Assertive judiciary, diffident executive

(First published in The Pioneer dated March 6, 2012)

RAJESH SINGH

It will be an exaggeration to say that the UPA Government and the Supreme Court are locked in a major confrontation with each other or that they are on a collision course. But recent developments do indicate that the two have begun to share an uneasy relationship, where one adjudicates and the other seeks a review of the verdict. Such happenings are not uncommon in a vibrant democracy. But what is somewhat rare is that the Supreme Court has delivered half a dozen back to back judgements against the Government and made scathing observations which have left the Congress-led UPA squirming in discomfort and itching for a reversal of those rulings and remarks.

Not too long ago, when KG Balakrishnan was Chief Justice of India, this sort of uneasiness did not prevail. He did nothing that would embarrass the Government, although he had plenty of valid reasons to do so. For one, the 2G Spectrum scam broke out during his tenure, but for him it did not exist. Given the enormity of the expose in the media on the scam, he could have even taken suo motu notice of the spectrum loot and sought a response from the Government much before the scam blew up in the Congress-led UPA’s face. In another instance, he effectively bailed out then Telecom Minister A Raja when he refused to take cognisance — let alone act — over a report forwarded to him by the Chief Justice of the Madras High Court that Raja had tried to influence one of the High Court’s judges to favour the Minister’s friend in a case. These are just two instances.

But the equation changed dramatically after Mr Balakrishnan retired and Justice SH Kapadia took over as Chief Justice of India. Since then, the Supreme Court has become more demanding, putting the UPA on the mat on a number of issues and generally being ruthless in ticking off the Government. Such has been the breadth of the Supreme Court’s recent reach that people have begun to wonder if the UPA has outsourced governance to the Supreme Court. The court has had to step in largely because the Government has been struck by a paralysis in decision-making. The result is that even in matters where the Supreme Court normally has no reason to intervene, it has done so. That the Supreme Court has begun to set the agenda is because an inept Government has allowed it to do so.

If a survey is conducted among the people of the country on whether they believe the Supreme Court is right in deciding on issues that are within the domain of the executive, the result could well be in the court’s favour. This is because the people are so disgusted and distressed by the performance of the UPA that they have begun to believe in the Supreme Court’s powers to ‘govern’ them. It’s a perception that even the Supreme Court will not like or want it to be sustained, because any belief that the court is working at cross-purposes with the Government does neither the Supreme Court nor the executive any credit. Yet, with a bumbling Government and an unrelenting judiciary, that is precisely the impression which is being fortified with each passing day.

Let us begin by considering two recent cases to demonstrate the active intervention of the judiciary and the ridicule it has heaped on the Government. The first is the issue of decriminalisation of homosexual relationships. Hearing an appeal against a Delhi High Court verdict which removed consensual homosexual relationship from the ambit of Section 377 of the Indian Penal Code, the Supreme Court made fun of the Union Government’s ‘neutral stand’ on the issue, wondering how the Government could not decide whether it was for or against a particular law. But before doing that, it pulled up the counsels for the Government for taking diametrically opposite positions on the subject and wasting the court’s time. The court had a good time, therefore, first in assailing the UPA’s conflicting stand and then for its supposed neutrality. The case has amply shown that the Supreme Court is in no mood to be lenient towards the Government and bail it out when the latter is caught in a cleft-stick.

The second instance is to do with the Supreme Court’s directive to the UPA regime to implement the project of linking the country’s rivers. The UPA had shelved the scheme that had been mooted by the NDA Government in 2002. The issue here is not the merit of the project, but the fact that the court is making policy decisions for the Government. It was the NDA’s right to have formulated the project and it was well within the right of the UPA to discard it. The unprovoked decision of the Supreme Court, which has come as a bolt from the blue, demonstrates the (low) esteem in which the court holds this Government — so low, in fact, that it dares to direct the Government to implement a policy which is in the domain of the executive. It would not be incorrect to say that this is not a very comforting development for those who believe in the supremacy of democracy.

This low-key and subtle tussle between the UPA and the Supreme Court is reflected in the two verdicts that the apex court has delivered recently in connection with the 2G Spectrum loot, and on both of which the Government is seeking a review. In one case, the court said that private citizens can approach the Government to seek sanction for the prosecution of a public servant and that the Government was obliged to respond within four months of receiving the request for sanction. Clearly, the UPA is uncomfortable with the imposition of such clarity in accountability and is hoping to raise ‘legal issues’ to somehow scuttle or at least dilute the verdict. The second judgement has to do with the cancellation of the 122 telecom licences. Here again, the Government is not willing to give up without a fight and is doing everything, directly and indirectly, to somehow derail the verdict.

As if these were not causes enough for the Supreme Court and the UPA Government to be at loggerheads, there is another verdict that has raised the Government’s hackles and placed it in a direct disagreement with the judiciary. This pertains to the court’s recent ruling in favour of Vodafone International Holdings, which had been ordered by the Income Tax authorities to cough up Rs 11,000 crore by way of taxes for the deal the telecom major had struck abroad with Hutch Essar to enter the telecom market in the country.

Ruling in favour of Vodafone, the Supreme Court said the deal did not come within the jurisdiction of the Indian tax authorities. Stung at the prospect of losing such a huge sum, the UPA has decided to challenge the verdict. The ruling was a scathing attack on the lack of financial understanding within the Government.

These are only some examples. More such admonitions have taken place. The court’s verdict slamming the Government for the crackdown on Baba Ramdev’s supporters, the court's insistent follow-up on action the UPA has been taking over the issue of black money and its directive to the Government to explain what action it has taken on complaints that former Chief Justice of India KG Balakrishnan had amassed wealth disproportionate to his sources of income are some of the instances where the Government has been put in the dock.

Since more face-offs are expected in the coming months, it remains to be seen as to who emerges worthier in the end — the UPA Government or the judiciary.