‘Pendulum of judicial views swing from right to left… and right again’

The cases that I picked are the ones which had a macro economic impact on India. I wanted to give a historical perspective on how judicial and political philosophies and histories have changed from 1950 till today. The more it changes, the more it stays the same.

The tension between the executive and judiciary has always been there. But also the ideologies of the judges themselves have changed from the right wing philosophy of the 1950s, and then we come to the leftist philosophy of the 1970s, and post liberalisation, the judges again, may be because of liberalisation, or may be because of their political views, their economic views have become more right wing. The pendulum of judicial views has been swinging from right to left and to right.

Yes, of course, a judge is not some kind of a robot. We have not invented a robot that can give a completely unbiased, neutral decision. Because, ultimately, judges are charged to interpreting words, and words have a context and meaning, and the interpretation to give meaning and context to those words comes from the personal experience of a judge; some may say biased, some may say lack of objectivity.

But that’s who they are. They are people drawn from society. That’s why diversity in judiciary is very important because you will get diverse opinions. But even a process of honest interpretation, and understanding what it means, it’s bound to be a reflection of your lived experiences.

One that has been most undervalued and under studied and possibly the most important, is the Vishaka judgment. That was the case where sexual harassment guidelines were laid down by the SC.

Today, we see largely men leading companies and we say that we need the financial and economic wellbeing they bring. Fifty per cent of this country is women and if they feel unsafe at work, what kind of financial inclusion are we talking about?

Also, there is a plenty of evidence to show that a company where there is no sexual harassment, does financially better than others, but because for most companies it is men at the top, they don’t care about the financial and economic impact because often, most likely, they are the perpetrators of sexual harassment.

So, often companies are run not on matters which make the most economic sense.

Vishaka was one of the cases which freed women, as Nehru said in his famous Tryst with Destiny speech, not wholly but in some measure. There is a promise that the Vishaka judgment made for greater inclusion of women in the workforce. It’s a case judgment that has potential to be the greatest economic change.

It’s not the job of the courts to evolve laws, other than Vishaka (where the SC laid down guidelines). They are only supposed to interpret them. Sometimes it’s incumbent on the legislative to change the laws.

Take the case of Bangalore Water Supply (featured in the book).

A judgment was given in the late ’70s, giving a wide interpretation to the word industry and therefore including in the fold almost every particular business and giving rights to all kinds of workmen such as municipal and hospital workers, who are not typically part of industry.

The court said if you want, please change this definition. Parliament enacted this in 1982, four years later, to change this definition so as to mitigate the impact of this judgment.

Sometimes laws don’t change due to legislative lethargy. Courts will interpret, but the job of running the economy is of government.

Laws have not kept up at the speed at which they need to keep up. Take crypto currency, we still don’t know what the legal position of crypto currency is.

The judgment was given two years ago; the ban was struck down. The government has had enough time surely to frame a cohesive policy, at least whether it’s legal or not.

But government is bringing in a digital currency so I presume it’s going to be legalised…but why live in the shadows?

I suppose that’s correct. Courts are experts in the law and its interpretation as well of the Constitution.

Two examples come to mind—the 2G case and the coal allocation were ruled as unconstitutional. But, because the courts did not have the necessary economic expertise or because they didn’t ask for it, they went and adopted a course which economically made no sense; they cancelled licences, they could have imposed penalties.

Various parties bought the licences, but they weren’t to know about their unconstitutionality. That may have been economic naivete on the parts of the judges who probably killed a fly with a sledgehammer.

Not every case needs to be taken to its logical conclusion. They could have had a sense of economic reality and shaped their orders which make practical business sense.

In fact, I have chosen cases which have been cited as precedents in future judgments.

The decision to disinvest in Balco; the courts upheld the power of the government to disinvest and this was used by the government to disinvest in other businesses.

It also gave government leeway in economic policy. The reticence to dive into matters of economic policy has found its way into other areas, including the matter of the IBC where the court said it’s a matter of economic policy and governments have a right to take that decision.

I find that governments find it convenient to throw the ball in the court when taking a decision is politically inconvenient for it, so the court can give its imprimatur.

Courts must be wary of this and should not entertain matters of politics – there’s a principle in law, that we do not enter the political thicket - but judges are also human beings and sometimes can get seduced that they have the jurisdiction that they can entertain such matters.

But my advice is that this is a chimera; they must remain astutely apolitical because if they have to assert moral authority, the only guarantee for judicial independence is being completely apolitical.