Compelling the government and its agencies to comply with court orders is a tricky issue. The judiciary has no army, police force or an extensive machinery to enforce its orders. It has to depend upon the executive to implement its orders. Very often, the orders are against the executive itself. So the judiciary has to rely on its moral authority and prod the executive to abide by its directions. The problem becomes more complex when courts deal with financial, development or social issues, as often as they do now.
Several cases drag on for years because of the non-cooperative attitude of the executive, represented by bureaucrats. In the Supreme Court, matters like public distribution system, genetically modified food, cleaning of the Ganga and Yamuna, judicial infrastructure and police reforms have been pending for years. When the courts ask the central and state governments for information on these vital national issues, they do not provide the required data on time and seek adjournments repeatedly. The cases drag on.
Though the courts have the power to punish laggards for contempt of court, such action would be stuck in legalistic quagmire, as many recent cases have shown. It can impose a penalty, but it is the taxpayer who will bear the burden. A common method is calling the top officials to the court to explain personally the negligence of their departments. Even chief secretaries have been called. Recently, some state chief secretaries were found eating humble pie in the Supreme Court in a police reforms case.
Some high courts also call chief secretaries to attend the court when the judges lose patience with their slack response or disguised defiance of court orders. In a recent judgment, State of UP vs Jasvir Singh, the Supreme Court asked the high courts to go easy while taking such drastic steps. The case involved a dispute over the rate of compensation for land acquired in 1981. A bench of the Allahabad High Court was dissatisfied with the foot-dragging of the state government. At one stage, it asked the principal secretary in the Public Works Department to attend the court personally to answer the show cause notice.
Since the high court was still not satisfied with the authorities’ response, it summoned the principal secretaries of finance and revenue departments to answer a tougher show cause notice. According to the new notice, they should explain why the delayed payments should not be recovered from their salaries with 9 per cent interest. This provoked the state government to move the Supreme Court challenging such drastic steps.
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The Supreme Court stated that the high court orders calling the high dignitaries to the court on different occasions were “improper”. It also asked the Chief Justice of that high court to place the case before another bench to obviate wrong impressions or prejudice in the matter. The Supreme Court expressed concern over a “growing trend among the judges of the high court to routinely require the presence of senior government officers for perceived non-compliance with its suggestions or to seek insignificant clarifications”. Summoning top officers should be the last resort “in rare and exceptional cases when it is absolutely necessary, as for example, where it is necessary to explain complex policy or technical issues which counsel is not able to explain properly”.
Advocating restraint, the Supreme Court stated: “The real power of courts is not in passing decrees nor in punishing offenders nor in summoning the presence of senior officers, but in the trust, faith and confidence of the common man in the judiciary. It should not be frittered away by unwarranted show of power.”
Three years ago, the court found a large number of cases in which judges of various high courts had been summoning chief secretaries and other top officials like Central Bureau of Investigation directors and Director Generals of Police. In the case, State of Gujarat vs Turabali, the court pointed out that judges should have “modesty and humility”. These officials are extremely busy people and calling them to the courts would be expensive and counterproductive.
When the courts take up public interest cases and the government, acting through bureaucrats, appears to be defiant, there is an additional question of separation of powers between the judiciary and the executive. In such cases, neither the contempt power nor financial burden in the form of penalty is practicable. One way out for the courts is to raise the political cost of non-compliance, as in the recent 2G scam. The government can be more effectively shaken by headlines in the media, followed by rallies and expressions of public disapproval. This is an area where the judiciary and the media should work in partnership. After all, both of them depend on their moral authority to influence events rather than on corporal muscles.