Context matters

Judicial activism has to be blended with restraint and there cannot be a compromise with other aspects of the basic structure in the name of independence of the judiciary, he said. When an elected executive takes decisions, it is accountable to Parliament, which is representative of the people. They have the option of seeking changes in the decisions taken by the executive, besides voting out the government.

 As a matter of general principle, Jaitley’s contention will stand the test of scrutiny. But his remarks have to be placed in the context of different cases. Across recent cases of judicial appointments, public advertisements or call drops, one can present arguments in favour of the executive. Judicial overreach is indeed a constitutional matter that requires greater deliberation and the courts must refrain from interfering in certain cases. 

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 are 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.

 Questions surrounding the use of public funds fall into the domain of statutory auditors like the Comptroller Auditor General, the executive, Parliament and finally the voter. It should be incumbent upon various civil society groups and rival political entities to convert this apparent “wastage of resources” into important electoral issues. Thankfully, the court reversed its view on public advertisements.

 In the case of 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 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 such institutions. The strength of every institution is based on the strength of its people and the rules and principles that govern its daily functioning. People will come and go, but the rules and principles will still remain.

 What guarantees do we have that the current Supreme Court won’t buckle like its predecessors in the Emergency, under very different pressures and interests? On the issue of call drops, the apex court recently 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 has proven to be 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 wide-spread consumer complaints when it decided to order telcos into paying compensation for call drops.

 In an another instance of judicial overreach, the apex court had recently ruled that the NEET would be the only test for admission to medical courses in India, turning down an appeal by states to hold separate medical entrance exams. “What is the manner of holding examination for entry to medical intuitions across the country is essentially an executive matter,” Jaitley had correctly asserted. “It is in the policy domain.” 

But as stated earlier, it is imperative to place the finance minister’s remarks in different contexts. In the recent Uttarakhand fiasco, the apex court stands vindicated in its decision to hold a floor test and foil the under-hand tactics of the BJP-ruled Centre. The unfair manner in which the Centre acted, gave ample scope to the judiciary to intervene. Moreover, in the landmark SR Bommai case, the apex court had clearly established that any imposition of President’s rule under Article 356 can be examined by the courts.

 Maybe, in the midst of all the politicking in the hill state, the Centre forgot about its commitment to ‘cooperative federalism’. The order to impose President’s rule a day before the floor test inside Uttarakhand assembly went against that commitment and the judiciary was compelled to fix it. The Centre’s attempt to ensure passage of Uttarakhand Appropriation Bill, to justify the imposition of President’s rule in the state, too was met with a tough opposition inside Parliament.

 In its recent ruling on the drought crisis, the court shamed the executive into fulfilling the basic responsibility entrusted to it by the people. In a historic verdict last Friday, the apex court ordered the Centre not to hide behind the “smokescreen of lack of funds” and instead provide immediate relief for drought affected citizens. The court directed both the Centre and various state governments to properly implement basic citizen entitlements like the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) and the National Food Security Act (NFSA).

 The order also sought to reverse the erstwhile state policy on droughts, which moves from one crisis to another. In this context, the court intervened only when the executive failed to fulfil its responsibilities.