Barometer of Law - I

(By Dr. K.B. Mohamedkutty,  Senior Advocate and Former Law Faculty Dean) 

We celebrate birthday of the Indian Republic established on the strong foundation of the Constitution. We observe the birthday of the Constitution as the Law Day. The birthday of Magna Carta (A.D.1215) is commemorated in England as it was instrumental in liberating the British people from the tyranny of kings and feudal nobles. But no one can imagine when law was born as regulator of man’s life on earth. Clearly, the highest law was born before any man-made law.

The history of civilisation and the law we come across covers only a short period of human existence. The past is unknown and shrouded in the darkness of pre-history. The Geographers tell us that eight lakhs years ago the Atlantic sea was a continent and fifty thousand years ago the Himalaya was under the sea. The law began to show its face more and more when numbers of people multiplied and human needs flourished. Compared to the unimaginable past, this is very recent. As those who refuse to be instructed increased and human needs multiplied in relation to scarce resources some kind of social and economic control was needed. Law then stepped into light up the way ahead. Cicero therefore said that “law is the highest reason, implanted in nature, which commands those things which ought to be done and prohibits the reverse. Conflict arises when reason is obliterated”. Law attains dignity, however, only when “social intelligence” is instilled into it to defend the right of the weak and the oppressed. But most of our laws are devoid of this essential quality.

Paradoxically, law gradually became an instrument through which power began to be exercised by a few. The element of power in law sometimes tarnished its human face when it became unbridled and acted as unruly horse and turned life of the people into a kaleidoscope of strange sights and impressions. In dealing with situations, however, law has four different faces. It has a human face for improving the status of the society, a lion’s face when people disobey it, a bull’s face to fight against injustice and an eagle’s power to see things from distance. The ideal proportion of these factors in a legal system is blessing indeed. The people from time to time introduce built-in safeguards to check misuse of power. The Constitution is one such control mechanism of power. However, today evil forces disrepute its value more than ever before particularly at the instance of high echelons of society. Naturally, law becomes static and stunt in a society where people are deaf and dumb without knowing the potency of it for social and economic justice. 

Light  of  the  Law

The law becomes intelligible to the common man not because of the academic excellence but when he really faces it in connection with an issue. One such issue was the Regulation for Supply of Cooking Gas (2013-14) for domestic users. The arbitrary restriction for its availability even for poor sections of the society happened to be a telling example of laws muddle caused by muddle-headed administration. People’s protest led to its suspended animation. For over a century the Indian people have had enough experience about the ways of the law and how it moulded their life. The question now is whether the people of India feel it as a sun with enormous heat and light or as a moon with dim light and coolness. Or is it a combination of both? Whatever be the answer, the people desire to liberate themselves and the society they live in from inequality and other evils in social life. In this respect law must act like a fire in whose devouring flame the evil forces shall be consumed. 

Today law insists control on individual relations, social relations, family relations, business relations, political relations and national and international relations. Every little step from cradle to grave is its concern and it teaches us to live intelligently, honestly and to be just and fair. It can make a person cleverer and more resourceful. It educates him from the misfortune and perilous tragedy of others. It helps him everywhere from the market place to the Parliament House and works as a global symbol for peace. The government may come and government may go, but law as a phenomenon has no death. It is ever-growing. It stretches towards new and widening horizon. But few people think of law. Fewer people think what it was. They are busy with life and life’s problems. They do not realise that law is nearer to them as their collar-bone. 

Thousand  Flowers  Bloom

The law has an inherent tendency to sprout and produce fresh tender leaves and fragmentary flowers, if it is nurtured and watered by the people. Otherwise, it has tendency to remain in a slumbering mood. It assumes vitality when people rally behind it. When people were united and supported law, nations representing such people rose to great heights slowly and gently and law overturned life for the good. When we look closely at it, we find that it is a many-layered thing. There are outer–layers and deeper layers. Very few reach the deepest core. We can visualise it from different angles. Experience tells us that with peoples’ love and care it becomes a rainbow. Naturally, law emerging from different socio-political climate of each country may provide different colours providing a true replica of social and cultural forces of each country. 

When people realise that the law is divorced from justice, it disheartens them. We are told that life is an endless prayer, but law is a continuum and endless inquiry into life, and that the perfect dream of it is yet to take place. The Austinian jurisprudence affirms that no law is unjust and yet ironically people face injustice in day-to-day life. The poor and disadvantaged are insulated from justice. Monstrous opulence unmindful of misery around is a kind of violence unpardonable. There are violence by groups and violence by nations. 

Popularisation   of   Law 

We do not witness in social life the paradise of law. On the other hand, a hell of lawlessness is pervasive. Civic sense and legal awareness is at low ebb. Generally people have been misled to believe that law is not delightful, but rather unintelligible. Even the educated people are persuaded by this false belief. But really law has beauty and charm, attracting everyone who cultivates an affinity towards it and does well for them and the society. We need today, therefore, popularization of the law rather than confining it to the lawyers, judges and law persons. The legal literacy efforts must be widened and quickened which is necessary for developing civic sense from the childhood. Today attempt is being made to impart elementary message of law in schools. In Law Schools and Law Universities the curriculum is only a drop of the vast sea of the law. We do not pursue scientific learning process in such centres or pursue liberal education. The thrust of education is money oriented. Plato (B.C. 428-348) through an Athenian spoke about the need for liberal education. Plato had occasion to learn a lot from his great teacher. When Socrates was put to death, Plato fled Athens and travelled in search of knowledge and wisdom for twelve long years. Speaking on education he said: 

“We call a man educated and another uneducated, although the uneducated man may be sometimes very well educated for the calling of a retail trader or of a captain of a ship and the like. For we are not speaking of education in this narrow sense, but of that other education in virtue from youth upwards which makes a man eagerly pursue the ideal perfection of citizenship and teaches himself how to rule and how to obey. This is the only education, which, upon our view, deserves the name; that other sort of training, which aims at the acquisition of wealth, is mean and illiberal, and is not worthy to be called education at all”.

These words of Plato are appropriate even today though they were addressed to people of Athens before the birth of Jesus Christ. He further said: 

 “The most important part of education is the right training in the nursery. The soul of the child in his play should be guided to the love of that sort of excellence in which when he grows up to manhood he will have to be perfected.” 

But rulers do not encourage people to learn more about law, because sometimes learning the law becomes a dangerous thing for them as it makes people to think and question the rulers themselves. Those who studied the grammar of law will raise baffling questions with a view to keep up the lamp of equality, fraternity, socialism and justice, as there is strife, suffering and sacrifice in the present and on the morrow in store for them.

Appeal  by  Aggrieved  Persons (Section 96 C.P.C.)

(By N. Subramaniam,  Advocate,  High  Court  of  Kerala,  Ernakulam)

1. The right of appeal from every decree passed by any court exercising original jurisdiction is recognized by S.96 of C.P.C. 1908. But S.96 does not say, as to who may file an appeal.

2. There are two types as to who are the people who can be adversely affected.

2A. Generally, it is only a party to suit who is adversely affected, which includes their legal representatives.

2B. There is an exception to the general rule. That is persons, who are not parties to the suit, may file appeal with leave of court, from the decree or order, if he is prejudicely affected by it or aggrieved by it.  State of Punjab v. Amar Singh (AIR 1974 SC 1006). Jatan Kanwar v. Golcha Properties (AIR 1971 SC 371).

3. Who is adversely affected. When the decision of court goes against the relief claimed by party, then party becomes “aggrieved party”. This is the general rule. There are cases where both plaintiff and defendant would be affected by the decree. For example, in the case of promissory note for Rs. 20,000/- court may decree for only Rs. 10,000/-. In such case both can file appeal, one against partial grant and the other against what is granted itself. Another example is this. In a suit for specific performance, court may refuse prayer for specific performance, but gives a decree for return of advance money. The plaintiff can file appeal. The defendant can appeal against the decree for grant of advance money.

4. If a person is not a party to the suit, but if he is adversely affected by the decree, he can also file an appeal, provided he gets leave of court for filing the appeal and of course, he has to convince the Appellate Court, how he is aggrieved, in order to enable the court to grant leave.

5. The only limitation is that the person should not be a total stranger.  S.P.Gupta v. Union of India (AIR 1982 SC 149).

6. If the decision operates as res judicata, then the party can file appeal. In the decision reported in Daryao v. State of U.P. (AIR 1961 SC 1462) this principle has been stated clearly.

“The judgment of a court of concurrent jurisdiction, directly upon the point which acts as plea, a bar or as evidence a conclusive, between the same parties upon the same matter directly in question in another court; secondly the judgment of the court of exclusive jurisdiction, directly on the point is, in like manner conclusive upon the same matter, between the same parties, coming incidently in question in another court, for a different purpose.” 

7. Indian Law on ‘aggrieved persons’. In Adi Pheroz Shah V.H.M. Servai (AIR 1971 SC 398) the Supreme Court has ruled “A person is an aggrieved party when there is an order, which is to his detriment, pecuniary or otherwise or causes him some prejudice in one form or another. A person who is not a party to the litigation has no right to appeal merely because the judgment or order contains some adverse remarks about him.”

But the last part of the statement was qualified by many judgments. In Maharaj Dhiraj of Burdwan v. Subodh Gopal (AIR 1971 SC 376) it is held that, a person who is not a party to the suit may file with leave of court of appeal and such leave should not be refused where the judgment would be binding on him under S.11 Explanation 6. Later in Bar Council of Maharashtra v. M.V. Dabholkar (AIR 1975 SC 2093) the Supreme Court in the Seven Judges decision has laid down. “The meaning of the words ‘aggrieved person’ must vary according to the context and statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally one is required to establish that one has been denied or deprived of something to which one is legally entitled to order to make one a ‘person aggrieved’. Again a person is aggrieved if a legal burden is placed on him.”

The scope of ‘aggrieved person’ has a special role to play which is more important in normal instances. Two such instances are 

A.  Findings  and  defendants  inter  se.

Generally no appeal will lie against a mere finding in the absence of any challenge to the decree itself. To this general rule the exception is when the finding acts as res judicata.

Arjun Singh v. Taradas Ghosh (AIR 1974 Patna 1), Budh Sen v. Shulchandra (AIR 1978 SC 88) Ganga Bai v. Noorchand (AIR 1974 SC 1126)

If all the defendants have common interest, getting the suit dismissed, it is not necessary to decide the dispute inter se between the defendants and that will not be res judicata between the defendants.  Konda Lakshman Bapuji v. State of A.P. (AIR 1977 A.P. 427)

B. Alternate relief prayed - This aspect is clearly dealt with in the decision reported in AIR 1972 Pat. 341. (Union of India v. Garbu Sao) which says “that the question whether a plaintiff who claims alternative relief and is granted one of them can appeal for getting the other relief is to be decided on the averment in the plaint of the case concerned. If the plaint read as whole discloses that the plaintiff will be satisfied with either of the reliefs claimed by him, he cannot be allowed to appeal, if one of the reliefs is granted. This is because one who gets what he wants cannot be said to be person aggrieved. On the other hand if the plaint read as whole gives an impression that of the alternative reliefs, one is the main relief and other is asked for only if the main relief is not granted, and the main relief is refused, it is open to the plaintiff to appeal for the main relief. Such a person would come with the meaning of the expression ‘ person aggrieved.’ 

8.  English  decision

The favourite decision In Re Side Botham E. P. Side Botham ((1889) (14) Ch.D 458) rendered by James. L.J. in essence is this.

A person aggrieved must be a man against whom a decision has been pronounced which had wrongfully deprived him of something, or wrongfully refused him something or wrongfully affected his title to something.”

In Re Lamb Ex. P. Board of Trade (1894 (2) QB 812) it was held that a person who is heard to submit to its decision.”

This decision spells out the difference between a person who is in the nature of a party as distinguished from a person who is heard in the dispute.

This decision was made further clear in Re Kitson Exp. Sugden and Sons Limited (1911 (2) KB 109). Lord Sel Borne in In Re Rivie Res Traders Mark ((1884) 26 Ch. D. 48) had stated “it must be real grievance , it must not a set pro ratione voluntas; the applicant must not come merely saying ‘I do not like this thing to done if must be shown that it tends to his injury, or to his damage in the legal sense of the word.”

9. The decision cited in the article are some of the basic decisions which are enlarged by many later decisions of Supreme Court and other High Courts.

10. This article, as stated in the top of this article is intended for the young lawyer friends and the writer would be happy, if this article could be of any use at any time.

Cherry  Picking !

(By P. Deepak, Advocate, High Court of Kerala)

Forum shopping and bench hunting is passé, cherry picking is in. 

Let me explain. How many times have we, the lawyer fraternity, been at the receiving end of pious pontifications and sagacious sermons delivered by judges and jurists alike, more particularly retired judges-who have played out their innings and consider themselves the epitome of objectivity and wisdom-that forum shopping is bad and that bench hunting is to be rooted out if the learned profession is to be salvaged from the mire it is slowly but inevitably slipping into. The latest in the series of homilies delivered on this subject is by the new big Chief himself who minced no words in cautioning the bar that it should be forever ‘vigilant’ on the issue of bench-hunting as such nefarious practices cannot be ‘tolerated’.     

Yet, I do not recall ever having encountered any mention of these malignant growths afflicting my chosen career during my stint at the law college. Truth be told, my impressive eyes were so enamoured by the blindfolded Justitia and her even-handed scales that it never did cross my mind that dispensation of justice in this less than perfect temporal world of ours is eventually undertaken by a human agency and consequently fraught with human frailties. 

The wide and unbridgeable chasm that exists between the study of the law and its actual practice was slowly but surely revealed to me even before the creases of my shining new gown had smoothened. Before my enthralled eyes the blindfolded scale-wielding goddess of justice Justitia was pulled down from her pedestal to be replaced with her near antithesis Fortuna, the goddess of chance bestride her wheel of fortune. 

My early days in the mofussil courts were an eye-opener. An odd number assigned to your suit meant that the ruthless Principal Munsiff would be allotted the file and your application for ad interim injunction had as much chance of success as sighting a tippler on the first day of a month in God’s own country. On the other hand, an even number assigned to your suit meant that the benign Additional Munsiff would hear the matter and an ex parte injunction was pretty much on the cards. The competency of an advocate clerk was reflected in the number of times he could procure an even number to the cause thereby ensuring that his boss had a safe passage before the Additional Munsiff. The rules of limitation made this game of roulette even more enterprising and exacting since waiting for the propitious even number could not be stretched endlessly. Was this bench-hunting? I guess the answer, strictly speaking, has to be in the affirmative. 

Moving from the mofussil to the High Court was like taking a trip to Monte Carlo from the cheap sweepstakes held on the village green. The old adage ‘study the judge before you study the case’ was no longer an embarrassing cliché. The avenues open for ‘bench-hunting’ or ‘forum shopping’ stretched out endlessly stirring the not so sporting blood of the enterprising and scheming members of my fraternity. The otherwise unambiguous and clear words of the language were no hurdle to these go-getters to get behind the seemingly immutable rules of the roster. Enterprising counsel spent hours on the ‘subject’ to be inscribed on the docket and paid scant attention to the pleadings within. A liberal sentinel manning the ‘miscellaneous’ court often led to the doctrine of generalia specialibus non derogant being consigned to the flames of misconstruction. Article 227 of the Constitution and Section 482 of the Code of Criminal Procedure Code sometimes provided residuary relief to counsel, specific alternative remedies of appeal or revision notwithstanding, if exercising the latter option meant a sudden death of the case before a merciless Judge holding the reins of the appellate or revisional jurisdiction. The flexible rules of limitation relating to writ petitions often persuaded counsel to advise eager litigants to wait patiently till the next shuffle so that the present intractable judge could be avoided and the marginal case saved from execution at the threshold. Are these instances of forum shopping or bench hunting? Strictly speaking, yes. 

Ingenuity has always been the hallmark of a successful lawyer. Endeavours of the kind enumerated above can probably be seen as mere manifestations of that ingenuity and resourcefulness which has been in vogue since antiquity; from the time lay men began placing reliance on law men to plead their case before courts and tribunals manned by fair men. But there is no escaping from the fact that it is indeed a case of forum shopping or bench hunting. 

Be that as it may, it has to be understood that there is no panacea to the above malaise unless justice dispensation is entrusted with apparatuses akin to coffee-vending machines and ATMs where pushing the right buttons would result in certain inflexible and immutable results. Yet, our High Court has also had its fair share of near automaton Judges, bound by self imposed fetters of inflexible procedure working tirelessly towards an unfathomable goal of their own making. Not surprisingly, these intractable Judges were never the fancy of the bench hunters and the latter raked their collective brains to ‘avoid’ the former.  

 But the above seemingly harmless endeavours at bench hunting pale into insignificance in the face of patently invidious attempts attempted by manipulative counsel to ‘avoid’ certain judges by employing means far from fair. Though no greenhorn myself there have been very many occasions when the craft and ingenuity exhibited by my opposite number has often drawn a grudging whistle of admiration from my lips. For instance, having lost at the original side, a tough or no-nonsense appellate bench is often ‘avoided’ by an innocuous ‘change of vakalath’ in favour of a counsel himself ‘avoided’ by any particular judge of the appellate bench. The case is thereafter posted before another bench and the original counsel resurfaces and argues the case without any qualms. Likewise, tenuous and thoroughly unconvincing public interest litigations and police protection matters are filed before the Division Bench with the pious hope that pending matters facing imminent death before the learned single Judge can be ‘called over’ to be heard by the Division Bench. Another subterfuge employed is to make seemingly innocuous ‘mentions’ for tagging a particular case along with totally unconnected and unrelated matters pending before another bench. Boundless are the imaginative skills of such counsels who thrive not on ‘argument’ but on ‘management’!

Not to be outdone, the learned judges have recently devised their own means to ‘avoid’ and thereby resile from hearing unpleasant matters. ‘Excuse’ masquerades as ‘Recuse’. I wonder if these are not instances of ‘cherry-picking’ whereby uncomfortable and unpleasant cases are ‘avoided’ and straightforward and uncomplicated cases are ‘selected’ under the banner of ‘recusal’ even without assigning any reason. Even when reasons are given by their lordships one only wishes, in hindsight, that they had refrained from doing so for the reasons assigned seldom justify avoiding the matter. In a lighter vein, can one reasonably endorse the decision of a judge to recuse from hearing matters involving the Indian Railways for the reason that his or her spouse has booked a ticket and is included in the Waiting/RAC list. Similar such trivia pass off as valid reasons to justify not hearing a particular case. 

Lord Hewart would have ‘recused’ himself from hearing R v. Sussex Justices, ex parte McCarthy if he had foreseen that his seminal aphorism ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done” would be employed with such amazing rapidity and on such slight pretexts as is being done in our times. 

More dismal is the situation where cases are heard for days at a stretch and judgment reserved only for the learned judge to reopen the matter and ‘avoid’ thereby necessitating a rehearing before another judge. Whatever be the gravity of the supervening event that persuaded the learned judge to ‘avoid’ pronouncing judgment in the cause would it not have been more appropriate on the part of the learned judge to first appraise the concerned counsels and seek their views on the matter. If the counsels on both sides have no objection to his lordship rendering the judgment then I am at pains to understand how the objectivity and integrity of his lordship can be doubted even for an instant regardless of the fate of the case. On the contrary, it would have set in motion a healthy precedent of assigning reasons for the proposed recusal and taking the counsels involved into confidence before passing an order in the matter of ‘avoiding’ or ‘not avoiding’ a matter. Else, it is just ‘cherry picking’, pure and simple!

Tailpiece: 

In Domville v. State (103 So. 3d 184 (Fla. 4th DCA 2012), the Fourth District addressed a Facebook issue with regard to judges “friending” attorneys through social media. That court determined that a judge’s social networking “friendship” with the prosecutor of the underlying criminal case was sufficient to create a well-founded fear of not receiving a fair and impartial trial in a reasonably prudent person. (‘The Law of Friending’ by Eugene Volokh-The Washington Post-30.1.2014).

Not Even A Crowd, A Population

(By K. Ramakumar, Sr.Advocate, High Court of Kerala)

The reported decision to increase the strength of the Judges of the High Court of Kerala to Forty Seven is wholly unwarranted. The experience is ‘more the number of Judges more the arrears’. The Kerala High Court has now seven times more of its original strength. Has the assault on arrears yielded results commensurate with the increase in strength over about fifty years? The answer can obviously only be ‘No’. Please see what a Division Bench of the High Court of Kerala has said about Criminal Appeals in which the convicted are long in jails (2014 (1)  KLT 998 - Pradeepan v. State of Kerala).

“We have great concern that we are not able to take up criminal appeals earliest. This obliges appellants to remain in custody for long periods pending disposal of the appeals. But considering the State of pendency in this Court, we cannot attempt anything better. At the average rate of one appeal a day or three appeals in two days, it appears that it will take a long time before the case of the appellant comes up for hearing in the regular course. Only one bench is dealing with criminal appeals. We have our sympathies with the persons waiting in the queue. But we do not think it proper to permit persons to jump the queue or give out of turn postings for hearing and disposal for any appeal. We sympathetically take note of the frustration of appellants who are languishing in prisons pending disposal of their appeals, when they come to know that appeals preferred later are being taken up for disposal.”

(Ref: Jayachandran v. State of Kerala (2012 (1) KLT SN 100 (C.No.108). Not very different is the situation in other High Courts. Please note what the Supreme Court said in V.K. Verma v. Central Bureau of Investigation ((2014) 3 SCC 485).

“One wonders as to how it took ten years for the matter to be registered as Sessions Case and stranger is it to see that the trial also took almost ten years and still stranger is that the matter took ten years in the High Court”.

The Court further said:

“The long delay before the courts in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence. As we have noted above, the F.I.R. was registered by C.B.I. in 1984. The matter came before the Sessions Court only in 1994. The Sessions Court took almost ten years to conclude the trial and pronounce the judgment. Before the High Court, it took another ten years. Thus, it is a litigation of almost three decades in a simple trap case and that too involving a petty amount.”

Do all these occur only because there are no Judges proportionate to the strength of the population? That very premise is sheer paralogism. The ratio, if at all relevant, should only be to the litigant public. Large segments of our population are below the poverty line comprising of Adivasis, Dalits, Girijans etc., who do not know even about the existence of Law Courts in the country. Please read the sordid and sorrowful story of Soni Sori of Chattisgarh, Lingaram Kodopi v. State of Chattisgarh  (2014) 3 SCC 474). The majority of the litigants are from the corporate sector, the tax payers, the land owners, the bankers and the other affluent classes, who stand to gain by the delay in fiscal litigations. The argument based on population therefore is preposterous. Is it because there are no sufficient number of Judges in the High Courts that the number of under-trial prisoners or under-investigation prisoners are increasing day by day? Large number of innocent citizens are languishing in the Tihar Jail for want of sureties or incapacity to deposit the amounts by way of bond for bail. The jail population according to Justice Sri B.D. Agarwal of the Gauhati High Court “had increased from 3,13,635 in the year 2001 to 3,58,998 in the year 2010”. This is primarily because even bail applications are not taken up with a sense of urgency in many High Courts, unfortunately including the Kerala High Court. And the list of Bail Applications is carried over to many days leading to grave violation of human rights. There was a time when experienced Judges could dispose of bail applications before the lunch time and who found time to go to the final hearing list. Expertise, experience, etc., have become irrelevant these days.

It is therefore as clear as day light that what is important is quality and not quantity and quality can be ensured only by a paradigm shift from heredity, high connections, high flying corporate lawyers, etc. The predominant parameter, merit, quality, character etc., are sidelined, all under the cover of the Collegium. The Times of India, a leading newspaper carried a news item on the 1st of July, 2013 with the caption “Advocate with links to terror outfit almost became High Court Judge”. The Collegium in that case recommended his name and it was only in the Prime-Minister’s Office the impropriety was noticed and the recommendation not accepted. This incident underlines the need for a participatory process in the selection of Judges and not to leave it entirely in the hands of just five among a population of more than 128 crores to man an institution which should be as much democratic as the Legislature or the Executive, the other two pillars of the Constitution of India. Curiously the enormity of the population suddenly becomes irrelevant then.

Is it for want of strength that emergent Interlocutory Applications are listed, heard, argued elaborately, emphasizing the sense of urgency and yet orders are not pronounced even after months lapse? Was Asharudeen declared innocent years after he lost his youth and cricket for want of Judge strength? How come that in the Kerala High Court alone judgments are pending for more than one year after arguments were heard? How could this be improved by increase in the strength of Judges of such or similar disposition and dispensation? The emphasis, therefore, should be on the choice of the right candidate with caliber, independence, integrity and “who would invest the judicial process with significance and meaning for the deprived and exploited section of humanity” and not right connections alone. He/she shall be one who does not forget that it is the litigant who pays for his/her pay, perquisites, powers, pomp and prestige. Unfortunately it is that hapless category which is most forgotten in our courts. His angst, agony, anguish and apprehension are not properly reflected in the dispensation by the Judges who appear to be not only in no hurry but move very leisurely, totally frustrating the litigant and the Lawyers alike.

Forty seven therefore, is not even a pack or a crowd, but a paddling population.

India faces a bewildering paradox of floods in one region and draughts in another during the same time of the year. A mechanism of inter-linking of rivers (ILR) was devised to solve this problem and aims at inter-basin transfer of water from surplus regions to deficit areas and equitable distribution of water to the different regions.₁ In a few decisions and orders entitled as Networking of Rivers, In re, _² the highest court of the land had gone into the various dimensions of the project. This paper critically looks at them from a socio-legal, ecological and constitutional perspectives. 

The stimulus for judicial activism on ILR came from a customary speech delivered on the eve of the independence day of 2002 by the then President of India, Dr APJ Abdul Kalam urging the Government to take up the project. The Apex Court seized of the matter and on 16.9.2002 and issued notice to all states and the union.₃ The court expressed its anxiety as only the Union Government and the State of Tamil Nadu had filed affidavits, more or less, supporting the cause. Others did not respond. Surprisingly, the Apex Court presumed their silence as consensus and tacit agreement to the idea of inter-linking of rivers.₄ The Union Government, adopting a realistic stance, stressed the need to obtain consent of all States.₅  On 5.5.2003, the court directed the Government to complete the project by the year 2012.₆ It warned that the project report should cover such essential details such as a detailed environmental impact assessment, environmental management program and a resettlement and rehabilitation plan for the project-affected persons.₇ The period between 30.8.2004 and 8.4.2005 there was exchange of concern between the court and the Government. The court disagreed with the report already filed by the Central Government and asked it to file another up-to-date progress report.₈ Though the Government had constituted an expert committee, the court asked the Government to have a special cell for follow-ups.₉ The court was of the view that all feasibility reports be placed in the website.₁₀

Enthusiasm  Fading  Away

After an inactive period of eight years, the Apex Court re-examined the entire gamut of inter-netting program in the year 2012 ₁₁ by which time many states had exhibited their disagreement and lack of interest.₁₂ Some States pretended to support the endeavour while some others kicked the ball on into the Union Government’s court. Some States expressed their reservations while a few others claimed exclusive rights to use their water resources. 

Nevertheless, for the first time, it was found that hurdles from river interlinking were legion₁₃ with environmental, financial, socio-economic, and international implications which were to be properly examined at the appropriate levels of the Government. All rivers in Bihar originate from Nepal. There are problems of sharing Ganga water with Bangladesh. Thus, before going ahead with ILR it becomes absolutely necessary for the centre to consult the neighboring countries to solve these transnational problems. It is found that the agencies expected to conduct water balance and prepare feasibility and scientific studies were lethargic. This is evident from the fact that the detailed project reports which had to be completed by December 2006 were not ready even at the time of the judgment in 2012. In the mean time, anxieties and apprehensions were genuinely raised about the dependability of water supplies from distant sources and about the continuous unbroken availability of water surplus. People began to be worried fearing submersion of their land. Small wonder that many States refused even to prepare feasibility reports while people protested and hindered surveying and investigation.₁₄ 

In spite of the political and social diffidence over the project, the court was enthused by the future economic gains.₁₅ The court found nothing wrong in pricing the benefits derived from the ILR when it became a reality bringing efficiency and improved quality of service.₁₆ There appears to be the least concern on the social and ecological maladies that might override the perceived gains. In the court’s view, national interest must take precedence over the interest of the individual States. One may respectfully point out that interests of the nation cannot be different from the interests of states on the safety, health and subsistence of the millions of people whose fundamental rights to water and livelihood are of paramount interests. It is unwise and imprudent if their rights are degraded by commercialization of water resources. Such state of affairs as is evidenced from lessons of the past may present an agonizing scenario where leading global players will be drawn to monopolize financing the project and our natural resources put for exploitation in the global market. The court did not say anything about resettlement of people likely to be displaced except expressing a hope that the newly evolving rehabilitation policy would take care of the problem.₁₇ Finally, convinced of its limitations, the court did not advance further into the policy domains in exercise of its power of judicial review.₁₈ By issuing a direction to the Central Government to constitute a ‘special committee for interlinking of rivers’ with responsibilities of submitting a bi-annual report to the cabinet, the court disposed all the applications and closed the case.₁₉ The court made a retreat with a ‘pious hope’ of speedy implementation of the program. 

‘A  Wild  Goose  Chase’

It is pointed out that inter-linking of rivers is no solution to India’s growing water needs. ILR creates more problems than it intends to solve. An eminent water use specialist described the order of the court for interlinking as a ‘wild goose chase not merely sanctioned but mandated’.₂₀ It is highlighted by another that the ecological imbalance to the natural drainage of the river basins and the massive human displacement are the real problems to be addressed.₂₁ Diversion of water across the natural barrier by lifting or tunneling through, or by routing it around the mountains, involves enormous capital expenditure as well as continuing energy costs in an exorbitant scale. Inter-basin transfer through artificial canals and altering the natural course result in adverse impact on the natural flow of rivers. Ecological maladies including huge dislocation of human habitat are indescribable if dams, reservoirs and canals are planned to be constructed in a massive manner. The precedents in other countries are not at all encouraging.₂₂ One who disagree agrees that water ‘belongs to the public’ or ‘is the property of the people of the State’ ₂₃ has to remember that the doctrine of public trust never allows even part deviation of natural course of rivers for private gain especially when the water is diverted for commercial use₂₄ or is going to be compulsorily priced as suggested by NCAER.₂₅ As is evident from their lax responses, consensus among the states is hard to come. A constitutional amendment with a view to avoiding their consent is nothing but a hope against hope. It makes the Union Government ‘the sole repository of every drop of water in the country.’₂₆ No doubt, it disturbs the federal balance, one of the basic features of our constitution. Moreover, riparian rights and proprietary rights over waters will lose all relevance, particularly, in the context of linking project involving private participation and commercialization of water.₂₇ 

It appears that the court did not consider it as imperative that rehabilitation should precede the implementation of projects. This widely acclaimed norm goes down in the rising floods of uncertainties and difficulties. One may seldom dispute with attempts to channel rivers and water bodies within a State when it becomes essential for wise use of resources in a locality. Done at the local and regional levels with the active co-operation of local self governing bodies, such exercises will have less adverse impact on ecology and habitat. On the other hand, a grandiose inter-linking of rivers scheme with several deviations transcending the borders of various States may give rise to a host of questions of habitat destruction and ecological catastrophe. It is nearly impossible in a federal country like India with diverse cultural, geographical and ecological regions. Needless to say, it is more difficult if such projects cause international repercussions. The National Water Policy, 2002, was silent about the scheme. The Draft Water Policy 2012 - formulated during the long judicial dialogue mentioned above – does not utter a word about ILR while it talks much about maximum efficiency in water use, optimum development of inter-state rivers or inter-state valleys, long distance transfer of water, adaptation to climate change, inter basin transfers after evaluating merits of each case, and about management of floods or drought.₂₈  

In retrospect a question becomes relevant. Should the apex court have seized of an idea floated in a ceremonial speech by the President of India and gone ahead issuing directions time and again while the real executive, at the centre and the state, is quite unenthusiastic and sported a hide and seek game? The answer is clear and simple. It is the executive, not the judiciary, which should respond and take the initiative. Rightly, the court refrained from going into the province of the executive and expert policy-making of the nature under comment. Courts enter the area only when flaws in implementation are manifest.