Last week, the Delaware Supreme Court issued, what the New York Times termed as an “unusual rebuke” to Chancellor Strine of the Delaware Court of Chancery, arguably one of the most influential corporate courts anywhere in the world. For decades now, corporate jurisprudence emerging from Delaware has shaped corporate law in the United States and influenced corporate policy and commercial courts across the globe. Last week though, Chancellor Leo Strine, Jr., the first amongst equals on the Chancery Court bench came under heavy fire from the Delaware Supreme Court for using one of his opinions as “a platform from which to propagate individual world views on issues not presented.” In a no-holds-barred attack, the Delaware Supreme Court criticised the Chancellor for abusing the purpose of a judicial opinion by using it to express his ruminations on the proper direction of Delaware law, an act better reserved for “law review articles, the classroom, continuing legal education presentations, and keynote speeches”. While at least one news network attributed the hectoring stricture to the personal differences of opinion between Chief Justice Steele of the Delaware Supreme Court and Chancellor Strine, the move, apart from spotlighting Chancellor Strine’s colorful courtroom persona, raises important issues on the extent to which judges may use judicial dicta to comment on legal policy.

Of the many illustrious judges to have served on Delaware’s famous court, Chancellor Strine justifiably lays claim to being amongst the most visible and recognised chief judge in recent memory. Having started his career as a corporate litigator at Skadden, Arps, Slate, Meagher & Flom, he became Counsel to Delaware Governor Thomas R. Carper, who appointed him to the Chancery Court where he eventually rose to become Vice-Chancellor before rising to the top spot. Known for his sharp wit and sharper analyses, Chancellor Strine lays claim to authoring more than one landmark decision in a relatively short span of time, including the decision IBP v Tyson Foods where he crafted a holistic (read deal-friendly) review standard for determining when undisclosed adverse financial information qualifies as having a deal-breaking material adverse effect. But apart from his meteoric rise, this isn’t the first time Chancellor Strine has expressed his world views in a judicial opinion.  In Cox Communications, another outstanding decision, he attempted to make sense of the two divergent standards frequently invoked for reviewing transactions involving takeovers by controlling shareholders. That digression, in a case which was actually concerned with the appropriate quantum of legal fees to be paid in such deals, now forms the basis for most contemporary discussion on the issue and is regarded as an outstanding contribution to legal doctrine. Notwithstanding the strategic implications of the Supreme Court’s unmitigated diatribe therefore, Chancellor Strine’s reputation as one of America’s foremost corporate minds is firmly secure and deservedly entrenched. And as someone who attends his marquee Mergers and Acquisition class at Harvard, I can attest, that his incisive legal analysis combined with a quirky sense of humour make for an outstanding classroom experience.

But behind the more interesting story of Chancellor Strine lies a less snazzy legal issue of comparative importance. In publicly hauling up the Chancellor of the country’s most celebrated corporate court, the Delaware Supreme Court has sent out a clear message – dicta, even when judicial, is not appreciated. The Supreme Court would much rather have Delaware judges express their personal views in law review pages and classroom presentations, than in their written opinions. As a relative outsider to the American legal world, three thoughts immediately come to mind.

First, the Supreme Court’s advice is testament to the extent to which the law review culture is entrenched in American legal thought and training. As a rule, the best American legal minds appear to write extensively. Academic writing in general and writing by judges in particular, far from being frowned upon, is welcomed as being the apposite place for discussions on legal standards as against judicial opinions, which must express clear, actionable legal rules.

Second, a statement by the Delaware Governor’s official spokesman reiterating his faith in Chancellor Strine was immediately after the Supreme Court’s rebuke. That the Governor should comment on what is essentially an issue of judicial discipline, is an indication of how closely the political class appears to follow the judicial process even in the case of tenured appointees.

Third, the robust and incisive news reporting that followed, indicates an informed and a fearless media, which apart from being accurate, is not hemmed in by fears of being in contempt of arguably two very powerful courts. The day when knowledge of individual judicial predilections, will inform non-legal news analysis, seems a disconcerting distance away in India. But there are important lessons of institutional checks and balances, for our legal system in each of these trends. Lessons, on what a well functioning polity should look like, even when the real issue at hand perhaps stems from little more than a principled difference in opinion.

This time last year, Kim Jong Il, Muammar Gaddhafi and Hosni Mubarak were the most powerful men in their respective countries.

Anna Hazare was barely known outside the state of Maharashtra; Arvind Kejriwal probably not beyond his immediate family.

Justice Kapadia had just promised to cut down on judicial activism in favour of clearing the massive backlog of cases in the Supreme Court of India.

Most people couldn’t spell or even pronounce Kanimozhi.

How things change in 365 days.

Well ok, except for the last thing.

How do we make sense of these tectonic changes?

That these changes have been tectonic can’t be denied. The Lokpal debate and the 2G and Commonwealth Games scams and the Government’s response in tackling have fundamentally altered the way citizens view the institutions of State. It may not be evident to us now. After all, we still put up the same nonsense at Government offices, still have Parliament being repeatedly made a mockery of by its own legislators and feel the effects of ill thought out and poorly implemented policies. On the surface, nothing’s really changed. Or so it seems. But undeniably, and even the most ostrich of persons would not deny this, something has changed in the national discourse this year.

A simple answer in one word: corruption.

Or even more simply, the giving and taking of bribes by government servants for performing their functions.

It’s a partial answer and a very incomplete one at that. Corruption is about as old as the State. To repeat Chanakya’s oft-repeated quote: “…It is impossible to know when a fish moving in water is drinking it…” Yet, this saying offers us only a partial answer of what government is, and not what it ought to be.

Chanakya’s use of analogy was not just to state the obvious in an interesting manner, but to further a complex and nuanced argument. Corruption is almost a given in an institution such as the government, but that doesn’t mean no efforts should be made to minimize or eradicate it. Rather, Chanakya’s analogy was an attempt to uncover the nature of government itself that led it to corruption.

Government (like a corporation) essentially involves dealing with other people’s property and money. How you raise it, what you use it for and who gets what are the basics of governance and the answers differ on the basis of one’s ideology and the needs of a given time, but no Government can function without doing these two essential things; raising money and spending it.

So much for the “is”.

But Chanakya also answers the “ought”; government ought to mean spending the income wisely for the welfare of the people. For, as Chanakya states repeatedly, only in the welfare of the people lies the welfare of the King (or Government if you prefer). It seems obvious enough, yet only in restating and understanding the “ought” do we get to the heart of why corruption has become the issue it has now.

As citizens, this “ought” is fundamental to why we part with our money to the Government (or perhaps our property for due compensation). The compact between Government and citizen should seem so obvious that it doesn’t need restating but it is a reflection of these times that this particular compact has to be restated. What the Lokpal Bill agitation and the Commonwealth and 2G Scam highlight are the very real threats this compact faces from corruption.

For people in their twenties and thirties, it would seem that this is the first time this has happened so.

Those with longer memories would know that the unearthing of massive corruption scandals is nothing new, nor the jailing of MPs, CMs and ministers. Not even judicial activism to fight corruption.

What’s changed this time is that where perhaps corruption was seen as an aberration to the norms of governance, the brazenness and the scale at which the Commonwealth Games and 2G scams were carried out would suggest that perhaps corruption has, far from being an anomaly in the system (to use a Matrix-ism) is in fact, the system itself. That there is no concept of public welfare anymore, and that the government exists to serve its clients – those who can pay the price and no others.

This loss of faith in government explains the agitation around the Lokpal Bill but also the land acquisition agitation in UP. Where the UP agitation was aimed at one particularly egregious misuse of governmental powers to openly benefit real estate developers at the expense of farm owners, the Lokpal agitation was sparked off mainly because it seemed that far from ensuring that a scam of the scale of the 2G scam or the Commonwealth scam never happened, the Government of the day tried to protect the corrupt through a weak and ineffective institution.

It’s easy to dismiss the “civil society” and Anna Hazare as a bunch of middle class busybodies who’ve been given undue importance thanks to a hyperactive “corporate” media.

It’s also demonstrably false.

The crowds streaming into Jantar Mantar and Ramlila Maidan in the middle of the year were not bused in and promised money and food (as many political rallies are wont to). You couldn’t classify and categorize them all under one neat socio-economic or religious label.
Yet, as if almost on cue, when Anna couldn’t “deliver” on the crowds (read “spectacle”) the media turned on him. Hardly the hallmark of a media driven campaign.

Still, what relevance does all of this have to the events of the past year in the law and the judiciary?

It has, I think, fundamentally changed the contours of the judicial activism debate. If one of the underlying premises of the institutional competence argument (as opposed to constitutional competence, more of which in a separate piece perhaps) is that government is capable of doing some things “better”, and therefore the Courts must not “meddle”, the actions of the government over the last year have called this assumption very much into question. The sorry saga of inaction, incompetence and just plain mendacity on the part of the government that was revealed in not just the mega scams but also in such issues as the right to food litigation, the black money litigation and the tax waivers for the F1 race. In the face of such a sorry state of affairs, the option is between institutional encroachment and complete and utter breakdown of the rule of law.

What has happened is that when the citizen’s faith in the government’s ability to act in the public welfare (as opposed to his or her individual welfare) itself stands questioned, the Court has, on the instance of such citizens stepped in to ensure that government acts in such a manner. In one sense, and this merits much more scrutiny than this post can possibly hope to provide, a very discernible shift is obvious in the manner in which the Supreme Court goes about its activism. No longer is activism about merely issuing writs and directions enforcing rights (howsoever defined, and yes I’m aware there’s nothing “mere” about enforcing rights, but bear with me) but also at ensuring that the government complies with its duties and obligations to the public at large.
Two very different cases, the Bellary Mining ban and the CVC case are possibly the best indicators of this (though a more comprehensive study would also include all the PILs not entertained at the threshold itself but this is not the place for it). The dominant discourse in the decisions is about protecting larger public interest and welfare in the face of State and Central Government failure to do the same. A State Government had failed to check the rampant illegal mining and ecological destruction of Bellary. The Central Government had cynically appointed an officer who faced a criminal charge of corruption as the head of the anti-corruption body. These were not instances of the Government choosing a good or bad course of action – it was a case of complete and total dereliction of duty that could not be justified with anything more than a bland ipse dixit.

In that sense, this year has probably set off a subtle yet significant shift in the Court’s understanding of its own role and the manner in which it articulates its role. Apart from being a defender of rights (fundamental, legal and constitutional) and upholder of the rule of law, it has also adopted the role of protector of the public welfare at large. Not that this is a new legal argument that is being made in Courts or that we are speaking of a new and hitherto unseen aspect of judicial review, but in terms of the Supreme Court’s role in the larger polity this is perhaps a significant (and not a few would say, welcome) shift that could take us down new and interesting paths in the history of the Indian judiciary.

Yet, this is no time for the Court to rest on its laurels (hard won though they may be). Although the battle against delays seems a Sisyphean labour at best, the spectre of large scale judicial corruption has never hung heavier over the judiciary. Though the cases of Soumitra Sen, PD Dinakaran and Nirmal Yadav came to light last year, serious action has only taken place this year.

It is no longer a case of black sheep here and there. There is a flock of dark fleece threatening to taint the whole judiciary. Indeed the illegal land allotment to judges, past and present, in Bangalore has exposed more than a few skeletons in closets. The distressing silence on the part of most of the judges involved has only fuelled further doubts about their integrity. The malaise Justice Markandeya Katju outlined with much anguish earlier this year with reference to Allahabad High Court threatens to engulf the entire upper judiciary if not stopped adequately. For the Court to retain its credibility as the foremost defender of the rule of law in this country, it must, to use a Biblical proverb, “remove the speck in its own eye.”

What does the New Year hold for us lawyers and the judiciary?

Definitely a new Chief Justice of India in September (Justice Altamas Kabir according to seniority). The Vodafone verdict, the Right to Education ruling and perhaps most importantly, the order deciding whether or not Home Minister P Chidambaram should be investigated in the 2G scam. The trial will of course continue in the Patiala House court in Delhi and we’ll all receive breathless reports of the proceedings from over-keen reporters some of whom may even have legal training!

The Lokpal Bill will probably be introduced once again in Parliament in April but no one really believes that the Government genuinely wants to tackle corruption at the highest levels. Parliament’s alleged “supremacy” already a hollow doctrine in Constitutional law, has been stripped of even more legitimacy in the light of today’s events.

As the old Chinese curse goes, we are living in interesting times. Despondence seems to be the national mood, despair a national pre-occupation and disappointment (for cricket fans and Sensex watchers alike) leaving a bitter aftertaste at the end of the year.

With all the bleakness above, perhaps I should end on a positive note.

As it turns out, the Mayans were wrong! The world won’t end in 2012.

Happy New Year to all!

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.

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.

Maybe.

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

Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist acts, shall be punishable with imprisonment for a term which may extend to imprisonment for life or with fine which may extend to rupees ten lakh or with both. [emphasis supplied]

The provision cannot be simpler, or clearer in what it renders an offence. The membership of a terrorist gang or organisation (as defined in the act) is all that is needed for the purposes of section 3(5). In a disturbing exercise of judicial overreach, the Indian Supreme Court in Arup Bhuyan v. State of Assam, has seen it fit to toy with this clear expression of the Parliamentary intent.

I do not wish to enter into a debate on the moral or ethical validity of the TADA; I take issue solely with what the Court has done, and how it has gone about doing it. First, what has been done is that the words ‘who personally resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence’ have been added to the provision. Three possible explanations for this apparent exercise of legislative power emerge from the brief judgement-

(a)    Confessions are unreliable since “under torture he will confess to almost any crime. Even Joan of Arc confessed to be a witch under torture”. However, under section 15 of the TADA, confessions made to the police are admissible. Hence, the conviction under the TADA for being a member of the ULFA, based solely on the confession, is based on shaky foundations.

(b)   A decision of the US Supreme Court in Elfbrandt v. Russell (1966), which the same Bench had approved a month earlier in State of Kerala v. Raneef as being authority for the proposition that a person cannot be held guilty by association.

(c)    The provision violates Articles 19 and 21 of the Indian Constitution.

Let us consider each of these in turn.

As to the inadmissibility of confessions, the Court is absolutely right as to the possible infirmities confessions can suffer from. However, once that provision has been held to be constitutionally valid, as it has, suspicions about it cannot besmirch another provision of the same Act. What may have been open was to argue that the evidence was insufficient to conclude that the accused was the member of the terrorist organisation. However, that would require a detailed examination of the evidence, which the Court chooses not to engage in. It instead prefers to focus on section 3(5) of the Act, proceeding on the assumption that the accused is a member of the organisation.

As to the decision of the US Supreme Court, while much may be said for not proving guilt by association, if the Parliament in its (deemed) wisdom has chosen to depart from that principle, there is precious little the judiciary can do about it. The reference to the earlier decision in Raneef is also misleading, since that was an appeal from a rejected bail petition, where the learned judge had observed, “at this stage we are not expressing any opinion as to whether the allegations in the versions of the prosecution or defence are correct or not, as evidence has yet to be led. However, we would like to make certain observations”. That certainly is insufficient to constitute an approval of the US doctrine in the Indian context, especially when it flies in the face of the express statutory language.

Finally, the only potent arrow in the quiver is the challenge to the constitutionality of the provision. The Court chooses not to hold the provision unconstitutional, but to use to potential unconstitutionality to ‘read down’ the provision. For starters, adding a clause to a provision which is at odds with the clear Parliamentary intent cannot be called ‘reading down’ in any sense of the term. However, even if it can (since precedent may be cited of similar instances of reading down), there must be an examination of what the infirmity with the provision is. Unfortunately, the Court contents itself with saying, “In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above. Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence”. This statement does little more than identify what the applicable provisions of the Constitution are. We are left in the dark as to whether the provision fails on grounds of ‘reasonableness’ under Article 19, which clause of Article 19 it breaches, why it is not saved by the ‘established by law’ clause of Article 21, and similar questions.

Technically, it may be incorrect to refer to this decision as an exercise of judicial activism, since it can be justified as an exercise of judicial review. However, what is alarming is the nonchalance with which clear expressions of legislative intent are ignored, which cannot augur well for a balanced separation of powers between the institutions of governance.

At first blush, that seems like a dialogue from yet another Indian remake of a classic Hollywood movie, this time, the Jack Nicholson starrer- ‘A Few Good Men’. However, for better or for worse, the quote is from a recent decision of the Supreme Court of India in Pushpa Vanti v. Union of India. And the decision, while motivated by noble motives, joins a slew of other decisions where the Indian judiciary seems to have stepped far beyond the scope of its traditional judicial function.

The claim before the Court (the opinion has no mention of what the precise nature of the claim was) was concerned with the pittance that widows and family members of army officers were receiving as pensions. This is undoubtedly a valid concern. However, what I take issue with is (1) the Court seeing it fit to address this concern; and (2) the way it went about addressing the concern.

Both these form essential prongs of the argument against aggressive forms of judicial activism. The first of these prongs rests on the principle that under the model of separation of powers, no matter how loosely adopted, there are some things which the judiciary is not competent to adjudicate. This institutional incompetence arises from either concerns over the concentration of power in one wing of the Government, or from the very nature of the judicial function. However, given the legislative lethargy that hinders progressive changes in the law, the first prong of the argument against judicial activism may be taken to have lost some of its strength. However, the same cannot be said about the second.

Before proceeding any further, let me list what the Supreme Court has seen it fit to do in Pushpa Vanti-

(1)   They have directed the Central Government to set up within two months a Commission which shall be called the Armed Forces Grievances Redressal Commission

(2)   They have laid down the functions of this Commission

(3)   They have laid down the composition (including specific individuals) of the Commission, as also the pay scales

(4)   They have established its term, the location of its headquarters, and also that the building “must have sufficient rooms to provide an office for each member of the Commission”. (¶15)

(5)   Having directed the establishment of this Commission, they have referred the claim of Ms. Pushpa Vanti to this Commission.

Even if it is argued that the judiciary ought to take cognizance of such claims, with all due respect, I cannot get myself to see this as an acceptable way of addressing those concerns. This is as far as it can get from the true nature of the judicial function. That is not to deny that the judiciary in the past has passed orders can be considered to have been factually beneficial- Vishakha being a case in point. It also cannot be denied that such orders make for very good headlines. However, neither of these answer the fundamental question of whether these orders are in keeping with the proper exercise of the Court’s judicial function.

Access to justice, the content of justice and the mode of delivery of justice, are inter-connected, but essentially different things. Yes, it is justified to allow reduced formality in approaching courts for the protection of one’s fundamental rights. Indeed, that is what has been done with the concepts of PIL and epistolary jurisdiction. A massive step has already been taken in relation to the content of justice by the incessant expansion of Article 21 of the Indian Constitution, in the face of arguments by the like of Mr. Seervai. However, the ways in which the delivery of justice is being taken over by the judiciary, seriously threatens the very notion of a judicial function. In other words, if Courts have unbridled freedom over access, content and delivery, there is practically nothing that falls outside the scope of the judicial function.

Admittedly, there are cases where some remedy is better than no remedy. But that temporary relief should not be allowed to colour the grave institutional damage that such over-reach results in. And this is not to mention the diversion in focus from addressing real concerns in other areas of governance, by championing the never-ending expansion of the judicial function.

Courting Controversy

The Court’s order on rotting foodgrains presents the latest in a series of instances when the Supreme Court has waded into raging contemporary controversies. While in this post I will not comment on this trend generally, intervention in this current instance when the Court ‘ordered’ that the government distribute foodgrains to the poor, is illegitimate, detrimental to the reputation of the Court and brings into question the competence of the Court in pronouncing on such questions.

Illegitimacy

First, the question of what should be done with the rotting foodgrains is clearly not a legal question. While the Court has read in a fundamental right to food in to the right to life under Article 21, this does not imply a right to the foodgrains rotting in FCI godowns. On the contrary, this expresses the constitutional mandate that there is an obligation on the state to ensure that no Indian citizen goes hungry. How the state chooses to fulfil this obligation is outside the remit of the courts. It is a policy question, since it has budgetary ramifications, decisions involving a number of ministries, and an issue of prioritisation of goals which the government, being the elected representatives of the people, can legitimately take a call on. The Court pronouncing on a policy question is contrary to a whole host of precedents of the Supreme Court itself, besides being clearly contrary to common sense.

This is however not to suggest that the Court should have no role to play in this matter at all. The Court is itself under a constitutional obligation to ensure that the other organs of government, i.e. the legislature and the executive fulfil their respective constitutional obligations. Since intuitively, rotting foodgrains could provide a channel to fulfil the government’s constitutional obligation with respect to the right to food, the Court certainly can legitimately ask the question as to why such steps to distribute these foodgrains are not being taken. However it cannot order such a move, as it had purported to do, since that would be tantamount to policy formulation itself, which would be illegitimate for the Court to do, being an unelected, unrepresentative and relatively unaccountable institution.

Lack of Competence

Second, the Court is incompetent to pass such an order. Contrary to the common perception prevalent in large sections of media coverage of this issue, distribution of rotting foodgrains is not an open-and-shut case. As the Prime Minister pointed out, this is a multi-faceted problem which involves providing the right incentives for farmers to produce. In addition, there are budgetary implications of distributing such foodgrains, the impact of such distribution on markets and the channels through which such distribution is to be effected. These are necessary questions which must be taken into account before any such policy measure is effectuated. The Court, being an adjudicatory institution, with neither information, nor expertise in food grain distribution is not competent to answer these questions in any satisfactory manner. In addition, there is the thorny principled question of who among the poor should be entitled to the rotting foodgrains? Should it be poor who live near the godowns? Or should it be the poorest of the poor? Or should it happen on a first-come-first-served basis? Isn’t there a question of justice involved regarding criteria by which people should be entitled to the food? I fail to see as to how the Court can pass a blanket order to distribute such foodgrains, saying it’s better that that they get distributed than they get wasted, without enumerating the principles on which such distribution is to take place. Ambiguity in this regard, is a pointer perhaps to the Court’s lack of information and expertise in this matter.

Detrimental to the Reputation of the Judiciary

This order, and other such similar orders, certainly have great symbolic value and earn the Court some popular brownie points. It expresses a public sentiment powerfully and the media hails the Court as a caring institution, responsive to the needs of the people. However in the long run, I believe, orders such as these, which the Court cannot legitimately and competently pronounce, and which will be observed by the government only in their breach, will be damaging to the reputation of the judiciary. This is because, given the nature of these orders, their speedy implementation will be excessively onerous. To ensure their implementation, the Court can either resign itself to the fact that the government will attempt in good faith to follow its directions, or adopt a course of supervisory jurisdiction by which it continues to monitor the enforcement of its orders. While the latter course is certainly an option, at a time when the Court exercises such jurisdiction in a number of matters- forest rights being the classic example, which has been litigated for 14 years before the Court, taking on an additional burden is a questionable strategy. Given its existing workload and backlog, fighting the government’s battle may not be worth the court’s while. If this is not done however, the orders may well not be complied with or result in compromises with the government as happened in this case. The Court then risks being transformed into an institution whose intervention is public controversies is well-meaning and sympathetic but ultimately fruitless. This, needless to say, will raise questions regarding the efficacy of the courts and the enforcement of its orders, an aspect which till today is largely taken for granted. The Prime Minister may in fact have done the Court a great service by checking the extent of its sympathy with the poor of this country.

So what happens to the foodgrains?

The Court, I believe must ensure that the government takes all necessary steps to fulfil its constitutional obligations which include being made to answer as to why it allowed the foodgrains to rot in the first place and why it cannot distribute the rotting foodgrains now. However, the exercise must be deliberative and involve the government having to state its reasons before the Court. It must not extend to forcing the government to take specific measures for the reasons outlined above. At the same time, the Prime Minister himself must not remain content with telling the Supreme Court not to dictate policy; he must ensure that his government autonomously does all it can to ensure foodgrains do not rot and storage capacities are adequate which is clearly something it has not done thus far. Only extreme insensitivity would not suggest this course of action in the future and extreme incompetence fail to ensure it.

The wastage of foodgrains is unfortunate. Equally, the Court’s sympathy with the poor is a sentiment which, as the Prime Minister said, deserves the highest respect.  But rectifying one wrong with another is rarely sagacious. Certainly not for the Supreme Court of India.