Policy-making too complex an issue

Of late, the judiciary has been in the news for various reasons — from dictating the age and size of diesel cars that can ply in the national capital to deciding the retirement age of cricket board officials. From a common man's perspective, judicial activism may seem appealing, but at times it is deceptive. This because instead of interpreting the law as it exists and finding whether a certain action/behaviour is legal or illegal, a judge may prescribe that a certain action/behaviour should be legal which can even be in contrary to the law as it was meant to be by the legislature.

On December 2015, the Supreme Court, to keep a check on air pollution, issued a directive to ban registration of diesel-run SUVs and cars with engine capacity more than 2000cc in Delhi and the national capital region. It has been argued that vehicular emissions contribute towards air pollution, but research estimates that vehicular contribution towards PM10 emission in Delhi is nine per cent, whereas road dust contribution accounts to 56 per cent. This means, a decision to ban diesel vehicles, most of which run on latest automobile technology, would not do much good to the issue of air pollution.

Moreover, there ought to be a reason to deny the car manufacturers their fundamental right to practice any profession. Also, after an on-going litigation spread across a period of around eight months, the court allowed these vehicles to be back on road only after imposing a levy equal to one per cent of the ex-showroom price of diesel vehicles. This amounts to a tax not contemplated in the law, and the power to tax in democratic Constitutions is that of the legislature alone.

The cars that were targeted by the court are in compliance with the existing laws. The court order not just penalised the car manufacturers, but also put a restriction on the citizens who may have legitimate reasons to buy the vehicles, such as tourist operators or those who provide services in rural areas. It appears that the judiciary believes that policy making is a trivial process. To identify solutions to the problem of air pollution in Delhi, the focus must be on various policies that are backed by rigorous empirical research and extensive stakeholder engagements. Research has to be commissioned, and engaging stakeholders is necessarily a political process. This takes time and requires patience. Policy decisions also involve making trade-offs across multiple objectives and options. The court is ill-equipped to undertake these tasks. Also, taking over the functions of the executive and the legislature can lead to chaotic results.

An instance of such chaos is the apex court's 1998 order, mandating CNG as the sole fuel for public transport in Delhi. While this shift was being debated, experts supported a multiple fuel policy and advocated greater flexibility. They opined that options of new technology should not be closed by adopting a single mode of fuel. However, the court was swayed by plea of activists. This decision highlighted the inability of the courts to bring stakeholders to a consensus. The consequences of lack of proper policy planning were long queues at CNG stations which continue till today. There has been loss of earning by auto-rickshaw drivers and denial of services to citizens, instances of compressors breaking down frequently and cylinder bursts.

The justification given by the judiciary for such activism was that as other branches of Government have failed to fulfil their obligations, the judiciary is compelled to take such tasks upon itself. This is a knee jerk reaction. Policy-making is a complex holistic and essentially political process involving various stakeholders. The judiciary has also failed to meet the expectations of public by its inefficiency; there are around three crore cases pending across the country. Does this failure give the executive and the citizens the alibi to take law into their own hands?

The power of judicial review is to ensure a system of checks and balances between the legislature and the executive on the one hand, and the judiciary on the other. The Constitution has well defined the powers of the legislature, the executive and the judiciary so that each wing functions within its constitutional mandate. Policy-making is the executive's domain and Parliament has the unfettered right to pass laws. The courts have the right to check if these laws are consistent with the Constitution. For the sake of constitutional order, the judiciary must restrain itself from encroaching into the functions of other branches of the Government.