SC’s criticism of state govts’ failure to curb crop-stubble burning veered into judicial adventurism
The Supreme Court telling the chief secretaries of Delhi, Haryana, Punjab, and Uttar Pradesh that the governments they represent “had no right to be in power” if they couldn’t be bothered about people—the apex court had taken suo motu notice of the failure of the states to control air pollution in the national capital—would perhaps have given solace to many NCR residents. The pollution level, after all, had hit ‘severe’ many times over the past 12 days, and Punjab and Haryana have abjectly failed, for several years, in clamping down on crop-stubble burning, one of the chief reasons why Delhi’s air turns so toxic in the winters, despite the apex court having banned the practice. The executive’s failure, of course, prompted the court to intervene in the the manner it did, but there is no denying the fact that the apex court stepped miles outside its remit in doing so, and muddied the waters on separation of powers.
The court’s rationale was that democratically-elected governments of the states were failing their people with their inability to act meaningfully on pollution and on moving farmers away from crop burning. The bench, comprising Justices Arun Mishra and Deepak Gupta, told the states that they “have forgotten concept of welfare government, (are) not bothered about poor people, this is very unfortunate.” It is true that the states’ and NCT’s executive should have done considerably more. Haryana, for instance, started its sensitisation programme on crop-stubble burning for farmers only recently, even as Punjab started it in January. Punjab, on the other hand, started distributing stubble-extractor machines only in September, and, as a consequence, not all the machines in its stable could be made available to farmers. But, even such dysfunction doesn’t mean that the judiciary should deem it fit to intervene in the executive’s domain. It can tell off the state governments for failing to provide funds, perhaps even for trying to pass the buck on to “poor farmers”, and not having the funds to incentivise the latter not to burn the stubble. But, there is no ground for it to question the governments’ right to stay in power, or say, “Running the country is not the work of the court, but if you cannot do it then the court will do it. Then there will be no need of the government.” It is a fraught line of assigning accountability. If such a precedent of dilution of the separation of powers is set, with 3.1 crore cases pending at all levels, the executive/legislature could just as well question the judiciary’s efficiency, and intervene in a manner that undermines the latter. There are many instances of judicial activism—in May 2016, against the backdrop of the Maharashtra drought, the SC asked the Centre to abandon the existing drought management policy and come up with a new one, and set up a National Disaster Mitigation Fund, even as the National Disaster Response Fund and State Disaster Response Funds were functional and the appropriation Bill to direct drought-spending was in the process of being passed by Parliament.
At the heart of the crop-burning problem, lies bad and myopic policy. The fatally-flawed procurement and price support policy of the government has encouraged paddy-cultivation in Haryana and Punjab, which, in turn, has led to groundwater in the states falling to critical levels. This led the states to pass the Punjab Preservation of Subsoil Water Act, and the Haryana Preservation of Subsoil Water Act to conserve water. This has pushed the crop cycle closer to the monsoon to save groundwater, and has shortened the time for harvesting before the next sowing. As a result, farmers find stubble burning the fastest method for readying the fields. So, it is true that the government has fostered the problem. The apex court, however, took its criticism and intervention too far, right into the territory of judicial adventurism.