Issue 58 Vol III, February 29, 2008

L A W  &  J U S T I C E

Tilt in Judicial Trends
Joginder Singh Toor

THE people of India, have somehow got the impression that the Judicial system of the country has gone far from being an instrument for protection of the rights of the poor, the weak and the oppressed. Conversely, it is becoming an instrument the protector of the rich, the powerful and the corporate sector and the neo liberalism.

The courts have taken on themselves an area which does not belong to them. The political executive feels a trespass on their rights. The judiciary feels that the lapses of the Executive if not corrected, would lead to lawlessness and would destroy the rule of law.

Arundhati Roy, a known social activist, a writer and winner of the prestigious Booker’s award feels “the higher judiciary, the Supreme Court in particular, does not just up hold the law, it micro-manages our lives. Its judgments range through matters great and small. It decides what is good for the environment and what isn’t. Whether dams should be built, rivers linked, mountains move, forests felled. It decides what our cities should look like and who has the right to live in them. It decides whether slums should be cleared, streets widened, shops sealed. Whether strikes should be allowed, industries shut down, relocated or privatized. It decides what goes into school text books, what sort of fuel should be used in public   transport and schedules of fines for traffic offences”. The Executive feels that it is their field and that the judiciary is encroaching upon their field.

The concept of Rule of law is a debatable question. It is, however, to be maintained by all the three wings of the State.  One view is that the rule of law is a precept that is distinct and can often be far removed from the principal of justice. The rule of law is a phrase that derives its meaning from the context in which it operates. Howard Zinn author of a Peoples History of the United States says “The rule of law does not do away with unequal distribution of wealth and power, but reinforce that in equality with the authority of law. It allocates wealth and poverty in such indirect and complicated ways as to leave the victim bewildered.”

There are instances that fortify this impression regarding the tilt in India. The Karnatka High Court in Arun Kumar Aggarwal’s case ordered a CBI investigation into the circumstances in which a 1000 MW Power Project had been approved in Karnatka, in a series of highly suspicious circumstances which warranted such investigation. The contract of the Project of one billion dollar was given to a Company whose paid up capital was only 1,30,000  dollars and whose debt equity ratio was 19.2 to 1 as against the norm of 2:1. A subsequent partner was added to show an amount of 191 million Hong Kong dollars as development cost in India, though they did not have any on going project in India and were not able to show where the amount was incurred. The subsidiary company brought as partner was shut down and other subsidiary added. Many other factors were considered by High Court for investigation. But the Supreme Court declared “thus non of the thirteen circumstances noticed by the High Court can be characterized as  giving rise to any suspicion much less the basis for investigation by criminal investigation agency.

The other glaring instance is of selling off developed off shore gas and oil fields from ONGC to a private joint venture regarding which an S.P. of the Anti Corruption Unit of the CBI had filed a source information report that the deal involves a loss of thousands of crores to the public exchequer and recommended that an FIR be registered so that a regular investigation could be commenced and searches and seizures made. Instead of registering an FIR the SP was transferred out from the CBI and the file on which he made the report was made to disappear. The CBI had in an other case being investigated by it recorded the statement of the Private Secretary of the Minister of Petroleum who had signed the deal, that the Minister had received Rs.4 crores from Reliance Industry, one of the Joint venture partner whom the Oil fields had been sold. Various high officials of the Petroleum and ONGC who were involved in the evaluation of this deal left their jobs and joined Reliance immediately thereafter. The Comptroller and Accountant General of India raised a finger over the deal. The matter went to the Supreme Court with numerous suspicious circumstances surrounding the deal, the report of the CAG and the report of the SP of the CBI, the court did not think it fit even to order investigation in the matter.

In a memorandum for the removal of Justice Jagdish Bhalla, now Chief Justice of Himachal High Court, addressed to the Speaker, there is a charge that “Justice Bhalla on 7th July, 2006 ordered the constitution of Special Bench well after court ours to hear a case of Reliance Energy in which his own son, Aarohi Bhalla was the counsel. This was despite the fact the Lucknow Bench did not have territorial jurisdiction to hear this case, since it concerned Noida, which was within the territorial jurisdiction of the Allahabad Bench. nevertheless this bench proceeded to hear and disposed off, the yet to be numbered, petition at mid night hearing by issuing an order in favour of Justice Bhalla’s sons clients.

In case  against Vasant Kunj Mall on October 17, 2006 the Supreme Court not only allowed the construction of the mall to go ahead, it observed ‘ the stand that wherever constructions have been made unauthorized demolition is only option cannot apply to the present cases more particularly when they unlike, where some private individual or private limited companies or firms being allotted to have made contraventions or corporate bodies or institutions and the questions of their having indulged in any mal practices in getting the approval or sanction does not arise’. A clear certificate to corporate bodies and institutions by the highest court of India that their indulgence in any malpractices or sanction does not arise, even in view of the case mentioned above, compels the common man to   feel the tilt of the mindset of the highest judicial organ of the country is not right

[The author is a senior lawyer based at Chandigarh, jogindersingh_toor@yahoo.com]

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