In the two decades since the Indian economy was opened up, the Indian Judiciary has largely acted as a neutral observer on issues related to the Government’s economic policies. In a 1994 case, Morgan Stanley was given a go-ahead for its mutual fund; doing anything that would discourage foreign investors was seen as avoidable. In 2001, when the Union’s disinvestment in Balco came under a cloud, the Supreme Court (SC) accepted the Centre’s contention that the ‘wisdom and advisability of [its] economic policies… are not amenable to judicial review’.
The past decade has by and large been similar. In telecom, the Judiciary accepted the Centre’s right to allocate spectrum at ridiculously low prices to private firms. Although the courts reviewed the policy-making process, they issued no judgment on whether the policy itself was right or wrong. In effect, they refrained from intervening in the Government’s legislative role.
In the past year or so, however, the SC has taken to castigating the Government for its market-oriented policies. On issue after issue, it has blamed the State’s ‘neo-liberal’ agenda for the country’s socio-economic ills. In its recent orders on the recovery of black money, the apex court sought to associate neo-liberalism with the rise in the quantum of ill-gotten money, promotion of ‘greed-is-good’ attitudes, and the formation of a ‘predatory state’. In the apex court’s view, the problem is traceable to governance that ‘prioritises the market’ over ‘any degree of control over it by the State’.
In its 2010 judgment on the gas dispute between the two Ambani brothers, the SC lashed out at the entry of domestic and foreign players into the energy sector: ‘It is relevant to note that the Constitution envisages exploration, extraction and supply of gas to be within the domain of government functions… It would have been ideal for PSUs to handle such projects exclusively… Nevertheless, even if private parties are employed for such purposes, they must be accountable to the Constitutional set-up.’
But in its 14 July order on public interest litigations (PILs), filed by NGOs and social groups, the apex court sprang a surprise in its criticism. The courts, it conceded, ‘have been used only for the purpose of vindicating the rights of the wealthy and affluent’. Only the powerful, it bemoaned, have ‘the golden key to unlock the doors of justice’. When the SC took up these PILs, some journalists accused the Judiciary of undue activism. In the SC’s view, the media is as much at fault for the unhappy state of affairs as the Judiciary, Executive and Legislature. This is something for all four pillars of India’s democracy to think about.