The government of TN may feel peeved that a welfare measure being implemented by them , as Pongal gift comprising Rs 1000 plus rice, cashew, raisins, sugarcane was interfered with by the orders of Justices M. Sathyanarayanan and P. Rajamanickam, by restricting the applicability of the scheme only to those below the poverty line and not to those above it. Accepting the writ filed by Daniel Jesudas, Coimbatore, claiming to be an activist in public causes, the high court on Wednesday felt constrained to interfere as the scheme was ‘from and out of taxpayers’ money’ and therefore the state was duty bound to disclose the ‘rationale’ for its scheme to provide the gift across all classes - even to those who may be undeserving of such freebies.
It is cardinal principle of constitutional discipline that the high courts and the Supreme Court play hands off when it comes to ‘policy decisions’. The law is too well settled that ‘judicial review would be limited and transgression would be minimal to accord with constitutional restraint’. Times without number, the top court has reiterated this proposition and the high courts have also dutifully followed the hierarchical imprimatur. But, it is not cast in stone and has its crevices and exceptions (Bhavesh D Parish- SC).
It may seem as if the Madras high court has overreached in modifying the applicability of the scheme meant to be ‘universal’. The ruling dispensation is entitled to be disappointed but the legislators who have taken their oath by the Constitution ought to accept that when state largesse was involved there must be a reasonable nexus with the object and the rationale for it spelt out and justified. That is not an empty formality to be couched in convenient language. The executive cannot think that it was 'unelected tyranny’ from the courts to interdict their welfare measure as representatives of the people. They ought to appreciate and understand the constitutional niceties involved vesting the power of judicial review with a constitutional court. It is an inexorable reality and not an assumption of unavailable power.
Fundamentally, the petitioner has cleverly not challenged the grant of Pongal gift itself. The ‘policy’ was not questioned. He only complained that when the state of TN was stressed for financial resources and huge interest liabilities were being incurred to RBI, there was no justification to gift away the meager resources to all and sundry. The learned judges agreed that TN was noted for such indulgences on freebies even as part of party manifestos, and even the Supreme Court in S Balaji’s case did not think that ‘gifts’ in manifestos constituted ‘corrupt practice’. However, when the admitted position of TN was that its resources were stretched and there could be worthier causes to cater to- than offering Pongal gifts to even the richer classes - the absence of reasonableness and rationale was evident.
For instance, if the government scheme was itself oriented towards those below poverty line, and there was a challenge to it, it would have been a policy decision off limits for interference. And any complaint even by those denied the ‘gift’ would have been nixed as the ‘rationale’ was clear and being a policy decision it would not be for the courts to suggest a ‘fairer or wiser decision’.
But when the outgo was from the taxpayers’ coffers, and in the wake of Gaja cyclone and its aftermath when the state has expressed ‘disappointment with the Centre’s parsimonious grant’- surely, the judges cannot be seen to be overreaching.
Take the case of litigants waiting in endless queues for compensation upon land acquisition, and awards from motor accidents payable by state transport corporations and even retired employees being compelled to wait for their dues, these are recorded facts leading to attachments of collectors’ properties and buses et al, which the court is hands on. If so, to expect the high court to keep hands off on the premise that it was a policy decision would be to encourage abdication of responsibility as the guardian angel of citizens’ rights on the constitutional plane.
Let's get real with facts. It is a matter of common knowledge that TN is notoriously famous for freebies as TVs, grinders, mixies and the culture is not worthy of commendation. Time for political parties not to vie with each other to go one up on offering freebies but instead get together to agree that they will all refrain from tainted practices even if not technically corrupt. It will be a huge boost to the oft proclaimed Tamilian pride, and a genuinely enhancing one.
Learned judges have sounded the bugle and hopefully the lessons would be learnt. Of course, we the people also need to realise that as Mahatma Gandhi said, “We have enough for our need not greed” and the concept of free lunch in a democracy must become an alien precept and principle. Truth is however that the court may be accused of going beyond the call of its constitutional remit and indulging in overreaching and upsetting the balance between the three pillars of democracy- viz. Legislature, Executive and Judiciary. Sorry, it is simply not true, and surely not this time.
(Author is practising advocate in the Madras high court)...