No ‘activism’ in SC interventions

Supreme Court of India


The last six months must have been a nightmare for those at the helm of the Congress-led ruling coalition with the Supreme Court turning the heat on the government on three issues – irregular allotment of mobile licences in 2008, appointment of ex-telecom secretary P J Thomas as CVC and the black money issue. The sting and depth of the orders, observations and judgments relating to these issues must have forced top UPA leaders to wonder -“Why is the judiciary suddenly turning up scrutiny on the government.”

Since the retirement of Justice Y K Sabharwal as Chief Justice of India, who slammed the President’s rule in Bihar as well as on police reforms, there had been a period of lull in the SC which was reluctant to examine both the validity of government decisions or question it for non-implementation of pro-poor legislations.

For close to four years, the major three organs of governance – Legislature, Executive and Judiciary – functioned well short of their expected role. All three lived in a rather make- believe world where everything was functioning smoothly. What changed it? Rise in food prices, CWG corruption and the Adarsh society scam transformed the silent common man to question the correctness of just about everything. At this crucial juncture, Justice S H Kapadia took over as the captain of the judiciary and the Supreme Court decided to examine a few PILs articulating public complaints against corruption in high-places.

The court dismissed several PILs on many issues relating to governance with a clear understanding that judiciary could not encroach into the domain of executive and legislature. It decided to look into the 2G spectrum scam where money legitimately due to the exchequer from telecom firms were allegedly waived off for personal gains as pointed out by CAG, whose damning report did not stir the coalition compulsion arrested government into accountability calculations. It resulted in court monitoring the CBI probe.

The SC sensitivity towards institutional integrity, especially that of the CVC which supervises all anti-corruption measures in governmental working, forced it to examine Thomas’s appointment as Central Vigilance Commissioner. The personal integrity was not in doubt. But, pending palmolein import corruption case chargesheet led the court to quash his appointment. The court apprehended that it would impede the working of CVC, who is mandated to function without fear and favour.

In the PIL seeking recovery of, what sounds to be an astronomical figure, Rs 70 lakh crore of black money stashed in foreign accounts, the Supreme Court decided to shake the cob-webbed investigation files of Enforcement Directorate. What tumbled out was Hasan Ali Khan and his alleged illegal money laundering racket spread across continents. The court painstakingly explained to the government not to treat those who siphon off money illegally from India to off-shore locations as mere tax evaders. When the government persisted, it used strong words – “What the hell is going on in this country”, which is the citizens’ common refrain.

Will these three cases and the startling results of the scrutiny be enough to describe it as judicial activism? Did the Supreme Court step outside the constitutionally mandated duty to maintain and uphold rights and punish “wrongs”? In Kihoto Holohon vs Zachillhu (1992 SCC Sup (2) 651), the Supreme Court had said, “Whenever there is an infringement of a right or an injury, the courts are there to restore vinculum juris (the chain of the law), which is disturbed.”

In all these three cases – 2G spectrum scam, Central Vigilance Commissioner appointment and black money issue – it has shown extraordinary restraint in focussing to restore vinculum juris and not resort to judicial adventurism.