Institutional activism in India: SC, EC, CAG

  • Some see it as a revolt by India’s institutions against a corrupt and decadent political class
  • Institutions like EC, SC and CAG have responded to this deficiency by crossing traditional jurisdictional borders– i.e activism.
  • On becoming chief election commissioner in 1990, TN Seshan decided to crack down on election malpractices.
  • He would not allow elections to go forward till fair conditions were established. He decreed that the Election Commission would determine the deployment of security forces to ensure honest polling, not state governments. He staggered elections in a state over several days, to allow concentrated security forces to move from one section of the state after another, combating booth capturing.
  • Seshan wanted voter ID cards to check impersonation. Many chief ministers opposed this as too expensive and time-consuming. Seshan responded by threatening not to hold elections in two states unless ID cards were issued. His ploy was struck down by the Supreme Court as an unwarranted excess. Nevertheless, Seshan ended his term as a public hero. Indian elections have once again become fair, and ID cards have become the norm.
  • The Supreme Court has long revolted against state callousness. In 1979, Justice PN Bhagwati pioneered public interest litigation, empowering any citizen to move the Supreme Court-on the principle of fundamental rights – to ensure justice and fairness on virtually any issue for the common man. The activist court has passed orders to protect the civil rights of tribals, bonded labourers and prisoners; to check environmental damage and to ensure that the state avoids sundry arbitrary favours.
  • The court’s most famous activist interventions have been in the Jain hawala scam and the 2G scam.
  • However, its activism has led to excesses.
  • Former solicitor general Andhyarujina points out that the court has ordered the interlinking of rivers, banned the pasting of black film on automobile windows, and banned tourism in core areas of tiger reserves.
  • “All these managerial exercises by the court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.”
  • CAG: From conventional audoits, it has started making calculations of how much revenue the government might have lost by failing to auction natural resources, first in the 2G case (estimated loss Rs 1.76 lakh crore) and now in coal mine allocations (estimated loss Rs 1.08 lakh crore).
  • However,economist Surjit Bhalla has, poked huge holes in the CAG’s estimates. The CAG has failed to do elementary things like discount the value of future profits, allow for variations in future prices, or allow for tax payments.
  • Despite excesses, an activist CAG represents a net gain for democracy. Along with the Supreme Court, the CAG has ensured that most natural resources will be auctioned in future. That is a huge gain in fairness.

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