By Rohit Bansal and Manoj Kumar, IANS,
It’s a swift message that must delight global investors into the India story. The headline is that the nation’s apex court isn’t here to arrogate the constitutional functioning of the executive. The headline’s also that India’s delicate constitutional scheme of power-sharing between the executive branch and the judiciary is far from broken, and we’re miles away from being a free-for-all that India-bashers have been alleging.
Instead, in the verdict Thursday, the courts have emerged as a model of restraint, willing to step back and happy to let the government of the day take decisions for which it has been put in that place by the people of India. In a word, the judges have reminded us that the executive is just as much part of the Constitution as constitutional bodies such as the office of the Comptroller and Auditor General (CAG), often confused now and allowed to pass off with some superior status than the government of the day!
Incidentally, the French word “comptroller” translates into an accounting function, not “controller” as the Indian-ism seems to have implanted itself in the public discourse.
The verdict also punctures naysayers who have been arguing that India’s courts want to run the country, or, much worse, are thrilled to embarrass and put the government of the day on the back foot either directly or via the prism of official auditors. Indeed, there have been specific instances where a weak and vacillating executive has been running to the courts voluntarily, hoping to seek judicial backing to decisions that really had no business landing there.
The judges seem to tell us, and governments of the day, that they have seen through this ploy! “Go ahead and work fearlessly for public good,” they seem to say. “Don’t expect as to vacuum-clean.” Having signalled all that, the apex court has stopped well short of letting the executive run amok.
Instead, the message is about right distancing. Translated into what lies ahead, the judges have assured the citizen that all courts in the country will remain the watchdog of the constitutional scheme and ensure that while there’s enough space for a duly-elected government of the people trying to serve the common good. But the judges are never too far way!
Read between the lines, if the executive flunks the fair-play criteria, and should it try and mask arbitrariness with a divine right reminiscent of the medieval days, judicial intervention will be swift and decisive. So, the message isn’t without in-built controls. The executive has a job to do, including making choices, that aren’t as obvious and lazy as auctioning the nation’s resources to the highest bidders.
That’s one message our increasingly angry social media folks on social newtorking sites like twitter need to understand. For example, had the earlier generation of telecom licenses gone only to highest bidders, the rates the winners would have charged us and you would have remained so prohibitive that today’s 900 million mobile connections wouldn’t have materialized.
Would we, angry and ever suspicious that our government sold the family silver too cheap, have preferred if the poor fisherman in Goa never had a mobile phone? Would we have liked that Kanta bai at home wasn’t able to check up her child’s safety three times a day, and we’d much have rather a fat revenue stream sitting inside the consolidated fund of India?
Probably not, right! So, here’s a huge and enabling message for economic reforms. For thank God for the Supreme Court!
(The writers are with Hammurabi and Solomon Consulting, a leading business, legal and regulatory advisory. Email: [email protected])