Tuesday, July 23, 2013

Changing tune

Sub heading: There is no finality now either in law and  judicial pronouncements. The thumb rule is that you show me the face and I show you the rule or a ruling

Stare decisi et non quieta movere. It is a Latin legal phrase that means: Stand by decisions and do not disturb the undisturbed. It is this principle of ‘stare decisi’ that has for centuries given to the countries guided by common law, like Britain and the US, a near-unfailing predictability of outcome of cases. It became a cardinal principle in law in Britain since the 17th century, when Royal whims were cut short by a famous regicide. In the US, justice became thoroughly precedent-driven after 1800, with printed accounts of cases becoming readily available across the country. Britain had to wait a few decades more for the ‘bar libraries’ to get lined with case reports. So have we, supposedly Britain’s ardent followers in judicial practices, as we too identify the places connected with courts, including lawyers’ chambers, with the rows of hardbound spines of the ‘All India Reporter’ (AIR).
But does our judicial system respect precedents as much it should? Sadly, it is not so. Results of cases in India are a gamble, more or less. As late as 2010, the apex court decided that even though the standards of medical education are somewhat flexible in the private medical colleges, which are about as many in number as the government-run ones, the future medical doctors of the country must be all of a reasonably high cerebral quality—a demand that called for their qualifying in a nationwide entrance test for medical colleges, on the model of the joint entrance test for engineering colleges. But there was no finality is this view. Last week, the outgoing Chief Justice of India ruled, with a majority of two in a three-judge bench, that there would be no National Eligibility-cum-Entrance Test (NEET) across the board for MBBS, BDS and MD courses, and that the private medical colleges are free to set their own standards for admission. If it is in exchange of hefty capitation fees, as is the practice now, so be it. With all due respect to the Hon’ble court, it can be said that the judgment has put the medical education entrepreneurs’ urge for money above the ordinary citizen’s right to quality treatment, and therefore life. It is heard that a review petition from the government is in the offing, and that may lead to a judgment being overturned not once but twice. The Law Minister wants an amendment in the Medical Council of India rules to reverse the judgment.

The same flip-flop marked the state policy of reservation of 27 percent seats in IITs and IIMs for the OBC, a move seen not only as detrimental to higher studies but destined to restrict opportunity for meritorious students in the general category. The Supreme Court, on its part, stayed the admission of 27% OBCs. The move also met with stiff resistance from student community as well as the general public. The court held in 2006 that there was no reliable basis to ascertain OBC share in the population except the census of 1931, the last time that castes were enumerated. In the court’s opinion, a census held so far back in time could not be a determinative factor for reservation quota. It went to the extent of observing that “reservation cannot be permanent and appear to perpetuate backwardness”.
However, reservation being an electoral issue affecting all parties, it was not difficult for the government of the day to soon enact the Central Education Institutions (Reservation in Education) Bill 2006. By 2008, as the matter was referred to the court again as a law finally passed by Parliament, the latter, even though it is armed with an enlarged jurisdiction, under Art 138, with respect to any matter, such as this one, on the Union List, however, got the stay vacated. Of course it ordered that the ‘creamy layer’ of OBC must not be considered for reservation. But it was cold comfort to candidates in the general category who had expected that they could just about make the grade. Vote-hungry legislators took away over a quarter of the seats in respectable technical centers to those who trusted merit, and nothing else, but the highest court did not subject the new law to close judicial scrutiny. If the OBC reservation in IITs, IIMs and AIIMSs did threaten to “perpetuate backwardness”, how could the opinion get reversed because Parliament had put its stamp on such reservation? Why is the judiciary changing its views so abruptly on issues that involve curtailment of citizens’ freedom of choice to imbibe specialized knowledge or skill?
However, it must be said to the credit of the judiciary that the principle of stare decisi is not always welcome, particularly in a nation as fluid as India. If precedent were to remain the pole star of India’s judicial system, there would have been no such expansion of people’s power as is evident through Public Interest Litigation; nor would the court stand behind and empower institutions like the Election Commission, the Comptroller and Auditor General, and now, even the CBI, which the Supreme Court has called “caged parrot”, and is trying to unshackle it. The investigation agencies have been brazenly changing their stance making a mockery of criminal justice system. Be it the DA case of Mayawati or handling of the Mulayam Singh’s case of amassing wealth or even Ishrat Jahan fake encounter and others. The face of a person is more important than the rule or precedent.
More mature societies with an advanced judicial system give a lot of importance to precedents, but it is wrong to think that past judgments in those countries are set in stone. The famous Roe V Wade US judgment of the 1970’s overturned the centuries-old ban on abortion rights of pregnant women. It drastically reduced the numbers of unwed mothers, urban destitution and incidents of crime. Similarly, the US Supreme Court turned down a 19th century judgment that allowed “similar but separate” state facilities to blacks. It ended segregation by a stroke of pen.
Such bold departures are welcome as they respect the society’s changingaspirations and requirements. But Indian courts are denying finality in their judgments in ways that are pointless, to say the least. It results in blatant miscarriage of justice. Buildings in the capital are demolished and sealed one day just because a court ordered it. The judge goes, and bigger buildings return after being de-sealed. Citizens’ right to justice is not a plaything.
(The author is National Editor of Lokmat group of newspapers in Delhi)