Analysis
Aren’t You Trespassing, Milord?
Fools rush in where angels fear to tread! That’s an ancient cautionary axiom. Nevertheless this fool cannot help but rush into the hallowed territory of the Supreme Court (SC) to clarify doubts troubling his mind. Last Tuesday the SC admonished Union Food Minister Sharad Pawar for daring to state that its order to distribute rotting food grains free of cost to the poor was a suggestion. The court sternly conveyed that its order was a command to be obeyed and not a suggestion to be considered. The minister had opined that the Court’s suggestion was not practical to implement. The Court’s order was in response to a petition.
The Court’s opinion about distributing grain free to the poor instead of allowing it to rot was unexceptionable. It reflected the overwhelming view of politicians and public alike. In justification of its order the court said: “We do not say anything unreasonable.”
That is absolutely correct. The Court was very reasonable.
But was it constitutional?
Can the SC encroach, however sensibly, into the domain of the executive? This is the question that the Supreme Court and all the distinguished legal luminaries who frequently grace TV channels with their pontificating need to clarify for ignorant laymen like this scribe.
Article 50 of the Indian Constitution states: “The State shall take steps to separate the judiciary from the executive in the public services of the State.”
The citizens have certain fundamental rights. Article 32 (1) gives them “the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part...” The right to food has not yet been made into an Act. Therefore Article 32 (2) that states, “The Supreme Court shall have the power to issue directions or orders or writs … for the enforcement of any of the rights conferred by this Part”, cannot be applicable.
Article 38 (1) of the Constitution states: “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.” However Article 37 of the Constitution states: “The provisions contained in this Part shall not be enforceable by any court…”
In the light of the above articles of the Constitution how could the SC presume to pass an Order equivalent to a command to Sharad Pawar? Any action that violates the Constitution can lead ultimately to very negative results. If indeed the SC overreached its powers what would have happened if the minister had defied its order to create a constitutional crisis?
One does hope the judges had considered their legal mandate and were not influenced by the earlier example of their predecessors assuming the executive’s powers by overseeing the functioning of the CBI in the Jain Hawala Case? That left a permanent blot on the SC after it completely botched up an open and shut case. Former Chief Justice JS Verma who headed the Bench hearing that case is now demanding that the Jain Hawala Case should be reopened!
Would you enlighten us Milord, under which constitutional provision you issued your fatwa to the government?
02-Sep-2010
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Dr. Rajinder Puri
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