Supreme Court cannot, and is not meant to, govern

For more than a decade now, the Supreme Court has been involved in administrative decisions because the executive would not act, aggrieved citizens knock at the court’s door, and the judges feel obliged to respond. The court intervened in making the use of CNG compulsory for public transport in Delhi. It will be said that this was a positive intervention because the quality of air in the national capital — and as a consequence, people’s health — has improved. The court did not realise that vehicles with polluting emissions have been pushed out of Delhi to smaller towns like Bulandshahr and Aligarh, where air quality norms do not exist.

There have been other instances of the court’s outreach. It directed the government to supply food grains to hungry people.

And it wanted the government to get back the money illegally stashed away by Indians in foreign banks. It can be argued that the fundamental right to life guaranteed under Article 21 of the Constitution includes a life of dignity, which would include food, seems logical. There is no ambiguity in Article 21. It mandates that the life of a citizen cannot be taken away arbitrarily by the state and without the due process of law. A murderer cannot be killed until the crime has been established beyond reasonable doubt.

By the same token, the state’s enforcement forces cannot shoot down terrorists because they kill innocent civilians. The charge has to be proved. The emphasis is on the due process of law. The quality of life is a governance issue, which people and politicians have to decide. The court cannot be burdened with this duty.

Finding solutions for improving the quality of life or of improving governance is not the court’s task. It is a narrow one of upholding the law and of pronouncing on the legality or illegality of acts either of the government or that of individuals and corporations. There is also the more important task of interpreting the Constitution, and judging the laws passed by Parliament or the state legislatures, and declaring them either as constitutional or unconstitutional.

People are turning to courts not for settling legal disputes but also for governance issues. It is this popular expectation that the court can, and should, undo the social and political wrongs that a government is committing that is proving to be perplexing because of the pitfalls in way. The court was right in saying that the issue of legislative majority has to be decided on the floor of the legislature and not in the governor’s house. But it overstepped its mandate when it wanted to direct the Jharkhand assembly speaker to hold the trial of strength.

There are times when a spineless government pushes an issue into the judicial arena because it is unable to handle it. In the 1990s, the wily Narasimha Rao government made a presidential reference under Article 143 of the Constitution to the Supreme Court on the knotty Babri Masjid issue. The court wisely declined to opine, saying that historical and archaeological expertise is beyond its ken.

The Manmohan Singh government, which is getting to resemble more and more the befuddled Narasimha Rao government, is toying with the idea of seeking a presidential reference on the issue of how natural resources like spectrum and mines should be allocated to the private sector, and whether auction is the best way of doing so. The Supreme Court, in its judgment cancelling 122 2G spectrum licences, had questioned the rationale of the first-come-first-served basis, and said that auction is a better option.

This is treacherous turf because the court cannot decide on policy framework. It can only decide on whether it is just and fair, and whether it violates the letter and spirit of any existing law and of the Constitution. The ground for cancelling the licences can only be that it discriminated against some of the applicants and favoured some others, and this is amenable to judicial reasoning. Whether the first-come-first-served policy satisfies the fairness principle is also amenable to legal interpretation but it has to be proved with a concrete example. The court cannot pronounce it as a general principle of equity.

The great enthusiasm for judicial intervention shown by public interest litigation groups, the opposition parties and other good-hearted citizens, including the media, is quite dangerous for democracy. The way to oppose a venal government is to throw it out in an election.

The court cannot be asked to govern through its expert committees. The judges are not competent to govern
and this inhering incompetence is not a reflection on the constitutional authority of the court.