Charge Of Judicial Activism: The Executive Cannot Expect The Judiciary To Function As Its Political Tool

NEW DELHI: It has been two years since the BJP came to power. However, all we see are wild accusations against the opposition. Before any one allegation can be taken to its logical conclusion the government moves to confuse with another.

The plan seems to be to disrupt, distract and intimidate. This is clear from the unprecedented raid on a sitting Chief Minister’s office and the use of money power to overthrow elected Governments in Arunachal Pradesh and Uttarakhand.

The Government also back to its well rehearsed role in the opposition is going back to the bogey of corruption. Launching uninformed attacks on Opposition leaders in Augusta Westland, National Herald, secret land deals and Ishrat Jahan. The use of divisive politics also has remained a consistent theme from the question of beef ban to defining nationalism in the narrowest form imaginable.

However what is most disturbing is the Government’s attempt to manipulate public opinion against the Judiciary. The Centre seems to still be hurting from their failed attempt to politically appoint judges in view of the Supreme Court’s striking down of the 99th Constitutional Amendment proposing the NJAC. Terms like “tyranny of the unelected” in reference to the Supreme Court’s judgment on the NJAC issue was a direct attack on the independence of the Judiciary.

Now remarkably the Finance minister in view of the recent judgment by the Supreme Court Of India in ‘Swaraj Abhiyan vs Union of India’ has gone on to say that “Step by step, brick by brick, the edifice of India’s legislature is being destroyed.” So what does this judgment say to bring such criticism against the Apex Court?

The Judgment examined the contention that even though drought like conditions were prevalent as per the Legislative Act of “The Disaster Management Act, 2005”, the “Manual for Drought Management, 2009” and the “National Disaster Management Guidelines 2010” -- a drought was not being declared by States hence leaving those under distress without aid.

The Court on examination found that as per Government data Bihar, Gujarat and Haryana lag behind on accounts of all indicators of drought including the amount of rainfall, moisture adequacy index, normalized difference vegetation amongst etc. It was clear that several districts in the above mentioned states should immediately be declared as drought struck so that immediate relief can be provided.

Interestingly in ‘Swaraj Abhiyan’ the Apex court -- almost expecting to be faulted for judicial overreach -- states in clear terms: -

“..Declaration of drought is not a complicated affair but a manageable exercise and an appropriate conclusion can be scientifically drawn with the available data. Nevertheless, it is not a judicially manageable exercise and no judicially acceptable standards can be laid down for declaring or not declaring a drought..”

“..However, the judiciary can and must, in view of Article 21 of the Constitution, consider issuing appropriate directions should State Government or the Union of India fail to respond to a developing crisis or a crisis in the making. But there is a Lakshman rekha that must be drawn...”

The court then, moving onto scrutinizing the data provided by the various Governments, found the State of Haryana, Gujarat and Bihar in a dismal condition in their preparation to deal with the hazard of drought. It was clear that there was no adequate process to mitigate the risks of possible droughts, leading to the common man suffering. In fact the court found that :-

“The system followed by Gujarat clearly does not meet with the approval of the Manual or the Guidelines. As noticed above, drought was declared in 526 villages in Gujarat only on 1st April 2016 and in 468 villages thereafter. As per the Manual and the Guidelines this is clearly Too late for those in distress.”

Now on the issue where this government thinks that a ‘laksman rekha’ has been crossed...

The Court while studying “The Disaster Management Act, 2005” passed by the parliament found that section 47 of the Act provides for the setting up of a “National Disaster Mitigation Fund” (NDMF).

This had not been setup by the Central Government and is clearly important for prevention of possible natural disasters. The Court seeing the dismal condition of the union and states on dealing with possible drought situations asked the Government to fulfill its statutory duty and implement the NDMF in view of the millions who are affected by drought every year.

However, the view of the Central Government seems to be that as per section 46 of the Act, they have disbursed funds under the “National Disaster Response Fund” and so the order for setting up the NDMF (under section 47 and is a fund for a separate cause) is an attack on legislative and executive discretion!

Should the Courts look away from the thousands of people suffering in severe drought conditions? Also, it is understandable that the Centre currently does not have the budget for the NDMF but why can it not tell the Court so and seek further time rather than accuse the Court of Judicial overreach?

Similarly, in the GST Bill, the Congress party has suggested an independent dispute resolution authority headed by a Judge in case there arises any taxation dispute between the center and states. The Government sees this recommendation of dispute resolution on taxation as an attack on the Legislative power of imposing tax. However it must be remembered that the Constitution allows judicial review on issues of taxation.

The Constitution under Schedule 7 has demarcated the fields of legislation between the Union and State. However the question of repugnancy regarding levying of tax does arise between the parliament and the states. In such cases, the Supreme Court being the final arbiter of the Constitution has interpreted the constitutional provisions involved (e.g. Article 286, Article 298, Article 301 etc).

Similarly the courts have been approached by commercial entities and the Government regarding questions of law arising from the Central Sales Tax, 1956, The Central Excise Act 1944 and several state acts and the Courts have rightfully adjudicated on the various provisions levying tax. The Judiciary also has the power to strike down an unconstitutional levy of taxation, as seen as early in the Indian Express judgment. Also recently the Courts in the Vodafone Judgment struck down retrospective tax, which was hailed by the BJP.

Can it be said that a Judge resolving a dispute arising from the GST between the Centre and the states would be venturing into legislative power?

The Centre must not expect the Judiciary to function as per its political convenience. The Supreme Court has earlier adjudicated on issues of spectrum and coal allocation as well as interpreted powers of institutions like the CAG, CBI and CVC pronouncing several strongly worded decisions. These were often debated strongly by the Congress Government. However, never was an attempt made to undermine the judiciary. The current Government -- failing to get the executive in order -- now wants the Courts to look the other way.

(Abhik Chimni is an advocate).