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Supreme Court Postcard: Justice ‘Goldilocks’ Reddy should be sorely missed, not misrepresented

Justice Reddy: In the zone
Justice Reddy: In the zone
On 7 July, his final day in court, Justice B Sudershan Reddy sat on the Bench with Chief Justice of India SH Kapadia in the Chief’s Court, as is custom for a departing judge.

The custom was never more apt. Reddy and Kapadia shared a great rapport while on the Bench and although their outlook in matters judicial and otherwise were quite similar, they could not have been more different in demeanour and action.

Counsel appearing before Kapadia get to experience what Galileo probably went through at the Inquisition. Reddy, on the other hand, was in what I like to call the “Goldilocks Zone” of Judicial Demeanour: neither an aggressive judge who barely gives counsel a chance to get a word in sideways, nor one who meets elaborate arguments with stone-dead silence; he always listened patiently, but attentively, interjecting purposefully. Neither too hot, nor too cold, always just right.

Though he’s had a relatively short term (only four-and-a-half-years), Reddy has not only made huge contributions to the law but has managed to stir serious debate about where the Indian polity is heading and where it should go. Reddy’s understanding of the Indian Constitution was not limited to its function as a document, which was merely supposed to check the arbitrary use of state power.

Rather, like his spiritual predecessors on the Bench Justice VR Krishna Iyer and Justice O Chinappa Reddy, he saw the Constitution as also providing a blueprint for the uplift of India’s poorest and most deprived, and how the State should use its powers best to attain that goal.

Perhaps, with a longer term on the Bench, we would have seen this approach to constitutionalism developed fully in the context of a post-liberalisation polity but as it stands we still have a substantial body of work in his judgments to appreciate.

Four of Reddy’s judgments stand out in particular.

In the (in)famous Reliance case with his partly concurring judgment, apart from analysing the law and the key documents, he also laid down the law on how the state should exploit natural resources for the benefit of all and in accordance with the Constitution, foreshadowing his later order in the Nandini Sundar case where he links the Maoist insurgency with the rampant exploitation of natural resources, aided and abetted by the state.

His orders in that Nandini Sundar case and the Black Money case then restored faith in acts of judicial intervention and highlighted underlying and pervasive systemic problems that need to be tackled. It is a different matter that the Government continues to resist, making a bigger issue of “judicial overreach” than addressing the problem itself.

His finest judgment though, is that in the GVK Industries case. In a matter that was barely even contested, Reddy married soaring rhetoric with rigorous forensic examination of the Constitution to determine the scope of Parliament’s power to make extra-territorial laws. His ability to reason on the basis of first principles without abandoning careful interpretation of the text of the Constitution shines through in this judgment and is a terrific example of the judicial art and craft. Sample this passage:

“72. India's emergence as a free nation, through a non-violent struggle, presaged the emergence of a moral voice: that while we claim our right to self-determination, we claim it as a matter of our national genius, our status as human beings in the wider swath of humanity, with rights that are ascribable to us on account of our human dignity. Such a morality arguably does not brook the claims of absolute sovereignty to act in any manner or form, on the international stage or within the country. To make laws ‘for another territory’ is to denigrate the principle of self- determination with respect to those people, and a denigration of the dignity of all human beings, including our own.”

The unfortunate tendency among judges these days is to stick to dry recitations of the facts, arguments advanced, and final conclusions (roughly in that order) in their judgments.

Reddy broke that mould.

Apart from being one of the most articulate and erudite judges of the Supreme Court, Reddy was also one of those rare judges unafraid of citing non-legal works in his judgments. Like many fine judges such as the late MC Chagla, Reddy’s judgments are replete with references to works on regulatory theory, political science, economics, international trade, and of course, classic 20th century literature (“the horror! The horror!”).The erudition and depth of research in his judgments are evidence of someone who is well-read and thoughtful, one who is aware of current thinking in academia, legal and non-legal.

Nevertheless Reddy wore his learning lightly. No advocate appearing before him, however junior in terms of experience, was met with arrogance or haughty dismissal.

Always prepared with the facts and the main points of a matter before him, he didn’t need long argument by counsel to convince him either way, especially on Miscellaneous Days. Even on regular hearing days, unlike some judges, he always listened patiently and attentively, interjecting not to thrust his view upon the arguing counsel, but rather to question the correctness of a dubious proposition of law sought to be advanced. It may seem odd to the lay person that a judge does NOT listen to oral argument patiently and attentively. But those familiar with the courts will know that lawyers all too often have the habit of testing judges’ patience and attention span to the extent of sparking reactions ranging from anger to sheer boredom and indifference.

Always softly spoken, Reddy was often the scourge of the eager press corps confined to the back of the court in the visitors’ section, from where he was not always fully audible. It is perhaps telling that the only time I have known him to raise his voice the event made it into the papers!

When such a fine and fair-minded judge leaves the Supreme Court, it is a pity that he leaves while being subject to some rather unfair criticism. The popular media has raised a ruckus over the disquiet he has expressed over the neo-liberal ideology that seems to pervade the political and business classes almost across the board. Particularly in this passage from the Nandini Sundar case:

“9. The root cause of the problem, and hence its solution, lies elsewhere. The culture of unrestrained selfishness and greed spawned by modern neo-liberal economic ideology, and the false promises of ever increasing spirals of consumption leading to economic growth that will lift everyone, under-gird this socially, politically and economically unsustainable set of circumstances in vast tracts of India in general, and Chattisgarh in particular.”

And this passage in the Black Money case:

“12.Increasingly, on account of “greed is good” culture that has been promoted by neo-liberal ideologues, many countries face the situation where the model of capitalism that the State is compelled to institute, and the markets it spawns, is predatory in nature. From mining mafias to political operators who, all too willingly, bend policies of the State to suit particular individuals or groups in the social and economic sphere, the raison d'etre for weakening the capacities and intent to enforce the laws is the lure of the lucre. Even as the State provides violent support to those who benefit from such predatory capitalism, often violating the human rights of its citizens, particularly it's poor, the market begins to function like a bureaucratic machine dominated by big business; and the State begins to function like the market, where everything is available for sale at a price.”

The criticism seems to be directed at what they consider “overreach” – the Court expressing its distrust of an ideology in a judgment and making it the basis of its far-reaching orders. (See this for another such critique). A careful reading of the criticism, however, makes clear that their real problem seems to be with Reddy’s views of neo-liberalism itself and not with the breach of institutional boundaries that that presumably entails.

The criticism essentially seems to be that Justices shouldn’t express their views on the prevailing ideology or world view that informs government policies and strictly conform to the law; a view that has lost all currency in this country since Justice Khanna’s powerful dissent in ADM Jabalpur where he upheld the right to life and liberty of a citizen against Government intrusion, even during the imposition of an Emergency.

But what critics seem to miss out on is the crux of Reddy’s argument: adherence to this ideology has warped the functioning of the constitutional machinery.

When Reddy expresses distrust of neo-liberal policies, he is doing so as the judge of the Supreme Court tasked with defending constitutional liberties from governmental intrusion. That this governmental intrusion on civil liberties seems to be informed by a certain world view cannot but be noted by any thoughtful judge who takes his work seriously.

Although Reddy will no longer preside in the Supreme Court of India his judicial career is not entirely over. He is likely to be appointed to head one of the numerous tribunals and commissions that dot the legal landscape of this country.

One hopes that the opportunity for him to continue making an impact on Indian public life will not be wasted.

Court Witness is an advocate of the Supreme Court of India.

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