“In a Government of laws, existence of the Government will be imperilled if it fails to observe the law scrupulously…(G)overnment is the potent and omnipotent teacher. For good or for ill, it teaches the whole people by its example… if the Government becomes a law breaker it breeds contempt for the law; it invites every man (or woman) to become a law unto himself (or herself); it invites anarchy.” — Justice Louis Brandeis of the U.S. Supreme Court in Olmstead et al v. United States , 1928.
The initial obstinate reluctance of the Karnataka government to comply with successive orders of the Supreme Court relating to the Cauvery river water dispute and later its resentful compliance exposes one of the confounding fault lines of constitutional governance. What is a court to do when governments dig in their heels and refuse to comply with its orders? Though in the Cauvery water dispute case, the looming disaster of the breakdown of constitutional machinery sticks out like a sore thumb, it is unfortunately not a sole aberration but symptomatic of a larger malaise that is growing every day. Courts are increasingly flooded with contempt petitions against the government/state authorities for wilful disobedience of orders of courts with no prospects of the deluge abating in the near future.
Fixing accountability
Court orders have the impelling force of rule of law and foundational constitutional values that governments must respect in order to preserve the ever fragile fabric of constitutional democracy. However, given the stark reality of increasing hostility to court orders, either belligerent or subdued, how are courts to deal with such situations within the framework that the law affords them?
The answer would well be that first, courts must realise that so long as they look at the government as an amorphous body of unspecified and unspecifiable individuals, we are never ever going to find a solution to this problem. Any redemption from the current situation is possible only if personal responsibility for obedience/disobedience of court orders is fixed on specified officers or individuals in government, political or bureaucratic.
Increasingly we find that systems within the nation are unable to find agreed solutions to vexatious problems within their own fold. Society is unable to decide what its reaction should be to homosexuality; religious groups are unable to find solutions within their fold even with respect to disputes relating to faith; science is unable to find solutions to disputes about what constitutes scientific evidence to uphold a particular claim; varied claims such as these come knocking at the doors of courts. What these contestants before courts must realise is that once an argument is decided by a court of law, then that particular argument gets replaced by judicial fiat. And unless it is appropriately modified in a manner known to law, the court’s fiat must be implicitly obeyed.
Legal precedents
The First Law Commission constituted after coming into force of the Constitution observed, “It is now increasingly necessary to abandon the lingering fiction of a legally indivisible state, and a federal conception of the crown, and to substitute for it the Principle of legal liability where the state, either directly or through incorporated public authorities, engages in activities of a commercial, industrial or managerial character. The proper test is not an impractical distinction between government and nongovernmental function but the nature and form of the activities in question.”
Recalling and applying this principle, the Supreme Court in Lucknow Development Authority (LDA) v. M.K.Gupta (1993) held, “Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the Statute like the commission or courts entrusted with the responsibility of maintaining the rule of law.” In that case the Supreme Court directed the LDA to pay compensation to the aggrieved consumer and further directed that the amount must be recovered from the officer responsible for the default who must be identified. Proceeding on similar lines the Supreme Court has recently fined the Health Minister of the Delhi government Rs.25,000 for not complying with its orders.
The directions of the Supreme Court in the Cauvery river water dispute will be obeyed only if responsibility is fixed on specified officers — political or bureaucratic — of the government for complying with the orders. Adequate protection may be provided to such officers or officers from the Central government may be appointed with court directions to assist in the compliance of court orders. However, mere court fiats without fixing responsibilities for compliance can never produce the desired results in such sensitive matters. Governments will proceed to disobey them, impervious to the wise caution of Justice Brandeis, little realising that in doing so they would be sowing the seeds of anarchy.
N.L. Rajah is a senior advocate of the Madras High Court.
