Knee-Jerk Rulings
When the topic of
judicial activism comes up, many argue that it is necessary given how unwilling
our legislature is to do its job, namely to evaluate issues and frame the right
laws. Jallikattu is quoted as a recent example from this perspective. Others
worry whether a not-elected-by-the-people judiciary would end up subverting the
whole idea of democracy. They argue that the job of the judiciary is to enforce
the laws in place, not make laws.
Santosh Desai raises
another aspect for this debate, namely that a legislature is designed to
consider all angles to an issue, to negotiate the best way forward in the “larger
ecosystem of competing interests”, and to ensure that the “consequences of the
proposed action are understood in a systemic sense”:
“Laws cannot be so blinded by a single
desirable outcome so as to ignore all the consequences that ripple outwards nor
can they overlook the differential impact they can have on different
constituencies.”
Take the recent
example of the courts declaring that no outlets should serve alcohol within 500
metres of highways. Desai wonders if the courts considered these aspects:
1)
Does
it make sense that hotels and liquor vends be “lumped together”?
2)
Highways
often run within cities (the place I live in is such an example: Outer Ring
Road is a highway but lies truly within Bangalore).
3)
The
long-term consequences of changing the rules in the middle of a game. Many
hotels and liquor vends were setup based on the old rules. If their businesses
go into losses with this change, would the next businessman be unwilling to
start a venture for fear of changes to the laws later? Would such a precedent
scare away investments, and the associated jobs that might have been created?
4)
Will
such a measure even deter drunken highway (truck) drivers? Or would they just
end up driving a bit further into the city, get drunk anyway and continue to
drive on the highways?
5)
Was an
alternative considered, like random checks of drivers on the highway?
I think Desai has
a point. Are we increasingly reacting to individual problems rather than having
a holistic view? Or as Desai says:
“The use of legislative or judicial
brahmastras has become rampant today. The problem is that in the absence of an
administrative process that works as it is meant to, the use of more and more
powerful actions ends up creating a new pattern of disorder. The intended
consequences don’t quite materialize while unintended consequences abound.”
Which is why Desai
fears:
“It gives us the illusion of action, and it
is (just) a good substitute for real governance.”
I can see the truth of it.
ReplyDeleteLike media being a devil in addition to what it serves rightly, judiciary can do much damage with activism. People's movements can be of the same kind too. They are needed because politics is a corrupt game, and nearly every law gets set aside and every right is overruled by might there. However, people's activism can cripple too.
In all matters, the Buddha's recommendation of middle course is never what we prefer. We all run after extremes. We never find the optimal solutions, because simply put that is not what we are after. We are actually programmed to hate it (i.e. the middle path) I believe! But then there will always be weirdos who do what the average person doesn't do.
Let things go on the way they do. We do not much much say anyway.
-------------------
Somewhat out of context I would like to make a reference to something else: Even with a focused leader like Modi, who means business of administration within his purview, if anyone has a delusion that BJP party itself is aligned with it, we need to wait for time to tell us the true story. I am no visionary but I can sense that BJP being just another political party of vested interests, expecting something drastically better is ignorance. I already sense that UP will have a good story to tell us within years - and that is not going to be the utopia that some may think is round the corner. If it goes to extreme, it may actually become a setback for BJP in that state; because moral policing is nothing at all other than Taliban. Nobody other than themselves wants them. If Taliban rules a bunch of people, all the people under their rule would want Taliban dead! UP BJP's movement of how much Talibanic they are going to be would decide its fate there. But someone is likely to tell me whatever media projects is 5% truth and 95% imposing their views. Maybe so. Maybe there is no smoke in any real sense in UP. No fire to imagine therefore. Like in quantum mechanics, perhaps we may not be able to rule out every probability. Why, that 5% may even turn into higher over the time, in actual reality - not media projection into their whims.
Like I earlier desired Trump to win in America to see for myself what would be the outcome, I want BJP in UP to go full swing in its own way. We can see for ourselves how good or bad it will all be. In a way, I very much prefer that Shah does not control the BJP in UP, away from their extremism. Let them be free to act in their own way fully, like a so-called free nation. Otherwise experimentation fails, see! :-)