Judicial activism not a bad idea to fill up for policy shortcomings ………Ram Singh
RECENTLY, the Supreme Court has put an interim stay on an edict of the Delhi High Court. The high court directive had imposed a penalty of Rs 500 on violations of traffic rules, over and above the usual fee for such offenses.
Commentators and legal experts have unanimously typecast the directive as yet another instance of judicial interference in policy matters, a breach of the constituent principle of separation of powers. It has invited criticisms similar to earlier judicial interventions in matters considered to be an exclusive domain of the executive; such as, the process of admissions in schools and charging of congestion fee at airports.
However, this context shows that there can be a case for judicial interventions in some policy matters. Also, it helps us understand the nature and limits of judicial interference, whenever it is permissible.
The justification for judicial intervention comes from the Motor Vehicle Act, the relevant law of the land. The Act has two stated objectives: to minimise the number of road accidents, and to provide just compensation to victims of accidents. These goals can be achieved only if the executive enforces traffic rules that are apt and effective. And, judiciary provides timely relief to victims. Unfortunately, both organs of the state have failed the society.
Courts can take several measures to expeditiously settle disputes and compensate the victims. However, the failure of the executive in fulfiling its legal obligation has made the situation much worse. Traffic rules are archaic and poorly enforced. The result is too many accidents and high congestion. All these have two direct consequences for the judiciary. Courts workload on account of accident related disputes is much higher than it would otherwise be. Also, their ability to provide timely relief to victims is seriously undermined.
This is not a mere theoretical construct. Accident rate is intolerably high 35 per thousand vehicles. In contrast, for several developed and developing countries, it is in the range of 4-15. Moreover, according to the World Road Statistics, per-vehicle casualty rate is highest for India. There are too many fatal accidents. Most of them are litigated, increasing the burden of already overloaded judiciary. Even by conservative estimates, economic costs of accidents and congestion are as high as 3% of GDP.
Several measures can help in the matter. For example, more policemen and high-tech equipment can be deployed to apprehend the offenders. Similarly, deterrence power of the law can be increased by hiring more judges to settle disputes expeditiously. However, raising fines is a better way of increasing compliance. While it is costly to hire policemen and judges, fines are mere transfers of funds within the society.
Accident rate can be decreased by increasing fines imposed on offenders, or by increasing ex-post liability of injurers for accident losses. The 1988 amendment to the MV Act had adopted both the measures. The result was, as an ongoing study by the author shows, a structural and downward shift in pervehicle accident rate. The measure worked notwithstanding popular beliefs about the presence of corruption in traffic police and the judicial delays.
But the amendment has outlived its utility. While national per capita income has increased from Rs 11,899 in 1988-89 to Rs 32,299 in 2007-08, fines have remained stagnant at a ridiculously low level. Also, the real value of fines has depreciated over time. As a result, fines have lost their bite. It is not surprising that the number of accidents has gone up from 2,46,700 in 1988 to more than 4 lakh in 2007. The actual number is much larger since many accidents go unrecorded.
Admittedly, it is difficult to find an appropriate schedule of fines. It requires an empirical analysis weighing the implications of several factors; such as, the sensitivity of offenses to fines, cost of increasing the size of traffic police and judiciary. However, it seems plausible to argue that fines should be increased significantly. In addition, law should provide for a planned increase in fines over time to offset the depreciation.
Unfortunately, the MV (amendment) Bill, 2007, fairs rather poorly on both the counts. The proposed increase in fines is nominal. For example, for excessive speeding fine has been increased only by Rs 100, and there is no effective increase in fine for dangerous driving. Moreover, the Bill does not provide for a structured increase in fines. If the Bill gets passed in its present form, the accident rate will remain excessive. And courts will have to deal with the mess created by executive and legislative failure.
In such a scenario, how plausible is it to argue that courts should have no say in the matter? They will be dealing with fewer disputes and able to provide justice to victims sooner if the executive performed its duty. The number of disputes courts have to adjudicate over and swiftness of justice are legal matters. In this instance, there is a justifiable case for judicial intervention. There are valid grounds for judiciary to command rethinking on this policy matter.
I must hasten to add that the exact form of intervention made by the HC is indefensible. Courts are not equipped to determine appropriate fines. The government can carry out this exercise better, if at all it chooses to do so. Courts should neither decide policy details for the executive nor assume the responsibility of their implementation. If a socio-legal objective requires joint efforts of the executive and judiciary, the latter can and should use mandamus to demand performance from the former.
The author teaches at the Delhi School of Economics.
Views are personal.
Views are personal.