We need to ask why court’s efforts to clean up are not bringing clarity, accountability.
As India’s great churning continues, one question keeps jumping out. Is the new confusion of institutional morality the harbinger of a genuine cleansing process? Or is it simply more dramatic chaos? The combination of civil society mobilisation, media scrutiny and a new assertiveness among institutions like the Supreme Court held out hopes of the former: just the threat of scrutiny and answerability to the court would change incentives. Faced with a shameless executive and a collusively moribund legislature, some of the court’s interventions seemed just the right nudge. But the way the process is playing out suggests that India’s institutional and decision-making crisis will only get worse before it gets better. Instead of bringing legal clarity and accountability, the courts may, unwittingly, create more fog than they shed light.
In fact, two institutional crises are now conjointly coming to a head. The crisis in the credibility of truth-producing regimes has meant, ironically, that it is easier to target relatively more honest officials. Even sworn critics of the Indian bureaucracy must admit this fact. The pall of fear that hangs over upright and honest officials in our system is now becoming unbearable, and will slow down decision-making even more. This has deep sources. Fixing the accountability of the politically elected executive is still rare. Parliament and parliamentary committees, the only sensible and viable mechanisms for doing that, have failed. But bureaucrats are now being hounded like no one’s business. Ironically, a general climate of distrust has actually given the bad guys even more leverage over the good. The threat of inquiries, which can be an arduous punishment in their own right, is such that the only rational recourse now is to defer the decision to someone else. In this climate of innuendo, the charge is the indictment.
But this deepening of the crisis in the civil service is also induced by another, deeper, crisis. Let us put it this way: never has the relationship between an elected government and the judiciary been so hostile and framed not by points of law but a combination of jostling over institutional power, half-measures and sociological innuendo. It is not clear whether this relationship can be easily repaired. The result is an all-pervasive confusion, to which the Supreme Court has unintentionally contributed.
Rewind to the 2G judgment. The confusions generated by that still haunt