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Mainstream, Vol XLV, No 50

Perils of Judicial Policy-making

Monday 3 December 2007, by Vijay Kumar

The controversy over the last Chief Justice of India, Justice Y.K. Sabharwal, allowing his sons to allegedly further their business prospects by abusing official position has brought to the fore the issue of judiciary indulging in the exercise of policy formulation and thereby trenching upon the executive and legislative domain by negating the very concept of separation of power.
I do not wish to go into the correctness or otherwise of the allegation against Justice Y.K. Sabharwal and confine myself purely to the issue of judicial policy-making and the risk inherent in the exercise for erosion of credibility of the judiciary.

Our country cannot afford the phenomenon of governance by the judiciary. To begin with, there is a well-defined demarcation between the role and power of all the three organs, legislature, executive and judiciary. The separation of powers among these three organs has already been declared as the basic feature of the Constitution by the Apex Judiciary itself. Under our constitutional scheme of things, the power to legislate is earmarked to the legislature subject to the power of judicial review on the ground of constitutional transgression. Power to formulate policy falls exclusively within the domain of the executive because the executive is elected and accountable to the people’s representatives in the legislature. The judicial review is confined to examine the validity of law passed by the legislature on the ground of legislative competence and infringement of fundamental rights and the legality of the executive action on the ground that the same is contrary to the law enacted by the legislature, known in legal parlance as a doctrine of “ultra vires”.

THE early 1980s inaugurated the healthy phenomenon of public interest litigations which helped the higher judiciary to dabble with policy issues. The emergence of public interest litigations succeeded in exposing the administrative deviance and corruption, nay, the empowered the civil society to question administrative inaction. The judicial activism associated with the emergence of the concept of the PIL gave way to full-scale judicial legislation in the decade of the 1990s and the extreme instances of full-throttle judicial legislation are the Supreme Court’s mandate in the All India Judges case in 1993 and 2002 in respect of the recruitment, promotion and pay and allowance of judicial officers throughout the country and taking away the power of the executive to appoint High Court and Supreme Court judges by rewriting the Constitution. This directly militated against the constitutional provisions which grant autonomy to the High Courts to deal with the service of judicial officers. In the garb of interpretation, this was plain and simple judicial legislation which amounted to naked usurpation of legislative power.

The policy matter is an aspect of governance and good governance is neither a fundamental nor a legal right for the simple reason that the concept of governance is extremely amorphous and cannot be subjected to judicial review for want of what is known in the American Constitution literature as “manageable judicial standard”. In the USA, this goes by the name of the doctrine of “political thicket” which implies that certain aspects of governance are overwhelmingly political in nature and cannot be tested before the court of law for want of “manageable judicial standard”. No doubt the doctrine of political thicket in this consolidated phase of judicial activism has suffered dilution but its very raison d’etre cannot be lost sight of.

The policy matter involves a close examination of the bewilderingly complex nature of knowledge and experiments which could be evaluated best by the experts and implemented by the executive. The court lacks both expertise and institutional capacity to deal effectively with the exercise of policy formulation. The temptation on the part of the unelected judiciary to dabble in policy matters is indeed extremely strong, but the judges are not worth the salt if they cannot resist this temptation. Moreover, the exercise of policy formulation entails the trade-off between the common welfare of the public and powerful business interests of certain political and business groups, due to which motive is imputed even against the best of policy. Perhaps this is inevitable. But since the executive is accountable to the people’s representatives, they are best suited to answer this charge, lest their failure to do so may cost them dearly in terms of electoral outcome. But the unelected judiciary can ill-afford to do so in the event of imputation of a certain motive. The sealing drive in Delhi for using residential premises for commercial purposes initiated by a Bench headed by Justice Y. K. Sabharwal resulted in all kinds of imputations levelled against the judges. The judges are not supposed to defend themselves publicly in view of the oath taken by them. Moreover, public interest is inevitably undermined because the public is restrained or silenced to question the jurisdiction or impute even motive for the policy sought to be enforced by the court for fear of being hauled up under the contempt of court provision. Therefore, it is eminently in the public interest that the court should adopt the hands-off approach in policy matters. Moreover, policy matters are critically dependant on the vicissitudes of public opinion and the exercise of judicial power should not be and cannot be dependant on public opinion.

YET another problem in the court undertaking the task of policy formulation is the utter lack of cohesiveness and corporate character in judicial edicts. These days the individual judge tends to pronounce according to his own subjective notions. Uniformity in judicial articulation has become a casualty. In fact, the Supreme Court declared that Article 141 of the Constitution which otherwise binds the entire nation with the directive of the Court is not binding on it. Unlike the Supreme Court of the United States, the Indian Supreme Court does not seat in banco (full court) and it would be extremely hazardous and unpredictable to leave the task of policy formulation to the personal preferences of the adjudicator, however eminent or erudite he or she may be. On the other hand, there is the principle of collective responsibility of the Cabinet which restrains the individual Minister to air her/his personal predilection and translate it into the policy of the government of the day.

The policy matter, which is an aspect of governance, should be best left to be governed by our public who are politically matured. Democracy offers a plethora of legitimate options in the form of public opinion, media pressure, agitation and, last but not the least, the election to interrogate with the soundness or otherwise of a policy matter. The credibility and efficacy of the judicial system should not be contingent upon volatile public opinion. The court must confine itself to the task of interpretation and examination of legality in executive action and the breach of the constitutional discipline in the legislative measure because the court is entrusted with the final authority to interpret the Constitution.

The question of legality on the one hand and the soundness of the policy of the government on the other must always be kept in mind while deciding policy issues. Legality of the policy is a matter for courts to adjudicate upon but the soundness or otherwise of the policy should be best left to be decided by the elected executive. Happily and fortunately, the Supreme Court under the stewardship of present Chief Justice, K.G. Balakrishnan, has been showing remarkable restraint in dealing with the issues pertaining to policy and governance.

The author is an Advocate, Supreme Court of India.

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