Upgrad LLM

trespassers not welcome

Adv P & H High Court Chandigarh

The country's highest court has, on the face of it, taken upon itself the oversight of the government's efforts to cleanse the economy of black money. This incursion by the judiciary into the executive's preserve — whatever the provocation might be — is trespass. The courts have every right to rule on individual instances of regulatory failure, but the job of systemic overhaul is beyond their capabilities. The Supreme Court has often in the past refused to judge the merits of policy. There is little to recommend upturning this restraint over black money. After all, a gamut of statecraft, from foreign policy to law enforcement to economic management, is responsible for its generation. The court is correct in its diagnosis that unaccounted cash is an economy-wide phenomenon that calls for an economy-wide cure. However, it is in no position to administer that medicine. The Supreme Court's question to the government on what it is doing about black money is actually three questions rolled into one. First, why should a black market exist? Second, what makes money go underground? And third, what are chances that a person plying his trade in the parallel economy will be caught? The answer to all three is governance, or the lack of it. The government's intervention in the national debate on black money may have been adequate had the issue not acquired the endemic proportions it has in India. Joining the global crusade against dark pools of money is not enough for a country that has, anecdotally at least, too much of it. As a beginning, the government needs to introspect on the shortages that create black markets in the first place, the regulatory mechanism that nudges resources underground, and the lack of policing that allows the parallel economy unfettered growth. Judicial overreach may serve a purpose in all this by bringing the pertinent questions to the fore. It also shows the nation how its government's answers measure up. Courts are well within their jurisdiction to act as keepers of a society's conscience. But there is a very thin line between moral policing and the actual stuff. If our courts are sensitive to this distinction, they have the capacity to do much that is good for the conduct of public policy. Things can go horribly wrong, however, when judges misinterpret their jobs. For their part, governments can ignore the spectre of rising judicial activism to their peril. India's environmental sensitivities were shaped in no small measure by its men in black robes. Something good could emerge this time too once the limits of the judiciary are firmly kept in mind.



Is there any estopple that  Apex Court cannot  initiate an exercise  to cleanse the economy of black money - which evil could not be for the reasons best known to the polititians has not been addressed as yet.

The Apex Court functions on merits and there is a system at place for do's and don't as you yourself have admitted that Courts are well within their jurisdiction to act as keepers of a society's conscience if society wants it the Courts have the mandate - which becomes norm of the society meaning thereby that with the implied permission of the society the court is very much within its right to do the cleansing and there is no issue of tress pass as sought to be misunderstood by you.

On the issue of Judicial overreach may serve a purpose in all this by bringing the pertinent questions to the fore you have admitted that still this implied tresspass will result in good for the society.

In short the hidden message in this (Copied stuff I do not know from where) is that once our elected representative are insensative to the conscience of the society and forget their RAJDHARMA then (even presuming but not admitting) the implied tress pass for public good (ye public hai ye sab jaanti hai) becomes norm of the society.

If Court can play an active role in cleaning polution in air, rivers, industries (however insignificant it may be but the exercise was done keeping in mind the general welfare of the masses) then there is no reason that the same could not be done in making a positive change qua the black money.  We should stop this intellectual moaning and groaning and support this initiative.

Best Regards





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