Finance Minister Arun Jaitley’s anguish is understandable. There are indications that the judiciary is overreaching and intruding more and more into the exclusive space of the legislature and the executive, thereby creating unhealthy asymmetry in the delicate balance among institutions in the county. We cannot have a situation where the country is run by judicial decrees, where other organs of the democracy are unable to take decisions with confidence and gradually go redundant. But who allowed things to come to this pass in the first place?
“Step by step, brick by brick, the edifice of India’s legislature is being destroyed…With the manner in which encroachment of legislative authority by India’s judiciary is taking place, probably financial power and budget-making is the last power you have left. Taxation is the only power which states have…” Jaitley said in Parliament on Thursday. He was responding to a Congress demand for a court-monitored dispute redressal mechanism in case of the GST. The remark also referred to the Supreme Court’s order for creation of a disaster mitigation fund to tackle situations such as drought.
Many of the judiciary’s orders in recent times have raised serious questions on the wisdom involved. This is particularly true in matters which render themselves to a political solution only. There is an apparent tendency among the judges to toe the populist line and respond with sympathy to emotional appeals. At times they appear dictatorial too. The banning of IPL matches in Maharashtra is a case in point. How the judiciary has expanded its reach into the domain of the legislature and the executive through PILs has been discussed enough.
While the later two have been fretting over the intrusion for some time now, they have failed to answer or introspect how they managed to cede space to the judiciary. They refuse to acknowledge that somewhere the compact between the state and citizens, based solely on trust, has broken down and the judiciary has moved in to fill a vacuum. The courts can claim to be standing up for the citizen who has lost faith in all instrumentalities of the state.
Let’s connect the thought to some routine (by now) everyday matters. In Pune, a vigilante group assaults a girl for wearing a short dress; in Bengaluru, a criminal simply carries off a woman from the streets like he would carry a heavy bundle of grocery in full public view; in Bihar, a legislator’s son allegedly shoots at and kills a young man for overtaking his vehicle; in Uttar Pradesh and elsewhere in the country people are attacked on the suspicion of consuming beef; well, there’s no end to such incidents in the country. The running theme in all these is the state has abandoned its responsibility to protect citizens and the criminals have come to assume that the law does not exist for them.
That a whopping number of rape or molestation victims or sufferers of other forms of crime don’t approach the police fearing harassment; that there’s a general feeling that the ordinary masses are too powerless against people with influence, political and otherwise; and that there’s an increasing demand for court-monitored probes into cases being handled by investigating agencies reflect a dissipation of faith, the critical social capital that makes democracies work.
Jaitley expressed disapproval of the court’s order seeking a disaster mitigation fund to tackle drought-like situations. He is right. A mechanism to address such situations already exists at the central and the state levels. However, isn’t it a fact that thousands of people are dying and lakhs migrating out of their villages because of severe drought and water scarce situations? People have been suffering for decades – just consider the number of farmers committing suicide every year —and the government simply appears to have washed it hands off. Obviously, not enough has been done. Would you blame the judiciary for stepping in for farmers?
The problem did not begin with Mr Jaitley or the government he is part of. The process of erosion of faith in governments started long back, aided robustly by the political players. The Narendra Modi government would do a great service to the country if it revived the state-citizen arrangement of trust. The judiciary would recede to its place automatically if that happens.
It has to be done as Jaitley would say step by step, brick by brick.
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