M J Antony: Fast-track in the affirmative lane

OUT OF COURT

Whether the CJI-designate will keep up the pace in the next four years will be watched eagerly.

Judiciary asserted itself as never before this passing year in several ways. It put behind the bars for the first time a Union Cabinet minister for murder. The Supreme Court cleared the way for criminal prosecution of several other top politicians for corruption by waiving the need for sanction of the government. It confronted the executive and the legislature with renewed confidence. While the politicians and bureaucrats griped, people in general felt for the first time that the wheels of judiciary were moving, though at a grinding pace.

On the economic front, the Supreme Court passed several significant judgements which would assist the current liberalisation policy. It had to deal with disputes over several global tenders as in the case of airport development. It gave tremendous flexibility to the government in choosing the construction corporation, while at the same time setting rules against formation of cartels.

Disinvestment of public sector undertakings was another area in which the court granted more latitude to the government. Taking off from the Balco judgement of 2002, the Supreme Court settled some of the more frequent objections raised against the policy in the ITDC judgement this year. It ruled that the government need not consult the employees before selling it to a private investor and they have no absolute right to their jobs, even if they are considered to be government employees. Once the terms of employment are protected under the new employer, they should not complain about the government policy, said the ITDC judgement.

In several judgements, the Supreme Court asserted that the governments which offer incentives to set up industries in backward areas should not go back on their word after the investors had sunk crores of rupees there. It is a common practice for newly-elected governments to make promises to industrialists by providing land at cheap rates, waiving taxes and power charges. After the honeymoon period, such benefits are denied by re-interpreting the old notifications and issuing new ones. Though the law is still in a flux in this field, the court has largely supported the "legitimate expectation" of industrialists.

Perhaps the largest number of judgements delivered this year were on one subject, the demand for regularisation and absorption of casual or temporary workers. It is no secret that even government agencies are now outsourcing their work and employing contract workers on daily wages with little security of tenure. The labour courts have gone strictly by the time-honoured laws and asked the employers to confirm those who were in their posts for considerable time. The high courts tended to uphold this view. But the trend in the Supreme Court is not quite in favour of such workers. In several judgements, the apex court has reversed the orders of the labour courts and the high courts. The law-makers are allowing the confusion to continue by turning a blind eye to these fundamental issues affecting labour.

Banks and financial institutions were relieved to find that they have more avenues to reduce their non-performing assets. The Supreme Court removed certain doubts prevailing in this field in a judgement delivered late this year. Instead of moving the debt recovery tribunals which are becoming slower and getting bogged down in technicalities, the creditors can now straightaway take steps under the new securitisation law.

Environment and civic issues took a lot of time of the Supreme Court. It has attempted to protect the forests and taken pains to enforce their orders in a series of proceedings over the past 15 years. This activism has gone to such an extent that the year ended in a confrontation of sorts between the Union environment ministry and the Supreme Court as to who is the real guardian of the green.

The curtains have not yet rung down on the phenomenal row over the sealing of commercial establishments which have mushroomed all over the residential areas of the national capital. This case has provoked citizens in other cities also to demand peaceful neighbourhood and move their respective high courts.

The courts have taken significant steps in the electronic field. The Supreme Court introduced the electronic filing system. Litigants and lawyers need not come to Delhi to file their cases; it can be done on the computer sitting anywhere on the globe. Similarly, the status of the case, the last order passed and the full text of the judgements, are available on the Internet. The laws are also put on the Net. Several high courts are also providing these facilities. This is a major trend which would reduce corruption in the registry and make the procedures transparent.

In the coming few days, the Supreme Court is scheduled to deliver several significant judgements, like the fate of the ninth schedule of the Constitution (which allows Parliament to shut out judicial review of laws it chooses). The court is going to get this fortnight the first Dalit chief justice in Justice K G Balakrishnan. He has nearly four years to make his mark, especially when reservation and corruption are key national issues. All indications are that his term would be a turning point in the history of the Ambedkar Constitution.