As long as the courts limit the exercise of their powers in administrative law to prohibit the commercial use of yaks or order the replacement of fibreglass boats in the Andaman islands, the executive and the legislature think the judiciary is acting within bounds. But if judicial review is extended to core areas like distribution of licences for telecom or mining industries, the government can raise a dozen constitutional questions. For instance, it attempted a three-pronged attack on the telecom judgment in CPIL vs Union of India. Two were dented, but the presidential reference has survived to see another day.
The Supreme Court judgments in these cases have pre-empted the criticism against it and explained why the courts intervene in such cases. Last week, again, the court justified its affirmative role in the cases in which natural resources are mishandled by politicians and industrialists. In the Karnataka mining case (the Samaj Parivartan Samudaya vs State of Karnataka), several passages were devoted to the court’s power and duty in such cases.
“Wherever and whenever the state fails to perform its duties,” the judgment read, “the court shall step in to ensure that rule of law prevails over the abuse of process of law. Such abuse may result from inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or legal obligations in consonance with the procedural and penal statutes.”
Justifying its order to hand over investigations to the Central Bureau of Investigation, the court stated that it was compelled to do so under the circumstances. “The only option is to examine in depth the huge monetary transactions which were effected at the cost of national wealth, natural resources, and to punish the offenders for their illegal, irregular activities. The protection of these resources was, and is, the constitutional duty of the state and its instrumentalities and, thus, the court should adopt a holistic approach and direct comprehensive and specialised investigation into such events of the past.”
In the telecom case, in which 122 telecom companies lost their licences, the court again foresaw the criticism. Therefore, it wrote: “We are conscious of the fact that the court should not interfere with the fiscal policies of the state. However, when it is clearly demonstrated that the policy framed by the state or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the court to exercise its jurisdiction in larger public interest and reject the stock plea of the state that the scope of judicial review should not be exceeded beyond the recognised parameters. When matters like these are brought before the judicial constituent of the state by public spirited citizens, it becomes the duty of the court to exercise its power in larger public interest and ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken oath to discharge duties in accordance with the Constitution.”
In another major case, involving black money parked in tax havens abroad (Ram Jethmalani vs Union of India), the court said: “Instances of the powers that be ignoring publicly visible stock market scams, or turning a blind eye to large-scale illegal mining have become all too familiar. That such activities are allowed to continue to occur, with weak, or non-existent, responses from the state may, at best, be charitably ascribed to the broader culture of permissibility of all manner of private activities in search of ever more lucre. Ethical compromises by the elite who wield the powers of the state, and those who fatten themselves in an ever-more exploitative economic sphere can be expected to thrive in an environment marked by such a permissive attitude, of weakened laws, and of weakened law enforcement machinery and attitudes.”
The court is aware of the limitation within which it is working. However, “the continued involvement of this court in these matters, in a broad oversight capacity, is necessary for upholding the rule of law, and achievement of constitutional values. But it would be impossible for this court to be involved in day to day investigations, or to constantly monitor each and every aspect of the investigation. The resources of this court are scarce, and it is overburdened with the task of rendering justice in well over a lakh of cases every year. Nevertheless, this court is bound to uphold the Constitution, and its own burdens, excessive as they already are, cannot become an excuse for it to not to perform that task”.
Despite these learned passages, the government repeatedly points out that the judiciary should should not cross the Laxman Rekha. A simple answer from a judge recently was: if Sita did not cross the line, Ravan would not have been killed.