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Checkingjudicialpopulism&policymaking|TheAcorn

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Checking judicial populism & policymaking

by Nitin Pai on 4TH DECEMBER 2014 in PROVOCATIONS, PUBLIC POLICY

Judges should not make policy

All manner of players moved into the space created by a combination of the extreme
weakness of the Executive and the logjam of the Legislative over the past decade. In
stepped civil society activists, large non-governmental organisations and the
judiciary. Of these only the last has constitutional legitimacy and therefore, judicial
actions deserve a lot more scrutiny by those who wish to safeguard the Indian
republic.

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Lets set corruption and other malpractices aside for now. What should concern the
republic is the role the judiciary sees for itself. Instead of concerning itself with its
core functions: adjudicating on civil, criminal and constitutional matters, it has
entered domains and taken positions that risk further damaging both constitutional
balance and good policymaking.
This is about propriety of process, not merits of the outcome. For instance, it made
little sense for the Supreme Court to rule that radio spectrum should always be
auctioned. Sure, auctions are one of the best ways to allocate scarce national
resources, but the absoluteness of a Supreme Court verdict makes it impossible for
the government to say, promote innovation in the wireless industry through a
different scheme of spectrum allocation. This is just an example: public policies are
best made by the Executive because of the need for flexibility and discretion. When
policies arise out of Supreme Court judgements, they do so at the cost of
undermining democracy, federalism and quite often, common sense.
Yesterday, the Supreme Court announced that it will set up a Social Justice bench,
for:
To mention summarily, about the release of food grains lying in stocks for
the use of people living in drought affected areas; to take steps to prevent
untimely death of women and children for want of nutritious food;
providing hygienic mid day meal besides issues relating to children; to
provide night shelter to destitute and homeless; to provide medical
facilities to all citizens irrespective of their economic conditions; to provide
hygienic drinking water; to provide safety and secured living conditions for
the fair gender who are forced into prostitution etc. are some of the areas
where Constitutional mechanism has to play a proactive role in order to
meet the goals of the Constitution. [Quoted from Bar and Bench]

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Checkingjudicialpopulism&policymaking|TheAcorn

This move is problematic along several dimensions. First, it is yet another fast track
court among many fast track courts. Fast track courts sound good, but work well
when there are very few of them, and used very sparingly. A lot of permanent fast
track courts slow down the entire system (and according to Supreme Courts latest

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figures, it has around 65,000 pending cases.)

Second, by shunting public interest litigations (PIL) onto this social justice bench, it
is presuming the PILs only ought to be about social justice. Surely citizens of India
must be allowed to file PILs about other important public matters, which may not
concern social justice.

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Third, the mandate of the special bench is a massive intrusion into policymaking and
sets a particular social agenda in concrete. Even the founding fathers of the Indian
Constitution were unwilling to do this, for they rightly felt that every generation
must have the freedom to solve social problems in the light of their own wisdom and
experience. The argument that the Preamble of the Constitution calls for social
justice doesnt wash: the preamble applies to the whole purpose of the republic, not a
specific task for the Supreme Court. Moreover, going by the Courts logic, will it now
also create benches for economic justice, political justice, liberty, equality and
fraternity as well, as they are all cited in the Preamble? If not, why single out social
justice?
From recent comments and the announcement of this social justice bench, it appears
that the Court is concerned that the Modi government is likely to reverse the social
justice policies introduced by the UPA governments. Even if this impression is
accurate, it is not for the Supreme Court to protect specific ideological persuasions,
either its own, or of previous governments. In a famous case on Barack Obamas

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healthcare policy, the US Supreme Court noted

Members of this Court are vested with the authority to interpret the law; we
possess neither the expertise nor the prerogative to make policy judgments.
Those decisions are entrusted to our Nations elected leaders, who can be
thrown out of office if the people disagree with them. It is not our job to protect
the people from the consequences of their political choices.[Reason]
That is a fine principle for the Supreme Court of India too.
The judiciary will fulfil its constitutional role if it performs its core functions well.
This means dispensing justice, not hardcoding policy, and certainly not acting in
ways that satisfy the desire of society. The best way to ensure justicesocial,
political and economicis for it to speed up the judicial system. For all the Supreme
Courts exertions, there seems to be little by way of fixing this central problem. The
Court should detail how it intends to become more efficient and effective, and
demand the same of the Executive and Legislature.
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