Acorn | Checking judicial populism & policymaking

Judges should not make policy.

All manner of players stepped into the space created by the extreme weakness of the Executive branch and the logjam of the Legislative branch of government 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.

Let’s set aside corruption and other malpractices aside for now. What should concern the republic is the role the judicial branch of government sees for itself. Instead of concerning itself with its core functions: adjudicating on civil, criminal and constitutional matters, it has stepped into domains and taken positions that risk further damaging both the 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 off. 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: 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]

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. Permanent fast track courts slow down the entire system (and according to Supreme Court’s latest 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 ought to be about social justice. Surely citizens of India must be allowed to file PILs about issues not concerning social justice.

Third, the mandate of the special bench is a massive intrusion into policymaking and sets the social agenda of the government 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 calls for social justice doesn’t wash: the preamble applies to the whole purpose of the republic, not a specific task for the Supreme Court. Going by the Court’s logic, will it now create benches for economic justice, political justice, liberty, equality and fraternity as well? 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. The US Supreme Court under Justice Roberts had ruled that it is not for the Supreme Court to protect the people from the consequences of their political decisions. That is a fine principle for the Supreme Court of India to follow too.

The Supreme Court will fulfil its constitutional role if it performs its core functions well. This means dispensing justice, not hardcoding policy, and certainly not act in ways that “satisfy the desire of society”. The best way to ensure justice—social, political and economic—is for it to speed up the judicial system. For all the Supreme Court’s 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.