Friday, May 13, 2016

India's judiciary turns policy maker

It is difficult to view the Supreme Court's directions to the Government on drought management as anything other than a series of egregious transgressions of the constitutional balance of power and therefore a violation of the very Constitution which it is supposed to uphold. 

It has directed that all (not just the below poverty line) households in drought prone areas be provided heavily subsidized foodgrains; the mid-day meal scheme be expanded to cover the summer vacation period too and provide eggs or milk three days a week; a commission be constituted to monitor the implementation of the National Food Security Act within two months; and the existing system of drought management be abandoned and a new transparent rules-based framework be evolved. Most remarkably, it has intimidated (what else can its rhetoric signal) democratically elected governments in Bihar, Gujarat, and Haryana into declaring drought, despite these state governments, in their wisdom, feeling otherwise. 

All these are clearly political or executive decisions and it is very difficult to justify any of them as being within the judiciary's constitutionally mandated domain. Assuming that the government concerned is not doing its job properly, which in any case would be true with most governments across the world, the judiciary is within its jurisdiction to pull up the government for defaulting on its statutory responsibilities. But it has gone far beyond that and entered the domain of policy making. In fact, it is no hyperbole to say that judiciary threatens to usurp the mantle of being the highest policy-making body in the country. The list of such transgressions is growing very fast.  

Its rhetoric on the issue of compensating NREGS workers (at 0.05% of wages per day) whose wages were delayed more than the stipulated 15 days would have been appropriate as a stump speech and surely lowered the dignity of the highest court of the land,
We are quite pained to note that the Government of India has made no provision for this compensation while releasing the wages for 2015-16 of Rs. 7,983 crores. This is extremely unfortunate and certainly does not behove a welfare State in any situation, more so in a drought situation. Social justice has been thrown out of the window by the Government of India.
Shouldn't there be some restraint on the Lordships that force them to be more dignified with their words and not stoop down to indulge in such inflammatory rhetoric? It strains credulity if this is not an attempt at populist grandstanding. Would the Lordships have made such sweeping statements if there was no media coverage?

The other day the Chief Justice of India (CJI) made an emotional appeal to the Prime Minister to increase the number of judges in the country from the current 15 to 50 per million population over the next five years. A fair point when seen in isolation. But isn't this same with every other regulatory and statutory position in India? For example, District Collectors are today responsible for delivering on a vastly expanded functional jurisdiction and management of a budget which has increased manifold, with pretty much the same personnel (of much inferior quality) as three decades back. This is not to undermine the CJI's valid point, but just an attempt to put it in perspective and also highlight the governance challenges faced by a country like India.  

In this context, one cannot but applaud Mr Arun Jaitley's speech this week in the Lok Sabha,
We have the National Disaster Response Fund and the State Disaster Response Fund and now we are being asked to create a third fund. The appropriation bill is being passed. Now outside this appropriation bill, we are being told to create this fund. How will I do that? India’s budget-making is being subject to judicial review... Step by step, brick by brick, the edifice of India’s legislature is being destroyed... With the manner in which encroachment of legislative and executive authority by India’s judiciary is taking place, probably financial power and budget making is the last power that you have left. Taxation is the only power which states have.
Clearly the patience is wearing thin. It may only be a matter of time before the creeping usurpation of executive and legislative powers create an acrimonious stand-off, one which would leave everyone worse off. The emotion prone CJI would do well to shine light within and introspect, and take urgent measures to address the corrosive tendencies that have gripped the judiciary so as to stave off any unpleasant face-off.  

1 comment:

Pratik Datta said...

The rot starts with the poor quality of legal education in India. The BCI has utterly failed in improving the quality of legal education in most universities. Most students are taught to blindly worship SC judgements; not to critically analyse or question them from a broader policy perspective. There is hardly any serious focus on economics and public policy in most law universities due to lack of good faculty. It is but natural that students who are products of such a lop-sided legal education system would blindly favour judicial activism.

Ministry of Commerce's proposal to scrap the BCI and replace it with an independent regulator is the way forward!