Back With a Bang

Written by  //  July 7, 2011  //  Law & The Judiciary  //  5 Comments

Chief Justice SH Kapadia

When one returns from a long break from work, one is tempted to take it easy, switch gears slowly, and settle into a rhythm in due course.

Except if you’re a judge of the Supreme Court.

In which case, you charge right back into the front pages of every newspaper with hard hitting judgments and wide ranging orders.

To recapitulate, just this week:

Special Investigation Team set up to probe black money stashed abroad

Chattisgarh Government directed to disband the Special Police Officers (better known as the Salwa Judum)

Allahabad High Court’s quashing of Land Acquisition by Greater Noida Industrial Development Authority upheld

Monitoring of Investigation into Cash for Votes Scam

Whew. This is what an activist Court looks like folks. The Court is telling the Government how to do its job, whether it is in “getting” black money back, or how to fight the Naxalite/Maoist problem, or how it should acquire land for “public purposes” under the Land Acquisition Act.

It is of course a different matter whether or not this is a good thing.

The issue of judicial activism has been done to death here and elsewhere and the arguments, after a point of time, are just the same old re-treads – competence v enforceability of rights; institutional integrity v immediate need; so on and so forth.

The situation that the Supreme Court, and India, in general, finds itself in, however, cannot be easily bracketed within any of the existing parameters of the debate. Rather, what is propelling the Supreme Court’s activist drive (and to a great extent, other High Courts such as the Karnataka High Court and the Delhi High Court, as well) is the impression of a severe case of governmental paralysis that has gripped our polity.

There is no dispute that severe problems currently buffet the Indian State from all sides and in all sorts of ways, but there seems to be no will on the part of the political executive at the Centre to take any action to steady the ship.

Whether it is corruption, black money, Telangana, unjust land acquisition, depletion of forest cover, you-name-it-we-face-it, the Government’s reaction seems to be to run around in circles like headless chicken. In some cases, they know what to do, but won’t do it for lack of political will. In others, they know what to do, but go ahead doing the exact opposite for short term political/economic gains. In others, they have not the first clue on what to do.

So far, the Supreme Court has stepped in to remedy the situation in two of the three types of cases I just pointed out. The black money case is a classic instance of where the Government just does not have the political will to seriously pursue the persons fronting for the illegally obtained wealth stashed abroad. As Justice Reddy’s reasoned order makes it clear, far more effort was spent in convincing the Court that nothing could be done or something was being done, than actually going out and doing this things to prosecute individuals with suspicious foreign bank accounts. It is no wonder that Justice Reddy, among the more soft spoken and temperate judges of the Supreme Court, should have completely lost his rag during some of the black money case hearings.

Justice Sudershan Reddy

With land acquisition, we have the Court finally stepping in to call the Government’s bluff about “public purpose”. This was a particularly egregious case where the Greater Noida Industrial Development Authority invoked the “emergency” clause of the Land Acquisition Act to deny farmers a hearing before acquiring land to be handed over to private developers to build luxury apartments. This is not a first for the UP Government mind you, but one could say that this is so obviously and blatantly stealing from the poor to give to the rich that the Court had to put its foot down. It is ironic, but exactly the same fears were voiced by Justice VD Tulzapurkar in his minority judgment as far back as 1985 in Bhimsinghji v Union of India (in the context of the Land Ceiling legislation).

The enactments involving large schemes of social engineering like abolition of Zamindars, agrarian reforms nationalisation of undertakings and businesses and the like, where avowedly the benefit of the community or public at large is the sole consideration are distinguishable from the instant case, where “industry” has been expressly defined to include business, trade or profession in private sector and where power has been coffered upon the State Government to allot properties acquired under the enactment to individual businessman, trader or professional to enable him to carry on his private business, trade or profession, that is to say, where the legislation is a fraud on State’s power of eminent domain, such a provision of putting a maximum limit on compensation payable in respect of the acquired property irrespective of its extent will have to be regarded as confiscatory in nature.

Then, the majority — comprising CJ YVChandrachud, and Justices MN Bhagwati, V Krishna Iyer, and AP Sen — brushed aside such fears as being everything short of hallucinatory, but now, in retrospect, the views of India’s finest judges of all time seem, frankly, deluded.

The current wave of activism among the judges is at least a year old and can probably be traced to the time when Justice Kapadia took over as the Chief Justice of India fifteen months back. His now-tainted predecessor monopolized fresh PILs that challenged Government power or inaction and let them languish in the doldrums of delay. In his last year as the CJI, it was an open secret that this was being done to get a favourable post-judicial posting — to pick a body at random, the National Human Rights Commission — along with the perks and power that go along with it.

Justice Kapadia, is however, cut from different cloth and has brought a strict, no-nonsense approach to the business of manning the sentinel on the quie vie. PILs were spread among the various Benches that he constituted, ensuring that such matters go before judges who have an impeccable record of honesty. So far, he hasn’t been let down as the Supreme Court’s monitoring of various issues, be it the implementation of the NREGA, the right to food and shelter, corruption in high places or the rights of tribals has attracted much appreciation and very little opprobrium.

Ideally, the site for the resolution of such complex and intractable problems should be the halls of Parliament or the domain of the Executive. Ideally, the manner in which such problems should involve careful deliberation, balancing as many interests as possible, and without compromising the interests of the worst off. Ideally, the results of governmental action should inspire confidence in the public at large that their democratically elected government is capable of solving the intractable problems of the day. Yet, as we see everyday, the situation is not even close to being far from ideal.

Contrary to academic and popular belief, judges are aware of their limitations and their lack of power. Overreach makes the judges and judiciary look silly, and sixty odd years of judicial history has ingrained this much at least into judges. Writ courts can only monitor, but not investigate. They can only call for reports, but cannot compel compliance. They can strike down egregious actions of State, but cannot fully restore those irretrievably wounded by such actions to full health, in body or mind. Much of what is said by judges during argument, by way of observation, — and often (mis-reported) by the media — is a tacit admission of this powerful powerlessness. Oxymoronic perhaps, but that is the only way to describe a judicial body that has the power to lay down the law of the land, protect fundamental rights against governmental encroachment and do complete justice, but cannot always ensure that its orders are not casually disobeyed by lower level officials.

Let’s be very clear about this. India’s democracy is by no means safe, secure or stable. It is being constantly subverted and undermined in a hundred different ways every day. Yet, every day, someone fights back against this subversion and undermining knowing that failure would bring the institutions of democracy down to dust. Democracy is not just a formal commitment to periodic elections based on universal suffrage, but something bigger and more meaningful, and most importantly, something worth defending.

The battles that the present activist Supreme Court has picked up go to the very heart of such a rich conception of democracy;
How should a democratic state fight to protect democracy without subverting it? What’s is the role of the State in ensuring that economic growth is equitably distributed? How to ensure that the political process is not subverted by illegally accumulated wealth?

As Justice Reddy puts it so eloquently, these are fundamental, existential questions that have to be grappled with and cannot be wished away or put into a SEP-field. Among the major organs of the State, only the judiciary seems to understand that this is what is at stake, and why it has do something to prevent utter and complete breakdown of the institutions of democratic governance.

Maybe, if things improve, we won’t need a Supreme Court that has to keep an eagle eye on governing institutions. Maybe, it will go back to resolving intractable family disputes and gigantic corporate battles and when certain families are involved, do both at the same time. Maybe, the case load of the judges will leave them worrying less about what public interest compels them to do, and more about what the precedents and principles have to say about it.


For now, though, the sentinel’s strong, stentorian “qui vive” is comforting.

5 Comments on "Back With a Bang"

  1. Arghya July 7, 2011 at 9:04 pm ·

    Alok, well written as always and a superb picture of the CJI to boot! But I disagree entirely with what I see as the general point that you are making- that Indian democracy is in a dangerous situation with failing institutions of governance, the Supreme Court realises it, and is compelled to do something about it. I think the boot now is really on the other foot. This argument could have worked int he 80s with public interest litigation beginning but now there is almost a resignation to the fact that any big public law issue will be brought before the Supreme Court, no matter what. Article 21 and 14 might as well be rewritten to say anything goes; merely the claim has to be made. And while the Court certainly has the best of intentions, it must give government the space to act and that now cannot be by acting itself and then compelling performance but in certain cases not acting at all. It’s time the Court got out of the forests, got out of the right to food cases and let the political process take over. Yes, it will stumble, but it must be given the chance to stumble. And for all you know we could be pleasantly surprised. For despite the Court’s passionate interventions, implementation on the ground is a mixed record and for all the bluster the results have been marginal. So it’s imperative that the Court slowly but surely, not overnight, but perhaps in a little while starts stepping back. It’s intervention, no matter how bona fide is primarily more money for the newspapers and little actual change.
    *I make broad generalisations in this comment, but my criticisms are directed at those cases where the court is not exercising a judicial function. Passing policy orders in Godavarman would be one such example, while striking down UP’s land acquisition law would not.

  2. Alok July 8, 2011 at 3:57 am ·

    Thanks Arghya! The picture of the CJI was to intimidate possible dissension into quiescence. Clearly it hasn’t worked. :p

    But, having observed the Supreme Court for the last two years, I can tell you that the Supreme Court has in fact become more selective, but more active in the PILs that it entertains. This is something Kapadia made very clear in the first few weeks of his tenure as CJI; PILs calling for the Court’s intervention in any and every matter of public interest were thrown out with costs. Where however, a statutory duty was being violated, or the Government was being callous about implementation of a key law like the NREGA, the Court has stepped in and stepped in strongly. Justice Kapadia has been skeptical of vague and general declarations of Article 14 and 21 violations, but has taken interest where the petitioners have particularized it, and shown continuing rights deprivation on the part of the Government. Motivated PILs, busybosy interventions are being clamped down upon as this example shows.

    In the context of the 2G and black money cases, the Court would not have gone into that much detail and monitored in such depth if the Government had been able to convince them, in the first few hearings, of good faith in investigation. As someone who appears with law officers for the Government, I can tell you with some confidence that in 95% of cases (including PILs) the Court takes the Government on its word, and will assume bona fides unless shown otherwise.

    The point is, that cases like the latter, actually pollute the political process further. Incidents of such magnitude are matters that do genuinely call into question the bona fides of the government on every front and the possibility of the political process *EVER* fixing itself.

    The Court’s intervention, in the 2G scam at least, has given the CBI a degree of independence and confidence to pursue the main accused with intent. It’s true, in a lot of other cases implementation remains a problem, but that cannot be an argument for complete inaction, especially when it is not an unfortunate accident that implementation is so poor, and it suits the aims of the political executive that implementation is so poor.

  3. Sumit July 8, 2011 at 11:11 am ·

    Does any body have an idea when supreme court announces the names for selected law clerks?

  4. Shreya August 17, 2011 at 12:00 pm ·

    Great read Alok – thanks for posting this.

  5. Alok August 17, 2011 at 1:16 pm ·

    Thanks Shreya! You’re welcome.

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