They need to tread more warily, avoid the appearance of a power grab.
That government advertising is so vastly used for partisan purposes and as an instrument of patronage that it calls for urgent attention, is a no-brainer. A bunch of public interest litigations were filed in the Supreme Court to plead for a remedy, and overruling the government’s plea that there exist regulatory mechanisms to curb misuse of advertising, the court set up a committee to examine the matter. The three-member committee is to study best practices from around the world and submit its recommendations in three months. Thereupon, the court will issue “substantive guidelines” for state and Central governments. This is problematic.
The court has taken on a valid concern but, unfortunately, it has externalised the issue from the executive. It is yet another instance of judicial overreach into the executive’s turf — in policy-making and administrative reform — by court-constituted committees (for example, a committee was recently set up on road safety). Reform is an ongoing process in government and the executive needs the space and power to crowd-source ideas and keep implementing what is in the realm of the feasible at that point. Unfortunately, the legislature has of late failed in its role of being an enlightened guide to point governments to the issues of concern — and as long as the courts act to fill in that role, they would right the institutional balance. But by reaching over-much and laying out policy for the executive instead of ruling on what’s lawful and what is not, the court is tilting the balance in a manner that separates power from accountability and grabbing turf in a way that could undermine the judiciary itself.
Parliamentary elections give governments an opportunity to renew their mandate, to go back to the people for validation. If it does not come, they demit power. But they draw their power to make policy — and yes, sometimes bad policy — from this unique interface with the people at election-time. A similar means of renewal is not available to the judiciary. Given the unique and immensely valuable role the higher judiciary has played in our republic, it would be disastrous if the appearance of a power grab and the responsibility for the consequences of policy-making attach to it and undermine its profile.