Wednesday, November 13, 2013

Campa Cola case shows how fickle the SC is….

The Campa Cola demolition has been stayed. And rightly so. In my view, no demolition should ever be ordered. We are after all, an asset-deficient country. Alternative remedies can and should be found, which can act as a deterrent to those who flout rules, while avoiding destruction of precious assets. What the remedies should be is really for our law makers to decide. But the focus of this piece is not on this. It is on the SC’s regular flipflops which are completely inexplicable and unacceptable. How can the country’s top court be so fickle in its decision making?

One is not questioning the ultimate authority the SC wields in deciding on judicial matters. But clearly, one expects the SC to be sensitive to this unique power it has under the Constitution, and decide matters after due consideration. Bureaucrats and ministers can get away with “roll backs”, but the SC cannot. Time and again we find that the SC either rolls backs its own decisions, or the decisions taken by the lower courts. Where is the sanctity in the judicial process then? And what about accountability to the litigants and the people in general? Why are such discretionary powers to take/alter decisions not questioned by our media the same way as they are for politicians and bureaucrats? Why do we treat our judges as if they are avatars of God and refuse to question their callous methods?

Did the courts not have adequate time to decide on the Campa Cola mess? The imbroglio dates back to 1989 when residents of the society approached the Bombay HC for permission to get water (Imagine this: they were using tankers for their needs before this). After a long-drawn process, the HC ordered demolition in 2005 (a “time-bound” process as it ordered). The matter obviously went to the SC, which after many years in Feb 2013, agreed with the HC. The demolition date was set for April, then moved by a few days to early May, then again to November. Now it has been stayed for six more months. Clearly, no one can make the case that the HC and SC did not have adequate time to pass their final orders.

I am happy the demolition has been stayed at least for now. But the grounds for doing this look specious. Apparently, the court was under the impression that only 25% of the flats were still occupied. In reality apparently, 75% flats are occupied. How does that change the situation? If it’s a “human issue” in addition to the legal one as the SC has now opined, how does that human angle diminish if its 75% and not 25% who are still occupying the flats? Are the rights of 25% not important enough from a human angle?

The SC incidentally has not reversed its order, only delayed the demolition date yet again. In a very filmy style, it played “God”, intervening “suo-moto” even as the demolition was underway. What does this say about this most august of institutions? That it considers itself above the usual accountability standards set for public institutions and thinks it can change its mind anytime? Is this kind of errant behavior on account of the fact that no one dares question the judiciary? Just look at it – no media outlet has asked the SC to justify its back-and-forth orders.

This is hardly the first time this is happening. I don’t have numbers but I can bet there are hundreds if not thousands of instances when the SC has “disagreed” with the lower courts. Recently, in the case of infamous “tandoor” case, the SC reversed the HC’s order of the death penalty. Did the SC subsequently do anything to align the thinking of the lower courts so that such “mistakes” do not happen again? I doubt it. Actually, such reversals are so common, no one even bothers about the rulings of the lower courts. Almost all their orders are appealed, and this is one of the main reasons why the courts are so clogged. Had there been accountability, this would not have happened.

But what about cases when the SC reverses its own decisions? The 2G related case when a bench of the SC ruled that all natural resources must only be auctioned was later reversed on appeal by the court’s Constitution bench. Imagine what would have happened if the government had not appealed. Would the Constitution bench have reversed the decision suo-moto even then? Such random conduct shows the SC in poor light, making it look like an institution run by moody judges. Catch them on a good day and good a favorable judgment, and vice versa. Reversals of judgments should be only in the “rarest of rare” cases.

And did the SC consider the plight of the others who occupy the legal flats? It has been reported in media that structural engineers have opined that these flats would become structurally weaker after the demolition of the flats above them. What about the hardships they would face when the water tank (at the top of the illegal floors) would be demolished and they would be denied water for months? Was there no “human angle” that the SC could see in this?

Besides, how can we destroy property, even if it is constructed illegally. Any number of solutions can be found to deal with the issue of illegality. A stiff penalty “at current rates” could be applied. As an example, maybe the prevailing TDR rate (TDR entitles a builder for extra FSI) could be levied on the residents of these illegal flats (the builder must be sued in any case). Or maybe the government can take over the illegal flats and use it for something productive. Or some other solution can be found. But under no circumstances should demolition be carried out. If laws need to be amended, let them be.

The real truth is that I am happy the Campa Cola demolition has been stayed. Rather than demolishing them, the government must find a legal way to either regularize them. But more importantly, the SC must introspect, and advise its lower arms and its own judges on how to become more consistent and less fickle in the future….

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