SC’s activism: Is it judicial overreach or government under-reach?

Bibek Debroy in The Economic Times

Is Supreme Court’s judicial activism becoming excessive? Is civil society, not to be interpreted in the narrow sense of Anna Hazare or Swami Ramdev , taking over a governmental role? There is a similarity between the two questions. Had government and Opposition been doing their job, and perceived to be doing their job, especially on corruption, civil society wouldn’t have needed to step into the breach. In the past too, civil society has exerted countervailing pressure and succeeded in forcing legislation – COPRA, RTI and even MNREGA. Any democracy needs channels for making government efficient, accountable and transparent.

Constitutionally, judiciary is a check on excesses of legislature and executive, and on non-functioning and ineffective government. Particularly since the Emergency, when courts didn’t exactly cover themselves with glory, public interest litigations (PILs) have been instrumental in enforcing citizen rights, environmental issues being a case in point. Fundamental rights, and a broad interpretation of Article 21, have also enforced individual rights.

Would one wish for a situation where there are no PILs and no fundamental-rights-related writ petitions before Supreme Court and high courts? Because one doesn’t trust government, both legislature and executive, most citizens will answer in the negative, notwithstanding aspersions about corruption within judiciary and problems of judicial delays.

Such additional and incremental cases impose additional burdens on backlogs and yes, not much has been done within judiciary to introspect or reform. Witness resistance within judiciary to divulge assets or bring itself under the purview of the Lok Pal.

However, scepticism and cynicism concerning the three organs of state mentioned in the Constitution are probably least for the judiciary. We are therefore better off with the judiciary delving into such cases. In most recent instances of corruption, precious little would have come to light had it not been for civil society (including media) and the judiciary. There is near unanimity, except within the Congress party, that there is hardly a government today and matters are becoming worse. Or if there is de jure government, there is no de facto governance.

Those who criticise the judiciary for taking over the role of the government, should ask – would this have happened if government had been doing its job? After all, this perception that nothing is being done about corruption and black money has not been created by the judiciary. Black money is a serious issue. Unfortunately, too many people have been muddying waters about this, compounded by reports about billions of dollars stashed away abroad. What has been government’s reaction to this? Another committee has been set up to estimate the size of the problem. There has been mention of a five-pronged attack, which is as vague as vague can be.

It is not just government, but the broader political system, that doesn’t wish to address the broader issue of black money generation, since this is related to electoral reform and there is a prisoners’ dilemma kind of problem there. Having said this, each one of us has expertise in some areas and not in others. If a role not meant for us, and in which we do not possess comparative advantage, is thrust upon us, we are apt to make assertions that fall short of what is rational.Without disrespect to the judiciary, elevation to a bench typically means one takes oneself a bit too seriously and is prone to making the assumption that everything can be solved through a judgement. No matter how important courts are, that is not quite the case. There is also the point that many complicated economic matters are ones where generalised judges lack expertise. This is the classic trade-off between a generalist and a specialist, and is the reason why we have sector-specific regulators rather than an across-the-board one. In the present case too, an economist would have looked at the problem differently. But that’s neither here nor there. Questioning what the Supreme Court has done is not the right response for government. Questioning what government has not done, and rectifying it, is the right response.

(Bibek Debroy, Professor, Centre for Policy Research, Delhi)


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