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Ambiguity And Uncertainties in Law Create a Disorderly And Disruptive Society Whose Progress Towards Greater Equity is Always Impeded:Justice Gautam Patel
LIVELAW NEWS NETWORK
29 Nov 2022 7:58 PM IST
Bombay High Court judge Justice Gautam Patel recently talked about Constitutional issues awaiting us in 'Amrit Kaal'- Antitrust, Privatisation, Metaverse, Climate litigation."What does constitutional law have to do with commerce? What does the Constitution have to do with commerce and business? My answer is 'everything'. We have become so used to seeing the Constitution as being limited...
Bombay High Court judge Justice Gautam Patel recently talked about Constitutional issues awaiting us in 'Amrit Kaal'- Antitrust, Privatisation, Metaverse, Climate litigation.
"What does constitutional law have to do with commerce? What does the Constitution have to do with commerce and business? My answer is 'everything'. We have become so used to seeing the Constitution as being limited to certain parts- Part III 'Fundamental Rights'- that we are not realising the Constitution for what it is, which is the charter for us as a society and all its problems, including the way we go about living, working, earning and doing business. There are phrases in the Constitution which are important, and we have begun to fling a couple of them around without really pausing to think about them. One of those words is 'justice'. The Constitution begins with this and we have to pause once in a while to ask what this means and what it really means", he began.
Continuing, Justice Patel explained, "When we began, we were perhaps reacting to a half-century of gross exploitation- the Bengal famine, there is enough documentation to show that it was atleast in some ways engineered at a tremendous cost to human life, and the result was that we wound up with what is clearly a false binary of capitalism versus socialism, or rich versus poor which is another question because there have been rich always and there have been poor always. The only question really that we need to ask ourselves is about efficiency. What is the most efficient, most economical way to do the most equity, to do the greatest good, the labels that you attach to this don't matter. A principle of governance which says that we will take it away because we think you have too much does not address the question of either justice or of efficiency".
"Certainty is the other aspect. In the context of commercial enterprises and businesses, obvious examples are taxation- you must know where you stand and what the tax law is. But there is a more fundamental thing here- certainty in decision-making. There cannot be consistency, there will be changes, but certainty is needed. It has two components- predictability- when asked by a client what will happen in the given scenario, to be forced to a position where one has to say 'we don't know, let's see what the courts do', that has a devastating downstream effect because corporate and businesses do not know how to plan. Certainty is required because it is the fundamental under-pinning of the rule of law. People know what to do and how to go about doing it if the law is certain. Ambiguity and uncertainties in the law create a disorderly, disruptive, disorganised society whose progress towards greater equity is always impeded", he elaborated.
"My list (cause-list) today, Friday, was entirely of writ petition, claims for protection under article 226 invoking some form of some right under part III of the Constitution, arbitrariness or violation of article 19(1) of the freedoms. I quickly looked at the list on the phone and I counted. 47% of the cases total were by commercial entities and not individuals. There were some coming in for pension, some for individual benefits, but a full 47% of the others were in court invoking a constitutional right in the context of a commercial enterprise. That should tell you somewhat of where we are going with this conversation", he added.
Continuing, Justice Patel canvassed, "The other aspect which everybody talks about is pendency. Nobody has defined it. Nobody knows what this beast is and it is the 800 pound gorilla in the room. The minute a case of any description is filed, it is pending. Immediately your meter, your ticker goes up by one but that case is not ready for disposal by the fastest of the fastest of the fastest judges. It can't be done because the judicial process mandates that you have to give a copy of this lawsuit to the other side, serve him and get him to court, give him time to respond to your case. Once he has filed it- fair enough, don't give any adjournments, accepted- but once he has been given enough opportunities, then decide it. How is it pending until then? These numbers lie. Unless you sort out and identify the problem, you're never going to be able to address the solution correctly. You are looking at this huge mountain and you're wondering how you will ever get over it. One of my fellow judges yesterday said that it is an odd thing what will we say about ourselves at the end of our tenure as judges once we retire, that there was an ocean of cases and after 10 or 12 or 15 years maybe, I emptied two buckets out of it. But the ocean is what it is. Glaciers melt faster than we can dispose off cases. Why? How? Many solutions, many problems. But it is crucial to the advancement of the system"
"On the 'bossy State' and on privatisation- how much privatisation and of what would be constitutionally valid? How many of our resources would you accept passing into private hands? Drinking water, breathable air? What are the limits to this privatisation, and there must be some limits and we must define those. On the 'bossy State', the government is now a market player, it wants to be a corporate and it is a jealous and envious market player and one armed ferociously with powers that private corporates do not have. This will be a test of the future, we are going to have to test how much corporate impulse from the government can be accepted as constitutionally good. We are going to have to redefine the boundaries of what a government can legitimately and permissibly do in the name of governance, how far exactly it can go. This is a direct collusion with the other thought of privatisation because the two don't go hand-in-hand. At some time, this is going to be a cataclysmic explosion and it is going to happen in the law courts with very, very far-reaching consequences", he discussed.
"Last point, what is it that judges should be doing in courts? Should we just give you a judgment and leave it to you to figure out what you want to do with it or should we issue directions, and continue issuing directions, demanding compliance? Are we crossing lines, crossing boundaries, going over into the other side of the organs of the government? I don't know. Society has to decide this for us and they have to tell us that if you, as judges, are going to function then you only deliver judgments on what the law says and how things stand, and what to do with your judgment, we will decide not to you. That will also shape the future", continued Justice Patel.
"One more issue will come in addition to the others- Environment and climate change is going to be a problem, essentially a measuring problem. Everybody will say that that piece of land should be preserved as a forest and you should not have an industry near it or a highway through it. Nobody is measuring relative courses in a scientifically acceptable manner, this is something that we have to start doing. It is not a contest between rupees on the one side, and what is nice to have, on the other. That is a false metric and an untenable position going forward", he illustrated.
"The other issue that is going to happen in corporates and in boardrooms are struggles and contestations as companies become bigger and bigger and become huge buccaneering behemoths, very much like the East India company used to be, in that conflict with minority rights. This is going to be a big thing because now you have extremely empowered minority rights and as corporates get bigger, their management tends to get more cautious. They have a whole lot more to lose whereas the minority seems to want them to be more aggressive and adventurous in corporate decision-making. This is going to be a conflict and old settled law will have to be up-ended in the next five or 10 years when we are looking at minority rights", he signed off
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