Why Judicial overreach is strangulating Indian Governance

Today (11th May), finance minister Arun Jaitley, rightly mounted an attack on the usurpation of legislative and executive powers by the Judiciary especially Supreme court. In his speech on the Appropriation bill 2016, Jaitley warned that the only powers left with parliament are those with respect to finances and taxation, and that these can also be encroached upon by the Judiciary at any time.

Consider the following:
1. SC has banned the use of diesel cabs from plying in the Delhi NCR region due to pollution concerns. This decision impacted the livelihoods of close to 30000 cab drivers/owners who make a living out the transport business.
2. SC is currently hearing out the case for entry of women and the tradition of not allowing menstruating women from entering the temple premises.

3. The supreme court has again criticized the poor progress of Ganga Action plan and asked the NDA, whether it would be able to complete the cleaning of river in this term or the next.

4.  In a 4-1 verdict on Friday (16 October, 2015), the five-judge bench headed by Justice JS Khehar restored its earlier – and fairly discredited – collegium system, a system it concocted in violation of the original scheme of the constitution where the president appoints judges after consulting the Chief Justice. The court was an interested party in the litigation, but it still went ahead and overturned the will of the people as represented in parliament and the legislatures which voted overwhelmingly in favour of abolishing the collegium system

If one were to replace the words SC with government, we would have believed it’s just normal governance measures taken up by the government at the helm.

There are many such examples that prove that the Judiciary is hell-bent on encroaching on executive terrain. Jaitley referred to the Supreme Court order, asking the government to create a disaster mitigation fund, in addition to National Disaster Relief Fund (NDRF) and State Disaster Relief Fund (SDRF), to deal with drought. He said the Appropriation Bill had been passed and wondered from where the extra money would come to comply with the directions of the apex court. “Cant you see, step up step, brick by brick, the edifice of India’s legislature is being destroyed. And outside the Appropriation Bill, we are being told to create this levy this fund. “We will have budget-making going outside Parliament and if there is a taxation dispute between Centre and states, a major party says now let the judge decided, so taxation power also goes,” the Minister said. Taxation is a political issue and should be sorted out politically, he said, adding this power cannot be handed over to the courts”

That’s the point. However, the misguided activism of judiciary is not without its origins in poor governance in the past. As R Jagganathan rightly points out in his article “Starting with the VP Singh government in 1989, the central government has been politically weak most of the time. The only two periods of relative stability were during the Narasimha Rao and Atal Behari Vajpayee governments. The former was solidified by external financial bankruptcy, which muted the opposition, and the latter by the post-Kargil verdict that gave the NDA a clear mandate. But even Rao and Vajpayee did not run majority governments; the remaining coalition governments were politically even weaker.” In the absence of a strong government at the helm, naturally the power vacuum was filled by the supreme court and hence governance also shifted towards the Judiciary.

Going thru the history we find many judgments of the top court that have run a coach and four over the rights of the legislature. Like the case in 1992 , where the supreme court decided unilaterally that only Judges can appoint judges in courts whereas clearly  as per section 124 (2) of the Indian Constitution “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the high courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years: Provided that in the case of appointment of a judge other than the chief Justice, the Chief Justice of India shall always be consulted.”

In 2011, the UPA regime had a boatload of scams under its credit, thus forcing the courts to wade thru policy formulation and its implementation. It was fortunate that the UPA had the guts to claw back this erosion in executive powers and through the Presidential reference in the 2G scam case asked if policy could be decided by the courts with respect to auction of natural resources . In his reply the then CJI SH Kapadia quoted “There is no constitutional imperative in the matter of economic policies- Article 14 does not pre-define any economic policy as a constitutional mandate. Even the mandate of 39(b) imposes no restrictions on the means adopted to subserve the public good and uses the broad term ‘distribution’, suggesting that the methodology of distribution is not fixed. Economic logic establishes that alienation/allocation of natural resources to the highest bidder may not necessarily be the only way to subserve the common good, and at times, may run counter to public good. Hence, it needs little emphasis that disposal of all natural resources through auctions is clearly not a constitutional mandate”

To be sure, the NDA government hasn’t covered itself in glory over the recent controversy over Uttarakhand floor test, where the SC ordered the floor test in the presence of a court appointed observer. This is yet another case where judicial over reach is at its possible worst. In another related case it also heard the disqualification of dissident MLA by the speaker. If speaker’s actions in the house are also subject to judicial scrutiny, then we might as well hand the executive and legislative powers to the SC on a platter. In that case, why have an elected government in the first place? To see governance and policy in the hands of an unelected judiciary is a prospect running anathema to the basic tenets of democracy.

Hopefully our judiciary will gracefully back down from this confrontation with the government. It should stick to its original mandate of protecting the basic structure of the constitution  

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