How Supreme Court’s crucial ruling on tribunals got the least media attention

Of the recent crop of Supreme Court verdicts, the one that got the least media attention, striking down the merger and reconfiguration of assorted tribunals, was the most consequential for India’s democracy. The Ayodhya verdict got the most attention, naturally.

While the Supreme Court managed to salvage a judicial verdict, albeit based on a “preponderance of probabilities” construed as evidence, from a morass of controversy hinged on faith and communal mobilisation, it did not alter India’s polity significantly.

The damage done to the confidence of the minorities in India’s secular integrity, by what the verdict described as a crime, the forcible destruction of the Babri mosque, was irreversible. The verdict, whichever way it went, could not have altered it and has not.

The verdict in the Rafale review petition, another cause celebre, went along predictable lines. The petition before the court jumped the gun, in the sense that the first step of the legitimate process of holding the government to account, of subjecting a major item of expenditure to assessment by the Comptroller and Auditor General and then vetting its report by the Public Accounts Committee of Parliament was not yet complete.

The court essentially said that it was not competent to go into defence procurement decisions. Yes, the concurring but separate judgment by Justice Joseph does leave the door open for a CBI inquiry. But for the SC to have concluded anything other than what it did would have been to interfere with the efficient working of government.

The verdict on bringing the office of the Chief Justice under the ambit of the Right to Information (RTI) is welcome, as an assertion of the principle that no arm of the state is above public scrutiny. But its operative significance is limited. Any skeleton skulking in the office of the Chief Justice of India is unlikely to jump out into the open at the sound of an RTI query.

The Sabarimala verdict has passed the drama on to a larger bench yet to be constituted. However, to the extent that it did not call for cessation of worship by women, it does set the stage for campaigns for social reform centred on the implicit assumptions, often discriminatory, of devotional practices.

The verdict in the sharing of adjusted gross revenue (AGR) of telecom companies (telcos) has a bearing on both the viability of telecom operations and the scope and scale of arbitrary government greed for the proceeds of business. It was open to the court to limit sharing of telco revenue, towards licence fees and spectrum usage charges, to the kinds of revenue generated by virtue of possessing a telecom licence.

The idea that items of revenue that any business can generate, such as treasury management proceeds and real estate revenue, should be shareable revenue is arbitrary.

Yes, telcos were silly enough to accept such a licence condition, lulled, perhaps, by the promise, at the time of migrating from a fixed licence fee regime to a revenue share model, to consult sector regulator TRAI (Telecom Regulatory Authority of India) on what constitutes shareable revenue.

The sound opinion of TRAI and TDSAT (Telecom Disputes Settlement and Appellate Tribunal) on the subject were ignored by the government. Only a government decision to forgo unjustified claims would salvage the situation now.

The verdict removing the obstacle in the path of resolving Essar Steel is a positive step. Delinquent promoters will lose their companies and banks cannot be bogged down in legal quagmire, now that clear case law is being established in resolving large corporate insolvencies.

However, the verdict that has had the most impact on the polity is the one that annulled the government’s move to tag provisions reconfiguring assorted sectoral tribunals to the Finance Bill of 2017 and get them through Parliament without the approval of the Rajya Sabha.

This verdict has preserved the bicameral structure of India’s Parliament. Suppose the ruling had gone the other way. If any kind of law on any kind of subject can be deemed a money bill, by virtue of it entailing some expenditure from the exchequer and by virtue of the Speaker’s readiness to recognise it as a money bill, the Rajya Sabha would be rendered irrelevant.

A money bill does not have to be cleared by the Upper House to become law. If all that was required to make any bill a money bill was to have a Lok Sabha Speaker with a selfwilled ocular malfunction that sees every bill as a money bill, no substantial bill would be referred to the Rajya Sabha. Everything would be settled in the Lok Sabha itself.

The Supreme Court has averted this travesty by refusing to accept the money bill as a beast that can carry a hefty non-money burden. Does this render the Aadhaar law, passed as a money bill, unlawful? It does not.

The Supreme Court had earlier cleared the Aadhaar bill, restricting Aadhaar’s use to transferring government funds to beneficiaries. The government subsequently amended the Aadhaar law to widen its use, but got both Houses of Parliament to endorse the amendment.

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