It is not a good time for traders in Delhi and especially for those having unauthorized commercial establishments in residential areas in the national capital. For the Centre and the Delhi government as well, it is a situation that they would rather like to avoid. In this duel involving ‘the illegal’, ‘the political establishment’ and ‘the rule of law’, the judiciary alone stands above with its conscience clear. What the Supreme Court has done i.e. ordering the resumption of sealing against unauthorized business establishments demonstrates once again the inability of the political class running the government to come clean on issues related to rule of law. While the government, reeling under the Supreme Court order on resumption of sealing, says it will implement the order on carrying out the drive against illegal traders, its sincerity is under cloud even though it may profess that the court order is paramount and binding. Given an option (if the court had not intervened), there is no doubt that the political class would have given in to the fancies of the powerful trading groups.
While the judiciary certainly does not have the authorization to issue policy guidelines on what is rightfully the mandate of Parliament or State Legislatures, in this case (as in many other instances) the court has only gone into the ‘illegality’ of the law, which it has a right to intervene. In the parliamentary democracy as envisioned by the constitution, each organ have been given a clear mandate of obligations to ensure that rule of law prevails. The court therefore through the norms of checks and balances has a right of judicial review and more so when the political executive fails to uphold the very same rule of law that it has enacted. Illegality anywhere cannot be defended either by elected governments or by the non-elected judiciary. As such, the Supreme Court has done the right thing by coming out with yet another bold judgment, which will hopefully serve as a strong reminder to other States as well that illegal encroachment will not be tolerated.
Given that the Supreme Court has refused to provide any relief to traders, the Centre, Delhi government and Municipal Corporation of Delhi (MCD) should now do the proper thing by enforcing the ruling given by the highest court of law. The question of maintaining law and order is something that must be dealt with by the Delhi government. The government may look at ways to ameliorate the condition of those whose establishments will face the axe but the question of providing relief to them from MCD action should not arise at all, more so after the Supreme Court order. At the end, it is about restoring the sanctity of the rule of law and strengthening the working of the country’s democratic institutions. The option of going in for a constitutional amendment to provide relief to traders from the MCD action must be dropped. It is time for political establishments to avoid populist decisions otherwise it will only help reinvent the cycle of illegality and giving legitimacy to the wrong doer and those who perpetuate lawlessness and break the law.
