The Cases That India Forgot By Dr. Chintan Chandrachud
This article reviews the book ‘The Cases that India Forgot’. The author of this book is Dr. Chintan Chandrachud. This book is highly critically acclaimed in the legal fraternity. It has received praise from some of the best legal minds in the country. Juggernaut Publication published this book in December 2019, and it is currently available free of cost in the Juggernaut App for online reading.
About the Author: The Cases That India Forgot
Dr. Chintan Chandrachud is an associate in Quinn Emanuel’s London office, and he joined the firm in 2016. His practice deals with matters on complex commercial litigation, tax litigation and international arbitration. He possesses a PhD from the University of Cambridge on the subject of judicial review in India and the United Kingdom. His academic qualifications include postgraduate degrees from Oxford and Yale. He is also the author of Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom.
Chintan Chandrachud was born into a family of lawyers with a legacy to uphold. He is the grandson of Yeshwant Vishnu Chandrachud, the 16th Chief Justice of India. He is the son of Dhananjaya Chandrachud, who is currently Chief Justice.
The Intent behind this Book
The decision behind writing this book was rooted in the desire to initiate and encourage citizen engagement with the law. The author believed that an understanding and education of law needed to be inclusive and accessible. In current times, even the judgments that are f extreme significance, and have the power to impact the rights of the ordinary citizen, are written in such a complicated fashion and lengthy manner that it is extremely difficult for anyone lacking a legal education to understand.
For instance, both the judgments of the Sabarimala Temple issue and the Puttuswamy v. Union of India are hundreds of pages long. The legal jargon and the length of the content intimidate the ordinary citizen and discourage him from getting involved and updated with the legal journey that the Courts are undertaking.
For a functioning and efficient democracy, it is indeed necessary for people to be aware of their rights, their responsibilities, what they can and should expect from the government, and how the Court’s function in the name of justice. However, it is all utopian if people don’t have the resources to access the discourse. This book intends to tackle that by providing a simplified summary of ten significant cases in an attempt to encourage people’s interest in law and specifically in the Constitution.
The summary is not just a translation of the events in a factual manner but includes the narrative of what happened before and after these cases, to help understand their relevance. However, this book is not just limited to providing a summary of these cases but rather analyzes these cases through four different and essential lenses, of Politics, Gender, Religion and National Security.
The cases so chosen are not the quintessential ‘famous’ cases but rather those which have not made into public consciousness despite having legal political and social significance.
Fali S Nariman, an eminent Jurist and former Additional Solicitor General of India, commented that this book is more readable than the judgments of courts, with well-told stories. He claimed it to be a must-read that would have pleased Lord Denning. Similarly, Zia Mody, the founding member of AZB & Partners, one of India’s leading firms, praised this book by saying that the writing simplifies the layman’s language while simultaneously capturing the attention and interest of lawyers and legal scholars.
Harish Salve, former Additional Solicitor General of India, spoke of how the Courts in India have come to occupy a significant position in both public discourse and consciousness and stated that the author had wisely selected forgotten cases that held contemporary relevance and presented them in a manner that identifies both the strengths and the weaknesses of the Courts.
Karan Thapar, a well-respected journalist, drew parallels of this book with the characters Perry Mason and Rumpole of the Bailey to say that these real-life accounts provide a greater degree of intrigue and twists in the attempt to protect our Constitution.
Overview of the Book
The author has analyzed the cases through different lenses, and they are segregated as per those four themes. They are – Politics, Gender, Religion and National Security.
1. The Keshav Singh Case
For this case, the author analyzed the clash for power between the Judiciary and the Legislature. In this case, Keshav Singh had been imprisoned on account of contempt against the Uttar Pradesh assembly. It was contended that the detention was illegal, on the basis of which two judges of the High Court granted him bail. The Uttar Pradesh assembly then issued summons to those judges as well as to the advocate on the charges of contempt against the house.
The assembly also ordered for Keshav Singh to be taken into custody. The author goes on to discuss how the legislature does not possess the authority to initiate proceedings against a judge. It is also analyzed how the judge who passes an order based on a certain petition that challenges the legislature’s order is not committing contempt of the legislature.
This case is used as a tool by the author to shed light on the tussle of power between the Courts and the State Legislative Assembly and comments on the constitutional duty of the judicial organ.
2. Minerva Mills v. Union of India
Minerva Mills is one of the most significant judgments of its time that continues to hold relevance to this day. The Parliament had unlimited powers to amend the constitution through section 4 and section 55 of the 42nd Amendment Act 1986. In the interest of protecting the Basic Structure of the Constitution, the Apex Court struck down those sections in this case. The author paints the narrative and context in which this decision took place for a clear understanding of the judgment.
3. Rameshwar Prasad v. Union of India
In the case of Rameshwar Prasad v Union of India, the author tells a compelling story of intense political drama accompanied by thought-provoking questions of constitutional law. The circumstances of the case include two state elections, midnight phone calls to Russia, two different Apex court judgments and resignations. It is an account that keeps you from putting down the book.
1. Tukaram v. State of Maharashtra
The author points out the problematic and patriarchal notions entrenched in the verdict in this case. The book critiques the Supreme Court’s decision to acquit a rape accused solely because of the victim’s past sexual history. An alleged rape that occurred in police custody should not have been dealt with this way.
It is a dangerous failure of the Courts because it paves the way for further misogynistic decisions to be made that attach greater shame, stigma and trauma to the rape victims and discourage them from coming forward. The author draws a parallel with the Nirbhaya case, where the common public conscience was compelled to demand reform.
2. R.D. Bajaj v K.P.S. Gill
In R.D. Bajaj v KPS Gill, the author explains how a case of sexual harassment went on for over seventeen years simply because the accused was a ‘Supercop’ and had level of political connections and privilege.
1. State of Madras v. Champakam Dorairajan
The author utilizes this case to explain to the reader how the State managed to pass the First Amendment of the Constitution in order to permit caste-based reservations. However, the Supreme Court hindered the progress of the backward classes at the same time, by stating that reservations were an exception to, rather than a part of, the fundamental right to equality. This reinforced the binary revered in the debate of ‘reservation versus merit’.
2. State of Bombay v. Narasu Appa Mali
This is the only case in the entire book that was not decided by the Supreme Court of India. Here, a key judgment of the Bombay High Court helps answer the constitutional question of who holds supremacy in a conflict between religion-based personal laws and Fundamental Rights.
D. National Security
1. Kartar Singh v. State of Punjab
This chapter analyzes how the State tends to use the pretext of National Security to extend its liberties and get away with wrongdoing. While National Security continues to be of paramount importance and often helps enable justified government policies, it is also a tool that can be misused to suppress. This case helps us understand the trajectory of the Terrorists and Disruptive Activities Act and what led to its non-renewal.
2. Naga People’s Movement of Human Rights v. Union of India
Similarly, this case also provides another instance of how the government uses ‘National Security’ to dismiss fundamental rights. The failure of the Courts to hold the State accountable is their failure to guard the Constitution, which led to the disenfranchisement of the people in the North East.
3. Nandini Sundar v. State of Chattisgarh
In the last case of the book, the author uses a riveting style of writing to convey the limitations of the Court’s influence. The compliance with the judgment occurred only on paper, as in reality there was no stop placed on the state-sanctioned armed civilian movement.
Constitutional Debates Analyzed in the Book
This book reflects on the value of having an active and aware Civil Society that will not just engage with the law but question the public institutions and demand reform where necessary. It is the public pressure that galvanized after the problematic judgment in the Tukaram Case that drove the Law Commission to suggest changes in rape laws and provide a more progressive definition of ‘consent’.
It also focuses on the intervention by the National Human Rights Commission in 1994, combined with the political support that culminated into the non-renewal of the TADA Act. However, the book simultaneously admits that TADA continued in spirit though the prosecutions that remained and sustained many years after TADA had expired on paper.
The books help shatter the illusion of the Courts as the ultimate upholders of Rights and dispensers of Justice and equip the reader with a more practical albeit sceptical view through which he can understand the contexts of various judgments.
Although the cases of R.D. Bajaj and Tukaram led to different verdicts, they helped understand how government institutions like the police and Courts are complacent in the ongoing harassment endured by women and how the path to justice is both difficult and long. Both judgments propagated patriarchal undertones. While Bajaj was said to be a ‘symbol of modesty’, the character assassination of the victim in the Tukaram case, based on her prior sexual history, helped enable the acquittal of the accused.
The book discusses how in the absence of advocate Nani Palkhivala’s carefully crafted litigation, the issue of Minerva Mills would have been seen as just another situation of a business being nationalized. The matters of Kartar Singh and the Naga People’s Movement present an insight into the Court’s decision to tiptoe the line instead of demanding accountability from the government.
It reflects on how the claim of a threat to ‘National Security’ helps the State in setting a narrative that is hard to question. The Courts have upheld not just problematic but downright draconian laws in certain instances.
Unlike other books by legal authors, this book does not try to glorify the legacy of the Supreme Court of India but instead presents an insight into the indiscretions, failures, and compulsions of the Court to provide a realistic picture instead of selling a utopian fantasy. That fresh perspective allows the reader to witness the limitations and shortfalls of the judgments and gives them a reality check about how courts are not always the guardians of the Constitution.
The genuine reflection of these judgments instead of a glamorized image of the Courts is what makes this book a must-read.
In PostScript, the author asks whether these cases were the exception to the norm. He admits that is not necessarily true. Upon closer scrutiny, one can realize that the problematic features of these cases are unfortunately not uncommon.
This book ends up making you question and reflect, and that is where the brilliance of this book serves its primary objective. It provokes your thoughts in a way that compels you to engage with the law. This makes this book a truly remarkable part of legal literature.
Originally Published on: Jul 15, 2020