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Judicial Overreach

By Anil Dharker

08th May 2017

For the first time ever, a river has been recognised as a living entity with the same legal rights as a human being. Last month,Te Awa Tupua, New Zealand`s third largest river, and long revered as an ancestor by the local Maori tribe, was given this status. A week later, our own Ganga and Yamuna were given the same recognition. Now here`s a crucial difference: the New Zealand decision was taken by their government, ours by the Uttarakhand High Court. That one example neatly encapsulates Judicial Overreach, two words that now inevitably go together.

More often than not, the judiciary`s activism is for a noble cause, and what can be more admirable than cleaning up our most sacred river? However, one of Narendra Modi’s first actions on becoming PM was to set up a ministry to clean up the Ganga.  Presumably the ministry has drawn up an action plan and work of ‘Ganga rejuvenation’ (as the ministry is called), is in progress. But cleaning up is not going to happen in a hurry: what flows into the river is 1.5 billion litres of untreated sewage and 500 million litres of industrial waste per day. Does the Uttarakhand High Court`s judicial fiat (for that`s what it is) override the ministry`s plans? The court even appointed three ‘legal custodians’ for the newly-anointed living entity and decreed that a Management Board be set up in three months.

As a nation, we have been faced with this dilemma for the last few decades: the Executive (central and state governments, official bodies etc) either do not act, or do so slowly, or sometimes wrongfully, often in vital areas. When that happens, we turn to the courts for redressal. This state of affairs became more pronounced during the years of coalition governments, when the system was either paralysed or abused. What began then as necessary judicial intervention, turned into occasional judicial activism, which in turn became unrestrained judicial overreach.

We get examples of this every day. The most recent one is the Supreme Court ban on liquor outlets (vends, bars, restaurants and hotels) near national and state highways. There are some astonishing figures which might justify the court`s action: for example, on a stretch of one km of the national highway passing through Mahe in Puducherry, there are as many as 64 liquor outlets, which means one every 15 metres. Similarly, on a stretch of less than 300 km from Panipat (Haryana) to Jalandhar (Punjab), there are 185 vends. To say this is excessive is an understatement. However, these are legal establishments approved by state governments. You could argue that this is faulty town-planning, but it is within the domain of town-planning. If there is no illegality,why do the courts step in? The Punjab government alone stands to lose Rs 1000 crore per year for licences etc. How is that to be made up? What about the owners of these licensed and legal establishments? Who will compensate them? And is the court going to wave a magic wand to generate new jobs for all the workers who have suddenly been made redundant? An immediate and more effective way of reducing accidents would be the presence of roving police with breathalyser sets outside bars and restaurants. In any case, there are serious doubts about how many accidents are caused by drunk driving as opposed to,say bad driving, drowsiness and other causes.

Of a similar arbitrary nature was the Supreme Court`s sudden ban on diesel cars above 2000 cc in Delhi and NCR region some months ago.Car manufacturers were badly hit; in fact, Toyota put all its India plans on hold – after all, anyone setting up shop in a country studies its industrial policy.How can it take into consideration the judiciary`s whimsical and, in effect, retrospective decisions?

Judicial overreach is now everywhere, some of it in frivolous matters, some of it serious. In the latter category are these cases – early last year the Supreme Court appointed the Lokayukta of Uttar Pradesh, whereas it was the Governor`s prerogative to do so in consultation with the Chief Justice of the Allahabad High Court and the Leader of the Opposition. Then in May 2016, in order to resolve the political instability in Uttarkhand, the court ordered a floor test to establish majority in the assembly under its supervision! A few days later, the Supreme Court ‘revoked’ President`s Rule in the state for a couple of hours to enable the floor test to be held. Surely,President`s Rule, as the term suggests, can be imposed or revoked only by the President of India?

The ‘frivolous’ cases, unfortunately, are far too numerous. The Supreme Court`s taking over the running of cricket in India has led to such absurdities as contained in this news report: ‘SC allows BCCI to spend Rs 1.33 crore for organising the two remaining Test matches between India and England.. A bench led by Chief Justice T S Thakur also allowed BCCI to incur expenditure of up to Rs 25 lakh each for the three one-day international s and three T-20 matches against the English team.” CJI as CFO?

Here are some more: ‘SC bars firecrackers in NCR’, ‘Discipline errant auto-drivers, HC tells government’, ‘HC asks ministers to take personal interest in malnutrition fight’, ‘HC allows school to hike fees’, ‘HC to hear plan on penguin viewing’, ‘Apex court refuses to lift ban on glass-coated manja for flying kites’.

Judicial overreach reached its nadir – because there was no wrong being righted here, no illegality being corrected – with the ruling that the national anthem should be played in all cinema halls and everyone must stand to instill a sense of ‘constitutional patriotism’ (whatever that means).

Chief Justices of the Supreme Court and High Court come and go, but judicial overreach goes on forever, and seems to extend itself farther and farther each day into areas where no questions of law are involved. This is so in a system where the backlog of cases has reached such numbers that it can never be cleared. Instead of dealing with that vexed problem in the best possible way, our benches seem to seek new areas in which to show judicial valour.

This article first appeared in Sunday Times of India.