SC recognizes coalition pitfalls?
Courts in India have lately been accused of activism and overreach. While that might be true to some extent, the judiciary showed exceptional restraint in deciding the 2G case and upholding the right of private citizens-as distinct from agencies mandated for the job— to prosecute high public functionaries.
By ignoring the convention of collective responsibility bequeathed from the era of single party rule, the apex court set a new convention that could go a long way in relatively smooth conduct of coalition regimes. It indicted A Raja for mala fide implementation of the telecom policy while sparing other arms of the government — notably the ministries of finance and law the Opposition insists could have prevented the spectrum scam.
The Court’s order flew in the face of the concept of collective responsibility but was in consonance with the realities of mixed regimes. Ministers from smaller parties without whose support the government cannot last are at times more equal than the Premier himself. Little wonder then that instead of questioning Manmohan Singh or then Finance Minister P Chidambaram, the SC traced the scam to Raja’s leadership of the telecom ministry. It recognized in the process the reality of de facto power overwhelming constitutional or de jure authority in tenuous power sharing pacts.
Similarly, the order fixing a three-month timeframe for sanction of prosecution to official agencies or private citizens kept the PM out of the line of fire while taking pot-shots at his advisors and aides in the PMO. Both judgements were significant as much for what they did not say as for what they actually laid down.
Unlike the Opposition that harped on collective responsibility to attack the whole Cabinet, the apex court showed sensitivity to the problem of reigning in ministers representing other coalition partners.
Raja’s high command sat in Chennai, not Delhi’s 7, RCR or 10, Janpath. He ran amok in the belief that he was invincible so long as he enjoyed DMK chief Karunanidhi’s patronage. As Subramaniam Swamy had moved the SC on failing to get the PMO’s nod for Raja’s prosecution, what applied to the broader 2G case was relevant to the Janata Party leader’s plea for sanction to prosecute the former telecom minister.
In fact, the three month deadline the SC set for disposing of such requests has empowered the PM against rogue ministers. If the Premier does not accept or reject the request for sanction in three months, it would deem to have been given on the expiry of the fourth month.
Simply put, that means the PM can fix — with or without sanctioning probe/prosecution— ministers and other high functionaries against whom there is prima facie evidence of graft or cronyism. The judgement effectively leaves no room for allies given to bullying or blackmail on the strength of numbers they command in parliament.
Moreover, governments will be saved in future the kind of public embarrassment and administrative paralysis the UPA faced in the 2G scam on account of its failure to tame Raja. Another plus in the matter is the SC’s burial of the First-Come-First-Serve policy for allocation of natural resources such as the telecom spectrum.
The Court found it prudent to strike down the policy for its patently dishonest and partisan enforcement. That makes transparent and efficient governance the only safeguard against judicial transgressions of the Constitutional scheme of separation of powers in which policy making is the prerogative of elected regimes.
One only hopes the auction route prescribed by the judiciary isn’t universally applied to leave the poor entirely at the mercy of market forces. If India has to remain a welfare State, it must make the rich pay what’s due to help it take better care of the poor.
The loot must stop. Not legitimate support of the needy.