year, under the title ‘Supreme Court of India: The Beginnings,’ shows us that the problems that India’s highest judicial forum is today beset with had its origins in the early years of its formulation. The various issues that Gadbois touches upon — among others, clashes between the executive and the judiciary, questions over assignments of benches, controversies over appointments of judges, cases of apparent judicial overreach, and the extent and nature of the court’s power — remain salient even today. The book, therefore, provides us with a different lens with which to view the court, one that gives us a historical perspective to present day problems.
How it all began
In a fine and colourful introduction to the book, written by Vikram Raghavan and Vasujith Ram (who’ve also provided useful editorial interventions to the text of the work), we learn that Gadbois had been studying India even before he visited New Delhi in September 1962 to spend a year in the city completing research for his doctoral thesis in political science. But unlike many other scholars, Gadbois wasn’t there to watch the court’s proceedings or to meet its lawyers and judges. His research was predicated on a study of secondary sources, for which he lent on both the Judges’ Library and the Indian Law Institute, which was at the time located inside the court’s premises. Although Gadbois would complete the thesis in 1965, it remained unpublished, as he deemed it to be of little scholarly worth. This changed when Raghavan visited his home in Lexington, Kentucky, convincing him of the dissertation’s enduring value, which today, in its published form, readers can certainly affirm.
The book begins with two lengthy chapters on the Federal Court of India, which the Supreme Court succeeded on January 26, 1950, when India formally adopted its Constitution. These sections are particularly illuminating given the scarcity of good academic work on the subject. But it is the four chapters that follow, which collectively study the first decade of the Supreme Court’s operation, that are of wider appeal. Gadbois’s writing style is prosaic, and even blunt, in places, but, in sacrificing style for content, he tells us with great technical skill why the Supreme Court occupies a position of central importance in India’s democracy.
The book very quickly rubbishes the notion of the court being a body possessed of considerable power. “Indian writers,” Gadbois wrote, “are very fond of pointing out that the Supreme Court of India ‘has wider jurisdiction than any other superior court in any part of the world,’ that the jurisdiction of the Court is so wide that ‘it will appear to be the most potent judicial organ in the world today’.” Were we to look simply at the Constitution’s text, as Gadbois pointed out, these statements may seem self-evident, but, as he quite correctly wrote, “what Indian writers often neglect to note is that an extensive jurisdiction does not mean that the Court is necessarily ‘powerful’.”
Two significant factors
This lack of power Gadbois attributes to two chief factors: the absence of a due process clause in the Constitution and the ease with which Parliament was able to, until then, vitiate decisions of the court through amendments to the Constitution. Neither of these factors holds good today. The Supreme Court has, since, overruled its decision in A.K. Gopalan v. State of Madras (1950), which Gadbois wrote was welcomed by the government of the time — something which can “be inferred from the absence of any criticism of it” — and has held that any law that seeks to take away life or personal liberty must necessarily be just, fair and reasonable. The court has also placed restrictions on Parliament’s supposed plenary power to amend the Constitution, by carving out a doctrine of basic structure, holding that the legislature cannot through an amendment impinge or take away any feature fundamental to the Constitution. Yet, while these developments appear to suggest that the court has become more powerful, in reality the court has been loath to striking down laws that violate due process. Similarly, the court has rarely come down on constitutional amendments barring cases where it senses a threat to its own sense of autonomy.
In many senses, today’s court is very different from its 1950s avatar . Its approach to interpreting the Constitution has vastly changed. But the problems that began to burgeon during that period, a slowly expanding docket, to take one instance, have now become virtually unmanageable. “By the late 1950s,” wrote Gadbois, “the Supreme Court had become increasingly more involved with appeals from various tribunals and the Law Commission expressed concern over this situation. The Commission pointed out that the large number of labour tribunal appeals were ‘clogging the work’ of the Court.”
Now, the court is clogged by appeals of all manners and kinds, from rent control matters and petty property disputes to motor accident claims and service disputes, leaving it little time for proper constitutional work. In trying to understand how we got here, Gadbois’s work will remain ever relevant.
Supreme Court of India: The Beginnings ; George H. Gadbois Jr; Edited by Vikram Raghavan & Vasujith Ram, Oxford University Press, ₹799.
