There is something deeply disfiguring and unreal in the debate over the Bombay High Court’s order to move IPL matches out of Maharashtra. There is no question, as I have argued in several papers, that the courts in India have, in many policy decisions, overreached in the most arbitrary way. Their interventions are not good law or effective policy. More generally, the courts taking on broad governance roles deeply corrodes democracy and produces counterproductive policy. But the amount of outrage being vented on the courts over their IPL order abets the politics of illusion of a most astonishing kind. While the outrage accuses the court of dealing with symptoms, not causes, the outrage itself is emblematic of our dealing with symptoms.
Let us begin with two large trends that should worry us: First, there is no question that parts of India are facing an unimaginable water crisis. The agrarian distress in areas like Bundelkhand and Marathwada is severe. It should shock us that we take issues like poisoned air and scarce water so casually. They are the harbingers of conflict to come. Second, there is a deep institutional crisis: The forms and functions of government have long been in disarray. In a normal democracy, you would expect the Maharashtra assembly or the UP assembly to be in uproar over such a catastrophe. You would expect the political opposition at least, if not all political parties, to develop a repertoire of protest that makes it impossible for the government to evade a response. But the brutal truth is there is no sustained and adequate political response. Institutions are deeply moribund. Water and agriculture are largely state issues. The average number of days state legislatures sit in India varies from as low as 12 a year to about 50. Maharashtra, among the better-performing states, touches a maximum of 40 days. A recommendation that legislatures sit for at least 120 days a year has long been ignored. So where are the representative institutions?
Next, come to the executive. So everyone acknowledges massive general failure of the executive. It is too hostage to vested interest, perverse policy incentives to be able to stave off a crisis like this, despite massive expenditure. But look at what the executive does in court. In an ideal world, if the courts have to step in, you would expect the following to happen. The courts would be instigators of a dialogue, a forum where deep grievances can be heard. The courts would not initially dictate a solution but would ask the executive for a response. The executive, prompted by the court, would come up with an all-things-considered policy response. This is not ideal but potentially a win-win. The courts would nudge governments towards accountability. The executive would retain its policy autonomy by crafting a credible response.
But in typical policy cases, what happens is the opposite. When nudged by the courts, the executive turns even more shameless. So instead of saying to the court, “here is our credible response”, “this is how we think we can alleviate at least extreme suffering”, the executive simply abdicates. The executive says to the court something like, “If you want to move the IPL out, please do so.” So what is the court supposed to do? Technically, it is not even overreaching; it is following through on the executive’s revealed preference in court. In fact, in a large number of cases where the court has arbitrarily overreached, it is, in part, because of the shocking character of the executive’s response in court. In fact, increasingly, it is obvious that like legislatures, most government law officers simply do not put up an adequate and credible response to these petitions. In fact, if the executive made good faith, credible arguments that actually respond to the issue, the courts, more often than not, will let them have their way. But if you study case after case, you will find that the executive response is so weak that the courts inevitably step in.
Critics of the courts are right to point out the perils of judicial policymaking. The courts are simply not equipped to make interventions that are effective; their orders express more a jurisprudence of “exasperation” than a real attempt to solve the problem. The courts are also oblivious of the extent to which their orders can undermine rule of law and ignore externalities. If we want to respond to an emergency, who should bear the costs? Is it fair to say that these costs and restrictions should be imposed only on one set of businesses? Of course, the court is not going to solve the long-term, deeper structural crises of irrigation, sugar production or corruption. These are not inappropriate concerns. But to accuse the petitioners and the courts of engaging in a politics of distraction is to miss the point. A large structure of our politics and media is based on the politics of distraction. We have inverted the priorities in Roman adage: For us, it is “circus and bread”, not “bread and circus”. It says something of our polity that unless basic issues like water and air are turned into spectacles of some kind, they will simply not get attention. Even the courts will not get attention unless they become partially a spectacle. How else do you get in a word?
Of course, these are dangerous trends. Our political culture is deeply instrumental; it invokes proper form only as a weapon of argument against opponents. Given the number of things on which we have given procedure and propriety a free pass, there is something troubling about invoking those considerations only on the occasion when extremely marginalised people are affected. Instead of railing at the courts, it would have been so much more productive to get in the chief ministers of the states concerned and ask really hard questions to them. Yes, many judges seem to look for their moment of glory, and assuage their conscience that they have done something. But the real question is why is it that those whose job is to seek glory in the public eye render our fundamental problems invisible.
Indian politics lives from crisis to crisis, the state is often intent on diminishing its own credibility, the robust deference to forms on which constitutional government depends has long been thrown out of the window. But we outrage that someone chose the IPL to vent exasperation. As Tom Paine said to Burke, “We pity the plumage, but forget the dying bird.”