It’s a tight balance for the Supreme Court, says Zia Mody6 min read . Updated: 31 Aug 2013, 12:17 AM IST
The leading lawyer, in an interview, talks about her new book and why the Supreme Court steps in more these days
AZB and Partners co-founder Zia Mody is known more for advising top CEOs on mergers and acquisitions or securities law. However, in her first book, 10 Judgements that Changed India (Penguin, ₹ 399), she has focused her legal acumen on topics of more general interest such as human rights, environmental jurisprudence, the right to life, and indeed, the right to die. While Mody observes in her book that the judiciary is “mostly reactive and not proactive", the 10 examples she has cited have a lot to do with judicial activism. In an interview, she talks about the book and shares her views on the state of the Indian judiciary. Edited excerpts:
How did you narrow the choices to 10 landmark judgements?
It was a tough choice actually and there are some judgements which I would have liked to have added. For instance, a judgement on presidential rule and what are the limitations of such a rule, but I talked to my father (former attorney general of India Soli Sorabjee) and we shortlisted those judgements which we thought would interest readers.
We did not use the same subject matter. We dealt with different issues and decided to go with cases such as the Union Carbide-Bhopal gas tragedy, which has had a great environmental and human rights impact; Vishaka versus the state of Rajasthan that deals with sexual harassment at the workplace, which is at the forefront of issues today for women, among others. We have tried to pack in issues that will appeal to ordinary people as being of great importance.
What is the underlying theme in all these cases?
Most of the cases demonstrate judicial activism. They show how the judiciary has stepped in and expanded what were stereotype interpretations of fundamental rights. So, in the article of right to life you had the right to die with dignity read in. In the Olga Tellis pavement dwellers case (where the Supreme Court ruled that it was the state’s responsibility to rehabilitate pavement dwellers instead of displacing them), which had the right to a profession and, therefore, the right to secure a home read into the right to life. Some of the other judgements in the book read right to privacy and right to movement into the article of right to life.
Do you see a significant change in the Indian judicial system in the last 10 years?
I can only speculate, but I think the judiciary is getting probably more of a sense that it has to step into many vacuums. While earlier, the judiciary was possibly more restrained in what it could interfere or not, I think a lot of the judicial mindset now has perhaps a sense of frustration at the inaction of the executive and, therefore, you have the Supreme Court stepping in much more than it did earlier. And I think the public sentiment is also in sync with that. My sense is that, by and large, the public is happy for the Supreme Court to fill in the vacuum because it has more faith in the judiciary than (in) the executive. Sometimes the judiciary does cross the line in some cases and it is way too active in certain cases, but still personally I would like to have an active judiciary than a restrained judiciary.
In the Olga Tellis pavement dwellers case, the judgement given by the SC has weakened due to its own subsequent judgement in the Narmada Bachao Andolan case. Do you think such occurrences where the courts will tend to overrule their prior judgement would become more common with the thrust on growth and development?
Some of the cases that I have quoted in the book are also a result of a larger Supreme Court bench overruling the earlier one. So, in the sense of ‘will the Supreme Court continue to review its judgement’, the answer is definitely yes. What angle they take is really the socio-economic mood of the time. According to me, a lot of cases rightly need reconsideration. For instance, in the Aruna Shanbaug euthanasia case (on whether a 63-year-old woman who has spent more than half her life in a vegetative state may exercise her right to die), some high courts earlier held that you could not die at all, while some said it was a possibility. Today, passive euthanasia is perhaps socially talked about, debated and acceptable. Maybe 50 years ago it would not have been so. It is a moving jurisprudence after all.
In several judgements such as the Shah Bano case or the Mandal Commission, the Supreme Court verdict has been nullified by government legislation. How can such conflicts be avoided?
It’s a tight balance for the Supreme Court also because quite clearly if Parliament passes a law, it passes a law and represents the will of the people. I think when it comes to commercial issues and tax issues, the Supreme Court is unlikely to interfere too much if the executive changes the law. But when the basic structure of the Constitution is up to be changed by the same executive, the Supreme Court will step in. I think the Supreme Court is also mindful of not wanting to cross the limits and getting into a confrontation with other arms of the government and, therefore, where it preserves its powers very vehemently are in areas which are sacrosanct in its mind, but not necessarily disallowing the executive to function in commercial legislation.
Would you say that the Bhopal gas tragedy case is the most significant judgement in the corporate sector? Does it do enough to fix responsibility on companies for such incidents?
At the end of the day in the Union Carbide case, you never really saw seminal jurisprudence. But what happened post Union Carbide is even more important than the case. Post Union Carbide-Bhopal gas case, we got our environmental Acts, air Act, water Act, rules, regulations, etc. We woke up to the possibility of abusing our country and people through environmental negligence. Union Carbide case must make corporates more responsible if they are in breach. You can’t dump effluence into a river any more, you have to follow pollution control norms for factories. By and large those legislation should do the trick if they are followed. The real problem is in the implementation of the environmental laws.
Why do you think the national judiciary commission has not been formed despite being introduced in Parliament three times?
I think at some stage there is an opposition for this Bill to be passed. At the end of the day, it’s a tussle as to whether the executive can superimpose its views on the appointment of the judiciary or not. Personally, I am all for the judiciary deciding about the judiciary. The executive feels sometimes that it does need to have a say. I know the current law minister also feels that there should be more of the executive leaning in the judiciary than it is right now. The Constitution also did talk about consultation, which the Supreme Court has effectively changed to concurrence, but again if you ask me that’s not a bad thing. I rather be in the hands of my court than in the hands of my executive.
Four of the cases quoted in the book relate to women. Would you say that despite the best intentions of the judiciary, gender equality, or to put it broadly the upliftment of women, is one area where the judiciary has not had much of a success?
Well, the poor Supreme Court, I think they have tried their best. You couldn’t get more of a legislative intervention through the Supreme Court than in the case of Vishaka (sexual harassment at workplace). But India will take a long time to change its DNA. I personally think that the change will be expedited, by and large, if the socio-economic status of the woman improves because when she puts her money onto the dining table, then her voice is heard more than before. Therefore, the whole question of women’s empowerment and microfinance becomes very critical.