A smart lawyer and his judicial activism

Many have forgotten a brilliant book he has penned, Fifteen Judgements: Cases That Shaped India’s Financial Landscape.

Saurabh Kirpal is a 50-yearold gay lawyer, who wants to be a judge but encountered some teething problems. So, he is making news all over India. He is all over social media, and everyone is pushing for his elevation. And chances are that his elevation will happen very soon. Such is the hype about him that many have forgotten a brilliant book he has penned, Fifteen Judgements: Cases That Shaped India’s Financial Landscape. I think it is perfectly fine to discuss first why Kirpal is making news. We will come to the book a little later.

Reports in the media say one of the reasons behind the Centre’s rejection of Kirpal’s elevation seems to be his partner, a Swiss national. Now a report by the Intelligence Bureau, pasted all over the media, says the Swiss national could be a security risk. Is that so? No, says Kirpal, because the two have been together for more than two decades. But like officers checking passports at immigration counters and asking inane questions, some of the bureaucrats of the government are not very happy at this love relationship between an Indian and a Swiss national. For them, this is sacrilege. In private conversations, Kirpal has said he feels his sexuality is the reason why his candidature was not considered for elevation as a judge.

Now, the crisis is over, it is reliably learnt. Kirpal’s name has been recommended for an elevation.

Kirpal is no pushover kid. He is the son of a former Chief Justice of India, Bhupinder Nath Kirpal and studied law from top colleges in Oxford and Cambridge after graduating in physics from St Stephens College, Delhi’s most prestigious educational institution. When he was a graduate, he wanted to be an astronaut. But then, things changed. In the judiciary, everyone knows what he has done and how he assisted the former Attorney General and senior Supreme Court lawyer, Mukul Rohatgi.

So, we can return to his book, which talks about decisions taken in some of the most crucial cases in India. Kirpal does not say all decisions taken are wrong but he has a valid argument when he says those decisions which are shrouded in secrecy are unconstitutional and need to be reviewed judicially. Kirpal has a lot of hope. Why not? There are loads of first-generation lawyers thronging the legal business and heralding new hopes for this profession.

It was natural for me to focus on Chapter 9, titled “Whose Gas Is It Anyway”, which talked about the bitter, prolonged courtroom tussle between the Ambani brothers over natural gas in the Krishna-godavari basin off the Andhra coast.

Kirpal writes: “The parties fiercely contested each other in the courts, with the matter ultimately reaching the Supreme Court of India. This dispute would have normally resulted in a landmark judgement in matters relating to family settlements and the extent they would bind the companies owned by their promoters. But this judgement ended up deciding far more than mere individual rights under a family settlement.”

Kirpal talks a lot about the growth of the Ambani family under the legendary Dhirubhai and how the family silver was split following the death of the patriarch. And then he shifts to the judgement day, the verdict was delivered just a few days before the Chief Justice of India, K.G. Balakrishnan, was to retire. The day the judgement was to be pronounced, the media went into a frenzy. The courtroom was packed with lawyers and reporters, writes Kirpal, adding: “To add to the drama, Anil

Ambani personally went to Court to hear the pronouncement of judgement.”

“When the judgements were read out in Court it became clear there was no substantial disagreement between the judges. The majority decision was authored by Justice Sathasivan and agreed to by Chief Justice Balakrishnan. Justice Sudarshan Reddy authored a separate judgement that largely agreed with the majority, but departed significantly when it came to the issue of binding nature of the MOU (between the brothers). But all three judges unanimously agreed that Reliance Industries Limited (RIL) of Mukesh Ambani was not required to supply gas to Reliance Natural Resources Limited (RNRL) of Anil Ambani strictly as per the terms of the MOU and that the gas really belonged to the Union of India. Anil had decisively lost the battle in the Supreme Court and Mukesh had earned a pyrrhic victory.”

And then writes Kirpal: “On a side note, following the decision, Anil never got the gas, the power plants conceived by him were never set up and the path for his group’s financial problems were laid.”

Kirpal concludes brilliantly: “This vector came with a significant downside. The government could now control virtually all aspects of marketing the gas. If the government was able to determine the price as well as the buyer of the gas, then any entrepreneur would be left with all of the risk and virtually none of the profits. The Court, in its eagerness to control the perceived problem, went a bit too far. Rather than effectively nationalising the petroleum sector, a better course of action would have been to recommend the appointment of a truly independent market regulator. It seems the Indian businesses need to be protected not only from crony capitalism, but also from overreaching by State interventions.”

There are other cases listed in the book, published by Penguin Random House, offering some great insights into judicial thinking in matters concerning the economy since Independence.

The book examines in detail a host of major judgements delivered on a variety of subjects, ranging from the environment and sex discrimination to disinvestment and insolvency, to show how far reaching the role of the court has been in influencing India’s economic development. The judgements, including RC Cooper v. Union of India (the 1970 case for bank nationalisation) and Vishaka v. State of Rajasthan (the 1997 case on how to deal with the menace of sexual harassment against women at workplaces), are among the 15 judgements Kirpal dissects to trace the long path of the economic history of the country.

“The book is not a legal text aimed solely at lawyers but is an attempt to demystify the process of judicial adjudication. The law as well as the historic and socio-economic context of the issues at stake are discussed in a language accessible to the lay reader,” Kirpal writes in his introduction of the book, which offers an interesting flavour of the jurisprudential philosophies in India since 1947.

“From the almost laissezfaire conception of the economy in the fifties to the socialism of the seventies and eighties; from the recognition of the effects of liberalisation in the 90s to the attempt to rein in the perceived excesses of liberalisation, the judgements reflect the sentiment of the era that they were delivered in,” adds Kirpal.