Judicial Overreach


One of the strongest and most admired pillars in the country’s constitutional edifice is the Supreme Court. Despite some rare egregious failings, it has served as a solid bulwark against open or insidious assaults against the citizen’s rights and freedoms. When the State has failed to act with circumspection or expedition, the Court has admonished it and issued directions calling for specific actions and timetables under supervised oversight mechanisms. These have served society well and upheld and enhanced constitutional values.

The last week, however, has seen the Court issue certain orders and indulge in obiter dicta that carry overtones of judicial overreach. The first is with regard to a petition by Nandini Sundar, Ram Guha and E.A.S Sarma against the depredations of the Salwa Judum, a vigilante group that had gone out of control in the earlier stages of the state government’s campaign against the Naxalites in Chhatisgarh. What was in origin something of a spontaneous uprising of tribal communities against Naxal oppression in parts of Dantewada district was soon “nationalised” by the administration with major opposition support.

The tribals were forced to abandon their hamlets to be “regrouped” along roadsides in ill-prepared rehabilitation villages.Youths were “recruited” as Special Police Officers, given some paltry training and honorarium , provided guns – though quite a few only carried bows and arrows and lathis – and sent out to confront the Naxalites as combatants, guides and spotters alongside the police and paramilitary forces.

As a member of a fact-finding team with the petitioners, this writer can testify to the abject failure of the experiment. Tribal society was divided; the

Salwa Judum became a rabble and a law unto itself; there was enhanced insecurity; living conditions in the camps left much to be desired; and the local economy was derailed. Indeed, the record was so poor that the Salwa Judum experiment was not extended beyond Dantewada.

The Supreme Court last week passionately and eloquently ordered that the Salwa Judum be dismantled and the militia not be used as SPOs in anti-Naxal operations, which it declared unconstitutional. The state’s inability to pre-empt social unrest or build capacity to control it had led to “privatisation” of security. Worse, the rot stemmed from “the amoral political economy that the state endorses and the resultant revolutionary politics that it necessarily spawns”. Theneo-liberal development paradigm postulated rapid growth “via rapid and vast exploitation of natural resources” to meet global competition and accumulate the wealth needed to overcome poverty.

With respect, Judges are surely entitled to their views and to strike down whatever is ultra vires. But the country could be in deep trouble if the Court were to adopt ideological positions and lay down economic policy. Likewise, the Salwa Judum can be arraigned for any wrongdoing. Again, SPOs, properly recruited and trained, have been a lawful and recognised adjunct to the police over decades in many parts of the country under a variety of names such as village volunteer force, village guards and so forth. The Territorial Army, honorary magistrates, resident welfare associations, and recognised NGOs are all variants of legitimate civic institutions that may be called upon to aid the state. To exclude legitimate and licensed civic action would be to leave everything to a monolithic state.

The same ideological animus against “the neo-liberal paradigm” appears in the Supreme Court’s observations on the black money case where it has ordered that the “slow-moving” High Level Committee appointed by the Centre to pursue the matter be subsumed in a new Special Investigation Team that it has named. It has dismissed the Government’s plea of confidentiality regarding the names of foreign account holders disclosed to it under bilateral agreements with foreign entities, albeit with certain safeguards. Further it seeks a comprehensive action plan with an implementation machinery to curb black money in the future.

Here again, their Lordships are tending to assume wide executive powers and seeking what appear to be simplistic solutions to complex problems that are better left to domain experts. Parliament is seized of the matter of unaccounted money in foreign banks and related issues and the Government is now moving forward under relentless public pressure and scrutiny.

How the Government responds remains to be seen. Constitutional clarity is required. There is reason to pause and examine where we are headed. This is not to exonerate the Government for lethargy, laxity or worse but to avoid the danger of the baby being thrown out with the bathwater, leaving the judiciary to run the country and ordain its governing philosophy.

The Greater Noida land acquisition seems also headed the same way with judicial obiter dicta and Congress politics coming together in a heady mixture. Rahul Gandhi’s latestpad yatra seems more geared to next year’s election in Uttar Pradesh than anything else. This betrays a cynical disregard for governance or development in favour of squeezing political mileage anywhere, anyhow, and play-ing a weak Dalit card in whose name he claims to speak.

Inthe 2G case, the CBI’s findings have finally forced out yet another Minister, Dayanidhi Maran, from the Cabinet. This will not rock the UPA too much as the development was long seen coming and the DMK has lost its power to blackmail. In any new cabinet making that follows, no coalition partner, now or ever, should be allowed to dictate terms regarding the number, rank and specific portfolios to be given to its members. There have been many cases of square pegs in round holes and even now we have Alagizhi, the last remaining DMK Minister, who has played truant from work on the ground that he knows neither Hindi nor English. Why then is he there?

An amusing sidelight in the Supreme Court hearing of the 2G matter was the stern admonition to counsel to reject outright opinions taken from retired judges and jurists in the case. This, even as another Bench sought to appoint two retired judges to the black money SIT it proposed, one of them as chairman.

Finally, the last week witnessed the country’s best athletes fail dope tests. The athletes pleaded not guilty and blame was shuttled between the Sports Authority of India, coaches who were said to have recommended performance enhancing drugs and unscrupulous chemists who sold steroids and other banned substances across the counter. This is a shame. Everywhere in India, sport, especially cricket, is being reduced to money and glory at any cost. Faded politicians have captured power in most sports organisations, treating them as personal fiefdoms. A clean up seems necessary, starting from a dysfunctional Union Sports Ministry.


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