M J Antony: Supreme Court in affirmative mode

OUT OF COURT

Despite political upheavals, allegations of indiscipline within the ranks of judiciary and challenging questions of law before it, the Supreme Court concluded the passing year on a triumphal note.

Though the year 2004 saw the regimes of three chief justices, there was continuity of policy combined with subtle changes in their styles of functioning.

The opening day of the court started with a positive note on the policy of disinvestment.

Then Chief Justice V N Khare clarified that the government could go ahead with its disinvestment policy in spite of its judgement in the Hindustan Petroleum Corporation Ltd case. His court also agreed to take a second look at that judgement in a new batch of cases before it.

During the year, the court passed its final opinion on the controversial Securitisation Act but put its foot down firmly in another contentious matter regarding the setting up of the Competition Commission of India.

Chief Justice Khare had called the legislation an "onslaught on judiciary" as the commission was packed with bureaucrats donning the caps of experts.

The conflict between the judiciary and the executive continued during the whole year, with the government agreeing only to make cosmetic changes in the law.

Finally, the court had to give a full hearing to all sides and reserve its judgement. If the law is struck down, the whole process of dismantling the Monopolies and Restrictive Trade Practices Commission and replacing it with the Competition Commission has to start anew.

One remarkable step taken by the Supreme Court was its order to the Central government to disburse Rs 1,503 crore, which was lying with the Reserve Bank of India for over a decade, to the victims of the 1984 Bhopal gas tragedy.

The toll has risen to 15,000 now and there are five lakh claimants. They are being given the amounts of compensation according to the degree of damage suffered by them. The court is still monitoring the rehabilitation schemes.

Another controversial issue that was revived by the Supreme Court after seven years was the legality of the power purchase agreement between the US power company and the Maharashtra State Electricity Board. However, the court is yet to hear the matter fully even six months after issuing notices to the Centre, the state and the company. Meanwhile, the Dhabol Power Company affair is tied in intricate knots pending in the high courts and in arbitration.

The Sutlej-Yamuna Link (SYL) canal is another perplexing question involving the Centre and six states. The court is yet to hear the presidential reference on this issue because the states are adamant in their respective stand regarding the sharing of river waters. Meanwhile, the government has made a solemn undertaking before the court that it would work out a viable scheme for linking all major rivers in the country to avoid confrontations like those around the SYL canal, Cauvery and Krishna rivers.

The state governments have not always been cooperative in implementing the affirmative orders of the Supreme Court. The worst example was the government of the national capital itself.

It attempted to change the Master Plan to bypass the order of the court to shift the polluting industries out of the congested residential colonies. The court has sounded a warning that it would not be allowed. This controversy came soon after the unearthing of a gigantic scam involving the commercialisation of the world heritage monument, Taj Mahal, by the Uttar Pradesh government. The monitoring of that case is still continuing.

The orders of the court that affected politicians and their parties created tsunamis. It took unprecedented steps in the Gujarat riots cases. The main cases were shifted out of Gujarat and 2,000 acquittals were ordered to be reviewed by a special committee.

The Beur jail in Bihar was raided at the instance of the Patna High Court and several cell phones were recovered from politicians and their cronies.

The Supreme Court is seized of the issue whether politicians with criminal charges can hold executive power. These and other momentous questions will probably be answered next year.