From Business World of 25 March 2004. Judges may be masters of justice, but their imperfect grasp of economics has often led to judgments that were wrong in my view. Unfortunately, government counsels are so effete that they never point out the mistakes to the judges.
Blinkered justice
As government has come under the control of sectarian and
self-seeking politicians, the higher courts have had to reach beyond their role
as dispensers of justice and become guardians of administrative standards. In
this role they have entered areas that are traditionally the concern of
governments, and intervened in issues that should have been resolved in
democratic fora. They have done so as protectors of the Constitution and of the
rights it confers upon citizens. The people, increasingly at the mercy of an
arbitrary and partisan state, value and laud the courts’ interventions.
However, there is a danger that in protecting citizens or their rights, courts
might venture far beyond the limits of law and justice: that, moved by the kudos
that popular verdicts can bring them, they raise to law what is personal
predilection or prejudice.
The clearest example of this has
been in the environmental activism of our courts, especially of the Supreme
Court. That activism owed much to a coincidence of activist non-governmental
organizations and sympathetic judges; the concatenation did not persist, and
has largely receded from public memory. But in that period of green
jurisprudence, many verdicts were handed out which had enormous economic costs;
that environmental interventions must be affordable was a lesson lost upon the
courts and one impossible to teach them. For against the Supreme Court’s
verdicts there is no appeal.
Under the tenure of Justice V N
Khare, the Supreme Court has entered another active phase. Unlike in previous
episodes, the current activism has not been inspired by evangelism on a narrow
front. Some of it has been in the cause of good government, and has won
considerable public support. At a time when the people had given up hope of
anyone curbing the communal criminality of the rulers of Gujarat, the Supreme
Court has taken special interest in the burning of 12 people in Best Bakery and
the gang rape of Bilkis Rasool Yakoob that Gujarat police covered up. Although
these are but drops in the bloodbath unleashed under the BJP government in
Gujarat, the Supreme Court’s efforts to uphold justice have done much to
preserve the public’s faith in the system. It won plaudits too when it stopped
the speaker of the Tamil Nadu assembly from using privilege to muffle The
Hindu.
But if it has been bold in
protecting citizens against state-abetted communal violence, it has been bolder
in handing out verdicts that go against common understanding and logic. One of
its most incomprehensible verdicts was in the context of government servants’
strike in Tamil Nadu. The right to strike has characterized all democracies.
Many governments have placed restrictions on it. So had the government of Tamil
Nadu, and the question before the Supreme Court was simple: were its
restrictions consistent with the constitution and the law? Its obitur dictum,
that workers had no legal, moral or fundamental right to strike was neither
relevant nor correct: clearly there must be a right to strike in a democracy,
however the government and the courts may like to qualify it.
Even more mystifying have been
its verdicts on education. Its judgments have been misconceived in at least
three ways. First, it believes in price control in education: fees should cover
only costs, and not allow any profits. No one who has grown up in this country
should need to be educated in the defects of price control. Foodgrains, steel,
oil, sugar and many other controlled commodities have left behind horror
stories: dilution of quality, under-the-counter payments, dual markets,
shortages – as if we have not had enough of these perfectly avoidable evils,
the Supreme Court now wants to repeat them in education. Second, it believes in
bureaucratization: it has asked state governments to set up boards to police
colleges. Even at its best, bureaucracy introduces delays and inflexibility,
and will inhibit innovation. And bureaucracy is not at its best in our country.
Ram Naik replaced central allocation of petrol pumps by district boards, and
multiplied corruption; there is no reason that the Supreme Court’s boards will
do better. It should ask Arun Shourie to give it a lecture on how bureaucrats
love to obstruct and delay. Finally, the Supreme Court believes in subsidies
even for students who are going to get very rich. It only has to review the
numerous cases of corruption against officials of the Food Corporation of
India, which is the biggest handler of subsidies in the country, to see what
dire effects subsidies have.
Thus, there is considerable evidence
to suggest that the Supreme Court has taken a wrong turn on education. It
should retrace its steps, for there is no one in this country to undo the
damage it might do – and the damage may live for a long time.
