When the state turns soft, or is tottering on the brink of failure to perform its elementary obligations, the Supreme Court has claimed the right to fill in the power vacuum. The Supreme Court’s order to set up a judicial oversight committee to probe the black money hoarded abroad is yet another instance of the judiciary taking the initiative when the government is inactive or stalls any move to set things right.
This device of appointing special investigation teams was evolved by the court over the years, starting from the hawala case of 1996. It has later used it to make reluctant governments act in precipitous situations. In the Gujarat riots cases, the court formed its own panel because it had little confidence in the government machinery, which itself was in the dock. In environment cases and instances of atrocities against people, the court has also employed this rare weapon.
Strict constructionists would not find any such power written in the Constitution. But it was the judiciary, by interpretative method, that moulded this Brahmastra that is the bugbear of the rulers — more than the civil rights leaders’ fasts at Jantar Mantar. This device was perfected in the same workshop in which the public interest litigation movement was conceived, again by the judiciary. No other country has such devices to let off pent-up political steam.
The court is aware of the power it is aggrandising. Therefore, Monday’s order contains ample arguments to justify court intervention. Shorn of its long ontological and epistemological discussions, the order points out the situation in which it had to take the extreme step of appointing two judges over a list of top government nominees.
“We must express our serious reservations about the responses of the Union of India,” the order said. “In the first instance, during the earlier phases of hearing before us, the attempts were clearly evasive, confused, or originating in the denial mode. It was only upon being repeatedly pressed by us did the Union of India begin to admit that indeed the investigation was proceeding very slowly.”
The government could not have heard a more severe indictment than the present order. The court said further: “It clearly indicates a compromise of the ability of the State to manage its affairs in consonance with what is required from a constitutional perspective.”
The court explained that it was not merely the amount of money parked abroad that worries it, nor the manner in which it was taken away from this country “but the nature of the activities that enabled the main actors to do this. The magnitude of wealth, along with the numbers of individuals or other legal entities who hold it, may indicate that a large volume of activities, in the social and the economic spheres within the country are unlawful and causing great social damage, at the individual and collective levels. Moreover, it would also indicate a substantial weakness in the capacity of the state in collection of taxes.” The court warned that the state was getting soft, and “the more soft the state is, greater the likelihood that there is an unholy nexus between the law maker, the law keeper, and the law breaker.”
The court saw signs of the state weakening. “Instances of the powers that be ignoring publicly visible stock market scams, or turning a blind eye to large-scale illegal mining have become all too familiar, and may be readily cited. That such activities are allowed to continue to occur, with weak, or non-existent, responses from the state may, at best, be charitably ascribed to this broader culture of permissibility of all manner of private activities in search of ever more lucre. Ethical compromises by the elite who wield the powers of the state, and those who fatten themselves in an ever more exploitative economic sphere can be expected to thrive in an environment marked by such a permissive attitude, of weakened laws, and of weakened law enforcement machinery and attitudes.”
The court is aware of the limitation within which it is working. However, “the continued involvement of this Court in these matters, in a broad oversight capacity, is necessary for upholding the rule of law, and achievement of constitutional values. But it would be impossible for this Court to be involved in day to day investigations, or to constantly monitor each and every aspect of the investigation. The resources of this court are scarce, and it is overburdened with the task of rendering justice in well over a lakh of cases every year. Nevertheless, this Court is bound to uphold the Constitution, and its own burdens, excessive as they already are, cannot become an excuse for it to not to perform that task.”
