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P.N. Bhagwati's legacy: a controversial inheritance

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P.N. Bhagwati was India’s most influential judge — it’s time his legacy is revisited

Justice P.N. Bhagwati, who died recently, at 95, is perhaps the most influential judge independent India has had. What Indira Gandhi is to Indian politics, Justice Bhagwati is to the Indian judiciary: their legacies have endured, having engineered a populist democratisation based on radical rhetoric, but at very heavy costs to the institutions themselves.

One can see strong resonances of Mrs Gandhi’s style in the Modi government’s mode of functioning in their all or nothing friend or enemy view of politics, with complete disregard for the autonomy of institutions. Similarly, with contemporary standards of judicial behaviour, pronouncements pandering to the lowest common denominator — calling for the cow to be declared the national animal, imposing the national anthem on cinema-goers and imposing thoughtless prohibition near national highways — while simultaneously displaying pusillanimity in institutionally vital cases against the Central government such as Aadhaar, the Money Bill and the Delhi government cases. The very condition of possibility of such playing fast and loose with the law are Justice Bhagwati’s landmark interventions.

Charting a way to power

Just as nationalism has now emerged as the currency of contemporary judicial populism, socialist rhetoric was his path to power. He was appointed to the Supreme Court in 1973 at the height of Mrs Gandhi’s ideological onslaught on the judiciary, with her call for a ‘committed judiciary’. The Kesavananda Bharati judgment had recently been delivered, in which the Supreme Court had dared to stand up to Mrs Gandhi and had declared the Constitution’s basic structure as un-amendable even by her brute parliamentary majority. In the aftermath of this judgment she superseded the three senior-most majority judges leading to their resignations, and appointed Bhagwati and Krishna Iyer to the Supreme Court.

 

Two key points deployed in Mrs Gandhi’s mid-1970s attack on the judiciary were the inaccessibility of the legal system and its alien British form. The responses were also twofold: the expansion of legal aid and the injection of indigeneity in legal institutions, respectively. Legal aid was even declared part of the Emergency’s flagship Twenty Point Programme. The two recent judicial appointees, Justices Krishna Iyer and Bhagwati, enthusiastically responded and penned successive reports proposing ‘nyaya panchayats’ as the silver bullet solution to both the problems. The challenge of democratising access to courts could have been met through an expansion of legal aid. Instead the solution was seen as creating parallel informal institutions, diluting judicial procedure by short-circuiting basic principles of adjudication. These visions of paternalistic deprofessionalised indigenous justice provided the basis for future developments such as Lok Adalats at the lowest level, tribunalisation at the intermediate level and Public Interest Litigation (PIL) at the highest level of the judiciary. For the part they played in this process, Professor Upendra Baxi later wrote that the two judges “remain vulnerable to the charge of acts as legitimators of the emergency regime”.

Moving to extremes

Justice Bhagwati soon proved his loyalty to the Emergency regime much more directly: as part of the majority in ADM Jabalpur vs Shivkant Shukla, which upheld the constitutionality of the draconian Maintenance of Internal Security Act (MISA), and declared that even the right to habeas corpus would not survive during the Emergency. Justice Bhagwati was justly targeted for his role during the Emergency after the 1977 elections. He soon moved to the other extreme, and proved his loyalty to the Janata government by upholding its use of Article 356 against Congress-led Legislative Assemblies, a decision with disastrous consequences for Indian federalism. He did another somersault after Mrs Gandhi returned to power in 1980. He was the only judge in the Minerva Mills case to uphold her Emergency era amendment immunising any statute implementing a directive principle from judicial review for violating Articles 14 and 19, thus giving primacy to directive principles over fundamental rights. Accordingly, a statute implementing prohibition, or prohibiting cow slaughter, or introducing uniform civil code, or pursuing ‘socialism’ would be immune to judicial challenge for violating the rights to equality and freedom. If this sounds rather familiar, it is because the Indian judiciary has implicitly followed the logic of Justice Bhagwati’s dissenting opinion in recent years. In the Judges’ Transfer case, he went on to explicitly support the appointment of judges based on their ideological predilections, i.e., court packing for a ‘committed judiciary’. When the constitutionality of the National Security Act, 1980, Mrs Gandhi’s successor statute to MISA, was challenged, he got another chance to somewhat undo the notoriety of the Habeas Corpus case, but he upheld this law as well. In spite of such an appalling record on civil liberties and such open servility to regimes in power, how did Justice Bhagwati acquire such a heroic reputation?

Behind the PIL

Much of Justice Bhagwati’s fame rests on his role in pioneering the PIL. In fact, PIL letter petitions would initially be personally addressed to him, rather than the court. This enabled him to sidestep the then Chief Justice’s role in allocating cases, also leading to allegations of soliciting petitions. More enduringly, instead of grounding the PIL in rules and principles, his view of legal procedure as the enemy of justice meant that all aspects of procedure in PIL cases were diluted, removing all checks on judicial arbitrariness and making it a juggernaut annihilating all procedure. The dilution of locus standi could have been grounded in some notion of ‘representation standing’. In its absence, most PILs are filed by citizens unconnected to any issue. In the Bandhua Mukti Morcha case, he diluted evidentiary standards in PIL cases to an extent that proved catastrophic in the long run. He also was the first judge to openly legislate in a PIL relating to inter-country adoptions, creating another dangerous precedent.

Justice Bhagwati is also famous for his judicial improvisations. Based on the idea that ‘arbitrariness is the antithesis of inequality’, he introduced a new test to examine violations of ‘Right to Equality’. This test is however completely illogical, as constitutional scholar H.M. Seervai demonstrated. Even more famous is his pioneering ‘right to life jurisprudence’ in the Maneka Gandhi case. A negative right against the state’s illegal deprivation of any individual’s life or personal liberty has since been interpreted as a positive right to life, making it a receptacle for all manner of socio-economic rights. The only right it now seems to exclude is the literal mandate of Article 21. Another instance of careless improvisation is his unnecessary innovation of ‘absolute liability’ as a principle of liability in cases of injury caused by inherently hazardous industries. Needlessly trying to remove the few exceptions that the time-honoured principle of strict liability allowed, once again Justice Bhagwati was set on winning the tournament of competitive radicalism that his vision of judgeship entailed, regardless of institutional costs. This has been his most enduring legacy as a role model for future judges: to think of their judicial role instrumentally as social activists and not mere jurists. A certain looseness of legal language entered Indian appellate judgments and radical rhetoric became the path to power for Indian judges. The value of careful judicial prose declined as fidelity to law no longer mattered, what mattered was the show of ideological commitment.

Justice Bhagwati’s legacy lives on. But it is high time we revisit it.

Anuj Bhuwania is a lawyer and an anthropologist and the author of ‘Courting the People: Public Interest Litigation in post-Emergency India’. He teaches at South Asian University, New Delhi

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Printable version | Dec 14, 2019 11:34:19 PM | https://www.thehindu.com/opinion/lead/a-controversial-inheritance/article19150883.ece

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