A double-edged sword

Last Updated: Mon, Feb 18, 2013 20:54 hrs

Many in India’s middle class are delighted when the courts assume an activist role: mandating a particular type of fuel for public transport, for instance, or banning mining following large-scale reports of illegal activities or cancelling a bunch of telecom licences after revelations of alleged collusion in spectrum allocation between the government and corporate applicants. Given the permanently adversarial role that some of its citizens adopt with the Indian state, this sentiment is easy to understand. But the problem with judicial activism is that it cuts both ways; for every decision that some view as helping ordinary citizens, there may be those that emphatically do not.

This was amply illustrated by two decisions late last week. Consider, first, the Supreme Court order on Friday asking telecom service providers that had not bid for 2G telecom spectrum in the November 2012 auctions to close operations immediately. This order was consistent with its February 2012 order cancelling all spectrum-linked telecom licences allocated in 2007, the latter judgment widely praised at the time for punishing allegedly corrupt government representatives, including a minister, and corporations. But what of considerations for consumers, who were inconvenienced almost overnight, given the immediacy of Friday’s order? Uninor, the company most affected, was forced to close its services from midnight Saturday. Even if the impact on the business of the service provider were ignored, the fact is that this decision left some 1.8 million consumers in Mumbai stranded. Given the ubiquity of the mobile phone in daily life, including in daily bank transactions and business, this shutdown must have had serious repercussions for many of them. Surely a time frame that would have allowed Uninor customers to migrate to other service providers in an orderly manner would have made better sense.

Consider also reports of an ex parte order from a Gwalior court on Friday that apparently led to the blocking of 73 Web pages containing articles critical to the Indian Institute of Planning and Management (IIPM). If true, this would take the issue of judicial overreach to a new level. There has been much valid comment on the issue of free speech and the fact that the websites concerned were not given a hearing. But there’s a bigger consumer-focused issue involved too. One of the Web pages under this gag order belongs to the University Grants Commission (UGC), which stated that IIPM was not a university accredited by it and did not have the right to confer or grant degrees. These are vital facts that the thousands of students applying to the institute need to know. It is true that IIPM has contested the UGC’s contention, but the court could as well have directed that this information accompany the notice. This apart, is it fair to deprive applicants the benefit of external opinion as a counter to IIPM’s high-pitched promos? The essential point is that, in India’s judicial system, consumers as a group are rarely a party to any case — and so their interests are not always given full consideration by the courts. If there is a lesson here, it is that a judiciary that sees itself as a defender of nebulous rights rather than an interpreter of settled law is not always a good thing.

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