On Thursday, a five-judge constitution bench headed by Chief Justice S.H. Kapadia delivered a seminal opinion in the famous presidential reference on a 2 February verdict of the apex court in the second generation, or 2G, radio spectrum case that led to the cancellation of 122 licences; an outstanding comment indeed.
With it, Kapadia sealed his legacy (Friday being his last day at office), developed around a sharp legal brain and laced with sufficient pragmatism that recognized the difficult circumstances being charted by India as it transitions to a rules-based regime.
Lots has been written about the apex court’s opinion, yet it may be worth dwelling upon, especially since most of the focus has been on the Supreme Court’s decision to reverse its earlier order that had said all natural resources (telecom spectrum, natural gas and so on) should be allotted for exploitation to companies only through auctions.
Yes, indeed the court did opine this. But it said much more significant things, both implicitly and explicitly, that have an enormous bearing upon the fine balance that needs to be in play between two major democratic institutions—the judiciary and the executive arm of the government; it reiterated the specific role of the judiciary (to rule on violations) and the executive (to define policy)—key cornerstones of a rules-based regime.
But there is a good chance that this interpretation would be overlooked. Not just because a bulk of the attention has focused on the issue of auction, albeit a very important observation. Instead, if one goes by the initial reaction of the senior leaders of the Congress-led United Progressive Alliance (UPA) exchanging virtual high-fives, there is a clear suggestion that once again they are missing the message, or choosing not to see it.
The government has interpreted the opinion of the apex court as an endorsement of its policy actions and, hence, valuable political ammunition. An understandably defensive reaction from a government that has been reeling from a string of back-to-back controversies associated with alleged corruption for most of the last three years and, hence, at the receiving end of adverse comments from the judiciary as well as its trenchant critics in the political opposition.
Importantly, the court has not just undone an overreach of another two-judge bench; an action reflective of the pragmatism that the apex court has exhibited under Kapadia. For the record, the court set aside the ruling of the two-judge bench that auction was the only means to allocate natural resources. But in doing so, it noted, very importantly, that the power to decide the mode of alienating the resource was unequivocally that of the executive—implying that it had been an instance of implicit overreach by the apex court in appropriating of executive powers by laying down the process.
This is indeed significant. Because, what has been happening for most of the last two years is that government policy had been brought under the judicial lens because it got linked to a series of alleged scams. A politically vulnerable government reacted predictably. It became more defensive about its policy action even as the political opposition got shriller. Not surprisingly, it led to, on occasion, the ceding of executive functions to the judiciary (today, the courts are ruling on whether the bus rapid transit is a permissible policy, to the problem of traffic pile-up at toll booths on expressways to alleged infractions on policy).
On Thursday, what the judiciary did was to try and restore this balance. By implicitly admitting overreach, it rightly restored the power of the executive to decide on the method of alienating scarce natural resources. Here, the UPA is right in celebrating.
Yet, at the same time, the apex court tagged this right to the maximization of public good. An oxymoron? Yes, indeed; but only in normal circumstances when the dharma of the executive is to maximize public good. However, when governments have been known to suffer from errors of commission and omission, maximization of public benefit is worth reiterating. So what the court is saying is that, yes, the power to define policy is the sole prerogative of the executive. But the power to pronounce justice in the case of alleged violation of policy norms that end up in litigation is very much with the judiciary.
It is a very important message. To acquire power is one thing and to wield it is entirely something else; it comes along with responsibility and accountability. In the business-as-usual approach, characterized by handouts based on discretion instead of clearly defined and transparent rules, adopted so far in governance in this country since Independence, where public good is an accidental derivative as opposed to the desired objective, this is a very important signal from the apex court. It has been as unequivocal in demarcating powers between the judiciary and the executive as in its own power of oversight; cornerstones of a rules-based society that India aspires to be. A message for which the country should be grateful to justice Kapadia.
Anil Padmanabhan is a deputy managing editor of Mint and writes every week on the intersection of politics and economics. Comments are welcome at firstname.lastname@example.org