4 min read.Updated: 11 Dec 2013, 12:10 AM ISTRahul Singh
Perhaps there hasn't been another judge in SC's history whose day of retirement has so closely been watched by certain business houses
Max Weber (who was trained as a lawyer but mostly worked as a sociologist) said in his essay Science as a Vocation: “If a young scholar asks for my advice with regard to habilitation, the responsibility of encouraging him can hardly be borne...one must ask... Do you in all conscience believe that you can stand seeing mediocrity after mediocrity, year after year, climb beyond you, without being embittered and without coming to grief?"
Much of the above is certainly applicable to the law schools. One wonders whether it also holds true for the Supreme Court of India.
Justice Ganpat Singh Singhvi will retire from the Supreme Court on 11 December after six eventful years at the apex court. Thanks to India’s system of following seniority for chief justiceship, he must have been aware, at the time of his appointment, that he wouldn’t possibly make it to the position of chief justice, but he couldn’t have anticipated the remarkably eventful nature of his judgeship.
Perhaps there hasn’t been another judge in the Supreme Court’s history whose day of retirement has so closely been watched by certain business houses and their advocates. A raft of petitions requesting “review" of justice Singhvi’s decision in the 2G case, in which he had ordered cancellation of 122 telecom licences, await to be filed. There haven’t been too many judges whose court the so-called “grand advocates" (as Marc Galanter and Nick Robinson’s recent paper calls the elite set of lawyers who command the Supreme Court’s attention) approach with trepidation usually reserved for strict, no-nonsense teachers by their students.
The legal history of the Supreme Court is replete with paradoxes. While its self-image is that of India’s most respected institution, there is little empirical evidence to support the claim. Although the news media consumed by the middle-class certainly reserves much reverence for the court, there is no empirical survey (not even of the opinion poll variety) that places the Supreme Court on any high pedestal. To be sure, there is no authentic survey (or opinion poll) to the contrary either.
This inward-looking, closed institution consists of lawyers and judges (with no academic until now in spite of a constitutional provision) and mostly eulogizes the hyper-active judges, who take refuge under “judicial activism", and are usually known for “creating" laws rather than “interpreting" them.
Interestingly, while the insiders of this system are prone to having a self-image of protectors of individual liberty, at the most critical litmus test of this idea, the institution crumbled. Indeed, the excesses of Emergency haven’t been tried again only because of the popular, democratic backlash and not because the Supreme Court as an institution stood its ground on the rule of law.
Nevertheless, a notable exception at the Supreme Court during the Emergency was justice H.R. Khanna, who exhibited phenomenal courage and stood by his fidelity to the rule of law. He was the lone dissenting voice and paid a heavy price in the form of being overlooked for the position of the chief justice of India.
While it is difficult to foretell whether justice Singhvi stares at the possibility of being overlooked for post-retirement appointments at the statutory tribunals (where government usually exercises tremendous influence) and arbitration tribunals (where business houses rule the roost), his legacy, like that of justice Khanna, will remain one of harbinger of fidelity to the rule of law, albeit in an inchoate sense.
This legacy stems from one of the most significant judicial decisions delivered in the post-1991 (economic reforms) era— the 2G case mentioned earlier. Justice Singhvi’s belief in adherence to the rule of law was undoubtedly bolstered when he took the unprecedented step of withdrawing from the 2G matter more than a month before his retirement.
Critics could point to Devinder Pal Singh Bhullar’s case where justice Singhvi had upheld the death penalty. However, in Bhullar’s context, it is at least, technically speaking, arguable that he was merely following the black letter law and wasn’t really deviating from the norm. If human rights advocates abhor the death penalty, they ought to take their battle to the legislature. Further, at the time of writing, justice Singhvi hasn’t ruled on the Naz Foundation’s appeal involving the legality of homosexuality. Will he follow the Bhullar philosophy in the Naz Foundation case? By the time you read this column, we may have the answer. Nevertheless, in the Naz Foundation appeal, justice Singhvi also has the option of referring the matter to a larger, constitution bench to decide.
It is interesting to note that the strands of fidelity to the rule of law have emerged amidst multifarious allegations of crony capitalism. If similar fidelity to the basic notion of the rule of law emerges as an overarching norm, the essential character of the Supreme Court as an institution is all set to transform from being “hyper-active in creating laws" to the upholder of the Constitution of India.
Unfortunately, India’s Supreme Court, unlike the Supreme Court of the US, does not, as a matter of course, sit en banc, but functions through a bench system, making it extremely difficult to ensure consistency and predictability in decision-making. If the Supreme Court manages to shed its hyper-activism and continues to adhere to the rule of law, while the outcome in several other cases, such as the pending coal allocation matter will become predictable, it will not only prove Max Weber wrong but also emerge as one of the most respected institutions in India and, indeed, in the entire world.
Rahul Singh teaches at the National Law School, Bangalore, and is currently pursuing research at Balliol College, University of Oxford.