In a democracy, the executive, the legislature and the judiciary are accountable to the people of India.
None of them can claim to be accountable only to themselves, least of all the judiciary.
On 19 November, a newspaper headline quoted the Supreme Court as warning that people are in distress over demonetisation, and if the government didn’t act fast, “there could be riots.” This came from a bench headed by the Chief Justice of India, T S Thakur.
Let’s assume that the court’s comments were genuine and truly reflective of its concern for the well being of ordinary people, but it is worth looking at how the court has handled issues that are not directly related to interpreting the law, which is its prima mandate.
In April 2016, the Supreme Court asked the government to consider the issue of bad loans being written off by public sector banks. A few months later, it asked why the names of defaulters should not be made public. But by 18 November, CJI Thakur had come to a different conclusion:
We must look into the root cause of bad loans and address it rather than disclosing names of defaulters.
Then we had the Cauvery water dispute between Karnataka and Tamil Nadu. Even though the failure to resolve the dispute is that of the executive, the court did not help matters when it flipflopped from week to week. On 5 September, the Supreme Court asked Karnataka to release 15,000 cusecs of water daily to Tamil Nadu till 16 September.
But while it had warned government about possible riots after demonetisation, it failed to anticipate that its own orders could cause riots – as they did in Karnataka after its water release order. When the Karnataka government used the “spontaneous agitation” in Bengaluru, Mandya, Mysuru and Hassan due to the court order, the Supreme Court blamed the state authorities and said it was the government's duty to maintain law and order and ensure compliance with the order. Lecturing the protesters, the bench said:
Citizens cannot become a law unto themselves. When a court of law passes an order, it is the sacred duty of citizens to obey the same. If there is any grievance, they are obligated under the law to take recourse to permissible legal remedy.
But the court then changed its own orders, and reduced the quantum of release of water to 12,000 cusecs of water per day for seven days. By 20 September, when the state declined to implement the orders, the court noted that even this order had not been complied with, and the state had defied it by passing a resolution in the assembly that it cannot spare water. On 27 September, the court ordered the release of 6,000 cusecs for Tamil Nadu from 28-30 September, and then asked Karnataka to do so again from 1-6 October.
With most of its orders ignored, the bench ordered the setting up of a supervisory committee led by Central Water Commission Chairman G S Jha to visit the Cauvery basin area from 7 to 15 October to assess “ground realities.”
On 4 October, the bench asked Karnataka to release 2,000 cusecs of Cauvery water per day to Tamil Nadu from 7 October to 18 October, and on 18 October, the Jha panel reported that both states had been facing water shortage.
The court ordered Karnataka government to continue releasing 2,000 cusecs of water per day till further orders.
What the above sequence of orders suggests is that the bench kept changing its orders frequently. From 15,000 cusecs ordered originally, once the riots broke out, the quantum was cut to 2,000 cusecs.
The questions that arise are: given that water was an emotional issue in both states, how come the bench never sought to ask the two states about the law and order issue before pronouncing its orders? And post the creation of a committee to assess ground realities, what input did the court take from its report?
In another case, the court ordered that all households in drought-hit areas should be supplied with heavily subsidised foodgrains even if they had no ration card. It also asked states to extend the mid-day meals scheme to school children during summer vacation, with eggs and milk being provided at least thrice a week.
Can the apex court of any country pass orders on the nature of meals to be provided? Is the primary responsibility of courts not interpreting laws and dispensing justice?
It would be interesting to learn how many states implemented this order. If not practical and doable orders might remain on paper only. It could be like the dance bars issue in Maharashtra, where, inspite of numerous court orders, the bars are yet to operate at their pre-ban levels.
Over the years, the SC has taken excellent decisions to stop corruption by cancelling 2G licences and coal mining licences. However, the range of issues decided nowadays affect the day-to-day lives of ordinary citizens, like drought or pollution. Moreover, it is not clear how the court comes to some decisions, and what is the rationale behind its orders.
With the noble intent of reducing air pollution in Delhi, the Supreme Court banned the registration of diesel-run private cars and SUVs of the capacity of 2000 cc and above in the National Capital Region (NCR) till 31 March 2016. If this decision was the result of a study, the report was not made public. Automobile makers were upset because they were penalised inspite of not violating any law. It was perceived that automobiles were the major contributors to pollution although burning of leftover paddy straw by farmers of Punjab and Haryana could be an equally big cause.
In this and other similar cases, the court could have invited feedback and solutions from stakeholders before issuing directions. This was a God-sent opportunity for the court to facilitate the working together of the Delhi and Central governments to reduce pollution levels in the NCR. But it just did its own thing.
Then there is the question of judicial transparency. “In 1997, a full court meeting of the Supreme Court resolved that every judge should make a declaration of all his/her assets in the form of real estate or investments”.
But declarations by judges are not even as good as that made by Lok Sabha members.
The court is Constitution-bound to back equal rights and opportunities for women. While the existing Collegium cannot be held responsible for appointing only six women judges to the Supreme Court since 1950, can the Collegium set an example for others to emulate and give a three-year roadmap by which, say, 25 per cent of the judges would be women?
There is also greater need for discipline on which kind of public interest litigations (PILs) can be entertained.
Today PILs/pleas are filed on a variety of issues. A few examples:
- In response to a PIL filed in 1991, the court ordered the Human Resource and Development Ministry to ensure environment education in the school curriculum.
- Startled by the number of NGOs in India, a bench consisting of Chief Justice Thakur and Justice A M Khanwilkar said: “The bench appointed senior lawyer Rakesh Dwivedi as amicus curiae and asked him to examine whether the SC could lay down a legal framework to monitor their activities, receipt of funds from government and abroad and the manner in which money was spent.”
- Adulteration at fuel pumps: “A bench led by Chief Justice of India Thakur… asked Solicitor General Ranjit Kumar to consider using transparent fuel pipes at pumps so that the consumer could see whether the fuel turns pink as a sign of its mixing with kerosene.”
- National Security Policy: “The Supreme Court has issued notice to the Centre, seeking the framing of a cogent and clear national security policy covering economic offences as well.”
While accepting the importance of these issues, are judges trained to deal in such matters and courts equipped to “weigh the economic, environmental and political costs” of their decisions? Today, the judiciary is continually expanding its sphere of operation while the backlog of regular cases keeps accumulating.
It can be argued that politicians are not qualified to make such decisions either. But it is their job to get committees of experts to help them take a decision, not that of courts. And unlike a judge, a minister is supported by a bureaucracy which are trained in governance.
Politicians are elected representatives of the people, judges are not. The judiciary cannot become an alternate power centre!
While an exhaustive list of issues that can be traversed through a PIL may not be possible, it would help if there is a clear demarcation, within the framework of the Constitution, of a line to separate the responsibilities of the executive and the judiciary. If such a list is agreed upon, it might prevent misuse of PILs by vested interests, create a transparent framework and save valuable court time. Importantly, select judges could attend courses at the LBS National Academy for Administration, Mussoorie.
The 'list' shall also address the concern expressed by the President:, who in April 2016 said:
Each organ of our democracy must function within its own sphere and must not take over what is assigned to others.
Power needs to be worn lightly, be it the judiciary or the executive. When any organ of the state over-reaches, the citizen will disregard it, as we saw with the Cauvery water dispute.
In a democracy, the executive, the legislature and the judiciary are accountable to the people of India. None of them can claim to be accountable only to themselves, least of all the judiciary.