Ineptitude and inaction mar governance

…forcing the court to get into the executive’s domain

Prasanna Mohanty | May 15 2012 http://www.governancenow.com/views/columns/ineptitude-and-inaction-mar-governance

In the past couple of years we have often heard the government, ably led from the front by none other than prime minister Manmohan Singh himself, accusing the apex court of “judicial overreach”. More so after the court reversed certain policy decisions (the first-come-first-served policy for 2G spectrum allocation and appointment of PJ Thomas as CVC) and expressed anguish at certain others (continuation of A Raja in the cabinet after the 2G scam surfaced and that of Vilasrao Deshmukh after strictures were passed against him for protecting Vidarbha’s moneylenders).

The government said the court was transgressing the constitutional boundaries and entering the domain of the executive. There may be some truth to the charge but what does the court do when the government either makes decisions arbitrarily or makes none at all but looks helplessly at the court for direction? We have known cases of the former kind, the second week of May presented three instances of how it was virtually begging the court to make decisions on its behalf.

The first one relates to the Haj subsidy. Four years ago, a working group of Muslim MPs had recommended that it should be scrapped. The government seemed to agree and in 2010, newspapers reported that at least two ministries, of minority affairs and external affairs, had given their consent and the apex court, which was hearing a PIL, would soon be told about the decision to phase out the subsidy over the next seven years starting from 2011-12. But nothing happened. Finally, the apex court directed the government last week to phase out over the subsidy over next ten years. The court said the rising cost of the pilgrimage was not only draining the exchequer, the subsidy (about Rs 600 crore a year) could be better used to improve the lot of the community – by way of better education, health and other facilities.

Later in the same week the court had to deal with two similar cases in which the government didn’t know what to do. One related to a PIL seeking dismissal of former CJI KG Balakrishnan as chairman of the national human rights commission (NHRC) and inquiry into various allegations against him and his relatives. The apex court pointed out that the law that provided for the constitution of NHRC also provided for the removal of its chairman [clause 5(2) of the Protection of Human Rights Act, 1993] and the government should just follow it – that is examine the charges and make a presidential reference to the apex court for his removal if it found the allegations true.

Similarly, faced with the strike by Air India pilots and in spite of a clear verdict from the Delhi high court that the strike was ‘illegal’, the government approached the apex court on May 10 asking it to begin contempt proceedings against the leaders of the agitating pilots. The court had to tell the government that the striking pilots had done “nothing for obstruction of justice or to bring disrepute to the court” to warrant such a proceeding. “Your problem is with them. You sit with them and sort out differences,” the court said and dismissed the government’s plea.

It is a pity that the government is unable to do what is obvious even to a layman but looks for the court’s direction. Allegations against KGB and the demand for scrapping the Haj subsidy are old ones. There is nothing new about the pampered pilots of Air India striking work on flimsy grounds either. Yet, when the court strikes down its arbitrary decisions it goes to town screaming violation of constitutional propriety and “judicial overreach”.