Farmers transport blankets and mattresses at the site of a protest against new farm reform laws, at the Delhi-Uttar Pradesh border in Ghaziabad. (Image: Reuters)
In 2015, the Supreme Court, hearing some petitions over mismanagement at the Board of Control for Cricket in India (BCCI), decided to wade into cricket administration. It appointed a committee headed by former Chief Justice RM Lodha, to suggest reforms for the functioning of the board. Then, to implement the suggestions, another panel under former Comptroller and Auditor General Vinod Rai was appointed.
The timeline of events is well-recorded and need not be repeated. Suffice it to say that years later, the control of the board has been returned to the same names that held sway during the controversial days; with little, if any, improvement in functioning. The apex court’s intentions perhaps were pure, but it overestimated its ability to change the entrenched power structure.
Then there is small matter of the entire exercise being completely outside the court’s remit under the Constitution.
The apex court seems to have embarked on another such misadventure this week, by creating a committee to advise it on the validity of the concerns of the farmers protesting the recently-enacted agricultural ‘reforms’.
The court could have taken a hands-off approach by merely deciding on the legality of the protest, and perhaps setting aside time to hear any challenge to the constitutionality of the laws. Instead, the court took it upon itself (thus also pre-empting interference by any high court) to resolve the dispute, and in the process has already opened itself to a slew of criticism.
All four members of the committee chosen (apparently unilaterally) are allegedly champions of the laws under dispute. More importantly, this puts the spotlight on many other issues of constitutional importance that the court has simply chosen to drag its feet on — both raising allegations of the court being hand-in-glove with the executive.
The Supreme Court’s jurisdiction and powers come from Chapter IV of Part V of the Constitution. It is designated as the court to resolve disputes between the Centre and the states, as well as between states (Article 131); hear appeals from the various courts and tribunals (Article 132-136) and transfer of cases from the jurisdiction of one state to another (Article 139A). The court may also pass writs for the enforcement of Fundamental Rights (Article 32). It, like other pillars of the State, have strict boundaries. Even the much-quoted Article 142 which allows the Supreme Court to pass orders in the interest of doing complete justice, restricts its scope to the ‘exercise of its jurisdiction’.
In the 1980s, the court took on a fresh mantle, of Public Interest Litigation (PILs). Originally they were intended to give marginalised people better access to justice by permitting representative petitions by concerned citizens/activists. That has now extended to just about anything that any busybody might feel tickled by.
In its earliest years, the court examined the protections afforded to bonded labourers (who, ipso facto, could not challenge their bondage) and the framing of guidelines for women facing sexual harassment at the workplace. In recent years, the court has been heard whether one must stand for the national anthem, a plea to direct the government to reduce tax on fuel products, and for waiver of fees for students during the pandemic-affected education-year.
Often, the court has derided PILs as publicity-interest litigation and private-interest litigation, and not without reason. But they continue to be indulgent, rarely punishing petitioners in frivolous cases. One of the most persistent allegations is that many PILs are filed at the behest of hidden-interest groups, including, sometimes, proxies for the government.
This self-created jurisdiction also resulted in the court sometimes playing saviour and trying to fill the vacuum left by bureaucratic apathy — one has seen countless examples, such as in cases relating to pollution control as well as unauthorised construction in Delhi. But often, even the most well-intentioned judges end up leaving greater disarray, unable to make the famous Indian bureaucracy, not to mention other entrenched interests, dance to the desired tune.
These excursions carry multiple risks. Most prominently, that the court in any given instance, is just two or three judges on the ‘bench’, but armed with authority that is rarely questioned, acts as an unelected executive. Even the most senior of lawyers are reluctant to question the wisdom of judges.
Policy-making is a long arduous and deliberative process (as opposed to judicial processes which ought to be adversarial) to analyse the merits and demerits of multiple options, which is simply impossible in a judicial setting. It also requires time and patience, both of which are at short supply at an already overburdened court. Finally, these orders, already flawed for these reasons, are never subject to independent judicial scrutiny, as the Supreme Court is the highest judicial authority.
The result is that India is often saddled with sub-optimal solutions for structural problems, not necessarily better than political inaction it seeks to substitute. The cost is compounded by the fact that the Supreme Court is diverting precious time from its constitutionally mandated role as final arbiter of constitutional disputes.