Should we let the Supreme Court decide?

Should government officers have red beacons on their cars? Let’s ask the Supreme Court. Should people be allowed to have tinted car windows? Let’s ask the Supreme Court. Should children eat their vegetables? Let’s ask the Supreme Court.

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I don’t watch too much cricket these days, but this bit of cricket-related news was unavoidable. The Hindu ran it on its front page more than once. The Supreme Court, the highest court in the land, is deciding who should manage a sports tournament. The Court has also suggested that maybe two teams whose owners were found to be involved in betting and/or spot fixing not be allowed to play in the tournament.

I must ask why. Is the question of who runs the stupid tournament of national importance, do we think? Even if you think it is, surely the branch of the government deciding whether the son-in-law of the person running the tournament can also own a team playing in the tournament is not the judiciary but the executive — the Income Tax and Revenue departments, say, or an anti-trust regulatory body.

There are two reasons I think decisions like this should left out of the purview of the judiciary. First, surely the Court has better things to do with its time. We know this because the case backlog in the Court runs into months if not years, and even if some fraction of these cases is frivolous or, as above, shouldn’t really be on the Court’s plate, that still leaves a lot of work to be done.

The Supreme Court is the defender of the constitution against excesses of the legislature and the executive. It is up to the Court to strike down laws that are unconstitutional. And yet, in the case of section 377, not only did the Court not do this, they even undid what the Delhi High Court had done, in effect saying it isn’t the Court’s job to rewrite laws, but only to interpret and apply the laws given to it.

I disagree that section 377 should remain on the books because the legislature is too farting busy to rescind it. The Court failed to strike down a law that violates the fundamental right to freedom of a large number of people. But just as worrying is the fact that this apparent strict separation of powers that the Court wants to practice somehow doesn’t apply to whether the court can pick names out of a hat for who should manage a cricket tournament. Should we be worried that the Court is apparently okay with judicial activism and stepping on the executive’s toes for a cricket tournament, but isn’t willing to do the same thing for gay rights?

The second reason is this. What does it say about the system of governance in this country if everything has to be decided by the Supreme Court? Should government officers have red beacons on their cars? Let’s ask the Supreme Court. Should people be allowed to have tinted car windows? Let’s ask the Supreme Court. Should children eat their vegetables? Let’s ask the Supreme Court.

We seem to have a system of governance that continually moves every decision up one rung until the Supreme Court has to pass judgement on matters that a) its judges may have no expertise in, and b) should have been dealt with at the level of a municipal office. This is abdication of responsibility masquerading as deference to the Supreme Court.

Douglas Adams observes, in the masterful Last Chance to See, that this is characteristic of a nation that hasn’t extricated itself from the mindset of being a colony. Officials in such countries, he says, “rarely have the power to do things, only to prevent them being done until bribed.” He couldn’t have been more right.

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