The country’s highest court has, on the face of it, taken upon itself the oversight of the government’s efforts to cleanse the economy of black money. This incursion by the judiciary into the executive’s preserve — whatever the provocation might be — is trespass. The courts have every right to rule on individual instances of regulatory failure, but the job of systemic overhaul is beyond their capabilities. The Supreme Court has often in the past refused to judge the merits of policy. There is little to recommend upturning this restraint over black money. After all, a gamut of statecraft, from foreign policy to law enforcement to economic management, is responsible for its generation. The court is correct in its diagnosis that unaccounted cash is an economy-wide phenomenon that calls for an economy-wide cure. However, it is in no position to administer that medicine.
The Supreme Court’s question to the government on what it is doing about black money is actually three questions rolled into one. First, why should a black market exist? Second, what makes money go underground? And third, what are chances that a person plying his trade in the parallel economy will be caught? The answer to all three is governance, or the lack of it. The government’s intervention in the national debate on black money may have been adequate had the issue not acquired the endemic proportions it has in India. Joining the global crusade against dark pools of money is not enough for a country that has, anecdotally at least, too much of it. As a beginning, the government needs to introspect on the shortages that create black markets in the first place, the regulatory mechanism that nudges resources underground, and the lack of policing that allows the parallel economy unfettered growth.
Judicial overreach may serve a purpose in all this by bringing the pertinent questions to the fore. It also shows the nation how its government’s answers measure up. Courts are well within their jurisdiction to act as keepers of a society’s conscience. But there is a very thin line between moral policing and the actual stuff. If our courts are sensitive to this distinction, they have the capacity to do much that is good for the conduct of public policy. Things can go horribly wrong, however, when judges misinterpret their jobs. For their part, governments can ignore the spectre of rising judicial activism to their peril. India’s environmental sensitivities were shaped in no small measure by its men in black robes. Something good could emerge this time too once the limits of the judiciary are firmly kept in mind.