Courting disharmony

Who’s given the judiciary the right to overstep its realm of authority? Anil Dharker asks.

Does the Supreme Court of India want to be the Government of India? Or do the judges of the apex court want to assert their right to be considered as ordinary citizens?

HT Image

Today’s buzz phrase is ‘civil society’. It occurs everywhere, in print, on TV, in everyday conversation. The context is the same: civil society is always pitted in an adversarial position vis-a-vis the government. It’s a recent development, probably beginning with 26/11 when the terrorist attacks in Mumbai showed up government unpreparedness and incompetence as never before.

In the last couple of years the focus of antagonism has shifted from security almost completely to corruption. With good reason too. The scams that have been unearthed in the last few years are of such staggering proportions that all earlier cases appear to deal in small change. The government’s obvious inability and, worse, seeming unwillingness to deal with these cases has taken us, the members of civil society, beyond a point of no return, so that we are no longer willing to be passive bystanders.

Has the Supreme Court reached that stage too? Its recent order stemming from the Hasan Ali income tax-hawala case seems to suggest that. Not content to rebuke the government for moving too slowly in the matter, it’s taken over the role of the executive by appointing a Special Investigation Team (SIT) under two retired Supreme Court judges to look into the issue of black money. Astonishingly, the court order goes beyond the specific case of Ali: the SIT, reporting directly to the court, has been asked to “prepare a comprehensive action plan, including creation of necessary institutional structures, that can enable and strengthen the country’s battle against generations of unaccounted monies, and their stashing away in foreign banks or in various forms domestically”.

If Anna Hazare and his team had made such sweeping demands, we would have dismissed them as good intentions overcoming good sense, perhaps caused by a failure to see the different roles assigned by the Constitution to the ‘three estates’. But these aren’t vague social reformers talking; this is an order of the Supreme Court.

The order you see above is one that should have come from the ministry of finance. The apex court order, in effect, takes over the governance function of very many executive agencies such as the Reserve Bank, the Enforcement Directorate, the Central Bureau of Investigation, the Central Board of Direct Taxes. Incidentally, by an amazing coincidence, on the very day the court issued this order, the finance ministry came out with the proposal of making the Central Economic Intelligence Bureau as the nodal agency for all economic offences, with all enforcement agencies compulsorily reporting to it. Isn’t that the correct way of going about it, rather than the judiciary’s approach of taking over the case completely?

This, of course, isn’t the first time that the Supreme Court has intervened in this way. The 2G probe, for example, is now being conducted solely under its directions. A look at the daily newspaper will tell you how our courts seem to be overstepping the constitutionally assigned role for the judiciary in different fields. There’s the recent Supreme Court judgement that virtually tells the government how to fight the war against the Maoists in Chhattisgarh. Local issues are not exempt either. These are examples picked up at random on a single day: ‘High Court orders probe into pollution near Taloja jail’; ‘Court raps BMC for squatters near water pipelines’. Where are the questions of law that are being resolved here? Aren’t these matters for the executive alone?

Apart from the question of propriety, these interventions also take up the courts’ time. Meantime, the arrears of pending cases mount daily, denying justice to lakhs of people. Should clearing the backlog not be a greater priority for the courts? And without meaning any disrespect to the Supreme Court, why not set up an SIT to look into cases of corruption in the judiciary that have been alleged from an ex-Chief Justice downwards to the lower courts? If the government did that, how would the judiciary react?

Anil Dharker is a Mumbai-based writer

The views expressed by the author are personal