Caesar’s Wife

Supreme Court of India

If you look at several of SC’s judgments recently and you hardly find any criticism in the main stream media. We seem to, almost fatalistically accept the pronouncements, as if they were not from fallible human beings, but from infallible Gods and therefore no discussions and criticisms are possible.

Take the 2G case for instance. Sure Raja -- at best with the silent acquiescence, at worst with passive support of Manmohan Singh -- perpetrated a fraud on the nation. But think of Telenor. The company decides to buy into Unitech’s mobile business company after it has got a license from the Indian government. No proof has been forthcoming that Telenor was in any way involved in any wrong doing or influencing the policy. Now this company goes and invests billions of dollars only to be later told that the original license was fraudulently obtained and now stands cancelled. Eventually Telenor has to say goodbye to its investments. What exactly was its fault? That it chose to believe in the decisions of Indian government.

Similarly in the Coal Block case, the SC finds allocations going back 20 years to be illegal and cancels them.  Again, it is not my case that the allocation of the blocks was not arbitrary. But the fact is that banks have pumped in thousands of crores as funding to these mining projects as well related end-use projects like power, steel and cement. What exactly was their fault? That they believed in a decision taken by a legally constituted government? And now that these allocations are cancelled, god alone knows how the banks will recover these loans.

As far as the investors or banks go, one would venture to opine that the judgments served the cause of law but not necessarily natural justice.

Look at how this pans out among investors. Since clearly a decision of a legally constituted government is no longer enough to protect their investments; should they invest in projects based on government’s decisions or should they first refer them to the SC to get the legality examined and certified before making investment decisions?

And then why stop at decisions taken two decades ago. What happens if someone decides to challenge all the licenses and permits granted by the government going back six decades – most of them were as arbitrary as the coal block allocation. Would the SC then cancel these as well? And what kind of chaos would that cause?

The point I am making is that the SC cannot just look at these issues from a legalistic angle; there are wider ramifications that need to be considered. Ideally there should be a constant dialogue between the judiciary and the government and civil society so that the judges understand these ramifications before pronouncing their judgments.

Clearly it cannot be anybody’s case that SC should not take action when the government does something wrong just because economic issues are involved. But just taking inputs from the government is pointless; because a government is also governed by the politics of the situation. Attorney General of a BJP government is hardly going to tell the SC that it does not support the cancellation of coal blocks, especially when the scam was one of its major election planks. Surely a more nuanced approach is necessary.

For example, both the 2G case and Coal Block cases, the SC could have easily asked the RBI for its opinion on the impact on banks if licenses were cancelled. It could have even gathered inputs from reputed economic experts to see how the interests of investors like Telenor or banks could be protected while ensuring that the wrong doers – the Indian companies which got the licenses/blocks allocated in an arbitrary manner did not benefit.

In my conversations with several people – analysts as well as business leaders, the sense that I get is that they feel both these decisions are ham-handed. But you will never have any of them airing these views due to the fear of the SC’s wrath.

But let’s not forget that the same SC that cancelled these allocations because of the non-transparent manner of functioning of the government, has itself a very poor record of disclosures. For example, SC has refused to be subjected to mandatory disclosures of judges’ assets and the declarations made are "purely voluntary". This has obvious legal implications. If a candidate in an election makes false declaration about his or his dependants’ assets, he can be disqualified. But a SC judge will not attract a similar penalty. Just think about this for a minute, the level of disclosure required from a no consequence independent candidate fighting an assembly election, for example, is greater that required from an SC judge!

The coal block scam was broken by the use of RTI, since the Coal Ministry and its steering committee is governed by RTI, but the working of the higher judiciary is not covered by RTI (according to a Madras High Court Judgment) nor is the process of appointment of judges to the higher judiciary.

So the SC can strike down Coal block allocations going back two decades, because of arbitrariness and lack of transparency, but citizens of this country have no right to know why a particular person has been appointed as a judge, only the final name of the appointee. This is because we are asked to trust the institution and process.

But, while according all due respect to the institution of the Supreme Court or High Courts, it is important to make a distinction and recognize that the judges who man these courts are themselves humans and not saints. They have their likes, dislikes, biases, failings, ambitions, even peccadilloes. It is but natural that these will tend to affect their decisions, rulings and judgments.

In fact even in the most important constitutional case in the history of our Republic, the Kesavananda Bharati case these elements were on full display. T.R. Andhyarujina, former Solicitor General, who fought the case as a junior to Kerela government’s counsel, the legendary H M Seervai has recounted all this in an excellent book.

The book is fascinating in the kind of details it provides; especially how most of the judges on the bench already had taken public positions on either side of the central issue at stake – the parliament’s untrammeled power to amend the constitution.

What is even more fascinating – considering the importance it has come to enjoy in our constitutional law – was how this so-called majority view was arrived at!  With most judges already having taken public positions on either side of the issue, the 13-member bench was deeply divided and there was no consensus. Even between six of the judges including CJ Sikri who supported restrictions on parliamentary powers, there no consensus as to which articles of the constitution these restrictions would apply. Justice H R Khanna, often credited with the “Basic Structure” hypothesis, actually rejected this argument about limitations on parliamentary power. His limited point however was that power to “amend” cannot be extended to mean power to “abrogate.” 

With his retirement impending – he retired the day after the judgment was pronounced – and since there was no consensus, CJ Sikri, whose earlier judgments were in favour of restricting parliamentary powers to amend the constitution, used a “stratagem” (word used by T.R. Andhyarujina in his book), by producing a paper summarizing the majority view. It was in this paper (relying on Justice Khanna distinction between amendment and abrogation) that the proposition "Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution" was formulated and has since become the law of the land.

So, even the most important judgment on a point of constitutional law was determined by the judges declared positions and what was arrived at was a hastily drawn up compromise that was rejected by four of the 13 judges – they were so incensed by this so-called summary that they refused to sign this summary of majority opinion.

This is the history of our jurisprudence. Surely then, without in any way disrespecting the institution of higher judiciary, as citizens we need to freely and openly discuss, debate and criticize its pronouncements and judgments.

We also need to also build public opinion to make it more transparent and ensure that the same standards of disclosure that we impose on the legislature and executive are also applicable to the judiciary. The SC after all is the final arbitrator of what is right or wrong; it is our last resort when it comes to safeguarding our freedoms. It has to be like the proverbial “Caesar’s Wife”, above all suspicion and speculation and this should not be based on blind faith alone, but by more transparency.