Should Courts make Public Policy?

Indian constitution has clearly separated power executive, judiciary and legislative.  Public policy is falls in the domain legislative. The parliament enacts laws and the executive make sure the law is executed and makes necessary provisions for the enactment of the law. It is judiciary which upholds the laws of land . The constitution empowers courts with judicial review under which courts can declare laws as null and void which are ultra vires. Judicial review  was necessary in order to give effect to the individual and group rights guaranteed. Judicial review of Indian courts has evolved in three dimensions – firstly, to ensure fairness in administrative action, secondly to protect the constitutionally guaranteed fundamental rights of citizens and thirdly to rule on questions of legislative competence between the centre and the states. The constitution also provides a powerful writ Mandamus which enables the court to direct any pubic authority which fails to deliver its duty.

                In late 1970, after withdrawal of emergency Public Interest Litigation has emerged as people friendly procedures initiated by the court. The dilution of ‘locus standii’ , which enabled people to initiate court proceedings even in absence of the aggravated party helped civil societies and social activists to use PIL as a powerful tool to fight against government on behalf of marginalized people or aggravated groups who cannot afford court proceedings. Apart from the PIL the court also started picking up on issues suo moto.  Prior to PIL the role of court was just limited to the interpretation of law and to check the validity of law. But the court assumed a guardian role to protect rights of the citizens and started directing government and shaping the public policy with its landmark judgments.

Be it inhuman conditions for prisoners in Bihar Jail or removal of pavement dwellers in Mumbai or the Delhi air pollution case the court has issued Mandamus writs to the government to take necessary actions. If an organization fails to implement a court directive it is considered as contempt of court and will lead to arrest of officer to whom the directive is issued.  With Judicial activism as key the court has entered the domain of policy formulation. One might think how courts can formulate public policy as policy has to be legislated in the parliament or has to be an executive order.  By the judgments courts influence the behavior of policy makers. Whenever a policy is framed the executive and legislature take previous judgments of courts into account as courts might refer and base their judgments on its prior Judgments. Apart from this court has given directives to government to create a policy.

Across globe there is a debate on courts making the public policy.

If judges devise strategies to enforce the directive principles, it amounts to an intrusion into the legislative and executive domain. It is reasoned that the articulation of newer fundamental rights is the legislature’s task and that the judiciary should refrain from the same. This is backed by the argument that the judiciary being an unelected body is not accountable to the people. In most countries judges are appointed through methods involving selection or nomination, in which ordinary citizens do not have a say. It is argued that allowing the judiciary to rule on the validity of the enactments passed by a popularly elected legislature amounts to a violation of the idea of separation of powers. Skepticism is also voiced against judges using their personal discretion to grant remedies in areas in which they have no expertise. Few critiques consider that this is infringement of parliamentary or executive sovereignty. Sometimes giving these directives courts might fail to interpret the majoritarian behavior of the society as they lack necessary skill set to do it.

One more strong contention is that contents of a constitution adopted by a country at a particular point of time reflect the will of its framers. However, it is not necessary that the intent of the framers corresponds to the will of the majority of the population at any given time. The members of the Constituent Assembly were overwhelmingly drawn from elite backgrounds and hence did not represent popular opinions on several vital issues. So courts cannot assume the situation are constant and give directives to the government.

The judgments and directives given by the Judges can be biased. There are instances that the same case got varied judgments at different courts or different benches. From this it is evident that Judgments are influenced by the individual bias which is based on the background one comes from and his experiences in life.  So when they give directives they can have a bias.

There are arguments on why courts can influence public policy.  One argues that when court gives any directive it has no short term benefits unlike legislature who has an election cycle. Courts always give in directives considering long term goals. For Example when the government directs Delhi Government to install CNG kits to all the Buses plying in Delhi pollution board and politicians opposed the directive. But ultimately they have implemented it. This order of court has controlled the raise of air pollution level Delhi. The other argument is that the legislature might not consider certain important issues while framing public policies in that case courts takes it as failure of state and intervenes to secure the rights of minorities or marginalized. For example in Vishaka’s case the Court invoked the text of the Convention for the Elimination of all forms of Discrimination Against Women (CEDAW) and framed guidelines for establishing redressal mechanisms to tackle sexual harassment of women at workplaces. Though the decision has come under considerable criticism for encroaching into the domain of the legislature, the fact remains that till date the legislature has not enacted any law on the point.

                Considering the above arguments I feel that courts should draw boundaries to what extent it can issue directives to the legislature. If the courts encroach into the domain of legislature or executive it is the violation of philosophy of checks and balances of our constitution.  For Example in 2010 the Supreme Court has directed government to distribute food grains to starving and hungry poor as the grains are rotting in the warehouses of Food Corporations as they don’t have enough storage capacity. The prime minster has responded saying that court should not enter the realm of policy making.  Yes the court should have directed government by issuing a mandamus to government by asking to take necessary steps to prevent grains from rotting. With limited knowledge of market and repercussion of distributing grains courts have directed government to distribute grains free of cost which could have distorted the market.  Saying this to protect rights of minorities the courts can sometimes intervene and direct the executive to frame laws like what happened in Visakha case and Nazz foundation case or directing.  So to conclude the Supreme Court can give directions which won’t undermine the role of executive or legislature. The Supreme Court can guide lines but tenets of law and its implementation of it has to be left to legislature and executive who have expertise.