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Inside Our Supreme Court

Judges of the Supreme Court of India: 1950-1989 by George H Gadbois, Jr (New Delhi: Oxford University Press), 2011; pp xiii + 412, Rs 795.

like an extended almanac of judicial biog-

Inside Our Supreme Court

raphies with little bearing on the Court’s institutional performance.

Madhav Khosla, Sudhir Krishnaswamy Not Sitting in Judgment

F
or all the attention that the Supreme Court (SC) of India has attracted in recent years, very little is known and understood about the personalities who inhabit and shape the institution.

book review

Judges of the Supreme Court of India: 1950-1989

by George H Gadbois, Jr (New Delhi: Oxford University Press), 2011; pp xiii + 412, Rs 795.

Despite the undoubted care and attention bestowed on the collection and the presentation of these vast materials, Judges of the Supreme Court of India disappoints as it has much to say about judges but nothing to say about judging. Gadbois makes it

Students searching for an institutional sociology or ethnography of the Court have to remain largely content with journalistic or biographical accounts. George Gadbois’ new book Judges of the Supreme Court of India generated considerable excitement as it promised to fill this gap in our legal literature. This lucidly written and carefully researched book is organised into two parts. The first contains short biographical essays on the first 93 judges of the Court (who served from 1950 to mid1989). The second, substantially slimmer, part moves beyond individual biogra phical accounts to draw broader conclusions from the data, identifying, for instance, the caste or regional composition of the Court over these years. This part aims at painting a “collective portrait” of the Court, and deciphering patterns in the selection of judges.

Collective Portrait of the Court

The first part of the book brings together data that was painstakingly collected and difficult to obtain. Gadbois personally interviewed a majority of the judges cove red and corresponded extensively with the families of the deceased ones. The interviews bring out several interesting anecdotes and insights. We learn, for instance, of justice Saiyed Fazl Ali’s proximity to Jawaharlal Nehru; of the politics surrounding justice Vivian Bose’s inquiry into the Mundhra scandal; of how justice S R Das’ tenure as chief justice saw the appointment of a young Court; of how justice Gajendragadkar delivered 993 reported opinions and no dissents; of the controversies surrounding justice A N Ray’s tenure as chief justice, and so forth. Gadbois is right to assert that “much of the material in this book no one else has, nor ever will” (p 9).

In this way, Gadbois’ brief biographical accounts and vignettes educate us about the social and educational backgrounds of individual judges and the prevailing political circumstances of the time. The 93 judi cial biographies are organised into 18 chapters named after the chief justices of the Court. The judges appointed by each of the chief justices are included in the chapters named after them as the chief justice is assumed to be instrumental in appointing them. Gadbois adopts such an approach “because the CJIs [chief justices of India] were unanimous in saying that they were responsible for every appointee during their tenures, and agreed that, for better or worse, those appointees were part of their legacies” (p 6). Hence, different periods of the Court’s history are disaggregated as “the Kania Court” or “the Pathak Court”, and so on. Irrespective of the institutional veracity of the claim of the CJIs to influence appointments, there is no evidence to suggest that the chief justice’s power to appoint has any impact on the adjudi catory practices of other judges. Some recent literature indicates that a chief justice may play a rather influential role on the benches on which he sits.1 However, unlike the US Supreme Court, the Indian sc does not sit en banc and as a full bench. It exists and operates in separate courtrooms, and there is nothing to suggest that the chief justice exerts an influence beyond his own courtroom. Moreover, the listing of judges in this fashion does not capture the judicial output of the period, as the judges appointed by the chief justice are often a minority of those who are judges on the SC bench during the period. The organisation of the first part of the book in this fashion makes it read

august 20, 2011

clear that

(o)nly rarely do decisions of the SCI [Su

preme Court of India] find a place here.

Almost equally rare is mention of the pur

ported social and economic philosophy of a

judge… (v)ery rarely is an evaluative obser

vation made about the quality or importance

or contributions of a judge” (p 7). The absence of any effort to explore the relationship between the composition of the Court and its output, and link the nature of judicial decision-making to the actors behind the stage is surprising, as Gadbois’ earlier work distinguishes itself because it makes such a connection.

In an article four decades ago in the pages of the EPW, Gadbois had provided an insightful account of judicial behaviour in India.2 In that article, Gadbois explored the character of dissenting judges and its relationship to judicial dissents. He studied the voting patterns of judges in two categories of cases – civil liberties and economic freedoms – and drew insights into the ideological character of different judges. He evaluated the correlation between outcomes in solo dissents and the overall behaviour in non-unanimous decisions, revealing the ways in which the attitudes of judges are reflected across different decisions. This article did not engage with the social demographic profiles of the judges but critically examined how the composition of a court affects judicial outcomes. Through this work Gadbois was one of the first scholars to develop an institutional sociology of the SC. However, this kind of analysis is entirely missing from Judges of the Supreme Court of India.

In the book under review, Gadbois neither develops an institutional sociology of the Court nor does he provide us with a thick ethnographic or biographical

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Economic & Political Weekly

BOOK REVIEW

account of the judges. This places the book in uncertain territory. The effort in books ranging from Bob Woodward and Scott Armstrong’s Brethren to Noah Feldman’s recent Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices is at explaining how social backgrounds and political circumstances shape judicial decision-making.3 Others like Ronald Dworkin’s “The Supreme Court Phalanx: The Court’s New Right-Wing Bloc” (New York Review of Books, 2008) and Jeffrey Toobin’s Nine: Inside the Secret World of the Supreme Court (New York: Doubleday/ Random House, 2007) examine, albeit in very different ways, the impact of the composition of a court and its institutional processes on judicial output. These books have a different stated purpose to the one Gadbois has written and hence any comparison will seem unfair. Nevertheless, the reader is left unsatisfied with the personal biographies of the judges by themselves. To put the point provocatively, does it really matter whether a majority of the judges were educated at the Madras Law College or the Government Law College, Mumbai, unless this helps us better understand their elevation to the Court or their practices of adjudication?

Regional and Religious Balance

The second part of Judges of the Supreme Court of India partially responds to some of the aforementioned criticisms. Gadbois develops a “collective portrait” of the court and seeks to identify the shared characteristics of SC judges across four decades. In this review we will focus on his discussion on social and economic class; regional, religious and caste representation; and finally educational and professional backgrounds. There are two indicators of social and economic class in this study: father’s occupation and economic status. We learn that about 40% of the appointed SC judges are the children of lawyers and judges. This stubborn statistic on the presence of family ties in the judicial branch of government has persisted across four decades, but without further analysis we are unable to assess whether this is peculiarly true of the legal profession or endemic to all professions in India or true of judicial appointments elsewhere in the world. Moreover, more useful insights will be drawn by extending the analysis of appointments to the period from 1990-2010 as the Court has taken far greater control over the appointment pro cess and seems to have appointed more of its own.

Further, if we go beyond the immediate nuclear family and include the extended family and kinship ties, the statistic may truly reveal the extent to which these social relations matter in judicial appointments. Gadbois also assesses the economic status of judges, and caveats this analysis as his judgment “played a large role in deciding the category in which to place the judge” (p 348). The classification was arrived at after discussions with the judges about their family background. But the conclusion that 60% of the judges are from “wealthy” backgrounds does not correspond with any other classification of class status such as the socio-economic classification of the Market Research Society of India and is therefore of limited value. On a couple of occasions, a socioeconomic analysis of the Indian judiciary has resulted in contempt of court proceedings against the authors.4 Gadbois’ conclusions in this section of the book are timid and likely to escape any judicial notice.

Unlike the statistical over- representation of upper class citizens among the SC judges, the conclusions on regional and religious backgrounds are in line with their general distribution in the population. Despite the denial that regional and religious backgrounds form a part of the selection process of judges to the Court, there is a remarkable correlation between the personal background of judges and the overall regional and religious composition of Indian society. The major religions of the country are well represented on the Court and this is a tradition that is traced all the way back to the Federal Court in pre-independence India. This policy of representation can be found in the composition of benches that are constituted to decide communally charged cases. The north, south, east, and west of the country share the seats on the Court in equal proportion. However, this equal regional distribution does not extend to the representation of states in which the judges were born. Hence, states like West Bengal and Punjab have a higher number of SC judges in relation to their population rank but often judges have been elevated to the SC from a state high court different from the state of birth, thereby maintaining the overall regional balance.

Caste and Gender

The effort to preserve a regional and religious balance has not extended to caste and gender. As only four women have been justices of the SC, the book does not have a separate section on gender. The assessment of the caste composition of SC appointments produces stark results. Over 40% of the judges in any time period were brahmin while close to 50% were from other forward castes. Gadbois does not clarify how he arrives at the categorisation of other forward castes and hence it is impossible to unpack this category and analyse this data with greater clarity. At their highest, the percentage of scheduled caste/scheduled tribe (SC/ST) and Other Backward Classes (OBC) judges barely crossed 10%. Gadbois has painstakingly put together the caste profiles of the judges through extensive interviews with them. He points out that even those judges who expressed distaste for the enquiry into caste backgrounds were nevertheless intimately familiar with the caste identities of their peers. So while almost all judges claimed that caste considerations were irrelevant to judicial appointments, there is little doubt that this is a significant factor in the appointments process.

Like regional and religious distribution, the caste distribution is too consistent to be a coincidence. However, unlike regional and religious factors, the caste composition has no correspondence to the proportion of castes in the general population. The demand for reservation in judicial appointments is a controversial and emotive one that has been resisted so far. The data available in this book makes clear that unless the Court makes an earnest effort to remedy this situation, the political demand for change will become

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irrepressible. There is no need to believe that all institutions should be representative in character, especially courts. However, at the very least there is a need to demonstrate that the skewed proportions are not a result of discriminatory practices

– both direct and indirect forms of structural discrimination. Although Gadbois does not make any normative claims on the ideal composition of the SC, proportional representation has uncritically been accepted as the standard by which institutional practices of the Court are judged.

While the educational profile of judges has changed significantly over the years, the professional career of the judges before and after their appointment has remained remarkably consistent. Predictably, between 1950 and 1970 nearly 15% of the judges were educated in England. Subsequently, this has gone down to 6.6%. Significantly, 20 judges are graduates of the Madras Law College, which is by far the biggest contributor to the Supreme Court, with the Government Law College Mumbai (seven) and the University Law College Calcutta (seven) at a distant second place. Very few judges acquired advanced law degrees or published widely as these qualities are not understood to be relevant to judicial appointment. Similarly, six Indian civil service officers were appointed to the Court between 1956 and 1971. Subsequently, no more civil service officers have been appointed to the Court as the Indian Administrative Service (IAS) has no “judicial side”. The composition of the Court in the 1950s and 1960s has been the subject of much analysis by Rajeev Dhavan and Granville Austin who claim that the early generations of judges were black letter and doctrinaire in their app roach to adjudication. Whatever the merits of this argument, it is now clear that this is a historical phenomenon, which is unlikely to reoccur in the near future.

The typical path to be appointed a judge of the SC is to qualify as a lawyer and spend 24 years on average in private practice and as a judge in the high court in two equal halves. Lawyers who represented the government in some capacity were more likely to be elevated suggests that executive government does tacitly influence judicial appointments. Most judges went into a quiet retirement, while those popular with the government of the day were appointed to state commissions, and some others as arbitrators in private disputes. The author sharply points out that only one judge B K Mukherjea went on to write a defining treatise on the The Hindu Law of Religious and Charitable Trusts, which indicates that an academic interest in law does not infect the judicial temperament in India. No legal academic has been appointed as a judge to the SC. The domination of the appointments to the Court by the legal profession ensures the relative autonomy of the Court from the political wings of government. However, this is also the source of the intellectual limitations that continue to plague the Indian constitutional adjudication and the management of the legal system.

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Novel Work

Overall, this book is a notable contribution to the data available on the composition of the Indian Supreme Court. It is a novel work that is a result of arduous labour and offers scholars and students of Indian constitutional law the opportunity to extend the analysis by relating the social demographic composition of the Court to its adjudication. Rajeev Dhavan’s

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BOOK REVIEW

Critique of Its Juristic Techniques (Bombay: N M Tripathi, 1977) remains the most rigorous analysis of the composition of the SC and its impact on adjudication. It is unfortunate that Judges of the Supreme Court of India does not refer to this invaluable source or respond to its central argu ments. It is even more unfortunate that Gadbois has backed off from his own landmark contribution four decades ago, and that this book does not involve a continuation of that project. Nevertheless, the book serves as a foundation inviting others to dedicate themselves to the task of

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-utilising this raw material. As the SC has significant autonomy over its own composition and the composition of the high courts since the Supreme Court Advocates-on-Record Association5 case, it would be a useful first step to include the period from 1990 to 2010 into the data set developed in this book.

We are grateful to Kalyani Ramnath for helpful conversations.

Madhav Khosla (madhav.khosla@aya. yale.edu) is with the Centre for Policy Research, New Delhi. Sudhir Krishnaswamy (krishnaswamysudhir@gmail.com) is with the Azim Premji University, Bangalore.

Notes

1 See Nick Robinson et al, “Interpreting the Constitution: Supreme Court Constitution Benches since Independence”, 46, Economic Political Weekly, 27 (2011).

2 George H Gadbois, Jr, “Indian Judicial Behaviour”, 5, Economic Political Weekly, 149 (1970).

3 Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court (New York: Simon Schuster, 1979); Noah Feldman, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices (New York: Twelve/ Hachette 2010).

4 See P N Duda vs Shiv Shankar, AIR 1988 SC 1208; In Re Arundhati Roy, AIR 2002 SC 1375.

5 Supreme Court Advocates-on-Record Association vs Union of India, (1993), 4 SCC 441.

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