Great Expectations

The last two years have seen a tectonic shift in the power balance between the three arms of the state, as the legislature and the executive have ceded more and more space to the judiciary due to the external force of public opinion, which in turn is fuelled by internal dishonesty and sheer incompetence of the ruling elite. This shift in power has been approaching slowly over a long time, as public confidence in the executive and legislature has declined with each new government, but the explosion in corruption scandals and the brazen attitude of our elected leaders in the last two years has forced the courts to virtually wrest control of the important investigations (2G and Coalgate) and reforms (economic and electoral) from the hands of the government, to avoid a complete breakdown of the public faith in the illusory ‘due process of law’.

Interestingly, at the time when the Indian Constitution was being drafted, there was a big debate as to whether the words used in Article 21 (Right to life and liberty) should be “due process of law”  or “procedure established by law”. Finally, the latter was preferred on the advice given by Justice Frankfurter of the USA to Sir Bengal Rau, since the words used in the US constitution had supposedly caused many headaches for the US judges. But thankfully for the people of this country, the Supreme Court of India has adopted an expansive interpretation of Article 21 ever since Maneka Gandhi’s case in 1978 (in a judgement delivered by Justice Krishna Iyer), and has held that “procedure established by law” must be fair and reasonable, not just a formal piece of legislation.

Although the current imbalance in favour of the judiciary is far from an ideal state of affairs, it should be abundantly clear to all observers of Indian polity that the increasingly proactive role played by the Supreme Court today is absolutely essential for the welfare of the people of this country. However, for the sceptics who seem more worried by judicial “activism” or “overreach” than by the plunder of national resources and the complete breakdown of law and order in most parts of the country, the latest controversy over FIRs in the Coal scam investigation should serve as an eye opener.

The facts of the case that have emerged are as follows: A public sector company (NPCC) and Hindalco, bid for the same coal blocks in Odisha, and after detailed considerations, the screening committee (headed by the Coal Secretary, Mr P.C Parakh), decided that the allotment should be awarded to NPCC. However, after a subsequent meeting between Mr Parakh and Mr K.M Birla (head of Hindalco), as well as the Prime Minister and Mr K.M Birla, this decision was changed, and the stake under consideration was split equally between NPCC and Hindalco in 2005.

In a raid conducted recently, the CBI has also seized Rs. 25 crores in cash from Hindalco offices. With respect to Mr Parakh, who by all accounts has enjoyed a spotless reputation as a bureaucrat, it has also emerged that he was the director of two companies in 2008, which were awarded coal blocks on the basis of false information furnished by them, after his tenure at these firms. Now it is perfectly possible that there is a reasonable, perfectly legal explanation for all of the above facts. But it would be difficult to argue that these facts do not merit closer examination by the CBI in light of magnitude of losses involved in this scam, and in light of the PM’s direct involvement in the decision of allotments.  

Yet, the mere registration of an FIR against a high ranking bureaucrat and a well-known industrialist has sent the business and political world into a tizzy of frenzied outrage, even though it incongruously leaves out the PM, who was the coal minister during this entire episode, and the ‘competent authority’ to make the final decision. The FIR has prompted several government functionaries and the commerce minister to express grave concern about how the actions of the court will impact the “investment climate” of the country. Because if there is one thing that seems to worry the Indian TV-watching middle class more than loot, plunder of the country at the behest of powerful corporations, it is the darkening investment climate of the country and the slowing GDP growth rate. It does not matter that the GDP growth accrues from the undervalued sale of spectrum, minerals or real estate, or from enormous Ponzi schemes. It does not matter that this growth comes from the public exchequer, or the poorest citizens of this country. And it does not matter that it goes straight into the pockets of the richest industrialists and politicians in the coutry. The only thing that the government seems concerned about is that the GDP growth must not go below 8%!

The brazen responses of the government to each new scam make it amply clear that if it were not for the principle of ‘Continuing Mandamus’  evolved by Justice Verma in the Jain hawala case, and applied in the 2G and Coal scam cases to facilitate direct monitoring of the CBI by the SC, there would have been absolutely no investigation into either scam, or into other high-profile cases such as the Radiia tapes case. Contrary to the creative interpretations of the law of the land by the courts, the law and policies which the government has followed for the distribution of natural resources are disturbingly reminiscent of the poem written to protest against the enclosure of public pastoral lands by powerful landlords in 17^th century Britain: “The law locks up the man or woman, who steals the goose from off the common, but lets the greater felon loose, who steals the common from off the goose”. In fact, if it were not for the intervention of the courts, the laws and policies implemented for the sale of publicly held land, minerals, ground-water and spectrum has had an effect very similar to the one that enclosure had in 17^th century Britain.

And what is remarkable is that all mainstream political parties and leaders— Congress and BJP, Rahul and Modi— are completely unanimous as far as core economic policies are concerned. First-come-first-served is an excellent policy for the distribution of cinema tickets or a new flavour of ice-cream, but even an undergraduate student of economics will admit that it is probably unsuitable for the distribution of precious natural resources such as spectrum or coal. And yet, all central and state governments (which include governments formed by Congress, BJP, CPI(M), BJD, RJD, JDU, etc) since 2001 wanted to stick to FCFS, and made no effort to move to a system of auctions, despite recommendations from several individuals.

If there is one thing that political parties are united over, it is how to maintain status quo in the economic, political, and especially the electoral realm. For if they lose their ability to win elections in the manner that they do today, all other issues would become meaningless. It is this vacuum of political will, which has prompted a spate of recent judgements from the SC that are aimed at reforms in the electoral system. While the Jan Chaukidar judgement, which disqualified candidates who are in Police custody at the time of election, is currently being reviewed (due to very justifiable concerns), the Lily Thomas judgement takes the very important step of declaring unconstitutional, the protection under Section 8 (4) of the Representation of People’s Act, for elected MPs and MLAs from disqualification after a conviction under certain laws. The SC has also directed the Election Commission to introduce a ‘none of the above’ option in EVMs, and is currently hearing a petition that seeks powers for the commission to disqualify candidates if they submit false information in their election expenses affidavit.

However, we must remember that this is only one (rather flattering) facet of the Supreme Court. There are several other not so savoury consequences of judicial decisions that need to be avoided at all costs. Not so far back, between 2004 and 2009, the courts in Delhi were responsible for the forcible eviction of over one lakh slum dwellers on the pretext of a beautification drive in preparation for the Commonwealth Games. In 2007, a SC verdict mandated a sealing drive, which caused the loss of livelihood to over fifty thousand small traders on the pretext of ‘public interest’, and resulted in an overnight profit of hundreds of crores to mall owners and builders. A prominent newspaper (Mid-Day) even published documents allegedly showing the vested interests of the judge who delivered this judgement, and contempt of court proceedings are still pending in the SC against the journalists involved in this story.

Apart from erroneous or malafide decisions, the problem of inordinate delays in the judiciary continues to get worse. In spite of millions of pending cases, the SC has recently admitted one PIL asking the court to oversee an excavation of some unconfirmed/imaginary treasure, and another PIL asking the court to make yoga mandatory in schools. Why the ASI needs the supervision of the SC to oversee an excavation, or why schools and the Education Ministry need the SC to decide the best way of ensuring overall mental development of children, is anybody’s guess.

Unless there is an electoral revolution in the coming elections, the political landscape of the country is not going to change substantially— barring a minor adjustment between the quantities of corruption and communalism involved in maintaining power. Thus, it is imperative that the Supreme Court does not waste its time on frivolous or ignoble pursuits, and continues to bear with dignity and responsibility, the duties prescribed by the Constitution, and what Justice Vivian Bose described in 1954 as the ‘flaming sword of its inspiration’.