BackAnarchy through kritarchy
The people of India and their representatives should explore ways of addressing judicial hyper-activism in the country
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Twitter has its uses. Trawling through the tweets of journalist Ashok Malik, I came across the word kritarchy. Apparently, it refers to rule of the state by judges. Unrestrained judicial activism, unmoored in sound principles, does a disservice to governance in the country and damages its economic growth prospects. It is time India wakes up to its dangers.
Recently, Bloomberg View noted that it was not Prime Minister Narendra Modi but the courts running the show in India. The author noted that the judges have doubled the tax on diesel vehicles entering Delhi, banned the traditional bullfight in Tamil Nadu and struck down an amendment that would change the way judges were appointed to the courts. The last one must be the most bizarre, for it violates the most basic principle of avoidance of conflict of interest.
The author forgot to mention that the Supreme Court has admitted a petition that would decide on whether menstruating women should be allowed to enter the Sabarimala Ayyappa shrine. The highest court of the land had also advised the Delhi Metro to reserve premium seats at five times the normal price for car users who would be affected by the odd-even plans of the Delhi government for road users. As noted by Surya Deva, an associate professor at the City University of Hong Kong’s law school, the Indian judiciary was acting like a legislature.
Last week, the Supreme Court admitted a petition that questioned the right of the government to sell its residual stake in Hindustan Zinc Ltd. It is the third time that the court is hearing a petition on Hindustan Zinc. In December 2012, a three-member bench headed by the Chief Justice of India dismissed a petition by a labour union against the sale of residual government stake in the company.
The owner of a property should have the right to dispose of a property at a price the owner is satisfied with. Workers have no right to stop the owner from transferring ownership. The owner may even have compelling reasons to sell at below the purchase price.
Most public sector units (PSUs) are better off sold, money realized and redeployed elsewhere more profitably and more usefully on development priorities. In the case of Hindustan Zinc, Sunil Jain notes in The Financial Express that Hindustan Zinc’s mining capacity had risen from 3.5 million tonnes (mt) then to 10.3 mt, sales had gone up from ₹ 1,470 crore in 2001-02 to ₹ 14,589 crore in 2014-15 and profits from ₹ 68 crore to ₹ 8,178 crore.
The company, workers and the government have benefited enormously from privatization. The judges should have dismissed the petition and complimented the government for a job well done and encourage it turn over many other moribund PSUs to the private sector for a similar turnaround.
Even if there is a case that the government should have realized a better price for its original stake sale in 2002, how are the judges better placed to decide on it 14 years later? These decisions involve a substantial role for subjective judgement, and bad intentions cannot be attributed carelessly. Petitions alleging bad intentions are both frivolous and mischievous. The court should have severely reprimanded the petitioners and their lawyers for wasting the time of the courts and for hurting national interest. Instead, the court has admitted a petition on a matter that has been dealt with previously by two other benches of the Supreme Court.
Urbanomics, a public policy blog, noted in a post on 14 January that Article 136 of the Constitution empowered the Supreme Court to “grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India". Its sweeping nature, institutionalized in the form of special leave petitions (SLP), meant it had to be exercised in cases involving a substantial question of law or a gross miscarriage of justice. But, as an article in this newspaper in September 2015 showed, this extraordinary jurisdiction appeared to have been reduced to a regular appellate one. As many as 34,500 SLPs were filed in 2014, of which 43% were admitted, in a Supreme Court with a case load of more than 60,000. The Supreme Court has refused to issue norms and guidelines for the acceptance of SLP, leaving the system vulnerable to arbitrary decisions on the admission and rejection of SLP.
Consider the case of the Competition Commission of India (CCI), the antitrust regulator, established in 2009. Again, Mint published an article in December that 97% of the penalty imposed by the regulator since inception had been stayed by the courts or appellate authorities. The orders issued by CCI cannot be so bad that 97% of them were not only contested but continued to remain under litigation.
It should also be noted that the public is at a loss to understand the rationale for the courts to prioritize the hearing of certain petitions when so many cases are pending for years, if not decades. The people of India and their representatives should explore ways of addressing judicial hyper-activism in the country. Otherwise, kritarchy will over time pave the way for anarchy.
V. Anantha Nageswaran is an independent financial markets consultant based in Singapore.
Comments are welcome at baretalk@livemint.com. To read V. Anantha Nageswaran’s previous columns, go to www.livemint.com/baretalk
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