Judicial Overreach

THE INDIAN JUDICIARY has been described as the most powerful judicial force on earth by the Marxist historian Perry Anderson. In recent days, the higher judiciary has proved the point amply by going into areas that were never part of its ambit in the original Constitutional framework.

On Wednesday, 13 April, the Bombay High Court ordered that cricket matches that are to be held after 30 April in the presently parched state of Maharashtra be shifted to other states. Not only that, the Court also ordered the Board of Control for Cricket in India to ensure that 6.4 million litres of water be supplied to drought-affected villages, which will be nominated by the court.

In another decision, the Supreme Court has asked the Reserve Bank of India if the total amount of impaired loans in the Indian banking system could be disclosed without giving out the names of the defaulters.

In both cases, the court has strayed into territory that is not part of its original domain. Deciding how to tackle a drought and how to allocate water is the job of the elected government and the permanent bureaucracy. It is the political dispensation that is answerable to the people, not the courts. Similarly, in the case of banking loans, a distinction has to be made between loans that went bad due to bad business decisions or business cycle fluctuations and plain cronyism. The courts are not equipped to make such distinctions; it is for the central bank to sift and analyse that data and arrive at appropriate, economic conclusions.

The second and equally important point is judicial. In most cases that are beyond mere interpretation of fact, courts take into consideration what is called a reasonable nexus between the problem and the remedy on offer. In the instant cricket case, it is not clear if allocating 6.4 million litres of water will solve rural Maharashtra’s drought. Similarly, disclosing the amount of loans defaulted upon will not reduce the mountain of bad debt, let alone halt it.

In both cases, the problem has been created by more than just human malfeasance. It would be an odd assumption that bad loans exist merely because cronyism exists and even more odder that drought is exacerbated because of a few cricket matches.

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