M J Antony: A year in ferment

OUT OF COURT

In 2007, judicial activism received flak from both outside and inside the courts

There is hardly a political, economic or social question which does not turn into a legal one sooner rather than later in this country. The Constitution has conferred extraordinary powers on the judiciary, especially the Supreme Court. Therefore, its orders delivered in the passing year have created waves every other day. Parliamentarians, led by the Speaker, have mounted offensives against the higher judiciary, and one Supreme Court judge was in tears when he dealt with a political case.

The confrontation was evident in economic matters too. One additional solicitor general arguing the case of unauthorised colonies in the capital had a wordy duel in which he protested that the government's view was not being heard by the Supreme Court. When the judge pointed out that his language amounted to contempt of court, he said he was ready to face action.

The government also tried in vain to scrap the centrally empowered committee appointed by the court to look into deforestation. The lethargy of the executive in setting up anganwadi centres led the court to proceed against chief secretaries of five states. "Why do you need a contempt petition to start functioning?" the judges asked the government counsel. In another case dealing with the disposal of urban wastes, the court regretted that 18 states had not responded to its four-year-old order.

Land acquisitions for setting up economic zones also came under the scrutiny of the court in several cases. The West Bengal government faced embarrassment when the court assailed it for opposing the compensation awarded to the victims of the Nandigram firing and for resisting a CBI inquiry into the incidents. Resettlement and rehabilitation is still a no-man's land as there is no law governing this issue. The colonial Land Acquisition Act deals mainly with compensation and ignores the social costs.

Meanwhile, the Supreme Court elevated the right to property to the level of a human right in at least two judgments. In the Indore Vikas Pradhikaran case, it said: "The right to property is now considered to be not only a constitutional right but also a human right." It stands on the same pedestal as the right to health, livelihood, shelter and employment. How far these pronouncements would impact the grassroots level is yet to be ascertained.

One of the most significant orders which would affect the burning issues of displacement, resettlement and rehabilitation was in the case of the Vedanta mines in Orissa. The court stalled the mining project until the human problems get settled. For the first time, it has devised the method of setting up a special purpose vehicle to oversee all aspects of the mining projects. This would be a model for the scores of mining companies seeking environmental and other clearances before launching their schemes.

While the court has been harsh on violators of civil liberties, it has reiterated in several judgments that it would not interfere with economic policy matters. One of the latest decisions was in the case of Vayudoot's merger with Indian Airlines. The court stated that it would not deal with the post-merger arrangement for the employees.

In the absence of a comprehensive revision of labour laws, the Supreme Court struggled with a large number of appeals dealing with daily/casual/temporary workers. In most of these cases, the industrial tribunals and the high courts had ordered reinstatement of the workers but the Supreme Court reversed those orders. It also limited the principle of 'equal pay for equal work' to exceptional cases.

On the case management front, the judiciary has slipped a notch, with arrears increasing both in the Supreme Court and the courts below. Tax appeals dealing with assessment years in the distant 1970s are being decided now. Computerisation is slow at the high court and subordinate levels. While the Supreme Court judgments are available on the internet within hours or days of the delivery, the performance of some high courts like that of Calcutta and Gujarat (whose site is still on test) leave much to be desired.

The Supreme Court ended the year with an astonishing and unnecessary debate on the extent of judicial powers. "Judges must know their limits and must not try to run the government. They must have modesty and humility, and not behave like emperors," two judges said in a moment of self-flagellation.

It was the court itself which breathed new life into Article 21 (right to life) three decades ago. Guidelines have already been there from the start. The court has now promised to take a second look at them. If it dilutes this basic right at this stage, the coming year would be one of the darkest in the constitutional history of the nation.