The Supreme Court in 2013: What the one hand giveth, the other hand taketh away

It is time for the “year-end review”, the “year-end lists of the best (and the worst)” – those annual rites of ponderosity which are being celebrated everywhere. So it falls on a glassy-eyed court-watcher like me to come up with a list of judgements which created an impact in 2013. Now, this is more onerous a task than even Hercules was confronted with. Because, as Justice Holmes of the US Supreme Court once said, “...the life of the law is not logic.” Therefore, any attempt at trend spotting from the calculi of opinions would be an exercise in futility, especially since our judiciary has the predilection of cavorting from one extreme to another, in a manner that defies logic. Moreover, the irreducible uncertainty of the law is what makes it so intriguingly fascinating. Episodic criticism or praise-heaping would be a disservice to such wondrous variety.

Judicial empathy is universal – it is only the targets of such empathy that divides the courts, benches, and judges.  The proverbial “what one hand giveth, the other taketh away” holds true for the Indian judiciary, and this was evidently on display in 2013.

If one assumes the courts would form the bulwark against the rights of the people being stifled by the mighty powers-that-be, if the judiciary is looked upon as the harbinger of progressive social justice, if judges are regarded as gallant knights who would protect those small voices of minorities being engulfed by the flames of majoritarian triumphalism, then we have had a veritable array of oscillatory opinions.

Let us partake of the delectable offerings which this smorgasbord has thrown up.

On April Fools’ Day, the Supreme Court called Big Pharma’s bluff. ‘We cannot afford to let them die those who cannot afford to live’ seems to have been its credo while ruling in Novartis. It gutted the persistent efforts of pharmaceutical companies to profiteer at the cost of patients’ lives. Contrary to the loquacious protests of infuriated drug-makers, the court did not clamp down on “innovation” (that familiar trope which has been used to coerce and beguile many). Rather, it protected the innovative spirit by putting paid to deception and gimmickry of “evergreening” of patents.

Kunal Saha, who had been waging a lonely, valiant crusade against the imperious might of the medical establishment for fourteen long years, got justice on October 24. Coming down heavily on the cavalier approach with which reputed doctors and big hospitals treat their patients, and intending its judgement to act as an effective deterrent, the Supreme Court awarded the highest compensation in the history of India’s medical jurisprudence. Saha’s deceased wife Anuradha’s loss is irreparable, but the right to health gained immensely.

The same “right to life”, which was upheld and advanced in Novartis and Kunal Saha, was delivered crushing blows in POSCO and Kudankulam. The reasoned and reasonable judgement of the Orissa High Court, which if upheld, would have halted rapacious “development” in its tracks, was overturned, and the central government was given carte blanche to let industrialists of dubious reputations and even murkier dealings run riot. If one goes by the distasteful alacrity with which Mr. Moily, the new Minister of (irony!) Environment and Forests, has been relaxing all norms for the sake of expeditious clearance to industrial projects, the danger cannot be more evident.

The Kudankulam Nuclear Power Plant case can be safely cited as an instance of justice and democracy being nuked by the Supreme Court and the Madras High Court. A bench of the latter dismissed a PIL against the project, waving copies of The Hindu (which had provided yeomen’s service in championing the cause of the government, “reasoning” that “if the Hindu reports that (APJ Abdul) Kalam is saying it is safe, then it is safe.”

Justice Radhakrishnan of the Supreme Court turned the essence of Article 21 of the Constitution on its head. The strongest plea against the plant was on the grounds of safety, coming as it was in the wake of the Fukushima disaster. But a cataclysmic incident in another part of the world (so what was in Japan of the Hiroshima-Nagasaki legacy) would not dissuade a judge who had nothing but national interest at heart. In paragraph 184 of the judgement, he opined that the petitioner’s complaint against violation of Article 21 “has no basis” since the alleged violation was actually an act in fulfilment of the object and purposes of the said constitutional provision – the supreme Fundamental Right, no less!

But hold on. Courts are adroit, sniff out government skulduggery and easily trash specious, sanctimonious pleas which cite constitutional tenets. Modi and his apparatchiks in the Gujarat government learnt this to their peril when their pusillanimity towards accountability stood exposed. All their dogged efforts to install a puppet of a Lokayukta came to naught. Though the governor’s politically-motivated actions also came in for sharp criticism, the court’s stand against what it deprecated as “royal thievery” must be lauded.  Politicians often berate an activist court for violating that Laxman rekha of separation of powers. However, since this metaphor also happens to be the name of an insect repellent, it can be surmised that the Supreme Court was effectively doing pest control, to weed out corruption from public life. 

As the BJP and the Gujarat government’s vehement objections to a central investigation into “Snoopgate” prove, the apparent sanctity of the federal structure is often used to thwart any probe into illegalities and depredations. In Madhya Pradesh, some Forest Department personnel, with the active connivance of police officials, were running amok and exploiting Adivasi girls. The victims’ families’ demand for a CBI investigation was opposed on the ground that it amount to an illegal interference in the State’s power. Alsia Pardhi saw the Supreme Court trash this craven, obfuscatory tactic and order a CBI investigation. The court held that directing the CBI to investigate a cognisable offence alleged to have been committed within a State, without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of powers.

Celebrations of judicial intervention in “statist” shenanigans must be cut short by the courts’ gambolling with the dance of death of capital punishment. As the inscrutable “judicial will” is so wont to do, on the one hand, courts have extolled the virtue and need of timely justice and in a plethora of cases, have pulled out all stops to prevent inordinate delay on the part of the government from causing a miscarriage of justice. Yet, on the other hand, we have two judges of the Supreme Court consigning Devender Pal Singh Bhullar to the gallows.

In what can only be regarded and ought to be sharply criticised as a lethal deplorable blunder, these two judges, in flagrant violation of sacrosanct judicial principles, dismissed Bhullar’s plea of commutation of the death sentence. Bhullar had contended, on humanitarian grounds as well as on the basis of a five-judge constitution bench decision, that the president’s inordinate delay in deciding upon his mercy plea made him eligible for a commutation. How could the two judges so flagrantly violate a judicial tenet cast in stone? Whosoever’s guess it is, the incident leaves one mortified. If there is one judicial decision I fervently hope for in 2014, it is a condemnation and unequivocal declaration of the capital punishment as inhuman, illegal, and unconstitutional.

Justice Blackmun’s dissent in Callins vs Collins must serve as a chilling reminder to our judges: “...the death penalty has failed. From this day forward I shall no longer tinker with the machinery of death... the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants... inevitably defies the rationality and consistency required by our Constitution.”

The Maharashtra government, driven by a mix of archaic “morality” and self-serving interpretation of obscenity, had banned dance bars, thereby condemning many to untold privations and exploitation. In a surprising departure from its usually antiquated stance on such matters, the Supreme Court quashed the ban, and gave us a sliver of a view of its progressive, liberal nature.

This progressive run continued in Goolrukh Gupta’s case. On July 15, the Supreme Court admitted Gupta’s appeal against a Gujarat High Court judgement which found no flaw in a religion treating its women as second-grade citizens. When the appeal comes up for hearing in February 2014, it is hoped that an apparent squeamishness at “interfering” in the rights of religious minorities does not hold back the Court from proactively quashing regressive, misogynist diktats.

The judgement in Indra Sarma had a bold opening salvo: “Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal.”, and went on to lay down guidelines which ensure women are not left high and dry by opportunistic men. Such a pronouncement could not have come any sooner.

However, the media, which went into an overdrive of lavishing praise, must have missed Paragraph 64 of the judgement. In a language cruelly reminiscent of the “Pati, Patni aur Woh” ideology in our culture, where it is always “the other woman” who must be pilloried and punished, the court held that a woman having an affair with, and living together with a man whom she knows to be married and having a family, commits an “intentional tort” – a deliberate violation of civil law, and in this context, an unpardonable act of “alienation of affection” of a man’s legally married wife. Therefore, the appellant in the instant case deserved to be deprived of even a dram of judicial benevolence.

So, as the curtains come down on 2013, we do not even precariously hover around certainty. But we are certainly left with a lesson – that the grand continuity of striving for justice shall spill over into 2014, and beyond.

 

Saurav teaches Media Law & Jurisprudence in Mumbai and Pune. Follow him on twitter @SauravDatta29.