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Supreme Court: the balancing act by Nikhil Kanekal

Despite criticism of the appointment process, and pendency , the Supreme Court appears to enjoy public confidence like no other institution

As the Supreme Court of India approaches its final week of hearings for the year, a look back shows it has dominated the national consciousness by ruling on myriad issues.

The court was conceived by the framers of the constitution to deal mainly with fundamental questions of law. But India’s top court has evolved into a balancing act. It deals with routine appeals from lower courts and high courts, while also managing to carve out time to mull over landmark cases, filling in blanks the legislature left out.
 
And then there’s public interest litigation (PIL). Law minister Salman Khurshid recently told a gathering of lawyers and academics from the US that his government was still trying to understand the realms of public interest litigation and coming to terms with it.

For better or worse, the court has filled several voids in lieu of the legislature, the executive, and even the lower judiciary, often chiding ministers and bureaucrats along the way.

The outflow and influx of fresh judges is one reason for a recent rise in the court’s pendency of cases .

Seven judges have retired out of the court’s sanctioned 31 from July. Five have come aboard in their place, giving Chief Justice S.H. Kapadia’s collegium its first opportunity to bring in colleagues to the bench. Two more retirements (one in January and the last in February) will take the vacancy to four and grant Kapadia another chance to make appointments before he retires in September.

Despite criticism of the appointment process, and pendency , the court appears to enjoy public confidence like no other institution.

The top 10 cases of 2011 (in no particular order):

1. 2G spectrum case : The court ventured into hitherto little-known territory—the politicocorporate nexus—in the aftermath of the Radia tapes, which escalated attention on the telecom spectrum scandal. The court’s monitoring of the Central Bureau of Investigation (CBI) investigation resulted in the setting up of a special court for the trial and charging three companies and 14 public officials and businessmen. Also, there was much recrimination among telecom companies during the follow-on petition, which wanted all the licences issued by former minister A. Raja cancelled. The decision on the licence cancellation petition is still awaited.

2. Vodafone-Hutch deal: Few foreign companies expected India’s tax department to pursue Vodafone’s $11 billion (around Rs. 56,980 crore today) acquisition of Hutchison Whampoa’s Indian operations. Vodafone maintains that it does not have to pay tax on the deal because it was done abroad. The income-tax department calls it a “sham” transaction. Hanging in the balance is either plenty more foreign investment or a huge bounty for the government’s coffers, since the ruling will likely affect many more deals struck since 2007. The verdict, being watched worldwide, is expected soon.

3. CVC: The annulment of P.J. Thomas’ appointment as the chief vigilance commissioner (CVC) was viewed by some quarters as harsh, and they argued that Thomas was a victim of political rivalry in Kerala, his home cadre. But he couldn’t possibly be the government’s anti-corruption person in command if he was named in a chargesheet alleging graft, said the court, in a blow to Prime Minister Manmohan Singh and home minister P. Chidambaram who chose Thomas.

4. Bellary mining ban: The clampdown on iron ore mining in Bellary (which later became mining of all kinds) was the first combative step taken by a public entity to curb illegalities in Karnataka for over a decade. Gali Janardhan Reddy, allegedly one of the main violators of mining laws is in jail, following a CBI probe. The move has had a significant impact on politics in Andhra Pradesh and Karnataka.

5. Meghalaya mining: Multinational cement major Lafarge was allowed to resume limestone mining after 17 months in Meghalaya’s East Khasi Hills. This was crucial for neighbouring Bangladesh, where the limestone was being sent to feed a cement plant. Lafarge is the largest listed company in Bangladesh, providing employment and commerce. Significantly, the court ordered the Indian government to set up a regulator for granting approvals to mining projects.

6. Black money SIT: The black money petition simply demanded that the government should recover all the untaxed money stashed away in European bank accounts. A lack of enthusiasm made the court create a special investigative team (SIT). The government cried foul and the bench hearing the appeal was split. It now awaits hearing by a three-judge bench.

7. Salwa Judum: A state-sponsored guerilla army that also allegedly engaged children in combat, was declared illegal and unconstitutional. The Chhattisgarh government tried to justify giving guns to children, arguing that they had local knowledge of the terrain, which would help the state tackle Naxalites better.

8. Experiments in the classroom: The Right to Education case dealt with radically changing the composition of children in schools. The government made it compulsory to have at least 26% of a class from poor households living in the “neighbourhood”, causing the elite private schools to file a petition in protest. The question is: how will the court view the government’s social engineering experiment? This judgement will fundamentally affect primary education in India.

9. Land acquisition in UP: The Uttar Pradesh land acquisition cases saw a strong statement from the court, which deemed those acquisitions in which the government took land for one purpose and used it for another. The court did not allow Mayawati’s government to get away with giving the land to real estate developers, reasoning that the land had been acquired for industrialization. Farmers either got their land back, or had to be given higher compensation.

10. Right to Food: The decade-old Right to Food case saw the court face off against the government and the Planning Commission multiple times on where to draw the poverty line, and how to divide food subsidies between the Centre and the states. After much criticism of the government’s counsel in court, the Planning Commission revised its upper limit to define the property benchmark, but only by a little.