Order of the day

At least, those who were involved in framing the Constitution had envisioned this dynamic when they had embarked on this historical process.

Separation of powers between the three arms of the state—executive, legislature, and judiciary—is a concept that should ideally underpin Indian democracy. At least, those who were involved in framing the Constitution had envisioned this dynamic when they had embarked on this historical process. Framing laws and formulating policy were strictly under the domain of the executive and legislature. The judiciary's role was to ensure the implementation of the law in both letter and spirit and protect the constitutional rights of her citizens. Policymaking comes directly under the domain of the executive and legislature primarily because the people elect these individuals and it is they who have to exercise the will of the citizens. The executive, meanwhile, is answerable to the legislature, although the anti-defection law has muddied the waters on this front in the era of a majority government. If the legislature goes against the will of the people, citizens can vote them out in the next round of elections. These checks and balances were meant to ensure the smooth functioning of Indian democracy. However, the judiciary is neither elected by the people nor selected by its representatives. In other words, the people have no say in the appointment of judges. Under these peculiar circumstances, the assumption is that the judiciary is aware of the limits to its powers and would respect them. Recent pronouncements by our honourable courts, however, have once again raised concerns that the judiciary is overstepping its mark. Earlier this week, the Madras High Court took up the role of a policymaker to aid farmers suffering from a mountain of debt brought on by the severe agrarian crisis in Tamil Nadu. Many farmers in the State are in dire straits after another failed monsoon last year, and some of them have taken their protests to the national capital. Among other acts of protest, they held the skulls of farmers who had committed suicide in their region to communicate the desperate state of affairs in their area. The protesters demanded a farm loan waiver, saying they are not in a situation to repay their debts because of severe droughts. On Tuesday, however, the court directed the State government to waive all farm loans issued by nationalised and cooperative banks and ensure that no punitive action or loan recovery is initiated against them. In the order, the court made no attempt to differentiate between those farmers with large or small land holdings, and in fact argued that this distinction was "arbitrary". Standard government policy on farm loan waivers makes a clear distinction between farmers with large and small land holdings. The Uttar Pradesh government, for example, had recently sought to alleviate the suffering of small and marginal farmers specifically, while waiving loans worth Rs 30,729 crore. Admittedly, those farmers sitting in protest and opposition parties in Tamil Nadu will laud the court's decision. Although it's tempting to praise the court's desire to help farmers, it has no business making policy. This is an unfortunate breach of constitutional propriety.

In Tamil Nadu's case specifically, the judgement comes soon after the State government passed its annual Budget. At a time when the State's finances are in a precarious situation, the government announced that it would not issue a blanket loan waiver scheme. Moreover, the State government contended that the court cannot interfere in the policy decisions of the government, especially if it involves the economic policy of the government. In imposing itself on the State executive and legislature, the court runs the risk of undermining its authority too, as officials will find it hard to implement these orders. It's poor policy on the court's part, as argued by numerous studies. None of these schemes play a role in improving the lives of landless farmers, who have little or no access to bank loans, and other small farmers stuck under the thumb of vicious moneylenders. In fact, according to a 2013 report by the Comptroller and Auditor General of India on the UPA's 2008 farm loan waiver scheme, small farmers deserving of much-needed assistance were left out, while ineligible big farmers pocketed undue monetary gains. Not only is a blanket loan waiver poor policy, but the court has no business issuing such orders. A similar issue was raised when the Supreme Court recently decided to uphold and slightly modify its order banning the sale of alcohol within 500 metres of state and national highways. The court had argued that its order was based on the "expert determination" of the Union government. Nonetheless, as noted Delhi-based lawyer, Gautam Bhatia, argued in a recent column, "the question is not whether the government's determination is correct or incorrect, but which body is authorised to act upon that determination". On the issue of enforcement, the past weekend has noticed some unusual steps taken by administrators in their areas of jurisdiction. States are now desperately de-notifying their highways, fearing job losses and falling revenue. For example, the administration in Chandigarh, a Union Territory, has reclassified highways passing through it as district roads. The hospitality industry in India has grown by leaps and bounds in the past two decades, and the liquor business in many parts is an integral part of it. These are realities that such prohibitive orders cannot hope to ignore. States like Goa, and UTs like Puducherry, are literally situated between the highway and the sea, and relocation for many businesses in these areas will be incredibly tough, if not impossible. These are just two recent examples of the perils involved in the courts going beyond their remit.
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