The court as the ultimate arbiter

We Indians have a time honoured tradition of knocking on the doors of the court for just about everything under the sun. The reasons for the recourse to court range from the sublime to the bizarre. Courts have been asked to adjudicate on matters as diverse as whether or not Ram Lalla was born at the disputed site where the Babri mosque stood till December 6, 1992 and whether consensual gay sex should or should not be a criminal offence. More often than not, however, it is a mundane matter of life and death which brings an individual, a group or an oragnisation to the doorsteps of a court room: a poor man harassed by the local administration, government employees denied their rightful dues by an apathetic government, tribals fighting for their forest based livelihood threatened by a mining or industrial project and so on.
There are two primary reasons for our obsession with courts: an inability (or is it unwillingness?) to come to a mature, mutually satisfying conclusion with the other party and an innate belief that the court knows best.
Two recent judgments – one each in the Supreme Court and the Orissa High Court – call into question this assumption that the court is the last word on everything: from how much compensation an accident victim should get to whether or not the election of a candidate is void.
Let us start with the one nearer home. Adjudicating on a petition filed by Nishikanta Mishra of Nationalist Lawyers’ Forum, the Orissa High Court ruled that the Indian Oil Corporation (IOC) can draw water from Mahanadi through an under-construction intake well in Cuttack for its refinery project in Paradip. The honorable court supposedly based its verdict on the report of an expert committee which had apparently concluded that drawing of water – a small matter of just 40 million gallons a day - for the refinery would neither affect the drinking water and irrigation needs of the people of Cuttack and surrounding areas nor threaten the embankments of Mahanadi in Cuttack city.
This columnist is too much of an ignoramus on the subject to even think of questioning either the verdict that the honorable court delivered in its wisdom or the report of the expert committee on which the verdict was presumably based. But certain questions do come to the mind. The first: why do expert committees appointed by courts on matters of a technical nature are almost always headed – and manned, one may add – almost entirely by retired bureaucrats? Are they the sole repository of all knowledge and wisdom on matters technical? For all knows, there could be an expert outside the cozy circle of ex-bureaucrats who could argue that the remedy suggested by the expert committee and accepted by the court – the dredging of the riverbed on a 6.5 km stretch from Naraj to Jobra – is worse than the disease. Should not such voices also be heard before ruling on a matter of life and death (and that precisely is what it is for millions of people dependent on the Mahanadi)?
But what takes the cake in the judgment of the honorable High Court is the list of do’s it has drawn up for the public sector giant: pay Rs. 10 crore to the Cuttack Shishu Bhavan, Rs. 3 crore to the Bhubaneswar-Cuttack Police Commissionerate for the modernization of infrastructure for safe and smooth flow of traffic and five hi-tech ambulances and construct a water treatment plant in Cuttack city to meet the drinking water needs of its people “as part of its corporate social responsibility”.

Sorry, Your Honour! But one thought you were requested by the petitioner to rule on whether or not the intake well at Hadiapatha would affect the drinking and irrigation water needs of the people and endanger the embankments along Mahanadi in Cuttack city. It was infinitely more important than the CSR obligations of a corporate house. If you thought, in your wisdom, that it would not impact either, the matter should have rested there. Why make the company pay for things totally unrelated to what it wants: water for its refinery. What, pray, is the link between the sufficiency or otherwise of water in Mahanadi and the number of beds available in the Cuttack Shishu Bhavan and the number of high-tech ambulances at the disposal of the authorities in Cuttack and Bhubaneswar? [In fact, IOC can legitimately challenge the High Court verdict asking it to pay what it has been asked to pay when its basic contention – that the intake well at Hadiapatha would not affect the people – had been upheld by the court. I have, however, no doubt whatsoever that it would do nothing of the sort, relieved as it is having the monkey off its back.]

The other question that comes to mind has to do with something entirely different. Was the fact that IOC is a public sector behemoth weigh, even if it was so small on the scale as to be called negligible, with the honorable judges? And the related question; would the verdict have been different had it been a private and a much smaller company?

Now to the other judgment, incidentally also related to rivers and water, delivered by the Supreme Court in the last week of February. In a judgment that could have far-reaching consequences, the apex court chided the Union government and asked it to implement the ambitious project of interlinking rivers in a ‘time-bound manner’ because delay in its implementation was raising the cost of the project. A three-judge bench headed by Chief Justice SH Kapadia also appointed a high powered committee manned mostly by babus from both Union and state governments, save two ‘social activists’ to oversee the implementation of the project.

The debate on the desirability of the inter-linking project has not even begun in right earnest in the country and it will take years before a conclusion is arrived at. Given the fact that the idea faces such stiff opposition from environmentalists, farmers and even experts, it is entirely possible that a solution may never emerge at all. They are of the firm view that inter-linking would lead cause serious ecological imbalance, lead to displacement of millions and still not fulfill the purpose for which it was conceived in the first place: to raise the irrigation capacity of the country to 160 million hectares by 2050. Murmurs of protest against the SC verdict have already begun and there are unmistakable signs that the opposition is going to get more and more vociferous in the days to come.

The petitioner in the Mahanadi case at least has the option of challenging the High Court decision in the Supreme Court, though there is no guarantee that the apex court will overturn the HC ruling. But where does one go if one has a problem with a verdict delivered by the Supreme Court (I am sure millions of people have a serious problem with the SC ruling on inter-linking of rivers)?