Judicial overreach, of which there have been many recent examples occasioned by various court judgments, has been justified by the argument that if the government fails to act the court is perforce compelled to step in. I had earlier always rejected this argument. Its flawed logic surfaced after the Supreme Court (SC) decided to monitor the CBI investigation into the Jain Hawala Case instead of simply ruling that the investigation was flawed and leave it to parliament or government to rectify that fact. In the event the result of the SC initiative was disastrous. It succeeded in derailing justice, allowing guilty politicians to evade punishment, and brought the judiciary itself into as much controversy and disrepute as the political class.
After that the government has increasingly evaded responsibility and the SC has increasingly become interventionist in matters executive. This new role of the SC as virtually a shadow executive has left its impact on even the quality of the Court’s judgments. Some judgments appear to the layman quite bizarre.
For example, when former Army Chief General VK Singh petitioned the SC on the issue of his real date of birth, the Court instead of deciding which of the two dates of birth was legally valid, or of refusing to accept the petition by ruling that it was not for the Court to decide the issue, decided that both dates were valid – one to be used for army records and the other for everything else! This kind of judgment makes no sense at all to a layman devoid of legal expertise.
The SC’s interventionist role is not abating but its field of activity seems to be expanding. The latest instance is the Court’s ruling on the Indian Premier League (IPL) scandal related to cricket match fixing. One would not like to reiterate all the earlier observations on this scandal made in these columns wherein many political stalwarts of national stature, including one officially designated prime ministerial candidate, as members of the BCCI governing council maintained a deafening silence while the scandal involving corruption, match fixing and breach of national security through betting syndicates controlled by Dawood Ibrahim continued to escalate. Given the inaction of the BCCI Council members was it not inevitable that the SC would intervene in cricket too as it did in politics?
That is exactly what seems to have happened. The SC has given a virtual ultimatum to the BCCI to remove its President failing which the Court itself would remove him. So far so good! But then the SC has gone on to advise the BCCI to appoint Mr. Sunil Gawaskar as the interim BCCI President. Is it the Court’s business to take such decisions?
Perhaps legal experts can enlighten ignorant laymen on this question. If this is the right approach it may greatly simplify problems related to improving governance. All that would be needed is for the SC to oversee and rectify decisions taken in each and every cabinet meeting. Indeed, one might even consider whether a cabinet is at all needed. Why cannot the SC conduct its own cabinet meetings?