After a stormy half year, the Supreme Court has gone into its summer recess. In the past months, people have viewed with dismay its orders on disparate subjects like the 2G scam, ill-gotten money cached in tax havens, distribution of food to the poor and protection of forests. Is it the court’s role to wipe tears from every eye or decontaminate the polity?
Some constitutional questions arise: What is the source of the court’s power to issue such directions; can the authorities carry out the diktats and what if they don’t?
These misgivings are not entirely new. The Supreme Court, in of its several judgments in the past three decades, has justified its role in intervening in social and development issues. It is still monitoring the rehabilitation of people ousted by big projects, reforms in police force, working conditions of the subordinate judiciary and protection of natural resources.
The Supreme Court of India is often described as the most powerful one in world constitutions. Our founding fathers might not have planned it that way. But the fundamental rights they drafted have given the court enormous powers. The potential of Article 19 (right to freedom), Article 21 (right to life and liberty) and Article 32 (writ powers) was unleashed only in recent times. The full impact of the expansive interpretation given to these rights since the 1979 judgment in the case, Maneka Gandhi vs Union of India is being felt now.
Recently, the Supreme Court justified its role as a catalyst of change, not a mere umpire in disputes between people with deep pockets (State of Uttarakand vs Balwant Singh). Justifying the public interest litigation (PIL) movement, it traced the development of this revolutionary concept over the past three decades. In its first phase, it dealt with only the right to life of inarticulate people withering away in overcrowded jails and illegal custody. In the second period, it encompassed public grievances against environmental degradation and quality of life. In the third and present stage, the court is dealing with probity and transparency in public life and integrity in governance. The judicial power expanded to fill up the space abandoned by the rulers.
Last week, the court asserted that under Article 142, it may pass such orders “as is necessary for doing complete justice in any case before it.” (Yomeshbhai vs State of Gujarat). Its orders are enforceable throughout the country and the government is bound to obey it.
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The thornier issue is whether orders like those passed in the case, PUCL vs Union of India (food security), can be implemented. Food Minister Sharad Pawar had politely stated that it is not practical to implement such orders. One recalled US President Andrew Jackson’s (1829-37) famous taunt about a Supreme Court order: “Chief Justice John Marshall has made his decision; now let him enforce it.” In practice, the three arms of the state avoid a showdown in any mature democracy. Media glare is another new factor that helps the judiciary. The threat of contempt of court and summons to top officials are rarely used.
In several areas, the orders have worked, surprising the cynics. When the Delhi citizens were covered in soot from vehicular pollution two decades ago, a petition was moved demanding clean air (M C Mehta vs Union of India). Though no such right is written in the Constitution, and the carbon capitalists employed every legal and extra-legal ruse to stall the move to introduce CNG, the Delhi government had to implement the change-over to the clean fuel.
The forests are saved, not so much by the laws passed by Parliament and soon stymied, but more by the dynamic action of the Supreme Court in several petitions, like Godavarman Tirumulpad vs Union of India. Two “forest Benches” are making rules and monitoring the enforcement of their orders. The examples can be extended to other fields also, like the right of children, release of bonded labour and protection of women at the workplace. Few have alleged that the court has misused its powers, unlike what one hears about Parliament and the executive.
The government’s attitude is not as adversarial as it seems. Much of it is posturing. It is not uncommon to see government counsel pleading, literally, for a court order to solve a prickly social issue so that the authorities can go out and enforce the order. If the government itself does it, it will be embroiled in political conflicts.
After using the court’s paw to pull out chestnuts from political fire, there is a bonus waiting for the executive. If the problem is ultimately solved by the court formula, it can hog the credit. The way the Delhi government crowed about CNG and got awards is one instance. Similarly, the central government is now claiming kudos for flinging tainted cabinet ministers behind bars. The government set up a crack team to unearth black money abroad, only at the prodding of the Supreme Court. The spin doctors and points men for the government, in fact, should engage surrogates to move PILs on sensitive social and political issues so that the buck is passed on to the shoulders of the judges.