Justice Ganguly is the author of Landmark Judgement that changes India. Justice Asok Kumar Ganguly was a judge in the Supreme Court of India and chairman, West Bengal Human Rights Commission (2012–2014). He became a judge of the Calcutta High Court in January 1994, and was the acting chief justice of the Calcutta High Court twice, as well as chief justice of the Orissa High Court and the Madras High Court. He has delivered judgment in several landmark cases.
In this book, he analyses the cases that led to the formation of the new laws and changes into the legal system. This book is also an ideal guide for anyone interested in the changes made to Indian Laws down the years and the evolution of the Indian Judicial system.
I. The basic structure doctrine evolved to protect core constitutional values
In this chapter, Justice Ganguly talks about the 6 judgements that have helped in the formation of the Basic Structure Doctrine. He has divided the chapter into groups; this group deals with the parliament’s power to amend the constitution and Supreme Court power to Judicial Review of those amendments. The key issue is whether parliament in the name of the amendment can destroy the constitution?
Justice Ganguly gives the following 6 judgements to understand the topic in a more fluid manner:-
Sankari Prasad Singh Deo v. Union of India
Sajjan Singh v. State of Rajasthan
IC Golaknath v. State of Punjab
Kesavananda Bharti v. State of Kerala
Indira Gandhi v. Raj Narain
Minerva Mills v. Union of India
II. Dissent in the last court, changing constitutional values
This chapter mainly deals with the upholding of individual liberty and opposing the state’s encroachment of the same during the emergency. In this chapter, the author analyzes the case of ADM Jabalpur v. Shivkant Shukla, and tries to analyse the emergency concept through the use of this case. The author discusses that the importance of their judgement in the judicial history is monumental because of the dissent of the Justice Hans Raj Khanna, where the learned judge “during the dark days of that phoney emergency, kept the flickering candle of the individual liberty burning.”
The minority judgement of this case also paved the way for the Doctrine of Due Process of law as laid in the Maneka Gandhi case. This judgement also resulted in the constitutional amendment-the 44th amendment which made it clear that enforcement of fundamental rights under article 20 & 21 can’t be suspended even during the times of emergency. In his dissenting opinion, he held the following rulings:-
- Power of the High court to issue writs under article 226 was an integral part of the constitution and no was given to the constitution on any authority to suspend the power of the High Court.
- Emergency declared under article 359(1) could suspend the power to move to court but the power given under the statute not being the fundamental rights could be enforced.
- Article 21 couldn’t be considered as the sole repository of right to life and liberty and even without that state doesn’t have the power to deprive any person’s right to life and liberty.
III. From Gopalan to Gandhi
This chapter mainly talks about the evolution mosaic of Constitutional interpretations. The journey of the Supreme Court from the AK Gopalan v. State of Madras to the Maneka Gandhi v. Union of India is a fundamental shift in the understanding of the constitution which took place at a span of 28 years.
It shows how the judiciary has shifted from the tradition of black letters of law to the firm assertions of the concept of the “due process” of law. This dynamic and expansive interpretation of the fundamental rights post the emergency period affected not only the lives of Indians but also influenced the jurisprudential developments in different countries.
In the Gopalan case, the question was the validity of the Preventive Detention Order and was challenged on two grounds:-
- Whether the Act violates article 21?
- Whether the Act violates article 19?
Deciding the issue, Chief Justice Kania said that “courts are not at the liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words.”
Court further held that it cannot declare legislation unconstitutional because of some spirit of the constitution which isn’t even mentioned in the instrument.” A court on the basis of the decision refused to examine the legislation whether it was fair as the word “due” was absent in article 21 of the constitution.
And on the question on the interrelation between article 19 & 21, it held that both the articles are not mutually complementary to each other as there is no mention of the right to life in the article 19.
Thereafter another case was filed State of West Bengal v. Anwar Ali Sarkar, where the court had to discuss on the constitutionality of the Bengal Special Courts Act, 1950. In the judgement, Justice Vivian Bose took in favour of interpreting the Act through the lens of “due process” and thus introduced the principle for the first time.
Thereafter various cases have been discussed by the author analyse the shift in the interpretations of the constitution and finally it was settled in the Maneka Gandhi case were the doctrine of reasonableness and non-arbitrariness was propounded.
IV. Strengthening the roots of democracy in India and ensuring a free and transparent election process
This chapter mainly talks about the election process & the analysis of SR Bommai and subsequent cases. In the case of SR Bommai v. Union of India, was regarding the interpretation of the emergency provision as mentioned in Article 356 of the constitution. Now before understanding the SR Bommai, it’s pertinent to understand some cases relating to emergency powers field before this case.
In the case, if State of Rajasthan v. Union of India, the issue was regarding the Judicial review of the presidential proclamation. The Supreme Court held that judicial review of presidential order wasn’t barred. The court held that judicial review in respect of the exercise of power under Article 356 may be narrow, but if there it’s found that exercise of the power was done on malafide or irrelevant ground then courts had the jurisdiction to examine it.
In the case of Bommai, 6 judgements were delivered on 9 key issues. In this judgement many key features of the constitution like federalism, parliamentary system and secularism were upheld. The interesting thing about this judgement was that the majority held that the emergent situation which called for the invocation of article 356 contemplated a situation of an impasse. Justice Sawant, relying on the word “cannot” occurring in Article 356 held that this would only mean a situation of physical impossibility which could not be remedied.
V. Access to education and its denial by the fallacious dictum
This chapter is mainly in relation to the reservation in the educational institutions and more specifically in relation to the reservation in the private institutions.
The chapter starts with the analysis of the TMA Pai case, where it was held that right to establish educational institution whether for the charity or for-profit being an occupation is a fundamental right and it’s protected under Article 19(1) (g). The judgement has further held that imposition of quota of seats in unaided professional institutions constitutes serious encroachments on the rights and autonomy of the private institutions. It held that both religious and linguistic minority status will be decided on the basis of the population of each state and not on the basis of the whole of India.
This was countered by the parliament with the passage of the 93rd amendment, 2005 where clause 5 was added to the said article.
After the judgement of TMA Pai, several questions have arisen regarding the fixation of the fees structure in the different minority and non-minority educational establishments most of which were professional establishments. This was then clarified in the Islamic Academy case, where the court in response to the fixation of the fees in the educational institutions ordered setting up of committee headed by retired judge of High Court to be nominated by Chief Justice of the concerned state, for the fixing of the proposed fee structure of the concerned institutions.
The author then discussed the PA Inamdar case, where the court had to decide whether the clarification given in the Islamic case was counter to the TMA Pai case or not.
vi. Affirmative state action and protection of reverse discrimination by courts
In this chapter, Justice Ganguly talks about the reservation policy of the states of the upliftment of the SC /ST and affirmative action of the state in a detailed manner.
Justice Ganguly discusses that India is a welfare state with an activist agenda and all the articles relating to reservations are enjoined upon the state to promote with special care the educational and economic interests of the weaker sections of the SC/ST. this in order to protect them from social injustice and all forms of exploitations and to provide for their social advancements by reserving posts for them in civil service of they are not adequately represented.
It further discusses the case of Ashoka Thakur v. Union of India, to differentiate the affirmative action of the US and that of India, where the court has said that due to the structural difference between the Indian and US constitution, the principles of the affirmative action in the US would apply in India.
It then goes on to discuss the landmark judgment of the Indra Swahney, where the controversial judgement of the reservation was discussed in a 9 judge bench. Justice Ganguly explains the importance of the case by stating that the court had to deal with all the available groups, sections and classes in society since caste represented an existing identifiable social group/class encompassing an overwhelming majority of the country’s populations.
VII. The rarest of the rare doctrine
This chapter deals with the imposition of the death sentence and the evolving mosaic of fairness in penology.
The validity of the death penalty provision was challenged before Supreme Court in the case if Jagmohan Singh v. State of UP, on the ground that the provision of section 302 of IPC conferring absolute discretion on the judge to award death penalty is violative of Article 14 of the constitution and the same interferes with the right to life of an accused awarded the death penalty. The court rejected the contentions raised in this case and relied upon the 35th law commission of India report.
Thereafter Justice Ganguly analysed the various aspects of the death penalty through the different case to understand the shift in the interpretation of the interplay with the death sentence and with the right to life.
The matter was finally rested (as of now) in the case of Rajendra Prasad v. State of UP, where the court held that various factors play a part in swinging the pendulum of sentencing justice erratically between the aggravating and mitigating factors. The author finally concludes by saying that matter should be examined by law commission in all the angles and in much greater depth. Justice Ganguly also says that parliament needs to address the issue adequately and put the matter in a statutory basis thereby structuring the sentencing process in the imposition of the death penalty in accordance with the constitutional values of human dignity and right to life.
Justice Ganguly goes on to analyse the power of the president and the governor regarding the granting if remission and pardon and what’s the scope and ambit of it. Justice Ganguly also analyses the change in social circumstances which has forced the court to take the role of the legislature like in the case of Vishaka, where the court had to give the guideline regarding the sexual harassment in the workplace.
In nutshell, it can be said that the book is quite the gist of all the important judicial history that took place in the last 60 years which have shaped today’s justice system.
It can be said that Justice Ganguly has tried his best and has successfully incorporated all the issues and judgement in the easiest manner possible so that student of any stream could understand the rich juridical history and that takes proud in it.
 Keshavananda Bharti v State of Kerala, (1973) 4 SCC 225
 Maneka Gandhi v Union of India (1978) 2 SCR 621
 Golaknath v State of Punjab AIR 1967 SC 1643
 Sankari Prasad Singh Deo v Union of India AIR 1951 SC 458
 Indira Gandhi v Raj Narain AIR 1975 SC 865
 IC Golaknath v State of Punjab AIR 1967 SC1643
 Keshavananda Bharti v State of Kerala, (1973) 4 SCC 225
 Indira Gandhi v Raj Narain AIR 1975 SC 865
 Minerva Mills v Union of India AIR 1980 SC 1789
 ADM Jabalpur v Shivkant Shukla AIR 1950 SC 27
 AK Gopalan v State of Madras AIR 1950 SC 27
 State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75
 SR Bommai v Union of India AIR 1994 SC 1918
 State of Rajasthan v Union of India AIR 1977 SC 1361
 TMA Pai v State Of Karnataka AIR 2003 SC 355
 Islamic Academy of Education v State of Karnataka Writ Petition (civil) 350 of 1993
 P.A. Inamdar & Ors v State Of Maharashtra (2004) 8 SCC 139
 Ashoka Thakur v Union of India (1995) 5 SCC 403
 Indra Sawhney & Others v Union Of India AIR 1993 SC 477
 Jagmohan Singh v State of UP AIR 1973 SC 947.
 Rajendra Prasad v State of UP AIR 1979 SC 916.