Finance minister Arun Jaitley’s outburst against the judiciary merits far closer attention and sober scrutiny than it has received so far.
This article was first published by Scroll on 10th June, 2016
On May 11, Union Finance Minister Arun Jaitley launched on the floor of Parliament a bitter and frontal attack on India’s judiciary. In words now famous, he claimed: “Step by step, brick by brick, the edifice of India’s legislature is being destroyed.”
Some newspapers reported that his remarks received rare bipartisan support, by a thumping of desks from both the treasury and Opposition benches. However, his arguments – that constructed a voluble and deeply damaging criticism of India’s higher judiciary – merit far closer attention and sober scrutiny than they have received so far. These have crucial bearing on the nature of India’s democracy, and the balance of powers required to ensure not just legal but also social and economic justice.
At the heart of the finance minister’s arguments is that the legislature represents the will of the people. The judiciary, on the other hand, is unelected. It still is stepping, illegitimately, deeper and deeper into the rightful domain of the executive.
Jaitley decries what he sees as the “encroachment of legislative and executive authority by India’s judiciary”, and suggests that “probably financial power and budget making is the last power” left with the legislature, and that this too is being usurped illegitimately by the judiciary.
The immediate source of his ire was the directions of a bench of the Supreme Court comprising Justices Madan B Lokur and NV Ramana. These judges issued far-reaching orders in a public interest writ petition filed by Swaraj Abhiyan, a political organisation that sought court directions to the Union and state governments in 11 states.
An estimated third to half of the entire rural population of India resides in these states, and are battling one of the gravest droughts in recent times.
The order that angered the finance minister was one directing the Union government to establish a National Disaster Mitigation Fund within three months of the order. “The appropriation bill is being passed,” Jaitley declared. “Now outside this appropriation bill, we are being told to create this fund. How will I do that? India’s budget-making is being subject to judicial review.”
‘Do your job’
Let us look at this specific instance more closely. It was Parliament (and not the judiciary) that passed the Disaster Management Act, 2005. Section 47 of this Act mandates the central government to establish National Disaster Mitigation Fund for projects exclusively for the purpose of disaster mitigation.
Ten years have passed since the law was passed, yet the Supreme Court finds that not only has this fund not been created, but also a National Plan required by Section 11 of the Act relating to risk assessment, risk management and crisis management in respect to a disaster, not been made.
The court was surely not unreasonable when it stated: “We can appreciate that the formulation of a National Plan will take some time but surely ten years is far too long for such an exercise”.
The court observed that in the absence of both the Fund and Plan, many steps that governments could have taken to mitigate and manage the drought were not taken, and therefore directed that the central government complies with its obligations under the law within a short period.
The drought crisis
In this same case, the Supreme Court passed a number of other directions – searching, thoughtful and comprehensive – to help address the massive drought across large parts of the country, affecting millions of very impoverished people, more effectively.
This included the release, by the Union government, of timely and adequate grants to the respective state governments to enable them to create adequate numbers of persons-days of wage work for persons combatting drought under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005. Again, this order only directs the central government to fulfil its obligations as required by the law.
The court also regretted that several states had not yet rolled out the National Food Security Act, 2013, although the law obliged them to do this latest by June, 2014. It directed the immediate and full roll-out of the law.
It is important to note, first, that all these orders do have budgetary implications, but they are fully in conformity with the obligations of the executive as mandated by the legislature, by a series of rights-based laws.
What is more, I have recently travelled through drought-affected regions in Bundelkhand, and also heard testimonies from hundreds of drought-affected persons, and I affirm that the directions of the Supreme Court in this matter were pertinent, compassionate and timely.
The court succeeded in doing this by mainly requiring the executive to diligently comply with the laws of the land. For instance, it is around March that the desperate need for wage work sets in after drought, and this stretches through the summer months, right up to the next harvest.
In March, state governments should have geared themselves to generate hundreds and thousands of person-days of work under their legal obligations under the National Rural Employment Guarantee Act. If they had done so, they would have prevented massive distress migration.
An unconscionable failure
But states by and large failed in this basic duty to their people, because the Union government had unconscionably delayed, by several months, the release of funds for the programme.
Millions of people were therefore forced to flee their villages in distress, seeking work in distant cities with their children in tow, causing immense and avoidable human suffering. It was only the nudging by the court that led to belated releases of the grants to the states, and it is because the court intervened, that state governments have been enabled to start the public works for the people who are still left in the villages.
Similarly, the full roll-out of the Food Security Act would have ensured for every vulnerable household a minimum calorie guarantee, which would mitigate hunger and starvation.
Because of an early roll-out of the Food Security Act and a relatively better functioning Public Distribution System, I found that the Bundelkhand districts of Madhya Pradesh had less visible hunger than the Bundelkhand districts of adjoining Uttar Pradesh.
In Uttar Pradesh, the Food Security Act was not implemented, the Public Distribution System remained in disarray, and I found children forced to eat roti made from wild leaves to dull their hunger.
The point to note is firstly that the Supreme Court, in most of these orders, is only requiring the central and state governments to comply with its obligations as established under the law passed by the legislature.
In what I regard to be a historic set of rulings for millions of people who were battling drought neglected by the central and state governments, the court legitimately requires the executive to act effectively, in accordance with the law, and to the extent it does, it is contributing vital relief and sometimes life-support to very vulnerable populations.
But the court has not restricted itself only to matters strictly prescribed by the law.
Take for instance its order that because many states had still not ensured that all eligible persons had ration cards under the Food Security Act, and that therefore many vulnerable people were in danger of being denied the life-support of subsidised grain, this grain should be distributed for the duration of the drought to all persons who seek it, even if they do not possess ration cards.
Executive vs judiciary
It is true that the law does not envisage this, and this order will have additional budgetary implications. But I feel that the court in this order displayed both urgency and compassion, nudging the Union government to open its purse-strings to assist persons battling hunger during the trying months of the drought. (It is another matter that I hear that the Union government has asked states to comply with this order by buying grain at the prices that the Centre bought grain from farmers. This effectively shifts a huge financial burden to the states, to levels well beyond their capacities, and thereby effectively neutralises and negates the order of the court to spend the extra resources required to prevent people dying from hunger).
The question that then arises is whether such court orders, that have budgetary implications, and are not in pursuit of laws, violate the discretion of the executive.
If one accepts the position of the finance minister that budget-making is the sole prerogative of the legislature and executive, then it is possible to argue that this is indeed an encroachment.
This view, held also by Jaitley, was the dominant accepted position during the last century, which is why though civil and political rights such as protection of life, liberty and free speech could be enforced through courts of law in democracies, this was not the case with social and economic rights such as the right to food, healthcare, education and housing.
The right to life
India’s Constitution also follows this framework by placing duties of the government that entail budgetary implications in the Directive Principles, which are moral but not legal claims to governments.
In effect, this meant that if my brother dies after torture in a police station, I can certainly hold government officials legally accountable for his death. But if my daughter dies of hunger and sickness because of a corrupt ration shop in my village, an infant-feeding centre that is closed, a hand pump that has not been repaired, and a health-centre without staff expertise or medicines, I cannot hold any public official legally responsible for her death.
This view, however, began to change with the turn of the century, with India’s courts and legislatures at the forefront of this change globally. The Supreme Court of India held that since Article 21 of the Constitution guarantees the right to life, it implicitly guarantees also the right to all that makes life with dignity possible, including food, water and healthcare. India’s legislatures passed a series of laws guaranteeing as legal rights education, wage work and food.
By assenting to these laws, India’s Parliament has already settled the questions that Jaitley now raises.
By passing a statute that every rural household has the right to 100 days of wage work on demand, Parliament mandates that the executive provisions adequately for this in its budget. Likewise, by creating a constitutional right to free and compulsory education for all children between six and 14 years, Parliament requires that the executive must lawfully provision sufficient resources for this to become a reality. By mandating subsidised food grains for two-thirds of the population, or universal maternity benefits, or school meals, it directs the executive to set aside sufficient resources for all of these. It no longer is a question of budgetary discretion.
When the courts require the executive to comply with these laws of Parliament, or indeed to uphold the right of every person to life with dignity, the courts are not guilty of any overreach.
On the contrary, it is the executive that is guilty of dismantling the edifice of the legislature, brick by brick, step by step, when it ignores these laws of Parliament, and continues to under-fund public provisioning of rural wage-work, school education, subsidised food, school meals, infant feeding, and maternity benefits, all of which are legal obligations created by laws passed by India’s Parliament. The shoe, I am afraid, is entirely on the other foot.