Business Laws

Courts meddling in policy matters

M. Ramesh | Updated on: May 30, 2021
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How far can the Judiciary go into the domain of the Executive?

How far can the Judiciary go into the domain of the Executive? This is a raging question today, with the Supreme Court giving directions to the governments over handling the pandemic, and the Central government famously telling the court to back-off, practically.

There are arguments on both sides. Senior lawyer, Dushyant Dave, has told Gavel that since the “government has failed to protect” the citizens from the pandemic, the judiciary should take over the function. He wants the apex court to set up a 11-member bench, which would set up a committee comprising top officials of various ministries and experts, and manage the pandemic through the committee. Lot of others, such as Gavel columnist Vinod Surana, believe that the judiciary should not cross its limits. The debate often takes a political hue. In this connection, a couple of recent pronouncements of the Delhi High Court are instructive.

In one, Vivek Sheel Aggarwal wanted the court to give directions to the government on holding clinical trials and laying down protocols for the use of antibiotics and steroids. Terming the PIL as a “Publicity Interest Litigation”, Chief Justice Dhirubhai Naranbhai Patel and Jyoti Singh, said, “It is not for the Court to render advice much less issue directions to the government on the line of treatment that is required to be followed. They observed that if courts were to entertain “petitions of this nature”, then there would be “a floodgate of petitions” asking the court to direct the government to abide by his or her suggestion.

In another case, one Ashwini Kumar, petitioned the court to direct the Central government to “include and encompass Hydrogen energic infrastructure and fuel cell electric vehicles to be eligible for incentive” under the Scheme for Faster Adoption and Manufacturing of Electric Vehicles, Phase II (FAME-II); he also wanted FAME-II funds for promoting fuel cell vehicles and setting up refueling stations. Again, Chief Justice Patel and Jyoti Singh, has refused to interfere in a ‘policy matter’, saying that it was best left to the experts concerned. They said that a court “will not ordinarily interfere in policy matters as the policies are framed based on expert knowledge of the persons concerned in the respective fields.”

Necessary expertise

Courts are not equipped with the necessary expertise to substitute their own views and direct formulation of policies tailor-made to suit the requirements of the petitioner in a given case. Courts cannot direct, advise or sermonize the executive in matters of policy framing, which is purely the domain of the executive under the doctrine of separation of powers, the judges said.

However, they added a caveat. “This should, however, not be understood to mean that a Court would abdicate its responsibility to scrutinize and test, whether the policy in question is unreasonable, unfair or violative of the mandate of Article 14 of the Constitution of India and in case it is so found, it can certainly be struck down.”

Published on May 30, 2021

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