Supremely injudicious
by Sandhya Jain on 21 Dec 2010 15 Comments

Some startling pronouncements, orders, and judgments by the Supreme Court in recent times necessitate urgent scrutiny of the definition of ‘justice’ which seems to have undergone a strange metamorphosis without national debate or consent. There is also a danger that judicial overreach is transcending the constitutional scheme of separation of powers between the executive, legislature, and judiciary, thereby eroding a basic feature of the constitution.

It is astonishing that the Centre has meekly agreed to comply with the Supreme Court’s order of Dec. 14, 2010, to furnish the ‘complaint’ that led to tapping of corporate lobbyist Nira Radia’s telephone by income tax, and possibly other, agencies. Such court intervention in the work of intelligence-gathering agencies can have a corrosive impact on their confidentiality and operating procedures, and must be discouraged. If the Union Home Ministry found merit in a warning that a person residing in India was indulging in espionage and anti-national activities, it was duty-bound to investigate the same.


From a public perspective, the Radia tapes disclosures have exposed the murky underbelly of high finance - corporate lobbying to make Andimuthu Raja the Telecommunications Minister; the unprecedented loss to the exchequer in allocation of 2G spectrum; corporate fixing of the judiciary, etc. The real issues of tax evasion and money laundering are yet to be exposed.


Editing of the Radia tapes makes it difficult to know which judge allegedly received Rs nine crores. But there is a clear reference to a squabbling corporate family. In this context – and the crushing Rs. 3/litre rise in petrol prices – it may be fair to ask the court to suo moto revisit its judgment in the pricing dispute between the Ambani brothers, specifically, the critical issue of ownership of national resources.


In the dispute between Mr Mukesh Ambani’s Reliance Industries Ltd (RIL) and Mr Anil Ambani’s Reliance Natural Resources Ltd, (RNRL), the public interest pertains to the cost of natural gas. During the settlement of late Mr Dhirubhai Ambani’s estate in 2005, ICICI managing director K.V. Kamath negotiated a purchase price for RNRL at US$2.34 per mmBTU from RIL-operated KG-D6 block in the Krishna-Godavari basin. RIL made a profit from this deal.


Yet two years later, the government fixed US$ 4.20 per mmBTU for National Thermal Power Corporation to buy gas from the same firm; this prompted Mr Mukesh Ambani to insist RNRL pay the higher price.


The Supreme Court upheld the contention of Petroleum Minister Murli Deora that gas is a natural – and national – resource, and government has the right to fix its price. But can government fix a price higher than that agreed to by two parties in the free market, and can the benefit of this differential be pocketed by one private party, that too at the cost of a public sector undertaking?


The issue affects all who will pay for the power generated by NTPC and other firms. Experts estimate RIL will earn an extra Rs 23,000 crores from this verdict. Had the Supreme Court awarded this as royalty to the Petroleum Ministry, it could have been used to buffer the public against sharp jumps in prices. The apex court should revisit this verdict.


Equally astounding was the Supreme Court decision in February 2010, to stay the trial of 64 members of the Indian Mujahideen in Ahmedabad, for alleged involvement in several terror attacks from 2005 onwards in Ahmedabad, Delhi, Jaipur and Lucknow. The accused pleaded they would not get a fair trial in Gujarat and demanded transfer outside the state, adding they were being ill-treated in jail.


By staying the trial just three days before its commencement, the Supreme Court virtually declared ‘no confidence’ in the entire Gujarat High Court. The question arises, what kind of judgment must certain types of accused get in order to accept that justice has been done? And does the Indian judicial system allow open ‘shopping’ of judges and courts, which is what the demand for transfer to another state amounts to?


Has the Supreme Court learnt nothing from the manner it which it allowed ideologically biased activists to make it transfer the Gujarat riot cases to a state where they felt they could conveniently monitor them? Once the Supreme Court learnt that the National Human Rights Commission had recommended this transfer on the basis of an unsigned affidavit submitted by controversial activist Teesta Setalvad, did it retreat from brinkmanship? Now that the mass manufacture and doctoring of affidavits by Setalvad’s NGO has been exposed, and cases are falling apart, has Supreme Court revisited its operational procedures?


We may legitimately ask if court intervention has effectively derailed the trial of the Indian Mujahideen men. It is now December 2010, and Indian Mujahideen has executed a bomb blast in Varanasi, causing the death of an infant. Won’t judicial activism demoralize the intelligence agencies and police who risk their lives in umpteen unknown ways to nab such criminals? If ill-treatment in jail leads to calls to transfer a case outside a state, why didn’t the battering of Sadhvi Pragya in a Mumbai jail result in the transfer of her case to another state?


This brings us to the myth of ‘Hindu/saffron terror’ propagated by Congress president Sonia Gandhi and her cohorts in the government and party (WikiLeaks says US thought her politics ‘unprincipled’). The Mumbai ATS has been unable to stick any charge against Sadhvi Pragya and her co-accused, yet some cussed mentality denies them bail, though Pragya is allegedly suffering from cancer. Now WikiLeaks has exposed that Rahul Gandhi told American envoy Timothy Roemer that ‘radicalised Hindu groups’ were a greater concern than Islamic groups like Lashkar-i-Toiba! Surely this is a wake-up call to the Indian judiciary - to do justice, and to be seen to be doing justice.


Finally, we have the ‘uncle’ judge syndrome. Without casting aspersions on the integrity or calibre of former Supreme Court judge Shivraj V. Patil, appointed by telecom minister Kapil Sibal to probe the 2G scam, his qualification seems to be close family ties with former union home minister Shivraj Patil. And former Chief Justice of India K.G. Balakrishnan has also been exposed for claiming that the CJI-Madras High Court did not name A. Raja as the minister who tried to influence a judge in a murder case. Oh what a tangled web we weave, when we first practice to deceive…


The author is Editor, 

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