Millennium Post

Is this judicial overreach?

The Karnataka government’s decision to defy the apex court’s order on the release of Cauvery water to Tamil Nadu has raised two pertinent issues. Firstly, the inability of both states to arrive at a consensus on the amount of water they should share during distress years. The second issue pertains to the role of the Supreme Court in the matter. Although the Karnataka government’s decision to defy the order is unfortunate, experts have questioned whether the court has gone beyond its jurisdiction. A former Secretary at the Union Ministry of Water Resources, Ramaswamy S Iyer, has questioned the Court’s role. 

Iyer says that Article 262 of the Constitution clearly stipulates that courts have no role to play in this matter and decisions would be made by the Parliament. Article 262 states: “Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley….notwithstanding anything in this constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause.” Although matters have come to a head in the Cauvery dispute, this isn’t the first time that the courts have been accused of judicial overreach.  

Before it reversed its stand on public advertisements, the apex court had ruled that only photographs of the Prime Minister, the President and the Chief Justice were to be published in official media advertisements. Although the use of taxpayer money to build “personality cults” should be condemned, the issue of “gross wastage of public funds” does not fall within the purview of the judiciary.  On judicial appointments, the Centre’s much-vaunted NJAC Bill was overwhelmingly passed by both Houses of Parliament to reestablish the system of checks and balances. The argument posed by the opponents of NJAC was that certain provisions in the Bill would have allowed for political interference in the appointment of judges. Despite the clear conflict of interest, the apex court decided to completely scrap the Bill and reinstate the dubious Collegium system. 

In the process, it undermined the will of the people. Appointments to institutions like the Election Commission, the Comptroller and Auditor General of India and the Reserve Bank of India are made by elected governments. Today, one would find it hard to argue against the integrity of these institutions.

On the issue of call drops, the apex court had struck down the Telecom Regulatory Authority of India (TRAI) regulation on compensation for call drops as "ultra vires, arbitrary, unreasonable, and non-transparent". By most accounts, the decision was a body blow to consumer interests. In a scathing column, noted tech investor Mohandas Pai argued that the judgement seriously undermined the regulator. “Its judgement has weakened TRAI which after a long time tried to enforce licence conditions and protect consumers - the very reason for its creation by Parliament,” he wrote in a recent column. “Orderly growth of the telecom sector cannot be promoted by letting telcos off the hook, cocking a snook at the regulator, ignoring consumer service, providing inconsistent service and making consumers pay for their recurring under-investment and lack of care.” 

TRAI, which is a statutory body created by an act of Parliament, was only responding to widespread consumer complaints when it decided to order telecom companies into paying compensation for call drops. Late last year, the court took on pollution in the national capital, and issued an order which barred non-CNG taxis. More recently, however, the apex court sought to regulate Mumbai’s Dahi Handi festival. Last month, the court laid out orders on the heights human pyramids could reach. 

While the court may have issued these orders with good intentions, one should ask whether drawing up taxi regulations, scrapping NJAC and limiting Dahi Handi pyramid heights fall within its domain of responsibilities.  

Justice JS Verma, the celebrated former Chief Justice of India, once cited other shocking instances of courts taking up the executive’s responsibilities: “The judiciary has intervened to question a mysterious car racing down Tughlaq Road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judges pool, monkeys capering in colonies, stray cattle on the streets, clearing public conveniences, levying congestion charges at peak hours at airports with heavy traffic, etc. under the threat of use of contempt power to enforce compliance with its orders. Misuse of the contempt power to force railway authorities to give reservation on a train is an extreme instance.” 

As argued in these columns, the reason often cited for such instances of judicial overreach is the failure of governments and legislatures to fulfill their responsibilities. The Cauvery water dispute is one such example of the executive's failure. But the bottom line is that the executive and the legislature are democratically constructed arms of a nation state. On certain occasions, its inability to act on certain disputes is driven by a wish to fulfil the wishes of their constituents. If the courts override the powers of the executive and legislature, it could affect the delicate balance of the separation of powers. Karnataka’s decision to defy the apex court may have set a precedent for the future. Whether citizens should be worried or not is a debate for another time.    
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