Krishna's defiance could be costly

But the consequences of Krishna's defiance are bound to be more serious and distressing than the high-profile confinement of the celebrated author.

The war over the Cauvery waters goes back several decades, but matters reached a flashpoint when the Supreme Court directed the Karnataka government to honour the order of the Cauvery River Authority and release 9,000 cusecs [0.8 thousand million cubic feet] of water to Tamil Nadu every day.

Chief Minister Krishna refused to obey the order. Instead, he embarked on a defiant padayatra along with his wife, to meet the aggrieved people and farmers on the banks of the Cauvery river. He also claimed that he would convince the court about the merits of Karnataka's case. [The Supreme Court has issued a second notice and has asked for a reply on or before October 22]

Although Opposition politicians dismissed Krishna's padyatra as a gimmick, the chief minister is an astute politician who clearly took a calculated risk. The Cauvery water dispute, continuously inflamed by leaders from both warring states, is so politically sensitive that a false step could cost the chief minister his political career.

On the other hand, if his defiance of the apex court's orders causes his government to fall or forces him to spend a few days in prison -- a la Ms Roy -- it would turn him into an icon and could catapult him on to the national stage.

Maybe that is why Krishna's actions were met with watchful silence. If the Union government was silent, the Congress high command, which in the past had cancelled his gala economic summit at a whim, was even more deafeningly silent.

Nobody wants to inflame a volatile situation where there is far too much misinformation and the life of one farmer has already been lost. Also, nobody wants to be on the wrong side of public sentiment in either Karnataka or Tamil Nadu.

But all said and done, it is one thing for a famous, articulate and attractive activist-writer to defy the apex court and spend a day in prison, and quite another when a chief minister challenges the Supreme Court's authority.

While Arundhati's defiance turned her into an international icon (a fawning international media compared her with Joan of Arc and Mother Teresa), Krishna's actions could create a Constitutional crisis or at least deal a body blow to judicial activism and the authority of the courts.

We Indians owe a big debt of gratitude to the higher judiciary. Despite frequent complaints about judicial delays, the judiciary has come to the people's rescue every time the executive has failed them.

It has reached a point where for everything -- from preventing pollution (in Delhi), removing billboards that disfigure city skylines and heritage buildings (in Mumbai), keeping fundamentalist groups from fomenting communal violence (in Ayodhya) -- we turn to the judiciary for an answer.

That is why politicians tend to abdicate their responsibility and ask the courts to settle disputes although the decisions could upset their political apple carts.

The well known law expert Professor S P Sathe, in his book Judicial Activism in India: Transgressing Borders and Enforcing Limits, says it well: 'At times, there have been protests but only when judicial activism seemed to impinge on the discretionary area of the politicians or civil servants. Clandestine moves were made to clip the wings of the courts by imposing restrictions on the eligibility of persons to file PILs (public interest litigations), but were withdrawn when there was public protest. There has been talk of streamlining judicial activism, but the political establishment has not had either the moral courage or political strength to strip the courts of their newly acquired power. This is because the court has carved for itself a niche in the hearts of the people.'

In India, judicial activism came into its own after the Emergency when courts started to hand down dynamic decisions in response to public interest litigations by ordinary people and investors.

Over the years, they captivated the people with a range of decisions, which ought to have been the duty and domain of the executive.

The recent Supreme Court order, slapping a hefty fine on Pepsi, Coke, Exide and others for defacing natural rocks and damaging the environment, are only the latest of such cases.

Sathe writes: 'The judiciary is the weakest organ of the State. It becomes strong only when people repose faith in it. Such faith of the people constitutes the legitimacy of the court and of judicial activism. Courts have to continuously strive to sustain their legitimacy. They do not have to bow to public pressure, rather they have to stand firm against any pressure.'

It is this need to preserve its legitimacy, which may have led to the symbolic sentence of one night's imprisonment (and Rs 2,000 fine) for Booker Prize winner Arundhati Roy earlier this year.

Although the Supreme Court has yet to react to S M Krishna's defiance, the agitating people of Karnataka must keep in mind that his defiance could deal a grievous blow to the judiciary. And that is not in the interest of the Indian people, no matter which side of the dispute they are on, or which state they belong to.

The Supreme Court, of course, faces a bigger dilemma. If it fails to react to Krishna's defiance, it lowers its own stature. On the other hand, if it acts against him, it could provoke violence, turn him into an icon and again lower its legitimacy. There is also the danger that the Karnataka chief minister's defiance would serve as an example to all large groups whose sheer numbers and brute force would allow them to disregard judicial decisions that are not in their favour.

It is safe to assume that Krishna's defiance has also forced the judiciary to introspect. In the future, it will probably be less willing to take on the dirty work of the executive, or specialised dispute resolution bodies such as the Cauvery River Authority, which failed to hammer out a solution to the dispute through negotiation.

ALSO READ:
The Cauvery Water Dispute