Demonetisation: Is the Supreme Court poised to jump into the currency ban vortex?

In the past couple of days, the print and visual media have carried reports that the Supreme Court has called on the central government for details of the difficulties caused to the ‘common man’ and the measures to ameliorate them. This was in response to some PILs brought up before them. One would have normally expected the apex court to have summarily dismissed the PILs, mentioning that the action was squarely in the competence of the Executive, and there was nothing remotely unconstitutional in the demonetisation measure. Indeed, some reports had also mentioned a comment from the bench in the apex court referring to ‘disturbances’ and ‘riots’. While the exact terminology and the context used by the bench were not immediately available, nor cited in full, it was a little surprising that such a reference apparently appears to have been made. [caption id=“attachment_3110194” align=“alignleft” width=“380”] The Supreme Court of India. AFP[/caption] One writes this article with trepidation. Most people in India have the highest possible regard for our apex court, and see it as the final custodian, arbiter and guardian of our Constitution. Countless times in the past, the apex court has stood up for the common man, and taken strong, often unpleasant stance against the Executive when the occasion demanded it. Among the three pillars of the Constitution, the popular perception is that legislature has completely failed to perform any meaningful substantive positive role in the governance of the country. Its sole claim to fame is that ‘sovereignty’ vests in this body. It has no achievement to talk about in the past seven decades. The Executive at the Centre and in the State, in popular perception, have a mixed record. While basic levels of governance have been assured by the Executive over time, the failures are palpable. Abysmal educational standards, unacceptable public health conditions, and a corrupt economic system, where arguably over 60 percent of the population is in near poverty, hand-to-mouth existence levels over 70 years of misgovernance are the net result of the Executive’s past performance. The political class has turned out in general to be purely interested in its own benefits, with very little interest in public affairs. They have suborned what was arguably one of the world’s best civil services to serve their immediate needs to the exclusion of the nation’s call for service. In this background, it can be argued that the judiciary had no option except to shine just by comparison; no doubt this is clearly true – in addition the higher judiciary in the country by and large has maintained some standards which are still highly appreciated by the thinking Indian. This does not mean that all is well with the judiciary. The judicial system is still unable to deliver justice to the common man – expensive, dilatory and delayed justice is denial of justice. The district level and lower criminal courts are seen to be as corrupt as the police and investigative machinery; many high courts do not have a savoury reputation (one is consciously mild in making this point – one should hear corporates and lawyers privately discussing how cases are to be fixed); each civil and revenue case would take decades to reach conclusion; a judicial arbitration process is usually destined to span decades — the criticism can go on. No major steps for reforms have been taken in the matter of dealing with the menace of interminable adjournments; rampant, dilatory interlocutory orders; harnessing of technology for recording evidence and speeding up the trial process; humane treatment to under-trials; and flagrant abuse of the system by rapacious lawyers. The popular perception is that the legal system is ‘elitist’. If you have the money or political clout, you can handle it à la a Salman Khan or a Lalu. How much of the above is true, and how much is exaggerated prejudice, each person would have a view. All that can be said is that the system needs very serious reforms. One has not seen major steps underway to address these aspects with any kind of sustained attack. Having said this, there is no doubt that the apex court still is dear in sentiment to most thinking Indians. Clarifying and elaborating the rights of the citizen under Article 19, 21 and others, consistently championing the position of the common man against the predatory attacks of a rapacious executive have been the hallmark of the Supreme Court’s standing posture. While many have often argued against the encroachment by the judiciary into the turf of the legislature and executive, this has always been to sustain the basic position of the citizen. Thus, for example, the periodical random pronouncements on pollution and environment, frequently staccato and often possibly ill-conceived without full comprehension or analysis of all relevant aspects, often based on arguments produced by competing counsel who may not represent the full interest of the common man – despite these shortcomings, in the face of paralysis of action by the executive, at least the issue is highlighted. Thus, for example, the total failure of the Delhi government and central government in addressing the Delhi air crisis is mitigated by the intervention by the Supreme Court, normally an issue which is totally in the domain of the executive. Such instances can be multiplied. The intervention in the administration of cricket, for example, is in light of abject failure of the Executive to address the glaring lapses in this field. Likewise, the issue of binding guidelines in postings and transfers of senior officers of the All India Services, normally which ought to be exclusively within the domain of the executive, was essential in the face of rampant misuse of such powers by the central and state governments. It is another matter that most state governments are in utter contempt of the Supreme Court’s orders in this regard. The Supreme Court’s intervention, even in matters fully in the domain of the Executive, are clearly essential when there is inaction by the Executive. The danger, of course, is that having ‘tasted blood’, the process will not stop. In matters purely in the province of the Executive, where the Executive consciously takes action (well or ill, it is a matter of opinion), it is important that there should be no judicial overreach. All aspects of a particular major issue may not be available in the course of a short discussion or hearing. The apex court does not have the machinery to embark on a total and meaningful appraisal of the losses and gains from a major policy step. The long term policy-making for the economy should be entirely in the province of the Executive. In the matter of the current demonetisation, it will be a dangerous precedent for the apex court to come in with their own approach or comments or observations or directions.