Caught In A Mid-life Crisis

In its 45th year, the Supreme Court isgoing through a mid-forties crisis. Increasingly called upon to intervene onvarious issues, the judges cannot quite make up their minds whether they shouldtidy up the activist judicial excesses of the past or accept their pivotal rolein tackling the corruption, excesses and atrocities that plague Indiandemocracy. Its reticence is accentuated by deep divisions in court and it isless institutionally cohesive than ever before. Yet the judicial show goes on—cautiouslybut firmly.

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

In order to assert its authority, it hasused its power of contempt not just to punish the president of the Bar Councilof India for being rude to Allahabad judges, but also stripped him of all hisposts and the right to practice. This is a decision of doubtful validity but hasfrightening implications for all professionals. The court pulled up one of itslawyers for the inadvertent filing of misleading drafts; and severely dealt withPunjab officials for their savage violations of the rule of law. Yet, itsdecision in the Vasudevan case, involving jail for an official (who appears tobe wrongly convicted for contempt for orders he could not have intended toviolate) 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 grosscontempts and violations of the rule of law in other cases. Bombay lawyers whowere virtually browbeating Chief Justice A.M. Bhattacharjee to resign werewarned to show restraint. Yet, in the Sariska case, the court did no more thanissue a warning to a person who had intimidated senior counsel physically anddid not even bother to turn up for the Supreme Court hearings when mandated todo so. The court's contempt jurisprudence is messy and ad hoc. Yet, itsmessage is clear: if the court is to function in its newly assigned and assumedrole, it must have respect and cooperation, otherwise the entire judicialenterprise of protecting the rule of law is put at risk.

While the forces of democracy have beengreatly strengthened by the important judgement in this year's broadcastingcase (which seeks to bring fairness and balance into the Government'scustodianship of the electronic media) and the Jamiat case (which restrains theGovernment from mindless orders banning otherwise lawful associations), thecause of secularism may have suffered a setback. The lectures on secularism—derivinginspiration from the Bommai (1993) and Babri Masjid (1994) cases—continue. Yet, it cannot be overlooked that in the Babri Masjid case the majority had goneto the extreme of denying that Muslim prayer in a mosque was an essentialpractice protected by the Constitution since such prayer could be offeredanywhere—even in the open! But, it is in the Manohar Joshi case and associatedcases of 1995 that the court refused to 'convict' a chief minister who hopedthat there would be a Hindu State in Maharashtra by holding that this was not anappeal to religion! More significantly, it scaled Olympian heights of esotericproportions by virtually sanctioning the use of Hindutva for future elections onthe unconvincing assumption that such a phrase was not intrinsically electorallynasty. This seems strange because the history of India of the past decade doesnot just suggest, but menacingly proves, the contrary. Radical judicialdecision-making does not necessarily require using judgements to lecture fromthe pulpit. Some of the greatest judicial decisions have been chaste inrestraining the talkative judicial heart from upstaging its intent.

If the Krishna Iyer-Bhagwati decisions ofthe late '70s underlined the importance of the rule of law, that traditionsurvives relatively unscathed in important decisions concerning the manner inwhich contracts are to be awarded by the State—whether they are concerned withtelephone directories (as in the Tata Directories case) or the provision ofbasic telecom services (an issue to be considered in 1996). Similarly, asignificant decision on preventive detention permits the detenu to make anadditional representation to the State whose left detaining hand does notusually know what its right hand is doing. This has been the year of the SanjayDutt decisions and the demise of TADA. The courts have tried to ensure thatdraconian legislation (such as TADA and those dealing with narcotics) isimplemented within rigorously defined limits. Atrocities by various authorities—especiallythe Punjab police— have been curbed. There is a far greater sensitivity toissues of social justice. The right to health (including mental health) andprotection from occupational hazards for workers have featured as fundamentalrights. If judges in the Tata Cellular and other cases (1994) had emphasisedonly '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 aprime consideration. The social accountability of doctors and, perforce, otherprofessions got a considerable boost when the Supreme Court ruled that suchprofessionals and hospitals (other than those who provide free medical care toall) can be sued for damages for acts of negligence. An irate medical communityhas reacted to this judgement with selfish insularity rather than balancedwisdom.

It is in the field of reservation law that the court has madeostensibly matter-of-fact decisions of considerable import. Following Mandal(1992) which contorted many reservations issues by insisting on a "creamylayer" exclusion and denying backward classes reservation in promotionsfrom 1997, the court struck down the Bihar and Uttar Pradesh "creamylayer" tests as being over-exclusive and severely limited promotionalavenues for the Scheduled Castes/ Tribes (SC/STs). The result has been dramatic.Kerala has reacted sharply against any "creamy layer" test. Parliamenthas restored reservations for SC/STs beyond 1997. A major controversy hangs inthe balance on whether Christian and other converts are Dalits, and therefore,entitled to reservational benefits. Electorally, the backward classes havestruck back in Uttar Pradesh and Bihar and hold the balance of power in manyelectoral situations. India's polity is being opportunistic rather thansensible about reservations. Judicial statesmanship—amidst all its limitations—cannotcure political unscrupulousness.

It is Justice Kuldip Singh's Court No. 2 which has been atthe forefront in bringing hope to the environmental and social aspects of ourlives. The many issues dealt with by his court in 1995 include the arbitraryallocation of houses in Delhi, telephone tapping, protecting India's coastalzone, the Taj Mahal, the Ridge, Delhi's streets from pollution and garbage anda host of other questions. The criticism that this has a King Canute qualitybegs too many questions. So far, the administration has been content to findcomfort in an old principle that judges will not tell the executive to exerciseits discretion in a particular way. The court has reminded the Government thatits powers are invariably coupled with a duty; and forbearance may be as big anindiscretion as mal-exercise.

The aftermath of liberalisation will certainly require agreat deal of judicial statesmanship to ensure that the respect and equity dueto ordinary people are written into our laws and the Constitution. The SupremeCourt, amidst all its divisions, has to traverse the last part of this decade(indeed, century) with courage and conviction "lest the great globe and allwhich it inherit shall dissolve and like this insubstantial pageant faded leavenot a rack behind".

(The writer is an eminent Supreme Court lawyer)