After the recent revelations regarding the inflated demand of Oxygen in Delhi, the Supreme Court should reflect on its role in the matter. It won't.
One of the cardinal principles of constitutional law is the separation of powers. The Executive, Judiciary and the Legislature are sought to be given clear and distinct powers in order to provide checks and balances in the system. The ability to create such distinct domains of power is however quite fanciful, as the powers and functions of these bodies overlap in many cases. Which is why quasi-judicial power is sometimes exercised by the legislature and executive in certain situations.[1] The Judicial function in this system appears to be more distinct and separate, exercising the all-important power of Judicial Review [2] and the settlement of disputes. Yet, there is also some overlap with the power of the executive and legislative functions with that of the judiciary.
There are grey areas and then there are also clear areas of overreach. In the case of the Republic of India, “overreach” is a long-forgotten view in the side mirror. The Judiciary in India wields more power than the Parliament or the President/Prime Minister. The Indian Judiciary appoints its own, seeks (and receives) provenance in all matters and is unaccountable to the citizenry.
One of the most egregious of actions is the regular pronouncements that the court makes which are akin to legislations - in that case, at least the Parliament has the direct domain and ability to alter matter and flesh out the minutiae through action, though constrained by judicial directions. In case of restraining or demanding executive action on a matter however, the ability of the executive branch to resist the judicial demand is limited. Especially in an emergency situation and in a politically sensitive arena, the constraints are even more for the executive. It is in this context that one must examine the ‘revelations’ that have come out in the public domain regarding the inflated demand of oxygen by the Government of Delhi.
The Interim Report of the Oxygen Audit for Delhi by the National Task Force constituted by the Supreme Court revealed that the demand for oxygen was inflated by the Delhi Government. This inflated demand was at the same time the Supreme Court demanded that the Central Government supply Delhi with 700 Metric Tonnes, else dire consequences will follow. Considering that the demands of the Delhi Government was based on an erroneous estimation, and that their actions prolonged turnaround times for containers and disrupted the supply chain, it seems quite imprudent that such claims are enforced by judicial fiat in the throngs of a Pandemic.
The Supreme Court had in May said that the Central Government had a “special duty to Delhi” when the Centre pointed out that while other States were procuring the Oxygen from the points of procurement, Delhi was not. The logic of the Hon’ble Justice on the bench was that
“Delhi represents the nation. There is hardly anyone ethnically Delhite.”
There is no doubt that the Centre must do all that is required and necessary for the safety and well-being of all citizens, but that does not mean citizens residing in the capital are not as important as those elsewhere in the country. The court has clearly been a victim of the tyranny of distance in this matter.
Forgetting the blatant bias to Delhi at the cost of other States, the most basic issue is that the judiciary is thoroughly unfit to undertake day to day executive action or supervise the same. The basic purpose of courts is to apply the law and settle disputes - and to check the legitimacy of actions as against law. Our courts are not bound by such earthly or even constitutional constraints. The courts will likely in all likelihood take the credit for the interim report since it was a committee that it constituted, with no self-awareness to its own role In worsening the crisis elsewhere.
The Judiciary’s self-righteousness in dealing with issues has doubtlessly increased the distrust of the institution in the masses. This issue is going to be just another one in a long saga of examples that can be produced about judicial overreach. India is in many ways, a Kritarchy, or a nation ruled by Judges.
Which branch holds the most amount of power, with a finality to its power like none other? The Judiciary. This finality in verdict and matters should mean a more responsible handling of the awesome power that it has been granted. Yet, our courts hold no restraint and seek to create, administer and modify executive policy, direct executive action, Legislate by order & direction, and after all this, get to those pending cases.
There is no doubt that the court will ignore its own imprudence, and continue on its own way without any self-awareness or reflection. Politicians have elections every 5 years at the very least to hand them a reality check. What do the Hon’ble Justice have? Constitutional Crises. And that does not bode well for the Republic of India.
[1] There is also more overlap in the case of Executive and Legislative power, and which is why in many cases they have to act together in coordination.
[2] The power to review the constitutionality of laws passed by the legislature or the action taken by the executive, and strike them down if they are unconstitutional.