Finance minister Arun Jaitley has every reason to be bitter about the judiciary getting into policy matters since, instead of acting as guardians of the Constitution, the courts are increasingly dictating policy action to the government. The most recent case is the ongoing one on drought relief where the Supreme Court has told the central government to be more pro-active when the state government is not doing a good job—how this is to be done is not clear since this is the states’ job even when the centre provides the funds. Worse, as Jaitley says, ‘we have the National Disaster Response Fund and the State Disaster Response Fund and now we are being asked to create a third fund’. Despite the fact that the RBI is working hard to get banks to recognize bad loans faster, the SC wanted a list of defaulters—it took all the RBI’s persuasion to get it to agree not to make the list public—and even directed the government to set up a panel to examine the issue of bad loans and ever-greening, a task the centre and RBI were in any case doing; presumably this panel will have to submit a report to SC. In the case of the ongoing diesel car case, SC has imposed a ban on registering new cars above 2000 cc even though the scientific evidence—including the IIT Kanpur report—points to this having little impact.
Some part of what Jaitley says is the ‘step by step, brick by brick’ destruction of the ‘edifice of India’s legislature’ looks unavoidable. After all, when the government refuses to act, citizens do turn to the courts. And when the government cites ‘policy’ to cover corruption—as the UPA did in the Raja scam—the same Jaitley would probably have welcomed the SC decision to cancel the licences. But there is a fine line here that the courts have to be careful not to cross. Does the SC, for instance, really need to decide how soon dance-bar licenses are to be issued or decide on whether images on condom packs violate the laws against obscenity? There is little doubt, as the Chief Justice said last month, that the judiciary is woefully understaffed and has just around 40% of the strength it should have. But that is all the more reason to use more restraint in picking cases to judge. When citizens petitioned the Delhi High Court in January to stop the odd-even policy on grounds it was inconveniencing them without helping fix pollution, the court observed ‘the law is well settled that on matters affecting policy this court will not interfere unless the policy is unconstitutional or contrary to statutory provisions or arbitrary … since the policy decisions are taken based on expert knowledge and the courts are normally not equipped to question the correctness of the same’. That’s a ruling the judiciary would do well to keep in mind—an active judiciary is good for the country but the same cannot be said for an activist one that seeks to take over the powers of elected governments.