Thursday, April 19, 2007

Illegal Trafficking

By an order which has received wide publicity, the Hon'ble Delhi High Court has recently (in effect) levied a cess of Rs. 500 (and higher) on the existing fines for traffic violations. Having been fined yesterday for allegedly crossing the 'Stop' line (in circumstances so preposterous, that that the arbitrary behaviour of the policemen would be a separate Art. 14 violation. But that's another story), I now have sufficient locus (and indignation) to comment on this.

Under the Indian constitution, legislative competence is allocated between the Union and the States as per Art. 246 r/w the Seventh Schedule, which contains a Union List, a State List and a Concurrent List. Parliament has enacted the Motor Vehicles Act, 1988 under Entry 35 of the Concurrent List i.e. 'Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied.' The power to prescribe a fine presumably flows from Entry 35 r/w Entry 97 of the Union List, which allocates residuary powers to Parliament.

At best, Parliament can delegate the determination of the amount of fine to the Executive, being a matter of detail. However, last I checked, there was no 'Delhi High Court List' in the Seventh Schedule which empowered the Court to pass such orders. The Court's actions are unconstitutional, a brazen and naked usurpation of power with no constitutional justification.

The common retort to this is that where the legislature and the executive are inactive, the judiciary must fill the vacuum. In this case, the fine structure was archaic, the fines being so low that they had no deterrent effect. However, that doesn't get over the fact that such matters and determinations are exclusively within the ken of the legislature. Permitting even a creeping judicial expropriation of such powers has undesirable consequences in a country purporting to be under the rule of law. Pratap Bhanu Mehta, in a recent article, points out some defects of such judicial adventurism. I wish to add another. The judiciary has until now been widely respected by the Indian public, and by the Executive organ of the State charged with seeing it's will done. By passing such orders (the sealing proceedings are another example), the judiciary is making itself the object of public resentment. As Pratap Bhanu Mehta points out, the other organs have never attempted to ignore judicial verdicts altogether. Perhaps this is partly because they realised that an open rejection of a judicial verdict may result in a public backlash. If the judiciary is popularly viewed as just another whimsical body, this deterrent will disappear. And this may have dramatic repercussions for judicial verdicts which are legitimate but disliked by Parliament.

If the judiciary seeks to confront the Government on issues such as traffic violations and other sundry measures, genuine constitutional adjudication may be endangered. If the judicial verdict is no longer respected, there is nothing to prevent the State from riding roughshod over the FRs of citizens when convenient. Reservations are a good example. In my opinion they are one area where the fundamental principle of equality and merit is in danger of being wiped out. They are a populist measure passed by Parliament. The Court must, and has intervened, to save the people from themselves. They have discharged their role of protecting the Constitution from the fleeting passions of an age, which may inflict permanent damage to sound constitutional foundations. Imagine the consequences if the verdict could be ignored because the public would merely view it as one more unwarranted intervention on the part of the judiciary!

Legislation by way of judicial ukase cannot be a panacea for all ills. Letting traffic offenders off lightly is detrimental to public safety and road manners. But jumping constitutional stop signs imperils democracy itself. The choice should be obvious.

As an aside, a sociologist may find it interesting that while the policeman who challaned me could not spell 'violating' correctly (apparently i was 'volicating a stop line'. Sounds dirty doesn't it?), he got 'as per orders of Hon'ble Delhi High Court' absolutely correct, down to the apostrophe.
Fittingly, I was fined right outside the Supreme Court. Perhaps I should have preferred an appeal.

1 comment:

Apar Gupta said...

don't mean to be one bit patronising.. excellent post! enjoyed it!