Define duties

The direction given by the Gujarat High Court to the Vadodara municipality to demolish all encroachments, and the stay granted on its operation by the Supreme Court as a result of the communal rioting that followed the demolition of a dargah, have once again led to rumblings about encroachment (sic!) by judges on what is essentially executive terrain. Some people think it is not for judges to do things, but merely to adjudicate in disputes and deliver justice as best as they can by applying the law as it stands. Others ask whether the cause of justice is not served if the judiciary intervenes to get the executive to do what it is supposed to do (but doesn't, for political reasons or because of sheer incompetence). Both sides have a point, which means sometimes one will be right and sometimes the other.

The larger problem is that such a debate should arise at all. Ordinarily, there should have been no reason for the Supreme Court to invent, so to speak, the doctrine of "continuing" mandamus, which vests the court with the right not only to order government agencies to "do their duty", but also to monitor whether they are doing it. Also, the provisions of original jurisdiction in the Constitution enable the courts to function in ways that are intended to serve the public cause, a cause which is not always served by governments for one reason or another. Indeed, given the possibility that executive action may upset a section of citizens/voters, governments often prefer it when the courts force their hand""because they are then able to claim helplessness. This was certainly the case when it came to cleaning up Delhi's air; the Supreme Court intervened effectively and monitored progress, which gave the Delhi administration judicial cover to do (at least partially) what needed to be done. Not surprisingly, then, court orders are increasingly seen as the only way to get governments to do their duty""and the Narmada rehabilitation issue underscores the point.

Having acquired such wide popular endorsement, however, the question arises as to when and how this additional responsibility is to be used""for it can be no one's position that the courts should routinely take over the executive function. The "when" question can be said to be pre-decided inasmuch as it depends on the courts receiving an application for intervention, but even here there may be a case for judicious restraint. Therefore, the conditions that result in such an application being admitted or rejected may need some transparency""and less discretion than appears to operate at present. As for the "how" question, we come back to the "continuing" mandamus issue: given the way government agencies ignore court orders, is it enough for the court to issue an order and consider its work done? This is more a comment on governance failures that stare the country in the face, but looking to the judiciary to solve the problem invites fresh questions.

The fear has also been expressed that there might result a confrontation with the executive and the legislature. The latter almost happened in the Jharkhand assembly affair. But the chances of such a confrontation with the former are remote, especially when the executive knows that it does not really have public opinion on its side. That leaves a very small area of tension, which can be found in all countries. On balance, the onus of good behaviour is more on the executive than the courts, but the latter need to be careful as well.