“What a slap on the faces of the corrupt” exulted a jubilant journalist friend, reacting to Supreme Court judgment in the 2G public interest litigation. The statement aptly articulates the sentiment of the Indian judiciary. The sentiment is anger. However, the rule of law has never been about slapping faces – a rather passionate reaction for a democratic institution which is required to be dispassionate. The Supreme Court’s decision to cancel the 122 telecom licenses suffers from several fundamental flaws which fly in the teeth of a constitutional democracy.
A fundamental flaw with the case is that the PIL was entertained in the first place. Traditionally, litigation could only be initiated by a person directly interested in a controversy, to use legalese – a person who had locus standi. However, the bar of locus standi was lowered in the early 1980s by the Supreme Court when it realised that the courts had become expensive boutiques vending justice to those who could afford it. “If the sugar barons and the alcohol kings have [fundamental rights], have the ‘chamars’ belonging to the lowest strata of society [none]”, lamented Justice P. N. Bhagwati in PULC v. Union.
The process of PIL was intended to serve the marginalised and down trodden who were ignorant of their own rights and needed a public spirited individual to defend them. The Supreme Court’s ruling in the 2G PIL, on the other hand, purports to protect the rights of rich telecom enterprises who were allegedly subjected to a discriminatory “first-come-first-serve” policy.
Justice Arijit Pasayat once remarked that the modern day PIL had come to signify “private interest litigation”, “publicity interest litigation” or even “paisa interest litigation”. He also indicated that PILs are often fuelled by “political vendetta”. The 2G PIL should never have passed the smell test. The fact that the PIL was filed by an NGO established by a retired Supreme Court justice should only intensify the inquiry into its efficacy. The rule against bias, actual or perceptible, requires this.
Be that as it may, the Supreme Court adopts a worrying stance in its interpretation and application of Article 14 of the Constitution of India. By admission, 85 licensees of the 122 were alleged to be ineligible. It is yet to be seen if and how many of the licensees were guilty of any kind of corruption. In absence of a finding to such effect, none of the remaining 37 licenses could be impugned. The Supreme Court conveniently brushes this discrimination perpetrated by its own order under the carpet. It indicates that such licensees ought to have intervened in the litigation, and by not doing so, had waived their rights. Shouldn’t the same rationale apply to the enterprises purportedly being defended in this PIL, but never filed a writ petition themselves? In one case the petitioner actually withdrew its case.
The Supreme Court ought to realise that it may be supreme, but indeed not infallible. Not only might they have entertained an illegitimate case, and grossly disregarded the right to equal protection of the law, they have also left no room for appeal. The Constitution does endow the Supreme Court the discretion to directly protect fundamental rights under Article 32. However, the purpose of this discretion is certainly not to denude High Courts of similar powers under Article 226, which protect not only fundamental but also other rights.
If the argument was that the rights of the people had been infringed on account of revenue losses caused by adopting 2001 prices, the Supreme Court would have no jurisdiction under Article 32, as these are not fundamental rights, as guaranteed by Part III of the Constitution. Again, the appropriate jurisdiction would have been with the High Courts.
The Supreme Court also exceeds its constitutional mandate in its eagerness to act as the super-administrator of the country. It is respectfully submitted that the judiciary ought not to dictate executive policy. Natural resources belong to the people of the nation who elect their representatives. The judiciary on the other hand elects itself–a matter in which the people have no say, direct or indirect, whatsoever. Therefore, it lacks not only constitutional authority, but also the moral authority to make policy decisions.
It must be realised that the people and their enterprises–the consumers of justice–are least interested in fine-spun doctrines of law, but in the certainty of law. They rely on government policy to make crucial business decisions. This is very basis of the principle that governments cannot recant their promises.
This is not to suggest that politicians ought to be given a free run. They too are after all subject to the rule of law. It is nobody’s case that the corrupt politician or entrepreneur should not be brought to justice, but justice cannot be brought by undemocratic, extra-constitutional means. Justice can also not be achieved by sacrificing the rights of those who have acted upon legitimate expectations arising from the promises of the government.
Dhruv Sanghavi is a New Delhi based advocate and represented India at the 2011 Ministerial Conference of the Community of Democracies in Vilnius, Lithuania. Views expressed are personal.
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