Odd, even rule: Courts should be very careful of stepping into the domain of policy-making
Though this newspaper has been critical of the Delhi government’s odd-even policy on grounds that cars account for just 2% of the capital’s pollution of particulate matter 2.5 (PM 2.5) according to the IIT-Kanpur report – so, halving the number of cars will reduce PM2.5 levels by just 1% – the Delhi High Court has done well to allow the scheme to go on for its scheduled 15 days though it seemed to indicate it was in favour of winding up the scheme after a week when the initial petitions were filed against it. The court did not – wisely – pay cognizance to the data presented to it showing a noticeable reduction in pollution levels after odd-even was introduced since various petitioners had also cited data from official sources to show pollution levels had not come down. Instead of getting caught up in a debate on which set of data was more reliable, the court pointed out ‘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’.
Indeed, this is much the same argument made by the Union government some weeks ago in the ecommerce case – the government cited various Supreme Court judgments to say that correctness of policy decisions were beyond the reach of the court as long as they did not run foul of the Constitution and there was no mala fide in the way the policy was formulated. If the courts are going to feel free to intervene in government policy on grounds of there being a better policy, governance will be badly hit since there will always be a better decision that could have been taken – it can, equally, always be argued, the assumptions made by the government are incorrect.
Given this, the question is what are citizens to do when the policy is, to use the court’s words in the odd-even case, ‘arbitrary or irrational’? Certainly banning cars looks like it could fall into this category given their limited pollution and the fact that two-wheelers cause more pollution given their numbers are so much higher. This is where the courts need to be careful. When the CAG report showed large corruption in the awarding of 2G telecom licenses, even though the government of the day argued this was ‘policy’, the courts did not hesitate to cancel the licenses. In the Delhi pollution case, as the court must have reasoned, the measure was going to be in place for just a fortnight anyway. And to the extent government policy is arbitrary or irrational, the affected should keep in mind there are other alternatives available as well. Getting media support, in the past, has been seen as a valuable tool that has got both governments and courts to relook their original stands; social protests, such as those in the capital after the Nirbhaya rape, similarly, made the government completely change its approach to the case. Judicial power is best exercised with restraint.