Colossal adventures in India's judiciary

In considering levels of political transparency in many modern states, one usually turns to the institution of the judiciary. A society, it is argued, is open where the judiciary enjoys absolute autonomy and maintains impartiality in all areas of a state's activity. Over the years, the proposition that the judiciary is the "conscience keeper" in a democracy has come to be regarded as an accepted idiom. But the subtext of this view is that a country's judiciary is what the jurists and judges make of it. Consequently, the quality of political life in any given society is to a great extent determined by the interventions of those belonging to the legal profession.

India, a multinational state with all the inherent political complexities and tensions, is at once a jurist's paradise and nightmare. Unlike many of its counterparts in the West, India offered no absolute rules for the judiciary's neutrality in the first 30 years of its independence. When the modern centralised state imposed certain rules for political consolidation, it invariably led to the erosion of traditional autonomous spaces enjoyed by various communities. More significantly, the demand for unregulated autonomous space by the masses threatened the power of the state. The rules of engagement between the executive and the judiciary, to define the role of the state and the rights of the individuals, were therefore left to politicians and jurists.

Nani Ardeshir Palkhivala is a career ombudsman known for his colossal adventures in the domain of the Indian judiciary. In a public career spanning more than 50 years, Palkhivala built up a reputation as one of India's foremost specialists in the field of constitutional law, at a time when Indira Gandhi's self-serving regime tried to abrogate and abridge certain basic fundamental rights of Indians. Without giving in to hagiography, one could argue that some aspects of the modern Indian judicial system have evolved with Palkhivala. Indeed, this view is reinforced by a majority of jurists in India, some of whom are contributors to this book.

This loosely constructed volume is partly a general review of the state of the judiciary in India and partly a study of the effects of Palkhivala's landmark legal interventions, which have redefined the role of the Indian state vis-à-vis the Indian citizenry. Yet the judicial battle for equality, human rights and protection of minorities is far from over. The debate on the power of the state and the masses has assumed centre stage in Indian politics. The contributors unanimously highlight these new areas of grievance and how Palkhivala's philosophy could make a positive contribution in redressing these grievances. Particularly significant is the discussion of the growing political assertiveness of Indians within the folds of the judiciary, as is evident in the growing number of public-interest litigation cases.

The book is a useful source of landmark cases involving Palkhivala and it provides an overview of the working of Indian democracy from the perspective of its judiciary. Although themes such as democracy, human rights and the rule of law are introduced and discussed in several individual contributions, these are basically linked with cases associated with Palkhivala. The volume, therefore, appears dated. A rigorous introduction and a substantial conclusion could have compensated for this obvious drawback, but the editor has not exploited this opportunity.

Amalendu Misra is lecturer in politics, University of Sussex.