With SC Foraying Into Every Area, States Have Simply Stopped Listening

Even as the Supreme Court is having a ball trying to impose its own ideas on how governments should run the country, and even making laws on the legislature’s behalf, it is discovering that few are listening.

On Tuesday (19 April), a bench with Justices Gopala Gowda and Arun Mishra discovered that no state had done anything about its orders to demolish religious structures that were encroaching on public spaces and roads. The court threatened to get even tougher.

The basic facts: In September 2011, the Supreme Court had ordered collectors and district magistrates to ensure that no public land was encroached upon. It also ordered chief secretaries to file affidavits before it once in three months on what had been done.

Finding that almost none of them had done anything, the court went apoplectic: “This is the attitude of the chief secretaries despite the Supreme Court’s directions. Are our orders passed for keeping in cold storage? The chief secretaries have no respect for the highest court. We will show them what the court can do. They do not deserve any leniency.” The court may order all of them to be personally present the next time – something like a schoolmaster asking recalcitrants to step forward and take punishment.

To be sure, this is an empty threat. If the chief secretaries, who have been given one more chance to comply, collectively decide not to do so as they are constrained by law and order considerations, what can the Supreme Court do? Dock their wages? Send them to jail?

If this happens, we are going to see a further fall in governance, as chief secretaries and district administrations, already overburdened with all kinds of work, may simply do things mechanistically and comply with orders without application of mind. When the first communal riot happens after an illegal temple or mosque is demolished, they will throw up their hands and point out that they were merely implementing court orders.

Consider what all the Supreme Court ordered and what the states and centre delivered (or, rather, didn’t deliver) in the past.

Ten years ago (in 2006), the Supreme Court ordered all states to pass new Police Acts and remove politicians from having direct control over them. It said till the new Police Acts were legislated, its guidelines must be followed. According to this Indian Express report, 17 states passed new Acts while 12 issued executive orders. Great compliance? Nah! Here’s the kicker: the states jumped in and passed new laws in order to avoid complying with the Supreme Court’s order. The order said its own guidelines must be followed till the Acts were passed. What the states did was pass the laws and diluted the guidelines. They complied with the letter of the court’s orders, and defeated its spirit.

In October 2013, the Supreme Court ordered a ban on frequent transfers of inconvenient bureaucrats. It said that civil servants need not act on verbal orders, and cannot be transferred frequently. It also ordered states to constitute a civil services board at the central and state levels, but we haven’t heard much about compliance.

Two years ago, the Supreme Court ordered a ban on manual scavenging. But manual scavenging continues.

Just yesterday (19 April), the court stepped onto a federal landmine when it asked the centre to play a more proactive role in tackling droughts. When the centre said it had no role to play in declaring districts as drought-affected, the court said the centre must give states the right advice. It offered its own two bits on this too: ““You have satellites to give you weather forecasts and the Centre must caution the state if you learn about the possibility of a drought in a district, even if it reports a good crop season.”

Does this make sense? That the centre must give advice on how states must handle drought, even though it is the states which are closest to ground reality. More often than not, it is the states which exaggerate the damage from drought and floods in order to obtain more central resources. But the courts think nothing about deliberately suggesting a shift in federal responsibilities from states to centre – something not warranted under the constitution.

We can go on and on, but the fact that the Supreme Court has been issuing all kinds of directives – no doubt, with the best of motives - has resulted in growing resistance to compliance. The simple fact is this: some states have stopped listening too much to court orders, as they simply do not have the administrative capacity, the political will or the moral courage to do so. And what elected representatives can’t do or won’t do, it is not possible the courts to get it done through judicial fiat.

It is not anyone’s case that the court should not intervene in humanitarian cases or where there are serious breaches of the law. But it cannot also be gainsaid that the court is foraying too much into executive and legislative terrain, running a coach-and-four over the constitutional balance of power.

The Modi government and the Supreme Court have been in a tense relationship ever since the Supreme Court overturned the National Judicial Appointments Commission (NJAC), which was an attempt to claw back some say for the government in the appointment of judges to the higher courts. But it is clear that judicial over-reach is more to blame for this behind-the-scenes confrontation. The Supreme Court is simply doing things which are not its core job even while cases are piling up.

The other day, President Pranab Mukherjee was forced to wade into the controversy when he observed that judges must not get overactive. He said: “Each organ of our democracy must function within its own sphere and must not take over what is assigned to the others. Judicial activism should not lead to the dilution of separation of powers, which is a constitutional scheme. The balance of power between the three organs of the state is enshrined in our Constitution. The Constitution is supreme”.

This is not some government hack having a go at the courts; it is the highest constitutional officeholder in the land. That it needs a President to read out the constitution to the Supreme Court, which ought to know it by heart, is a telling comment on how much they have played ducks and drakes with the constitution. They should pull back before it is too late.