बेबाक · Editorial
Administration by litigation: the courts filling India's governance vacuum
From stray-animal solatium to DNA tests for war dead, the bench is stepping into work that should not need a petition.
A busy week on the bench
In a single stretch, the higher judiciary reached into corners of public life where routine administration should have acted first. The Supreme Court ordered Rajasthan to pay one lakh rupees to a government official as compensation for harassment caused by political interference in a prosecution sanction. It directed the Centre and the state governments to develop a mechanism for compensation in accidents caused by stray animals on roads. It asked the Centre to facilitate DNA testing and ensure legal aid for compensation claims for the families of Indians killed in the Russia-Ukraine war. The High Court of Meghalaya expressed serious concern over the alleged assault and parading of an advocate by non-state actors. The through-line is not activism for its own sake; it is administration by litigation.
The vacuum the bench fills
Each order answers a failure upstream. Accidents caused by stray animals on roads are a governance problem, yet it took the apex court to demand a solatium mechanism from the Centre and the states. Identifying Indians killed in a foreign war and helping their families seek compensation are state responsibilities, yet a court had to direct facilitation of DNA testing and legal aid. Political interference in a prosecution sanction is precisely what administrative rules should prevent; instead, a one-lakh cost marks the point where the system broke. When the bench is the first responder to ordinary governance, the fault lies less with the bench than with what it is compensating for.
Steel-manning both sides
The case for judicial reach is strong. Courts are often the last door open to a citizen the state has ignored, and constitutional remedy is entitlement, not charity. Yet the opposite case deserves an honest hearing. Judges are unelected, generalist, and structurally ill-suited to design compensation schemes or manage identification and compensation logistics; they lack budgets, field data, and direct electoral accountability. A directive is not a delivery system. Every problem the court adopts is one the legislature and executive may be relieved to avoid. The danger is a slow inversion in which policy migrates from the floor of the House to the cause-list of the court, weakening both.
The rule of law, both ways
Two orders frame the same principle from opposite ends. A Delhi court's life sentence for a former municipal councillor and four others in the killing of Intelligence Bureau staffer Ankit Sharma during the 2020 riots shows that mob violence must draw firm, lawful consequence. The Meghalaya High Court's alarm at the alleged assault and parading of an advocate by non-state actors shows that even an accused person is protected by procedure and dignity. Rule of law is tested not when a citizen is popular, but when he is inconvenient. The state retains the monopoly on punishment; vigilantism and mob violence alike fracture the republic's foundation.
Open justice, closed doors
The same institution is wrestling with its own transparency. A July 24 interim order barred the circulation of livestream proceedings on digital platforms, and the Court is now weighing a protocol to govern access to its livestream archives. The stated aim, preventing commercial exploitation and misuse of hearings, is legitimate. But activists warn that reversing the principle of open justice is a heavy price. A court that expands its writ over the executive must hold itself to the visibility it demands of others. The remedy for misuse of a public record should be regulation of the misuse, not restriction of the public's sightline into the courtroom.
The way forward
The corrective is not to clip the judiciary but to make its interventions unnecessary. Where a court has had to order a mechanism, for animal-accident solatium or facilitation of war-dead identification, the Centre and state governments should convert the directive into standing policy with a named nodal office and clear timelines, so the next victim need not litigate. Prosecution sanctions should be insulated from political interference by rule, not by fine. On its own house, the Court should settle an archives protocol that curbs commercial misuse while preserving open justice as the default. A republic is healthiest when its elected arms govern and its courts are free to merely judge.
A republic where the bench must order the state to facilitate identification of its own war dead has a problem the bench alone cannot fix.
Your Constitutional Rights
What the Constitution guarantees in this storyThe State shall take steps to separate the judiciary from the executive in the public services.
Directive PrincipleThe right to move the Supreme Court directly to enforce fundamental rights — called by Dr Ambedkar "the heart and soul of the Constitution." The courts can issue writs such as habeas corpus and mandamus.
Fundamental RightNo person shall be deprived of life or personal liberty except by a fair, just and reasonable procedure established by law — read by the courts to include dignity, privacy, health, a clean environment and livelihood.
Fundamental RightThe State shall not deny any person equality before the law or the equal protection of the laws. Like must be treated alike; the law cannot be arbitrary.
Fundamental RightWhat this editorial rests on
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