Can The Judiciary Run Government?

It was a hyper-active day on Wednesday for the Supreme Court. Leading the charge for a cleaner Delhi, the apex court banned registration of luxury SUVs of over 2,000 cc capacity in the NCR till 31 March 31, barred the entry of all trucks transiting though Delhi to other destinations and directed all taxis to covert to CNG by 1 March. Coming down heavily on the civic bodies running Delhi, the court directed them to clean the streets of dust and stop burning bio-waste polluting the air.

Another bench of the Supreme Court directed pollution control boards to monitor and implement anti-dust norms on construction sites in the National Capital Region. This order was passed in a Public Interest Petition (PIL) in which 3 toddlers through their advocates had sought a ban on firecrackers and other polluting emissions in the NCR.

The intervention by the Supreme Court has not been a day too soon. It is indeed praiseworthy that the Supreme Court has intervened after pollution levels have long-exceeded safety levels and that the health and safety of common citizens in the city has come under serious threat.

Meanwhile, the age old issue of judicial activism has come to the fore once again. The three arms of government – the executive which includes elected ministers and the administrative organs under them; the legislature, that frames policies and laws; and the judiciary that interprets the law and ensures it is implemented in letter and spirit – have their constitutional areas cut out and defined. However, when one branch of government, the administration, fails to perform as it should, leading to a civil crisis, the judiciary has stepped into the shoes of executive to avert chaos and hardship.

It is an old debate about judicial activism. Justice Krishna Iyer, a doyen of the Supreme Court, in 1979, converted a letter written by a distressed undertrial prisoner from a Bihar Jail, converted it into a public interest petition, and passed orders directing that humane conditions be provided in jails. It was the beginning of PILs. Today, there is a National Green Tribunal (NGT) and state high courts and the Supreme Court have set up special benches to hear such PILs. The Supreme Court has intervened to protect forests, redefine the policies of medical college admission, and even become administrators over CBI and police teams where it has suspected mischief.

While the conservative students of civics and politics HAVE decried the trend of judicial activism, calling it a violation of constitutional separation of power; members of the public and harassed communities have blessed the courts for stepping in and enforcing their rights and ensuring justice.

However, the increasing intervention of courts today in administrative matters is a source of worry. The fact is government departments and administrators have become increasingly corrupt on the one hand, and sanguine and non-responsive on the other. Fearing that any proactive measure will put them at risk, babu-dom and ministries prefer to ride out their days doing nothing rather than taking bold steps that may put them in trouble.

Courts sensing distress, do intervene, and rightly so. But are we now entering an era where government administration has hung up its boots, and where framing rules and implementing decisions has become the realm of the Supreme and High Courts? If that is the case, why have the executive branch at all? Let judges not only interpret the law, but also implement the law. When even regulators, tasked with monitoring institutions, fail to perform, then indeed we are approaching a stage of no-return. Sample the admonishment administered to the Reserve Bank of India (RBI) by the Supreme Court yesterday.

The apex court held that the RBI as a ‘watchdog’ of the banking system was duty-bound to bring to public notice the banking scams and frauds, and not to hide them. It also dismissed RBI’s appeal against the Central Information Commission (CIC) that had sought information of such fraud details under the Right to Information (RTI) Act, ruling that “the RBI is liable to provide information regarding inspection report and other documents to the general public.”

It is indeed sad commentary that the judicial regulator has to step into the shoes of the banking regulator and instruct the latter on how to perform its monitoring duties!

This can’t go on. Administrators and regulators have to carry out the work they are charged to do; and if they are not doing it, we have to train and create a new generation of officers and politicians who will work and implement the spirit of the law. Judicial activism is welcome today, but it is not a long-term answer. The judiciary is ultimately charged with interpreting the law and ruling on disputes between parties. If it begins to run administration, the constitutional area of dispute redressal will languish, as it already is with millions of pending cases, in neglect.