January 29, 2020
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Caught In A Mid-life Crisis

Increasingly called upon to intervene in a host of issues, the Supreme Court has become sharply divided as it passes a series of historic judgements

Caught In A Mid-life Crisis

In its 45th year, the Supreme Court is going through a mid-forties crisis. Increasingly called upon to intervene on various issues, the judges cannot quite make up their minds whether they should tidy up the activist judicial excesses of the past or accept their pivotal role in tackling the corruption, excesses and atrocities that plague Indian democracy. Its reticence is accentuated by deep divisions in court and it is less institutionally cohesive than ever before. Yet the judicial show goes on—cautiously but firmly.

Former Chief Justice M.N. Venkatachaliah's policy of transferring suspect judges has happily been abandoned by Chief Justice A.M. Ahmadi whose reorganisation of the court's work has already begun to move the mountain of arrears to manageable proportions. After the Mandal (1992) and Babri Masjid (1994) cases established its reputation as a 'problem solver', the Supreme Court's decision in the recent Election Commission case brought institutional sense where there was ambition and anarchy, forcing T.N. Seshan to act convivially and collegiately with his colleagues and not just as a solo practitioner in his cause. With some circumspection, the court has begun examining the Narmada dam and the hawala transactions issues. In the pipeline are major controversies over the Tehri dam (where seismic miscalculations could result in the destruction of Hardwar) and the Vohra Committee (which points to the existence of a parallel government in India).

In order to assert its authority, it has used its power of contempt not just to punish the president of the Bar Council of India for being rude to Allahabad judges, but also stripped him of all his posts and the right to practice. This is a decision of doubtful validity but has frightening implications for all professionals. The court pulled up one of its lawyers for the inadvertent filing of misleading drafts; and severely dealt with Punjab officials for their savage violations of the rule of law. Yet, its decision in the Vasudevan case, involving jail for an official (who appears to be wrongly convicted for contempt for orders he could not have intended to violate) has both astonished and sent shudders down the back of the bureaucracy, which has also been put on notice that it will be personally liable for gross contempts and violations of the rule of law in other cases. Bombay lawyers who were virtually browbeating Chief Justice A.M. Bhattacharjee to resign were warned to show restraint. Yet, in the Sariska case, the court did no more than issue a warning to a person who had intimidated senior counsel physically and did not even bother to turn up for the Supreme Court hearings when mandated to do so. The court's contempt jurisprudence is messy and ad hoc. Yet, its message is clear: if the court is to function in its newly assigned and assumed role, it must have respect and cooperation, otherwise the entire judicial enterprise of protecting the rule of law is put at risk.

While the forces of democracy have been greatly strengthened by the important judgement in this year's broadcasting case (which seeks to bring fairness and balance into the Government's custodianship of the electronic media) and the Jamiat case (which restrains the Government from mindless orders banning otherwise lawful associations), the cause of secularism may have suffered a setback. The lectures on secularism—deriving inspiration from the Bommai (1993) and Babri Masjid (1994) cases—continue. Yet, it cannot be overlooked that in the Babri Masjid case the majority had gone to the extreme of denying that Muslim prayer in a mosque was an essential practice protected by the Constitution since such prayer could be offered anywhere—even in the open! But, it is in the Manohar Joshi case and associated cases of 1995 that the court refused to 'convict' a chief minister who hoped that there would be a Hindu State in Maharashtra by holding that this was not an appeal to religion! More significantly, it scaled Olympian heights of esoteric proportions by virtually sanctioning the use of Hindutva for future elections on the unconvincing assumption that such a phrase was not intrinsically electorally nasty. This seems strange because the history of India of the past decade does not just suggest, but menacingly proves, the contrary. Radical judicial decision-making does not necessarily require using judgements to lecture from the pulpit. Some of the greatest judicial decisions have been chaste in restraining the talkative judicial heart from upstaging its intent.

If the Krishna Iyer-Bhagwati decisions of the late '70s underlined the importance of the rule of law, that tradition survives relatively unscathed in important decisions concerning the manner in which contracts are to be awarded by the State—whether they are concerned with telephone directories (as in the Tata Directories case) or the provision of basic telecom services (an issue to be considered in 1996). Similarly, a significant decision on preventive detention permits the detenu to make an additional representation to the State whose left detaining hand does not usually know what its right hand is doing. This has been the year of the Sanjay Dutt decisions and the demise of TADA. The courts have tried to ensure that draconian legislation (such as TADA and those dealing with narcotics) is implemented within rigorously defined limits. Atrocities by various authorities—especially the Punjab police— have been curbed. There is a far greater sensitivity to issues of social justice. The right to health (including mental health) and protection from occupational hazards for workers have featured as fundamental rights. If judges in the Tata Cellular and other cases (1994) had emphasised only 'fairness' as a part of the contracting power of the State, Justice K. Ramaswami's decisions in the LIC case brings back 'social justice' as a prime consideration. The social accountability of doctors and, perforce, other professions got a considerable boost when the Supreme Court ruled that such professionals and hospitals (other than those who provide free medical care to all) can be sued for damages for acts of negligence. An irate medical community has reacted to this judgement with selfish insularity rather than balanced wisdom.

It is in the field of reservation law that the court has made ostensibly matter-of-fact decisions of considerable import. Following Mandal (1992) which contorted many reservations issues by insisting on a "creamy layer" exclusion and denying backward classes reservation in promotions from 1997, the court struck down the Bihar and Uttar Pradesh "creamy layer" tests as being over-exclusive and severely limited promotional avenues for the Scheduled Castes/ Tribes (SC/STs). The result has been dramatic. Kerala has reacted sharply against any "creamy layer" test. Parliament has restored reservations for SC/STs beyond 1997. A major controversy hangs in the balance on whether Christian and other converts are Dalits, and therefore, entitled to reservational benefits. Electorally, the backward classes have struck back in Uttar Pradesh and Bihar and hold the balance of power in many electoral situations. India's polity is being opportunistic rather than sensible about reservations. Judicial statesmanship—amidst all its limitations—cannot cure political unscrupulousness.

It is Justice Kuldip Singh's Court No. 2 which has been at the forefront in bringing hope to the environmental and social aspects of our lives. The many issues dealt with by his court in 1995 include the arbitrary allocation of houses in Delhi, telephone tapping, protecting India's coastal zone, the Taj Mahal, the Ridge, Delhi's streets from pollution and garbage and a host of other questions. The criticism that this has a King Canute quality begs too many questions. So far, the administration has been content to find comfort in an old principle that judges will not tell the executive to exercise its discretion in a particular way. The court has reminded the Government that its powers are invariably coupled with a duty; and forbearance may be as big an indiscretion as mal-exercise.

The aftermath of liberalisation will certainly require a great deal of judicial statesmanship to ensure that the respect and equity due to ordinary people are written into our laws and the Constitution. The Supreme Court, amidst all its divisions, has to traverse the last part of this decade (indeed, century) with courage and conviction "lest the great globe and all which it inherit shall dissolve and like this insubstantial pageant faded leave not a rack behind".

(The writer is an eminent Supreme Court lawyer)

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