BOOK REVIEW

10 judgements that changed India(2013): Zia Mody, Penguin Book House, Price
Rs. 239/- .
ABOUT THE AUTHOUR:
ZIA MODY is one of the best corporate lawyers in India. She is in Business Today’s Hall of
Fame as one of India’s most powerful businesswomen.
What is less well-known is that before donning the mantel of a corporate lawyer, ZIA MODY,
the daughter of former Attorney General Solicitor Sorabjee, was a litigator practicing in the
Bombay High Court. Mixing her well-honed drafting skills with an extensive knowledge of
Indian constitutional law. Zia Mody has written a delightfully insightful book which, as its
name suggests, dissects and analyses ten judgements which have had a significant impact
on India.
ABOUT THE BOOK:
10 JUDGEMENTS THAT CHANGED INDIA, has ten chapters, each dealing with a judgement,
though it actually covers a lot more than ten judgements leading up to the title judgement
and in many cases, follow on cases, which are equally important. Thus the chapter on the
Maneka Gandhi case also covers the ADM Jabalpur case where the Supreme Court ruled
that a detenu could not file a habeas corpus petition challenging the legality of his detention
during an emergency. The chapter on the Shah Bano judgement, whilst taking care not to
put its foot in the mouth, as it had in the Shah Bano case with its contemptuous tone and
uncharitable comments and by unduly criticising Islamic law and practices.
Many a time when reading a judgement, I have felt that the judge made up his mind about
the outcome and then justified the verdict with appropriate reasoning. Zia Mody says as
much when she suggests that in Kesvananda Bharti and Golak Nath, ‘ the decisions were the
kind where judges primarily decided on the ends and then set out to discover the means to
achieve those pre-determined ends’. The Indian government was so angered by the
Kesvananda Bharti judgement that when Chief Justice S.M Sikri retired , the government,
who ranked immediately after C.J Sikri and appointed Justice A.N. Ray, who had ruled in
favour of the government, as the Chief Justice.
Interestingly in some of the cases reviewed by Zia Mody, the petitioner did not get much
relief from the court even though important and interesting questions of law were settled. It
is seen that many a time, the ruling came about after ‘ the Supreme court embarked on an
inquiry not necessitated by the facts before it’, as in cases of Maneka Gandhi and Shah
Bano.
Zia Mody’s humanity shines through when she says that courts acting alone cannot tackle
the challenge of slum development and rehabilitation. They need the support of well
executed social welfare policies and economic development strategies. Zia Mody says that
years after the ruling in Olga Tellis there has been a symbolic shift in the Supreme court’s
approach towards the displacement of disadvantaged sections of society and their
fundamental right to shelter. This has been especially so in the case filed by the Narmada
Bacho Andolan which was petitioned the Supreme Court seeking a restrain on the Narmada
River. Despite initially staying the construction of the dam, the Supreme Court allowed the
dam’s height to be raised and allowed its phased construction at the expense of many
tribals who were displaced. Zia Mody criticises the Supreme Court’s assertion that after
rehabilitation the tribals would be in a better position than they were already in and they
enjoyed in their tribal hamlets, an assertion which Zia Mody rightly describes as ‘simplistic
and myopic’. In Zia Mody’s view, the Supreme Court touched its lowet point in Almitra
Patel v. Union of India where it ruled that ‘providing alternative accommodation to
slum/pavement dwellers was comparable to rewarding a pickpocket and suggested that
landgrabbers should be dealt with an iron fist.’

If the Bhopal gas leak was a tragedy on a monumental scale, its aftermath saw callousness
on a similar footing. The Indian government decided to sue Union Carbide in a New York
court, on behalf of the victims, claiming that Indian courts were inefficient. The Indian
government’s suit was thrown out by the New York court. Back in India, the victims ended
up with a meagre settlement at the hands of the Supreme Court in 1989, which also
quashed all pending civil and criminal proceedings. The law school I went to devoted an
entire paper on the Bhopal gas leak case and I still remember the shame and anger the
entire class felt as we waded through reams of pages setting out the sordid affair in
excruciating detail, especially the manner in which the Indian government and the Supreme
Court let the victims down. Thankfully, a few years after the Supreme Court’s 1989
settlement order, the Supreme Court revived the criminal cases, though it wasted a golden
opportunity to revise the compensation awarded. Zia Mody says that ‘the Bhopal debacle
was not enough of a wake-up call for lawyers, judges, politicians, activists and the media. In
fact, they appeared to have pressed the snooze button and gone on to repeat mistakes of
the past.’ Zia Mody compares the Bhopal gas leak case with the 2010 BP oil in the Gulf of
Mexico. ‘Within weeks of the incident, BP created a 20 billion dollar fund to deal with the
accident.’ Zia Mody asks poignantly, ‘had the accident occurred in Indian waters, would BP
have paid even half the compensation it eventually did?’

When Zia Mody’s narrative reaches the controversial waters of the Reservation Ocean, all of
a sudden Zia Mody reveals a dry sense of humour. There are sub-headings such as “And
Along Came The Mandal Commission”, “The Mandal Challenge”, “Off With The Creamy
Layer” etc. There’s a nice and neat summary of the Indian caste system, the history of
reservations in India, developments after India’s independence and then the grand arrival of
the Mandal Commission. Zia Mody stays easy and neutral till the very end when she
expresses her view on what she expects Indian policymakers to do regarding reservation.
No, I’m not going to give this one away. Please read the eminently readable 10 Judgements
That Changed India to find out for yourself.

As mentioned above, Zia Mody does not hesitate to call a spade a spade. When discussing
custodial deaths, Zia Mody tells us that the judiciary’s approach to awarding compensation
has been erratic and inconsistent. There was an instance in 1991 when the Supreme Court
awarded Rs. 10,000 as compensation for public humiliation and loss of dignity and a case
where the Calcutta High Court awarded Rs. 10 lakhs to a rape victim.

Of the ten chapters, the one on the independence of the judiciary is a masterpiece in its
own right. In this Chapter, Zia Mody details the legal developments relating to appointments
to the higher judiciary in a simple and concise manner, followed by her sensible and
forthright comments. The First Judges Case is important not only for ruling that the
executive had the final say in appointing judges, but also because the concept of public
interest litigation took root in India on account of this case. In the Second Judges Case, the
Supreme Court swung the other way and ruled that judicial appointments should be
integrated, participatory and consultative. If there was a conflict, the judiciary would prevail.
This was endorsed in the Third Judges Case, with a minor modification. Justice Bhagwati had
lamented in the First Judges Case that the judicial appointment process was shrouded in
mystery. Zia Mody shares this lament and tells us that the situation continues to be so even
now, ‘only the identity of the high priests has been altered.’ Zia Mody clearly disagrees with
the Supreme Court’s interpretation of the law, calling the decision a rush ‘into unchartered
constitutional territory, arrogating to itself the unprecedented power of carrying out judicial
appointments.’ She (rightly in my opinion) says that ‘the decisions, though well intentioned,
have upset the balance of power as envisaged by our constitution.’

Zia Mody quotes Alexander Bickel to explain that the judiciary’s role is counter-majoritarian
and anti-democratic. Unlike politicians, the judiciary is not answerable to the populace, yet
it has the power to review decisions of the elected representatives and even overrule them.
This counter majoritarian nature of the judiciary is tolerated on account of lack on
alternatives, but when the judiciary usurps the power to appoint judges, such counter-
majoritarian nature becomes particularly pronounced, Zia Mody tells us. Zia Mody endorses
the proposals for creation of a National Judicial Commission which would have
representatives from the executive and the judiciary and says that ‘such a commission
seems to be the only solution to restore the system of checks and balances in judicial
appointments and infuse transparency and accountability into the process.’ Zia Mody’s
words have turned out to be prophetic. On 5 September 2013, the Rajya Sabha passed
a Constitution Amendment Bill to create a Judicial Appointments Commission which will
replace the existing collegium system of appointing judges to higher courts. I do wish Zia
Mody had commented on the proposal to create an Indian Judicial Service, but she didn’t.

The Aruna Shanbaug case in which the Supreme Court elucidated its views on euthanasia is
another chapter which examines very interesting questions of law, morality and public
policy. In the course of its examination into the pros and cons of euthanasia, the Supreme
Court screened a video recording of Aruna’s condition to be screened in to the courtroom.
Support for such a practice, which clearly violated Aruna’s right to privacy, was found by the
Supreme Court in the practices followed during the Nuremberg trials, where Nazi war
criminals were tried! Not surprisingly, Zia Mody turns up her nose at such an exercise of
(in)discretion by the Supreme Court. In this case, the Supreme Court took the very
controversial view that whilst active euthanasia was wrong, passive euthanasia (allowing a
person to die by not giving medicines or food) was not. Zia Mody tells us that the moral
justification for allowing passive euthanasia, as opposed to active euthanasia, is not
convincing. Zia Mody has a number of interesting arguments to buttress her position and
rather than reproduce them here,. Zia Mody writes very well, her English simple, to the
point and elegant too in the bargain. She uses her adjectives and adverbs in a low-key,
understated manner, with devastating effect. When talking of the ADM Jabalpur case, she
says ‘the Supreme Court had unhappily held’ that a detenu could not file a habeas corpus
petition challenging the legality of his detention during an emergency. At times Zia Mody
finds a ruling by the Supreme Court ‘disquieting,’ and sometimes it is ‘refreshingly
progressive’. All in all, 10 Judgements That Changed India is an excellent book, a must-read
for anyone interested in understanding India’s legal system and finding out how it reached
its present state.