Shivakantjha.org - 'In a Nutshell' - 6: Vodafone: FDI: This craze at loggerheads with wisdom

'In a Nutshell' - 6

In the Vodafone Context

Vodafone: FDI: This craze at loggerheads with wisdom

By Shiva Kant Jha

April 7, 2012

The supreme vector, shaping the premises in the reasoning in this Vodafone Case is, it is respectfully submitted, the neoliberal zest to promote FDI. It is interesting to note that our Government countered this quest for FDI through its Review Petition before the Supreme Court, which was rejected in chamber. After the Vodafone Judgement, we find that all hell broke loose in India and abroad. Under high pressure advertisement many pleaded, countering aggressively the Government’s effort to knock down legislatively the law that led the Court to do what it did, that our Government was on its holiday from wisdom in doing so. This cacophonous orchestra, dexterously played by the Rogue Finance (and its political mentors, and hired lobbyists) has become too much for ordinary people. It seems the conspirators have run amok in their zest for a cause about whose worth we differ. It is duty of our citizenry not to allow our Republic to be dragged to corporate servitude making our Constitution a parchment of studied farce. In this, and in some other short articles to come, I intend to concentrate on this topic for my readers as informed citizenry is the pre-condition for a democracy.

The Vodafone’s “contextual of facts” called for, in the wisdom of this humble self, no judicial quest for conditions to create conditions for facilitating FDI, as the corporate structuring involved, about which I would tell you in some subsequent articles, was not designed to bring any FDI to India. But the Judgement was cast in the form of a simple categorical syllogism that ran: the major premise: that which promotes the incoming of FDI is good; the minor premise: that the Department’s view of the tax law, as adopted in the Vodafone Case, does not ( or is unlikely to) promote that policy; hence the conclusion: the Department’s view is not good.

The Hon’ble Judges, it is submitted, cast aside their judicial robe of detachment, and virtually turned to play the role of economic advisors with the neoliberal commitments. They did not realize that that was not their judicial function. The Hon’ble Judges are seldom competent to decide the legality and propriety of policy-loaded complex economic issues. The Hon’ble Court failed to consider the very mission of our Constitution, and also failed to evaluate the role of FDI in the economic management of our country. Some of the reasons, which have led this humble self to submit this, are summarized thus:

The Judges seldom have the credentials to decide socio-economic issues of this sort. If such issues were to be decided, the decision-makers would have studied all the shades of views, and the short-term and long-term effects of such untested economic assumptions in the context of our polity: law and the Constitution; and should have heard in the open court persons with sound proficiency in socio-management: persons like Dr. Amartya Sen, Joseph Stiglitz, Noam Chomsky, or even Dr. Manmohan Singh himself! The Hon’ble Judges should have kept in mind what Justice Holmes had said in his classic dissent in Lochner v. New York (1904) 198 U.S. 45):

“This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I desire to study it further and long before making up my mind.”

In the Vodafone Judgement there is not even a whisper to suggest that the relevance of the issue of FDI was subjected to the deliberative process in course of arguments. This point stands corroborated by the words, tone, and tenor of the Government’s Review Petition. If this sublime passion for FDI is begotten by the Hon’ble Judges’ private research, the outcome of their intellectual odyssey should not have gone into the judgement. Lord Bridge L.J. in Goldsmith v. Sperrings Ltd [1977] 2 ALL ER 566 at 590 had aptly said

“….But the fourth and most important reason is that this part of the Master of Rolls’ judgment decides against the plaintiff on a ground on which Mr. Howser, for the plaintiff, has not been heard. This is because Mr. Comyn never took this point, and the Court did not put the point to Mr. Howser during the argument. Hence there is a breach of the rule of audi alteram partem which applies alike to issues of law as to issues of fact. In a court of inferior jurisdiction this would be ground for certiorari ; and I do not think that this Court should adopt in its own procedure any lower standards than those it prescribes for others.” (italics supplied).