The judiciary and growth

Has the higher judiciary in India contributed to the loss of faith in the India Growth Story? The question has been on many lips for a while. But it can no longer be suppressed with Finance Minister P. Chidambaram flagging it, albeit obliquely, by appealing to parliamentarians to “assert the authority” of the legislature in enacting laws and framing policies. This has been undermined far too often recently, with courts usurping the powers of the legislature and the executive. There is no denying that Public Interest Litigation has been a powerful tool for social justice and protection of fundamental rights, not to mention as a check against government arbitrariness. But it is just as true that judicial hyper-activism has contributed to blurring the lines separating powers in our democracy. Is it up to the Supreme Court to decide that sun film should be banned on all four-wheelers? Is it the Gujarat High Court’s remit to rule that all four-wheelers registered in the State convert to natural gas to improve air quality?

There is a very thin line between judicial activism and judicial overreach, something the courts have not always recognised. Sometimes, this has been at great cost to the economy. Take, for instance, the Supreme Court’s blanket ban on iron ore mining in Goa and Karnataka, which have effectively killed a business that generated export earnings of $7 billion in 2009-10, besides starving local steel plants of raw material. True, this judgment, like many others, was a result of the gross failure of the executive to uphold the law of the land; the scale of illegal mining in Karnataka and Goa took place with the active connivance of State Government officials. In the 2G spectrum case, the scam lay in the framing of a ‘first-come-first-served’ policy for allocation of airwaves designed to favour certain operators. But in cancelling the licences and ordering the auctioning of all released spectrum, the Supreme Court, as IT Minister Kapil Sibal recently noted, had contributed to a massive “de-growth” in the once flourishing sector. Similarly, why must the Supreme Court decide whether field trials of genetically modified crops should be allowed or not?

Chidambaram’s statement seeking support from lawmakers to resolve the “impasse” resulting from court rulings on mining activity should not be perceived as confrontational. At the same time, it is important to recognise that the “impasse” wouldn’t have arisen without the collusion between mine-lords and corrupt ministers/officials. The appropriate judicial response would have been to punish the wrongdoers rather than render lakhs of people dependent on mining activity jobless. The Government must take the lead and approach the apex court with a concrete plan for resuming mining operations with safeguards against any illegal or environmentally hazardous extraction. There can be no better time than now to frame transparent rules for allocating mining leases and mechanisms for tracking the quantity of ore being extracted. If these are in place, they would be the best result of the court-ordered clampdowns.

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