Conflict of another kind

The collegium stalemate has overshadowed the state's resistance to enforce orders

Governments swear by the Constitution, but they would try to sap and circumvent it whenever it stands in its way. On the other hand, judges take the words in the Constitution almost religiously. This leads to a conflict between the two arms of the state, which is not always as dramatic as the one played out these days by the Supreme Court collegium and the law ministry over appointment of judges.

However, this dissonance is also serious and has impact on the economy and social questions. The judges believe in Article 144 of the Constitution, which says “all authorities in the country shall act in aid of the Supreme Court”.  However, in many cases before the court, it finds that there are “more breaches than compliance” of its orders. As a result, Delhi traders are now fighting in the streets over unauthorised constructions, mineral-rich states like Goa and Odisha are reeling under the impact of illegalities. In the Food Security Act case, many states have not even formulated rules under the Act for its effective implementation. District grievance redressal officers have not been named. There are no vigilance committees, food commissions or social audit. The court had passed five long judgments in the past one year on the subject (Swaraj Abhiyan vs Union of India), but its orders have not been implemented in letter and spirit. 

There are worse cases of disobedience. In a recent judgment (National Campaign for Construction Labour), the court lamented that directions given from time to time from 2006 to implement the relevant laws have been “flouted with impunity”. It continued: “What is equally tragic is that multiple directions issued even by the central government have been disregarded by state governments.”

There was a whiff of scam in collecting and using the fund for the benefit of construction labour, though it was created under the court’s prodding. More than Rs 374 billion have been collected but only about Rs 95 billion used ostensibly for the objective. What is being done with the remaining about Rs 280 billion, the court wondered. The states have advisory committees but none of them has held a meeting for over a years: “It is an extremely sorry state of affairs that puts a Shakespearean tragedy to shame.”

There are hundreds of such orders referring to social welfare measures. Applications within writ petitions run into thousands, which the court is hardly able to handle. Every instance of state resistance spawns more applications and complaints from the affected parties. Orders of the “social justice” bench in the Supreme Court, dealing with such issues, would show that the states only play hide-and-seek with the court. The affidavits filed by the states are soaked in gobbledegook. Another way of stalling the orders is to file review petitions and clarification applications. The states can misinterpret the words in the judgment or change the rules and definitions to outwit the judges.

When there is such non-cooperation by the authorities who are supposed to implement the orders, there are few remedies available to the court. It has no enforcement arm; it cannot track the compliance of its orders and even does not have data on how many such orders have turned dead letters. The court can issue contempt of court notices but those orders are also mostly caught in the same maze as the original orders. Some judges have summoned chief secretaries of states to explain the non-compliance of orders. That has also not helped much and in fact earned criticism from bureaucracy. In some cases, the court has imposed fine on the states, but the burden falls on the tax-payers. The situation reminds one of the taunt of a former US President (Andrew Jackson) who said: “[Chief Justice] John Marshall has made his decision, now let him enforce it.”

The bureaucrats who do their bit to embarrass the judiciary might be emboldened by the running shadow battle playing out between the central government and the higher judiciary over the collegium system of selecting judges and the ‘memorandum of procedure’ on which neither could agree for the past three years. Vacancies and arrears are going up meanwhile and internal dissensions have now added to the perils facing the judiciary. A weak judiciary is the delight of both the government and bureaucracy but its consequence would be disastrous to the nation.