The Big Story: Separation of powers

The state government of Karnataka has decided to defy the Supreme Court’s orders on the release of Cauvery water to Tamil Nadu. The order required Karnataka to release 6,000 cusecs of water to Tamil Nadu per day from September 21 to September 27. While it is unfortunate that a state executive decided to ignore a judicial order, this also calls into question the role of the Supreme Court in the matter.

Ramaswamy S Iyer, the former secretary of the Union Ministry of Water Resources and an expert on the matter, made the criticism that the Supreme Court was hearing the Cauvery dispute in the first place. According to Iyer, Article 262 in the Constitution is clear that the courts had no role to play in this matter and decisions would be taken by the Parliament. Article 262 says:

Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley….notwithstanding anything in this constitution, parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause

While matters have reached tipping point here, this isn’t the first time the courts have stepped out of a strictly judicial function and taken to governance. Earlier, in August, the Supreme Court took to regulating Mumbai’s dahi handi festival, laying out orders on the heights human pyramids could reach. In December 2015, it took on pollution in the city where it is based, Delhi, and issued orders such as barring non-CNG taxis.

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While the actions of the court might have been made with good intentions, it might be a valid question to ask if drawing up taxi regulations or limiting dahi handi pyramid heights are judicial functions in the first place. Justice JS Verma, the former Chief Justice of India, once pointed out the more egregious examples of courts acting like an executive:

The judiciary has intervened to question a mysterious car racing down Tughlaq Road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judges pool, monkeys capering in colonies, stray cattle on the streets, clearing public conveniences, levying congestion charges at peak hours at airports with heavy traffic, etc. under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance.

The reason often given for such judicial overreach is inaction by governments and legislatures. This critique might be true ­– but at the end of the day, the executive and legislature are democratically elected arms of the Indian State. Sometimes, even their so-called inaction might have a reason to it, and might be responding to the wishes of their constituents. Overriding the executive or legislative power can affect the delicate balance of the separation of powers, and, as Karnataka has shown by defying the Supreme Court order, hurt the prestige of the court itself.

The Big Scroll

  1. The story of how Karnataka and Tamil Nadu mismanaged their water and then blamed each other.
  2. The Cauvery dispute is also a fight between Bengaluru and Chennai for drinking water

Political Picks

  1. The fight over the Cauvery involves historical grievances and shrinking incomes.
  2. India might have called Pakistan a terror state but it has refused to break diplomatic ties, instead seeing diplomacy as the best way to pressure Pakistan to probe the Uri attack.
  3. Material issues are at the heart of Dalit politics, says Jignesh Mewani.

Punditry

  1. If India is pursuing covert operations to punish Pakistan, it would be a disturbing development in the nearly 70-year security competition between the two states. Still, it should not come as a great surprise, say Toby Dalton and George Perkovich in a paper in the Carnegie Endowment for International Peace.
  2. The Goods and Services Tax is a reform long delayed. But there may be good reason not to hurry it through now, argues Neelkanth Mishra in the Indian Express.
  3. In the Telegraph, Swapan Dasgupta tries to understand the explosion of populism in the West.

Giggle

Don’t Miss

With Assam and Arunachal Pradesh in the bag, BJP has its eyes set on Manipur, reports Anita Katyal.

The northeastern states have traditionally been Congress strongholds, but Shah believes that after the formation of the first BJP government in Assam, the people of this region are looking at the party as a viable and credible alternative.The BJP did not win any seat in the last Assembly elections in Manipur in 2012, but won two constituencies in last year’s bypolls. But it is feeling particularly emboldened after it made inroads in the recent Imphal Municipal Council elections, winning as many as 10 of the 27 seats. The party had won only one seat in the 2011 civic polls.

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