Who's running India? The UPA govt or the Supreme Court?
The SC order in the 2G scam has tied policy in knots. It's time for the government to reclaim its right to govern and for the courts to pull back.
The UPA government’s inability to govern is helping compound the mess it is in.
The government’s failure to rein in Andimuthu Raja earned it a stinging 2G verdict, where the Supreme Court held that auctions are the best way to deal with the sale of scarce natural resources. This judgment handcuffs the government to following only one particular course of action when it should be using its head to decide what is best for the country.
But the government has still not learnt its lesson. It is now set to approach the Supreme Court again to ask how it should go about its job. According to a report by NDTV, the government accepts the 2G verdict cancelling 122 telecom licences. But it wants to make a presidential reference under Article 143 of the Constitution asking the court how resources other than spectrum should be distributed to private parties.
Is this the government’s job or the court’s?
On Monday, the indefatigable Prashant Bhushan of the Centre for Public Interest Litigation (CPIL), filed yet another petition asking the top court to cancel the clearance given to Vedanta Resources to buy Cairn Energy’s stake in Cairn India. Bhushan believes that ONGC, a 30 percent partner in Cairn’s Rajasthan oil wells, effectively kissed goodbye to Rs 1,00,000 crore of resources.
Without prejudging whether Bhushan is right in his assertions and what the court will rule, the question again is this: did the government deal with the issue transparently and fairly, or did it behave like it was trying to favour someone? This is the issue, not whether Vedanta got access to a lot of oil resources.
On Monday, the Supreme Court, in yet another intervention, directed the government to set up a panel to examine a plan to inter-link various rivers to fight drought.
What’s going on? Who is running the country? The government or the Supreme Court?
Why should the Supreme Court be telling the government to inter-link rivers or decide how airwaves should be sold? It is one thing to emphasise fairplay and transparency — which the court is duty-bound to uphold as part of its constitutional role — but should it be getting into advising the government on what policy it should adopt?
To be fair to the court, it is only stepping in as the government is failing to do its job. The presidential reference is a case in point. The Supreme Court verdict in the 2G case may have muddied the waters by claiming that spectrum and other scarce resources should always be auctioned, but the essential part of the verdict is that government cannot act arbitrarily to benefit some players. It must ensure transparency and a level field for all.
It is actually up to the government to decide how spectrum should be priced, and whether it should be auctioned. If it believes spectrum, or coal, or any resource, should be given away free, it should do so, if necessary by enacting a law to this effect and by explaining why it is doing so. It is not the Supreme Court’s business to tell the government what to do. It gets a look-in only if there is a miscarriage of justice, lack of fairplay or transparency in the whole process.
In fact, thanks to the government’s pusillanimity in matters of governance, the court is going far beyond its remit by giving even gratuitous advice and making observations that are totally uncalled for.
For example, in the 2G case, the court went around giving the PM a clean chit and laid the blame for Raja’s misdemeanours on officials in the PMO.
In what can only be called flawed logic in absolving the PM of any sin in the 2G licensing scam, it said: “Unfortunately, those who were expected to give proper advice to Respondent No 1 (the PM) and place the full facts and legal position before him failed to do so. We have no doubt that if Respondent No 1 had been apprised of the true factual and legal position regarding the representation made by the appellant (Subramanian Swamy), he would surely have taken appropriate decision and would not have allowed the matter to linger for a period of more than one year.”
As Pratap Bhanu Mehta pointed out in The Indian Express last month, “How could anyone determine what someone else would without a doubt have done in the future? A supposition about character, not a consideration of official responsibility, is the ground for exoneration.”
But this is the kind of stuff the Supreme Court has been dishing out in some cases, thanks to gross abdication of responsibilities by the government.
The Vodafone case illustrates the same point. In January, the Supreme Court decided in favour of Vodafone in a case involving taxation of the overseas purchase of Hutchison’s stake in its Indian operations. The government is challenging the verdict, when what it should really be doing is change the law.
The court essentially told the government that if it wants to tax underlying Indian assets in an overseas transaction, it should make the law explicit so that there is no confusion about it. This is what the government needs to do — and may still do in the budget.
Challenging the verdict is fine, but the more important job is to legislate. What the government is doing instead is to keep going to court like a supplicant even as it gets slapped around for bad governance.
Isn’t it time the government started governing?
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