First as tragedy, then as farce

Early this year, India’s Supreme Court (SC) vacated a contempt conviction going all the way back to 2007. It was among the final rulings of an incumbent Chief Justice of India (CJI) before he retired.

This event lies beyond the narrative horizon of Courting the People , Anuj Bhuwania’s compelling book — but provides an apt postscript. In June 2007, the daily tabloid Mid Day carried a series of reports which questioned the commitment YK Sabharwal — then just six months into retirement — showed during his tenure as CJI towards enforcing a land use plan in Delhi. Soon after assuming the highest judicial position, Sabharwal summoned an unrelated case of public interest litigation (PIL) before his bench and proceeded to issue a rash of orders with little concern for the dislocations caused.

Sabharwal made the radical innovation of reading the force of law into a planning blueprint drawn up at some indeterminate time. Like every plan drawn up in what has been described as India’s “political society”, this one was compelled to make contingent adjustments. Good as wish fulfilment, the “master plan” was useless as forecast of how a democracy of diverse aspirations would organise its physical spaces.

Mid Day found that even as Sabharwal assumed this role, his two sons were acquiring stakes in commercial malls and stood to gain a market from the shutting of shops in spaces designated for other uses. Other media platforms proved cold to the story and the SC may have been disinclined to act, except for the offended hauteur of the Delhi High Court which issued its contempt verdict, perhaps also with unsubtle intent of triggering the “Streisand effect” and creating extra traction for embarrassing news.

Reluctantly picking up the hot potato a decade later, the SC dismissed the conviction with a summary order, well after Sabharwal’s death. There is no way to unpack this casual attitude towards public perceptions of institutional integrity. The fading memories of the background to this matter are now revived by Bhuwania.

Sabharwal’s enthusiasm for urban planning originated in a most unlikely place. A 1985 PIL filed by an obscure lawyer asked for curbs against the dust pollution hazard created by stone crushers in Delhi’s city environs. Under an expansive PIL jurisdiction created in the 1980s, the SC took this on board but allowed it to mutate in truly protean ways, through a series of interlocutory applications. In distinct phases, this limited PIL became a mandate to clear up colonies of the poor in the vicinity of a wildlife park — while farmhouses of the affluent were left untouched — and an effort to cleanse the Yamuna of the effluent load inflicted by Delhi.

From the inception of its PIL jurisdiction and with increasing frequency from the 1990s, the judiciary devised a unique procedure to deal with matters its fancy tilted towards. It would appoint an amicus curiae to spin the convenient narrative, dispense with the adversarial procedure of hearing all sides, and proceed to issue orders devoid of reasoning.

A distinct behaviour pattern was evident in matters involving corporate capital, as when a PIL seeking injunction against a massive commercial building in Delhi’s ecologically fragile ridge forest came before the SC. After dawdling aimlessly for long, the court dismissed the petition with the stricture that it had been filed too late.

There are several such instances that Bhuwania catalogues, when the judiciary has defaulted on proclaimed objectives of its enlarged PIL jurisdiction. Bhuwania’s contention is different. “PIL has often been talked of as a romance — if anything, as a romance gone wrong”, he writes. “I will argue that PIL was a tragedy to begin with and has over time become a dangerous farce.”

There is a complex story behind this transformation of the judiciary. In Bhuwania’s narration, it originates in early conflicts with the elected government, when the judiciary struck repeated blows against the egalitarian impulse. That was the basis of the famous grouse by India’s first prime minister, Jawaharlal Nehru that the Indian people having given themselves a great Constitution, suffered the mortification of seeing it “purloined by the lawyers”.

The conflict continued through the following decades with a shift of advantage in the ’70s when the executive pushed through judicial appointments that disturbed older hierarchies. And then came the complicity of particular judges in the authoritarian

PIL jurisdiction was created afterwards, but Bhuwania argues that this was a power grab, rather than a restoration of fundamental rights to the core of jurisprudence. After years when it found that insistence on human rights would not get it very far, the judiciary chose to harmonise its own pursuits with the angry mood of the Indian middle class in the age of liberalisation. The consequence has been a further drift away from all the egalitarian promises of the Indian Constitution.

Sukumar Muralidharanis an independent writer and researcher based in Delhi NCR

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