Something is Rotten

And it’s not in the state of Denmark but at home in the warehouses of the Food Corporation of India. Rotting foodgrains and the inability of the government to find a quick fix solution recently threatened to escalate into a rare contemporary instance of overt confrontation between the Supreme Court and the government.  The Court, like the rest of the country, was perhaps taken aback, when the Prime Minister himself, a reticent man, who takes his time to speak his mind on contemporary issues, swiftly and sternly asked the Court which had earlier passed an order to distribute these foodgrains to the poor, not to “dictate policy” to the government. An uncharacteristically meek Court responded saying that it was happy with the developments though the government in its fresh affidavit had done little to honour the letter and spirit of the Court’s earlier judgment. The rapprochement was swift; and the Supreme Court surprisingly hasty in adopting a conciliatory approach. While ordinarily the forging of such a hasty consensus between the government and the judiciary would raise many eyebrows, most certainly mine, given that the perception of independence of the judiciary would suffer as a consequence, on this occasion I was happy. Primarily because the Court’s backing down (and I do certainly believe it was that) is good for the country and for the Court, hopefully representing a course correction which has been long overdue.

Courting Controversy

The Court’s order on rotting foodgrains presents the latest in a series of instances when the Supreme Court has waded into raging contemporary controversies. While in this post I will not comment on this trend generally, intervention in this current instance when the Court ‘ordered’ that the government distribute foodgrains to the poor, is illegitimate, detrimental to the reputation of the Court and brings into question the competence of the Court in pronouncing on such questions.

Illegitimacy

First, the question of what should be done with the rotting foodgrains is clearly not a legal question. While the Court has read in a fundamental right to food in to the right to life under Article 21, this does not imply a right to the foodgrains rotting in FCI godowns. On the contrary, this expresses the constitutional mandate that there is an obligation on the state to ensure that no Indian citizen goes hungry. How the state chooses to fulfil this obligation is outside the remit of the courts. It is a policy question, since it has budgetary ramifications, decisions involving a number of ministries, and an issue of prioritisation of goals which the government, being the elected representatives of the people, can legitimately take a call on. The Court pronouncing on a policy question is contrary to a whole host of precedents of the Supreme Court itself, besides being clearly contrary to common sense.

This is however not to suggest that the Court should have no role to play in this matter at all. The Court is itself under a constitutional obligation to ensure that the other organs of government, i.e. the legislature and the executive fulfil their respective constitutional obligations. Since intuitively, rotting foodgrains could provide a channel to fulfil the government’s constitutional obligation with respect to the right to food, the Court certainly can legitimately ask the question as to why such steps to distribute these foodgrains are not being taken. However it cannot order such a move, as it had purported to do, since that would be tantamount to policy formulation itself, which would be illegitimate for the Court to do, being an unelected, unrepresentative and relatively unaccountable institution.

Lack of Competence

Second, the Court is incompetent to pass such an order. Contrary to the common perception prevalent in large sections of media coverage of this issue, distribution of rotting foodgrains is not an open-and-shut case. As the Prime Minister pointed out, this is a multi-faceted problem which involves providing the right incentives for farmers to produce. In addition, there are budgetary implications of distributing such foodgrains, the impact of such distribution on markets and the channels through which such distribution is to be effected. These are necessary questions which must be taken into account before any such policy measure is effectuated. The Court, being an adjudicatory institution, with neither information, nor expertise in food grain distribution is not competent to answer these questions in any satisfactory manner. In addition, there is the thorny principled question of who among the poor should be entitled to the rotting foodgrains? Should it be poor who live near the godowns? Or should it be the poorest of the poor? Or should it happen on a first-come-first-served basis? Isn’t there a question of justice involved regarding criteria by which people should be entitled to the food? I fail to see as to how the Court can pass a blanket order to distribute such foodgrains, saying it’s better that that they get distributed than they get wasted, without enumerating the principles on which such distribution is to take place. Ambiguity in this regard, is a pointer perhaps to the Court’s lack of information and expertise in this matter.

Detrimental to the Reputation of the Judiciary

This order, and other such similar orders, certainly have great symbolic value and earn the Court some popular brownie points. It expresses a public sentiment powerfully and the media hails the Court as a caring institution, responsive to the needs of the people. However in the long run, I believe, orders such as these, which the Court cannot legitimately and competently pronounce, and which will be observed by the government only in their breach, will be damaging to the reputation of the judiciary. This is because, given the nature of these orders, their speedy implementation will be excessively onerous. To ensure their implementation, the Court can either resign itself to the fact that the government will attempt in good faith to follow its directions, or adopt a course of supervisory jurisdiction by which it continues to monitor the enforcement of its orders. While the latter course is certainly an option, at a time when the Court exercises such jurisdiction in a number of matters- forest rights being the classic example, which has been litigated for 14 years before the Court, taking on an additional burden is a questionable strategy. Given its existing workload and backlog, fighting the government’s battle may not be worth the court’s while. If this is not done however, the orders may well not be complied with or result in compromises with the government as happened in this case. The Court then risks being transformed into an institution whose intervention is public controversies is well-meaning and sympathetic but ultimately fruitless. This, needless to say, will raise questions regarding the efficacy of the courts and the enforcement of its orders, an aspect which till today is largely taken for granted. The Prime Minister may in fact have done the Court a great service by checking the extent of its sympathy with the poor of this country.

So what happens to the foodgrains?

The Court, I believe must ensure that the government takes all necessary steps to fulfil its constitutional obligations which include being made to answer as to why it allowed the foodgrains to rot in the first place and why it cannot distribute the rotting foodgrains now. However, the exercise must be deliberative and involve the government having to state its reasons before the Court. It must not extend to forcing the government to take specific measures for the reasons outlined above. At the same time, the Prime Minister himself must not remain content with telling the Supreme Court not to dictate policy; he must ensure that his government autonomously does all it can to ensure foodgrains do not rot and storage capacities are adequate which is clearly something it has not done thus far. Only extreme insensitivity would not suggest this course of action in the future and extreme incompetence fail to ensure it.

The wastage of foodgrains is unfortunate. Equally, the Court’s sympathy with the poor is a sentiment which, as the Prime Minister said, deserves the highest respect.  But rectifying one wrong with another is rarely sagacious. Certainly not for the Supreme Court of India.