Tuesday, November 07, 2006

Delhi's Sealing Drive - Relations between constitutional bodies

The country has just avoided falling into a major crisis. The sealing issue in Delhi, even though localized to the city, had the potential to escalate into a major constitutional crisis. But thankfully, cooler heads prevailed.

For a few months now, the Supreme Court has been ruling against the various illegally constructed commercial establishments that are spread through the breadth and width of the city. Some of these establishments have been there for a number of years, and have been paying tax to the city and unofficial money to officials at various levels. They employ a large number of people and pay a large amount to the city as taxes, and more importantly, contribute to the coffers of political parties across the spectrum.

Various resident welfare establishments have filed cases in the courts against these establishments, claiming that local municipal authorities (who should have prevented these structures from coming up) have turned a blind eye against the various violations of zoning and building clauses that have taken place. These establishments encroach on public land, cause severe traffic and parking problems, and promote a general sense of insecurity for residential areas because of the large number of visitors.

For the past few months, the courts have ordered these structures to be sealed, and the Government, fearing that the traders wil turn against them in terms of funding and elections, has tried various measures to defeat the court verdict. Each time, they go to court, they claim that they will support the verdicts, then they pass measures, ordinances, notifications, etc to try to bypass the court verdict. And such measures have the support of parties across the spectrum due to their self-interest.

The government will however not try to build more demarcated and specific commercial centers where all these commercial establishments can be re-settled. That will take too long, and may not pay off politically. Seeing that the Government is on the back foot, the traders threaten law and order problems, and the Government snatches this excuse to plead that they cannot do anything.

The irony of it all, the Government pleads that it will not be able to maintain law and order, and requests the court to postpone its judgment. If the Government of the day, with its legions of police, home guards, para-military and other such agencies is not able to prevent hoodlums from taking over city roads, then it is a sad state for the country to be in.

However, with a final order from the Supreme Court, the Government reluctantly agreed to implement its orders. It did so with bad grace. The problem is, this is not the first time that this has happened. Earlier, the courts in India did not directly take on the executive head-on. They would respect the Cabinet and the President. It is a level of how low the respect of the executive has fallen, that courts are being seen as the saviour for things that either the Governments should be doing or has done wrong. Be it declaration of president's rule or a vote of confidence or the validity of laws, the courts are becoming much more activist. For example, the cleaning of Delhi through introduction of CNG or removal of polluting industries are activities that should have been done by the executive, but given the self-interest of the governing bodies, it was left for the court to order such measures in a wider interpretation of the Right to Life.

There are similar cases where the Government is going to come into a direct confrontation with the court. The reservation issue is one such issue where there promises to be a direct collision. Political parties across the spectrum jump onto the issue of reservation to indulge their lobbies, and are running head-on into a judgement of the court. At some point, this collision could be very painful for the institutions that the country has worked so hard to evolve.

In India's constitution structure, the courts are in a defensive position. They interpret the constitution to verify whether laws are valid or not. It has been argued that the will of the people expressed through their elected representatives is supreme, and the court should not get in the way.

This argument is defective, the supreme authority of the country is the constitution of India. It is precisely to prevent situations, where the rule of the majority can turn tyrannical to the minority opinion, that exists the protective structure of the courts. It is their job to ensure that laws are valid. In cases of disputes such as the sealing case or reservation case, where there are widely different opinions, there is a need to have a body to decide on the merits of the case. This is the domain of the courts, and in order to keep the country as a free country, it is necessary that judgments of the court are respected and enforced. If we have ministers going around claiming that parliament is supreme and the courts have no right to interfere, we go down a very slippery slope, which led us last time to the emergency.

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posted by Ashish Agarwal @ 11:11 AM