As the country's topmost court expands its powers and enters the domain of the executive, its authority might be starting to wear out.
Published Jan 18, 2017 · 06:30 pm.
Image credit: Sajad Hussain / AFP
In 2014, the Supreme Court struck down Tamil Nadu state’s Regulation of Jallikattu Act thus banning the ancient Tamil sport played during the harvest festival of Pongal. The reaction to this in the days leading up to Pongal 2017 was remarkable. The state’s chief minister O Panneerselvam himself was, it seems, keen on the court’s order being circumvented, remarking four days before the festival that he would “not back off” and “ensure that Jallikattu is held”.
Moreover, multiple news reports on Monday confirmed that the bull taming sport had indeed been held across several places in the state.
That a Supreme Court order was so publicly ignored is remarkable. What makes the issue even more significant is that this seems to now be developing into a trend, with a string of high-profile cases recently where the administration has directly disobeyed the apex court. While some of this has to do with the court over stretching its own field of operation, larger societal factors leading to an overall diminishing of the rule of law may also be to blame.
Thumbing your nose
For some time now, governments have wanted to make Aadhaar, a biometric identity card issued by the Union government, compulsory for a range of services. Right now, the Aadhaar card is required for students taking the Indian Institute of Technology entrance exam, and for benefits under the Employees’ Pension Scheme, which is part of the Employees’ Provident Fund, amongst other services. From April, senior citizens wanting to get a concession on Indian Railways will also have to provide an Aadhaar number.
This is in spite of the Supreme Court making it clear in August, 2015, that Aadhaar cannot be made mandatory for any government service. The Supreme Court’s response to these blatant violations was to simply delay the hearing of cases which challenged the legitimacy of Aadhaar. In effect, the Union government got away with violating the apex court’s order banning the making of Aadhaar mandatory for public services.
In September, 2015, Karnataka disregarded Supreme Court orders to release Cauvery water to Tamil Nadu. So blatant was this defiance that the Karnataka Assembly even made sure that it convened a special session to specifically pass a resolution – supported by every party in the House – which communicated the state’s decision to ignore the court’s orders. Matters reached a pass where Karnataka’s counsel Fali Nariman refused to plead his own client’s case in protest at Karnataka’s defiance. Like with Aadhaar, the Supreme Court did not punish anyone for this blatant contempt.
Rule of law?
Some of this disregard for the Supreme Court stems from a growing contempt for rule of law as a whole in Indian society. Since 1992, for example, the Union government has started the practice of repromulgating ordinances. Given that an ordinance is only meant to be a temporary law, this practise effectively takes away powers from Parliament, whose job it is to legislate.
In December, 2016, the Union government issued the Enemy Property Ordinance for the fifth time, making it clear that it does not trust Parliament and its elected representatives to legislate on the matter.
In Bihar, a leader in this sphere, ordinances could comfortably outlast multiple chief ministers. Most famously, the Bihar Sugarcane Ordinance held fort for 14 years without even once feeling the need to enter the legislature.
Lawyer Alok Prasanna Kumar points out that governments seem to have given up on rule of law. “Recently, Union government ministers and officials were quite open to threatening Amazon even though no explicit laws had been violated,” said Kumar.
Judicial overreach
More specific to the judiciary, however, is the tendency of the Supreme Court of India to widely expand its powers and intrude into the governance function of the executive. It has often functioned as a populist court responding to English-language press reports and the opinion of the middle class.
In the past, the Supreme Court has tackled pollution in Delhi, put a cap on the height of Mumbai’s dahi handi human pyramids, and pushed river inter-linking. The dividing line between the executive function and the judicial one has, therefore, been completely blurred.
Anuj Bhuwania, academic and author of the book, Courting the People: Public Interest Litigation in Post-Emergency India, says this expansion of the court’s powers erodes its legitimacy.
“The judiciary has to be careful in these situations,” said Bhuwania. “In its eagerness to be an instrument for social reform and enter into the domain of the executive and legislature, it’s going past its limited role as a constitutional court. And it’s really not equipped to do this.”
While it might expand its powers in courtrooms, ultimately, the Supreme Court needs to depend on executive branches of government for those powers to be exercised on the ground.
For instance, in cases like the one regarding Jallikattu – where the Supreme Court overturned both Union and state laws – at the end of the day, the court needed to depend on the Tamil Nadu government for its order to be implemented.
In the 2006 Prakash Singh judgement, the court ordered large-scale police reforms, taking on a clear governance role. Yet, even as it stepped into the shoes of the executive, the court was not in a position to actually implement its own orders.
Politicians and bureaucrats across India simply ignored the judgement – which would have reduced the powers of elected governments over the police – and the court itself was either unwilling or unable to penalise this defiance.
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