“Judges must know
their limits and must not try to run the Government. They must not…behave like
—Divisional Manager, Aravali Golf Club v. Chander Hass, 2008 (1) SCC 683, para 20.
Supreme Court has deferred to the elected branches of government: the
legislature and executive. Judges have repeatedly cited Montesquieu’s
separation of powers and the need for judicial restraint.
Recently, however, this trend has changed dramatically. P. J. Thomas’s central vigilance commissioner (CVC) appointment case, the spectrum scam, and Coalgate are a few instances when the judiciary’s reaction was markedly different from its traditional deference to the elected branches. Judges have not minced words in criticising the executive and bringing it to book. During Kanimozhi’s anticipatory bail hearings, for instance, Justice Swatanter Kumar famously remarked: “Corruption is the worst form of human rights violation,” and hence, the court was taking cognisance of the matter.
Why did the Supreme Court’s attitude and doctrine change so dramatically? In 2010-2012 when the P. J. Thomas Central Vigilance Commissioner (CVC) appointment case, 2G, and Adarsh Housing scams arose, the Chief Justice of India (CJ) was Sarosh Homi Kapadia. Kapadia served as a judge from 2003 onwards, and was the Supreme Court Chief Justice from May 2010 to September 2012. Shortly after he took office, a case was filed challenging the appointment of the CVC. Kapadia took the bull by the horns and questioned the executive. In this case the Supreme Court shed its defensiveness and traditional views on the limits of judicial review.
In 2011, two writ petitions challenged the appointment of P. J. Thomas. The petitioners argued that Thomas was an accused in a corruption case involving palmolein oil import and was alleged to have played a key role in the 2G spectrum scam, and so it was inappropriate to appoint him as CVC—a position that involves supervising investigation of corrupt actions by government officials.
Thomas’s appointment was done by a committee composed of Prime Minister Manmohan Singh, Home Minister P. Chidambaram, and Leader of the Opposition Sushma Swaraj, (henceforth high-powered committee, or simply committee) under Section 4 of the Central Vigilance Commission Act, 2003. Even though Thomas was selected by this committee in March 2011, the Kapadia-led three-judge bench set aside the appointment. The Supreme Court also insisted that in future such appointments must be above reproach.
Does this mean the judiciary has usurped the executive’s power to appoint senior government officials? As recorded in Aravali Golf Club, if the judiciary overreaches, the legislature could pass a law overruling the decision. The Kapadia judgement, however, elegantly prevented this possibility. The court reiterated it was not deciding on Thomas’s corruption charges—those were left to the lower courts where the matters were pending—but instead focussed on the need for highest institutional integrity, given the office in question.
Kapadia focused merely on the materials that ought to be considered in deciding the appointment of the CVC, and therefore avoided politicising the issue. The court ruled that the selection committee should be provided with and should examine all the information on shortlisted officers, including favourable and adverse data: “Nothing relevant or material should be withheld from the selection committee.”
This decision had nothing to do “with the personal integrity of the candidate”, the judge reiterated, echoing Marcus Antonius’s repeated refrain, “And Brutus is an honourable man”, which was intended to make the Roman public draw the opposite conclusion. Thus, he avoided any scrutiny of evidence on corruption charges, and instead spotlighted institutional integrity and the positive qualities necessary in a candidate for commissioner.
The CVC, they insisted, should be one able to ensure the commission could work in a “free and fair environment”, insulated from external influences. The selection committee would therefore need to consider the values, independence, and impartiality of the institution (of CVC). If the court had focussed on Thomas’s guilt, it would have been much easier for the government to muddy the waters with “he said-she said” allegations. By shifting the spotlight to the institution rather than the individual, the court made it difficult for the government to criticise the decision.
The decision demonstrated a paradigm shift in the Supreme Court’s jurisprudence; for the first time, it directed the focus to the powers of the position that would be filled, instead of the powers of the court (and a defensive analysis of the legalities. For example, whether the Supreme Court could intervene under the established writ of quo warranto or its more general powers, etc.).
The focus on “institutional integrity” achieved two goals. It prevented the decision from being challenged on the ground that they had incorrectly evaluated the facts and held Thomas guilty of corruption. Secondly, the court posited, the government was not accountable to the courts in respect of policy decisions or the choices it made (or merit review). One other issue before the court was whether the legislation intended the selection to be “unanimous”. The court specifically said it refused to read “consensus” to mean a “unanimous” recommendation, as such an interpretation would amount to “judicial legislation”.
Marcus Antonius in Shakespeare’s Julius Caesar repeatedly said “I come to bury Caesar and not praise him”, and proceeded to eulogise Caesar. The Supreme Court too repeatedly stated it had no intention of stepping on the government’s powers and yet set aside an appointment made by a prime minister-led selection panel, and insisted on integrity in candidates selected in future.
At the outset, Justice Kapadia had stated that the judgement was confined to the legality of this particular case. Moreover, the court observed, it was alleged that P. J. Thomas was “a big part in the cover-up of the 2G spectrum allocation case” and the palmolein oil scam. Since the 2G and palmolein scams were sub-judice, the Supreme Court on its own recorded that its decision was to be strictly construed, and was not intended as a comment on the merits of the pending cases. By indicating this judgement was to be narrowly construed, it limited future challenges and at the same time, by mentioning the sub judice corruption cases, the court effectively brought this evidence on record.
Thus, Kapadia not only
wrote a doctrinally strong decision difficult to reverse even after he stepped
down, but by bringing the scams on record, he has made it hard for the
government to brush the charges under the carpet in future.
India has produced several liberal chief justices and judges. Justice Hans
Raj Khanna bravely dissented in the habeas corpus case during the Emergency;
Justice P. N. Bhagwati widened standing rules to create public interest
litigation; Justice V. R. Krishna Iyer fought for human rights. These judges
and others transformed Indian law, earning the moniker of “activist judges”.
Memorably, Justice Khanna stood up to the Indira Gandhi government during “the Darkest Hour in Indian History” as Krishna Iyer called it. In 1975, in ADM Jabalpur v. Shukla, the question before the Supreme Court was, during the Presidential proclamation of emergency, can a court entertain a writ of habeas corpus filed by a person challenging his detention? Or would human rights be suspended during an emergency? Four of the judges, including then Chief Justice A. N. Ray, sided with the government and declared fundamental rights provided under the Constitution would be in abeyance if the government declared a state of emergency. Justice Khanna was the sole dissenter. He declared that the Constitution did not allow for the right to life and liberty to be subject to executive decree.
If the court had focused on Thomas’s guilt, it would have been easier for the government to muddy the waters with ‘he said-she said’ allegations. By shifting the spotlight to the institution rather than the individual, the court made it difficult for the government to criticise the decision.
He was punished for his courageous dissent. Even though Khanna was the senior-most judge, the government superseded him as Chief Justice. Unlike his brother justices Beg, Chandrachud and Bhagwati, who sided with the government, Khanna was prevented from becoming Chief Justice.
Supreme Court judges
then and thereafter deeply regretted their failure to stand up for the people,
and this guilt motivated the activism. P. N. Bhagwati, for instance, made
notable efforts when he became Chief Justice subsequently. After he took
office, he created “public interest litigation” (or social action litigation,
as Prof. Upendra Baxi prefers it). Through these PIL judgements, the Supreme
Court widened notions of standing to approach the court, and increased its
jurisdiction or ability to take up cases. Often, people whose human rights were
violated were too poor and unable to access courts. By widening standing rules,
the court allowed public-minded citizens and organisations to file a case on
behalf of the economically or socially disadvantaged.
The Indian Supreme
Court is the only court in the world where legal proceedings can be instituted
merely by writing a few lines on a postcard, without any onerous procedural
requirements. Similar to Bhagwati, Justice Krishna Iyer too provided epochal
judgements on human rights, and illuminated the rights of prisoners
post-conviction and when detained pre-trial.
Kapadia as Chief Justice was especially unique. During his tenure, orders against ministers involved in corruption emerged not only from Court No. 1, where the chief justice sits, but from other courts too. For instance, Justice Swatanter Kumar, one of the three who decided the CVC case, sitting in Court No. 2 along with Justice B. S. Chauhan, issued the initial orders in the Kanimozhi bail application in June 2011. At that time, lawyers representing Kanimozhi Karunanidhi argued it would be a denial of human rights if she were denied bail. The judges in open court retorted, “Corruption was the worst form of human rights violation,” and asked the CBI to respond on three points in the hearing: “Where has the Rs. 200 crore amount gone? File a status report on the loss caused to the state exchequer in the award of 13 Unified Access Service licences. Report on the status of the trial before the special CBI court.”
It is worth noting that on the next date of hearing, June 20, 2011, it was not Swatanter Kumar but Justices G. S. Singhvi and B. S. Chauhan who passed the final order in Kanimozhi’s bail application. Essentially, the court was asked to overturn the decision of the Delhi High Court and CBI special judge.
Previously, the special judge had issued summons to Kanimozhi and other co-accused in the 2G telecom scam to appear before the court. She and others claimed because the judge issued ”summons” and not a ”warrant” under Section 204 of the Criminal Procedure Code, they were entitled to bail. Her attorneys argued: Because the special judge preferred “summons” to “warrant”, effectively, he had concluded there was insufficient evidence to detain the suspects. Any refusal to grant bail after their appearance in court would be an instance of a judge reviewing his order, a power that subordinate courts do not possess. Justice Ajit Bharihoke of the Delhi High Court rejected this argument on the ground that the power to issue summons or warrant was a discretionary one, and that it did not confer bail by way of right to the parties.
Two aspects of these orders were worth noticing. First, neither the Supreme Court nor the Delhi High Court ruled that Kanimozhi and others could be held indefinitely. Rather, the ruling was confined to this stage of the investigations (pre-chargesheet filing) and to the limited question of whether to overturn the trial court and High Court decision. The court said petitioners could easily apply and obtain bail once the charge-sheet was filed and the investigation completed. (At the later stage, the petitioners did obtain, and are currently out on bail.)
In short, the court had not compromised human or individual rights, but had merely struck a “correct” line to aid investigation. The elephant in the room? It was important to prevent evidence from being tampered with or the prosecution being hampered because it involved the DMK, a political party that was part of the central government. The court addressed this concern without leaning excessively on liberties either.
Second, the Supreme Court oral hearings and Judge Bharihoke’s order did not merely go into issues of bail—whether the parties were likely to jump bail, etc.—but fully documented the financial transaction flows. Before going into the anticipatory bail issues, for instance, Bharihoke documented all of the following.
Firstly, prior to A. Raja taking over as Minister for Communications and Information Technology, the department policy provided for the 2G licence to be granted on a first-come-first-served (FCFS) order—date of application serving as the priority date to receive a licence. However, Raja ignored the advice to keep the application date as the priority date. When the second round of selections commenced, forms were distributed in a disorderly manner, not as per the priority date. Consequently, firms that applied much later rose up in the priority line, causing “undue advantage” to a few individuals and their companies, namely Unitech Group and Swan Telecom. Firms that had applied early were unfairly sent to the back of the line.
Secondly, the Reliance ADA Group, for instance, was interested in obtaining licences to cover 13 areas, but was not eligible to do so, under Clause 8 of the Unified Access Services License (UASL) guidelines. To circumvent this legal prohibition, a new company was created. Reliance Telecom directly owned 9.9 per cent equity, and indirectly, through another company, owned the remaining 90 per cent. Moreover, the bulk of the company’s funds (Rs.992 crores) were raised through shares, bought by Reliance for high sums (Rs.999 per share), even though the company had no business yet. Once Reliance, through another subsidiary, received the licence, it promptly liquidated its holding in this shell company.
The licence Swan Telecom received was then utilised illegally to generate Rs.200 crores for A. Raja, Kanimozhi, and other accused, and routed through Kalaignar TV Pvt. Ltd., which brings us to the third part of the criminal activity.
Swan Telecom also received Rs.3,228 crores from Etisalat, and Rs.381 crores from Genex as an equity share purchase. Shortly, thereafter, from December 23, 2007 to August 11, 2008, through a circuitous route involving Swan Telecom two other companies, Rs.200 crore was transferred to Kalaignar TV, allegedly to conceal the transfer of funds from DB Realty to Kalaignar TV. Using several tables, the judgement documented the amounts transferred from DB Group to Kalaignar TV. During the CBI’s investigation, it was claimed that the fund transfer was actually a loan. Yet, there was no evidence, agreement, or collateral or security provided for the “loan”. Even more suspiciously, as soon as the CBI contacted Raja and he was arrested, the majority of the Rs.200 crore “loan” was paid back—again, full details of the transactions, dates, and amounts were documented in five tables in the court order.
Fourthly, the order reflected on Raja’s role in promoting Kalaignar TV’s commercial contracts (ensuring it was included in the Tata Sky offerings), and Kanimozhi’s role, lobbying on behalf of and ensuring Raja secured the ministerial appointment.
Then, the court did not go into general question of bail but focussed on one technical point. If a judge issued summons under Section 204 of the Criminal Procedure Code, rather than arresting anyone to secure their presence in court, would the judge be compelled to grant bail? Or did the judge still retain the power to decide whether or not to subsequently arrest the accused? Ajit Bharihoke held: judges had full powers to issue summons or order arrest.
After providing a hearing to the accused, the judge at his discretion may decide whether or not to arrest or release the person on his/her cognisance, or bail. However, merely because the judge opted to issue a summons instead of ordering an arrest, it did not preclude a judge from ordering the arrest or to decide against releasing the accused on bail. In this specific case too, the judge was well within his power to refuse bail after providing the accused a hearing, and based upon established principles—what is the nature of the accusation, evidence collected to support the accusation, possibility of the accused interfering with the process of justice, or fleeing or leaving the country.
After summarising the facts, the judge observed: the accused were key shareholders, and in control of Kalaignar TV, and were in a position of power able to influence the employees, and with strong political connections. Both Kanimozhi and Raja belonged to the same political party. Given their clout, it could not be ruled out that they would be able to interfere with the investigation or influence the witnesses, and so refused to grant bail.
Thus, in a bail application, the judge documented and brought fully on court record the financial transactions and corruption allegations before going into the bail issue. Even when dealing with the bail issue, instead of proceeding to general discussions, he confined it to a specific question on whether or not the judge of the Special Court was precluded from ordering an arrest, merely because he had exercised the power of summons initially. In that manner, the judge provided a sound decision which did not give room for error, or to be overturned on appeal.
Just because a judge opted to issue a summons instead of ordering an arrest, it did not preclude a judge from ordering the arrest or to decide against releasing the accused on bail.
On June 20, 2011, the Supreme Court bench of Justices Singhvi and Chauhan upheld the Delhi High Court order. When senior counsel for the accused, Altaf Ahmed, argued that the accused were “not hungry for money,” the Bench retorted, “hungry people neither take bribe nor do they come to the courts. None of them (accused) is a hungry person.”
In a short three-paragraph order the Supreme Court dismissed the case, merely stating that the special judge, and High Court orders refusing to provide bail did “not suffer from any legal infirmity”. But the Supreme Court, like the Delhi High Court order said the accused could apply for bail once the charges were framed. Accordingly, once the charges were framed, in Sanjay Chandra v. CBI, Justices G. S. Singhvi and H. L. Dattu granted bail to one of the accused.
On November 28, 2011, relying on this decision, the other accused asked for and were granted bail. Judge V. K. Shali of the Delhi High Court relied on the CBI’s stand, put forward by their advocate, then Additional Solicitor General, Mohan Parasaran. The CBI had no objection to releasing the petitioners on bail as they did not fear evidence tampering.
In short, the court ensured that ministers, and relatives of powerful politicians would continue to remain behind bars to prevent evidence in large corruption scandals did not disappear.
suits involving important questions are usually dealt with by the Chief
Justice. Yet Kapadia allocated the 2G spectrum matter to a two-judge bench (or
Division Bench) of Justices G. S. Singhvi and A. K. Ganguly. This Bench created
history in the 2G case. There were two primary orders: first, a 2011 order that
dealt with the preliminary issue of whether the investigation should be
transferred from the CBI to a special investigation team. Second, the final
2012 judgement that dealt with the issue of whether spectrum allocation had
proceeded on sound principles, and whether the licences allocated so far should
be set aside.
In 2011, the Centre for Public Interest Litigation filed an application asking the Supreme Court to monitor the CBI’s investigation, or order a special investigation team to look into the roles of Raja, senior officers, and businessmen in the scam.
Initially, the government took the stand that the court should not intervene because the CBI investigation was proceeding in right earnest. In the meantime, the opposition insisted that a joint parliamentary committee look into the scam. The government then decided it would be strategically better to submit to a court-monitored investigation instead.
Traditionally, when asked to intervene and monitor investigations of corruption and abuse of power by highly placed officials, the Supreme Court does not interfere unless the investigation is shoddy or the investigating authorities shield the guilty.
Departing from this stance in the 2G spectrum case, the Supreme Court on December 16, 2010 ordered the following: it recorded its satisfaction that the CBI enquiry was progressing in the right direction, but retained the power to monitor further investigation. Singhvi and Ganguly’s order, on the one hand, stated it was not necessary to appoint a special investigation team “because the Government of India has, keeping in view the law laid down in Vineet Narain’s case and orders passed in other cases, agreed for a Court-monitored investigation.”
On the other hand, given the gravity of the matter, and to ensure comprehensive investigation “without any hindrance”, the Supreme Court issued seven directions to the CBI, of which the following are worth noting:
First, the investigation should be comprehensive, and cover all irregularities, including how the Telecom Regulator did not probe and take action against licencees who sold their stake for thousands of crores, failed to fulfil rollout obligations, and did not comply with licence conditions.
Second, the CBI was instructed to register a first information report in the context of irregularities in licences granted from 2001 to 2006-07, and to investigate the loss caused to the exchequer because of the improper method to award licences.
Third, the CBI was directed to scrutinise any nexus between the huge loans allegedly provided by public sector banks to firms that received licences, and whether Telecom Department officials were signatories or otherwise assisted the firms in tapping such funds.
Fourth, the CBI was directed to conduct its investigation without being influenced by any functionary of the state, irrespective of position or rank.
The court ordered the CBI to submit progress reports in sealed envelopes to it. Thus, it did not allow the executive to manipulate the judiciary. The Supreme Court thus ensured the CBI investigated all possible angles. By monitoring the investigation, it also ensured its instructions were followed.
Since Singhvi had dealt with the 2G spectrum matter, all related suits were referred to Singhvi and Ganguly, who authored the final judgement in 2012. The petition challenged the 2G licences awarded, and focused on exposing corrupt officials; the actions that the minister and public officials had taken to favour and illegally grant licences to firms in exchange for vast sums of money to the officials.
Usually, in these circumstances, the court would examine the process followed by the regulator. If it found that the regulator’s decision was motivated by “malafide intentions”, or because officials were bribed, it would set aside specific licences. A government’s decision to award contracts on an FCFS would be considered a “policy decision”.
The Supreme Court traditionally refuses to interfere with or examine policy decisions of the government, as this is essentially an executive function. But Singhvi and Ganguly not only struck down FCFS chosen by the government, but effectively selected the new policy to be implemented.
The court framed the issue innocuously: whether FCFS violates the equality clause in Article 14, and whether the policy was arbitrarily changed by the minister to favour some applicants.
In the final judgement, the judges didn’t just set aside the licences granted after January 10, 2008, but replaced the FCFS policy with sale by auction. Indeed, Attorney General G. E. Vahanvati had argued the various national telecom policies were policy decisions, which could not be scrutinised by the court.
The Supreme Court, however, stated the FCFS policy was fundamentally flawed (because it involved pure chance and possibly allowed anyone with access to power corridors to obtain licences, even if they were not the best qualified), and auctions were the best way to award such contracts or licences.
The court relied on the point that soon after obtaining the licence, several firms sold them for huge profits. So, the court hypothesised, if the government had auctioned spectrum, it would have earned enormous revenues and therefore an auction and not FCFS was the right policy.
“We have no doubt that if auction had been adopted for grant of licence, which could be the only rational transparent method for distribution of national wealth, the nation would have been enriched by many thousand crores.”
It acknowledged the principle that courts do not ordinarily interfere with policy decisions, particularly when fiscal matters were involved. However, Singhvi and Ganguly relied on Kapadia’s judgement and observed that in public interest, the court had a duty to intervene when “institutional integrity” is compromised.
“When it is clearly demonstrated that the policy is framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the court to exercise its jurisdiction in larger public interest and reject the stock plea of the state that the scope of judicial review should not be exceeded beyond the recognised parameters.
“When matters likes these are brought before the judicial constituent of the State by public-spirited citizens, it becomes the duty of the court to exercise its power in larger public interest and ensure that institutional integrity is not compromised by those in whom the people have reposed trust and who have taken an oath to discharge duties in accordance with the Constitution …” Reference in this connection can usefully be made to the judgement of the three-judge Bench headed by Kapadia, CJ in Center for PIL v. Union of India.
Fifty years after independence, relying upon Kapadia’s judgement, two brother justices created and articulated the court’s duty to intervene, if the elected branches breach the trust of the people.
Kapadia retired in
September 2012. On the eve of his retirement, in August 2012, the Comptroller
and Auditor General’s office released a report on the government’s coal block
policy. Similar to spectrum, the report showed enormous improprieties in coal allocation
from 2004-09. The government had chosen to allocate massive coal mining rights:
44 billion tonnes, by a mechanism other than auction. This had generated
windfall profits, Rs.1,85,591 crore (estimated as Rs.1,067,303 crore
in the draft report released in March 2012) for the allottees. Parliament
sessions were hugely disrupted by this scandal.
In the meantime, a public interest suit in the Supreme Court sought the cancellation of the 194 coal blocks allotted, since allotments were arbitrary and unconstitutional. The court’s reaction to this scam showed, clearly, that the new doctrine of judicial review espoused by Kapadia did not ebb when he retired. Rather, the new generation of judges has shown a remarkable degree of commitment to building on that opening; if elected officials prove delinquent, judges will utilise the institution of courts to tackle corruption and protect the people.
Then Solicitor-General, Rohinton Nariman, initially argued that only the final CAG report, approved by the Parliamentary Affairs Committee, could be relied upon. Therefore, the Supreme Court ought not to hear the case. The Bench of Justices R. M. Lodha and A. R. Dave ruled that the CAG is a “constitutional authority”, and it would scarcely be wrong for the petitioner to rely on its report to question the government’s action. The Bench also enquired why so many ministers’ kin were beneficiaries of coal allotments.
On September 14, 2012, the Bench ordered the government to inter alia, respond with reasons on why it did not allocate coal mining rights by competitive bidding since 2004. On January 24, Justices Lodha and Chelameswar questioned the Centre’s power to allocate coal blocks when the Mines and Minerals (Regulation and Development) Act, 1957, authorised states, not the Centre, to allot blocks.
This Bench also ordered, as per then Additional Solicitor General Harin Raval’s assurance, that the CBI report on the status of its investigation by March. The report was filed on March 8 2013. (Broadly, the CBI reported, companies applying for allocations misrepresented facts and credentials, and between 2006-09, the government allotted the blocks without verification.)
On March 12, the Bench of Justices Lodha, Chelameswar, and Madan Lokur included the CBI’s status report in the court’s records (retaining them in sealed covers), and during oral arguments, Raval, appearing on behalf of the CBI, assured the court that the March 8 report had not been shared with anyone save the court. The CBI was permitted to file an affidavit confirming that its report had not been shared with the political executive. [Moreover, the order recorded there were two issues: (a) the legality and validity of the coal blocks allocated, and (b) the possible criminal actions to be pursued. By consensus, it was decided that the court would first examine the legality of allocation, and pursue criminal aspect once the CBI had progressed further in its investigation.]
Coalgate created even more difficulties than 2G, preventing it from securing a proper investigation. It turned out the CBI’s confidential reports on the investigations were modified and manipulated by the executive. The CBI informed the court on April 26 that it had indeed shown the report to the law minister and joint secretary level officers in the PMO and the coal ministry. That made it difficult for a judiciary attempting to get to the bottom of the scam.
The Bench led by Lodha picked up the gauntlet as follows. One, it insisted on full disclosure on who and to what extent had instructed the CBI to change its findings, and did not halt because the PMO was concerned. On April 30, Justices Lodha, Lokur and Kurian Joseph ordered the CBI to disclose “whether or not any changes were made to the draft report and, if yes, at whose instance and the extent of changes” and whether the report had been shared with anyone besides the three persons mentioned.
Two, the court had no compunction in making its displeasure known to the CBI. “Why was the court deliberately misled, and informed that no members of the political executive had been shown the report, when that was not the case?”
On May 8, the court
laid down: “There was no justifiable reason for the two joint secretaries to
peruse the draft status reports and recommend changes therein nor there was any
justification for the CBI to allow these officers access to the draft status
reports and allow the changes in the draft status reports as suggested by
Thereafter, the court clearly stated that the CBI director would ensure that the investigations into allocation of coal blocks remained a secret. No access of any nature was to be provided to “any person or authority, including any minister of the Central cabinet, law officers, advocate(s) of CBI, director of prosecution and officials/officers of the Central government.”
Three, the judges were willing to get into the trenches and closely monitor the investigation to ensure a clean and complete inquiry. As a result of this episode, the court has asked to be kept informed of the CBI’s moves, and it records the CBI’s decisions in court orders.
The CBI has identified, and the court has recorded, the details of the officers who will be heading three areas of the investigations. The CBI will be providing the CVs of all 33 officers inquiring into the coal scam. The court has even ordered that the IPS officer heading not be changed or transferred without its orders. Thus, the court is effectively “monitoring” the CBI’s investigation.
The court has converted a potential setback into an opportunity to insist the government amend laws to make the CBI independent. Lodha has further rooted and developed the doctrine of institutional integrity pioneered by the Kapadia court.
The Bench emphasised: “We wanted to know from the learned Attorney General whether the Central Government intended to put in place an appropriate law for the independence of the CBI and its functional autonomy and insulate it from extraneous influence(s) of any kind ...”
Caught on the backfoot, the government acquiesced, and created a Group of Ministers (GoM) to draft proposals to amend the statute that created the CBI and governs its working (the Delhi Special Police Establishment Act, 1946). The court anticipated that passing these laws may take time and so in July also insisted on measures to ensure the CBI’s independence in the interim.
Judges legitimately fear that if they overreach or step on the government’s toes, the government may pass laws clipping judicial review or reverse court decisions. This could have the further effect of reducing institutional power and the respect accorded to courts, and hamper the enforcement of its orders. This fear has come to pass in the area of government corruption. In the 1990s, the government dragged its feet on investigating politicians involved in the Jain Diaries-Hawala scam, and the prosecution collapsed embarrassingly.
So, in Vineet Narain, the court held, in future the Central Vigilance Commission will supervise the CBI. The government thwarted the court’s decision by amending the statute—and passed a new provision requiring the CBI to obtain government permission before senior officials could be investigated.
In the ongoing Coalgate hearings, the court has shown it is aware of such danger and has elegantly thwarted the government. In oral hearings, it said the Constitution provided wide powers to the court under Articles 32 and 142, and these powers could not be limited by statute. Hence, the government could not insist its permission was required before the Supreme Court (or High Court) examined a Prevention of Corruption Act offence. But the court did not thunder at the government. Instead, on July 10, the Bench enquired whether they should “clarify” that prior government sanction is not necessary to investigate Prevention of Corruption Act offences.
In sum, when the
executive is caught dipping into the cookie jar, the Supreme Court is committed
to, and will intervene to ensure the corrupt are pursued and democratic values
preserved. Neither Kapadia nor his court are the only ones committed to this
vision. As the several Lodha-led Benches with Lokur, Kurien, Dave and
Chelameshwar have demonstrated, the Supreme Court that Kapadia left is in good
hands. Lodha will be Chief Justice in 2013-14 and so it is unlikely that in the
next few years his decisions will be reversed or the doctrine of institutional
integrity allowed to fade.
The judicial climate
appears conducive for the new doctrine of judicial review to flower, and
establish deep roots in Indian jurisprudence.
In another strong move to break the nexus between crime and political office, Justices Patnaik and Mukhopadhaya handed down two decisions on July 10. In Lily Thomas, they held a sitting member of parliament or state legislature cannot continue to hold office after being convicted by a court, and struck down Sec. 8(4) of the Representation of People’s Act which was protecting sitting members convicted of crime. On the same date, in CEC v. Jan Chaukidar, the same Bench held that a person in any kind of police custody could not vote in or contest elections.
In CEC, and a significant number of these decisions, the Supreme Court upheld the judgement handed down by High Court judges, and they form the pool from which future Supreme Court justices will be selected. Hence, it is unlikely that the doctrine of institutional integrity will be reversed in coming years.
What propelled the Supreme Court’s about face? What prompted judges to move from “judges should not behave like emperors, and embarrass the legislature or administration” to believing in 2010 that the court has a duty to intervene, “when the government’s policy is not in public interest”, or when “institutional integrity”, is compromised by those in power?
What was so different about Kapadia, and the judges thereafter?
Intriguingly, Kapadia is the first Chief Justice born in independent India—or, after India gained independence on August 14, 1947. All his predecessors on the Bench were born pre-independence–K.G. Balakrishnan, Kapadia’s immediate predecessor, for instance, was born in 1945. Kapadia in contrast was born on September 29, 1947, and the justices on the court since, were born after independence.
Before independence, the British appointed the judges, and they administered discriminatory colonial laws against Indians for a long time. The first Indian parliamentarians—elected to provisional legislatures in the British Raj—and after independence were mostly freedom fighters. Unsurprisingly, the judiciary was respectful to and deferred to former freedom fighters, and democratically elected leaders.
Fifty years after independence, however, scams involving ministers and government leaders have become common, and people’s trust in officials reached a nadir. Fascinatingly, the Supreme Court did a volte-face on judicial review and stepped into this breach to restore people’s trust in democratic values. Was it any coincidence that since 2010, the Supreme Court has been led, and consisted of justices born after August 1947, with no personal or institutional memory of the enforcement of discriminatory colonial rules?
Viewed in this light, is it surprising that the Supreme Court since 2010, has become a people’s court, donning in Ronald Dworkin’s words, “Justice in Robes.”
(The author would like to thank Ushajee Peri and N. Meyyappan for sharing their insights.)