By M J Antony
With a dysfunctional Parliament and an executive busy trying to shield itself from a myriad scams, the Supreme Court of India has increasingly asserted its power over the years. It has proved to be the most powerful court among all democratic constitutions.
Consider some of the orders it passed in 2012 alone — especially those related to economic matters. It scrapped 122 telecom licences at one go for illegalities, leading to imprisonment of a Cabinet minister, government functionaries and corporate executives. The order also embarrassed the government, since some licences were held in joint ventures by multinational companies.
The court stopped mining in several districts of Karnataka, Andhra Pradesh and Odisha, starving the steel industry of its raw material. Probes by the Central Bureau of Investigation (CBI) were ordered into the politician-business nexus in the depredation of forest land for the sake of profit.
In another order that shook the government, the court delivered the Vodafone judgment easing the tax liability of foreign companies operating in the country. The government was so annoyed that it tried to shift the goalpost in the Budget by changing the law retrospectively to justify its demand for tax after mergers and acquisitions. It approached the court with review petitions and clarificatory applications — but all in vain. It has now returned to the court with another appeal, hoping that the judges will reinterpret the law in its favour this time. The last word has not yet been spoken, and the result will be out only next year.
Meanwhile, the continued monitoring by the court of investigations related to the 2G spectrum scam has raised the eyebrows of jurists. Although many observers believe that this is judicial overreach, the court has asked the Enforcement Directorate, CBI and other related agencies to report periodically to it about the progress of investigations. In yet another controversial order, it has prohibited all courts in the country from hearing any petition related to the spectrum issue, and thus provoked another challenge to the constitutional powers of the court.
By interpreting the fundamental right to life and the freedoms in an expansive manner in the 1980s, the Supreme Court opened its doors wide to individual social activists, public interest groups, and even busybodies. The court has since seen a flood of grievances, highlighting everything from monetary scandals to nasty social habits like littering, spitting and smoking in public. It has not hesitated to take upon itself tasks that legitimately belong to Parliament and the executive. The Supreme Court believes that when citizens complain of infringement of their fundamental rights, it has the power and duty to hear them and redress their grievances.
Although creaking under heavy arrears, the court has taken upon itself peripheral tasks, such as protecting tigers and wild buffaloes in forests from the tourism industry, as well as regulating pilgrim flows to Mecca and Amarnath. The search for missing children and setting rules for the safety of women at workplace also engaged the court’s attention. The workload has not discouraged it from taking up more issues highlighted in the media. When the judges read in the morning newspapers that Ponty Chadha and his brother shot each other in a Delhi farmhouse, the court moved suo motu and declared its intention to examine the role of security agencies.
The new set of public interest petitions come on top of those decade-old ones that it could not unscramble. The issue of networking rivers has been agitated for years, and has now been stealthily left to experts. So also the Sethusamudram project. A petition to enforce the rules of the Bonded Labour Abolition Act was on its files for three decades, and it is reported that there has been no prosecution under the law. The orders on child labour abolition, and setting up a fund with the penalty imposed on employers, have made little difference on the ground. Petitions of street vendors have been pending for years, though these traders take up half the road left after the parking of motor vehicles. Their fundamental right to trade is pitted against the right to life of pedestrians.
Cleaning the Yamuna is still a distant dream and crores of rupees have flowed down the river — now better described as a drain. River water disputes between several states, such as Cauvery and Mullaperiyar dams, continue to cast doubt on the power and capacity of the court. Though it has taken up these issues, chances of resolution are bleak.
Meanwhile, more scams are falling into the lap of the apex court. It has decided to go into the “Coalgate” swindle, the issue of foreign direct investment (before Parliament passed the Bill recently), and scams in different sectors like aviation (“Air India scam”) and land allotments. Present and past chief ministers are in the dock. Some escape when the political wind changes; others are constantly in the shadow of corruption charges. These are apart from the 5,000-odd new cases filed every month, and more than 65,000 pending before it. Currently, 27 judges are sitting in 13 benches dealing with this pile-up and they manage to dispose of an average of 4,000 cases every month.
There is an alarmingly long list of important cases, which should be decided by benches of at least five judges; and some of them by 13. Each of those 35 matters will take months of hearing, going by the current style of allowing a dozen counsel to ramble for weeks and enrich themselves. Then, there are 161 others that must be heard by benches of at least three judges because of the significance of the issues involved. If the court tries to take up these two sets of cases alone, it might take a decade and more to dispose of them, assuming that the court freezes all other work. The Supreme Court has shut its eyes to this frightening scenario — out of sight, out of mind.
One reason no chief justice can turn the tide is that there is a quick changeover of chief justices. Late this year, Chief Justice S H Kapadia retired and Justice Altamas Kabir took over the post. He will give place to Justice P Sathasivam next year. Add to this, the unhelpful attitude of the government, which grants only 0.2 per cent of the Budget to the judiciary. All these, and several more adverse factors, make the picture as dark as the preferred colour of the legal profession.