Can Constitutional Courts Direct Policy Making? Examining Recent Judicial Trends

Abstract

A balance should be maintained among the three organs of the Indian Government – the Legislature, the Executive and the Judiciary. The legislature makes laws while the executive makes policies. While the legislature enacts laws, the executive frames policies. The role of the judiciary, on the contrary, is that of an entity safeguarding the constitutional provisions and the rights thereunder. Over the years now, however, the constitutional courts have been giving out directives in respect of the formulation of public policy in relation to environmental concerns, public health, good governance, education, and fundamental rights among others. This has resulted in numerous debates within the world of constitutional law regarding the degree to which the judiciary is allowed to get involved in the policy-making process.

In this essay, we try and examine whether constitutional courts can frame directives for the making of policies, particularly in view of the recent judicial trends in India. It is aimed at determining the legality of judicial activism, discussing the doctrine of separation of powers, considering some significant cases which have been handled by the Supreme Court in respect of the same, and also identifying the problems which exist due to judicial activism. Conclusion

Clearly from all this, it can be seen that although the need for the judiciary to ensure that the state performs its constitutional duties cannot be understated, it is equally essential that the judiciary does not cross its jurisdictional boundaries.

Key Words:

Judicial Activism, Separation of Powers, Constitutional Courts, Public Interest Litigation, Policy Making, Judicial Review.

Introduction

Constitutional courts have been transformed dramatically in modern democracies. In the past, courts were seen as institutions whose mandate was the interpretation of laws and resolution of disputes. In today’s context of constitutional governance, courts sometimes deal with problems beyond their jurisdiction and which are relevant to policy-making in society.

A case in point in this regard is the Indian experience where through Public Interest Litigation (PIL), the Supreme Court and State High Courts have interfered with the making of policies on environmental governance, prison reforms, food security, and pandemic management. The question of whether constitutional courts can make policy-making decisions becomes all too relevant in this context.

This question takes relevance due to the fact that policy-making is normally within the purview of the executive. Constitutional courts do not enjoy the backing of election mandates or expertise in governance matters. Still, at times, court intervention becomes imperative in view of executive inaction.

The following article discusses the constitutional basis of judicial interference in policy decisions and analyses the trend in India.

Constitutional Framework

There is silence in the Constitution of India concerning whether or not the principle of rigidity should apply to separation of powers between organs of the government. The Constitution of India allows for a checks and balance arrangement, whereby each organ performs specific tasks according to the provisions of the Constitution.

The Constitution has also provided, through Articles 32 and 226, for the constitutional courts to enforce the fundamental rights and issue directives, orders, and writs to the public authorities and officers.

On the other hand, the Constitution has endowed the Government of India and State Governments with executive power through Articles 73 and 162 respectively. Executive power includes matters such as policy formulation, budget preparations, and administration of the government.

 

But then, as per the decision of the Supreme Court of India, judicial intervention with regard to making policies comes into question when such policies are made in an arbitrary, unconstitutional, and malicious manner.

 

Judicial Activism and Extension of Judicial Power

 

The role played by judicial activism proved quite crucial for elevating the position and functions of the courts in governance. After the Emergency era, there had been certain changes in the functioning of the Supreme Court of India. To put it in other words, the Supreme Court of India took up the role of an activist in matters of social justice.

For instance, the issue relating to under-trial prisoners was decided by the Supreme Court of India in Hussainara Khatoon vs. State of Bihar. In the case of Vishaka vs. State of Rajasthan, the Supreme Court came up with a number of guidelines in relation to sexual harassment in the workplace.

This is actually a case which shows the practice of judicial legislation in India. In fact, till 2013, the Supreme Court had made some binding norms under the Constitution and even some international treaties until the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013.

It thus becomes clear that judicial activism was absolutely necessary when legislative measures failed.

Recent Judicial Trends

Environmental Governance

Environment litigation has developed into a field where there have been many judicial interventions. The Supreme Court has often given directions concerning pollution control, waste management, forest conservation, and climate governance.

Directions have been issued under various laws related to environment and public health in M.C. Mehta v. Union of India. Then came the era of environmental jurisprudence when some principles such as sustainable development, precautionary principle, and polluter pays principle became part of it. It is argued that such judicial pronouncements amount to judicial governance. But the explanation given is that environmental damage results from the failure of regulatory systems, which necessitates judicial intervention in the context of protecting the constitutional rights of the citizens as mentioned in Article 21.

Judicial Interventions in Governance and Administration

Judicial intervention has been seen in governance and administration, as well, including the areas of police reform, prison management, and election governance. Guidelines regarding police reforms were issued by the Supreme Court in Prakash Singh v. Union of India because the executive had failed for decades to address police reforms. Recruitment, security of job, and autonomy in policing were some of the issues covered in those judicial pronouncements.

Public Health and Pandemic Governance

The COVID-19 pandemic produced significant judicial engagement with policy issues. Constitutional courts considered governmental action concerning healthcare facilities, oxygen supply, migrants’ well-being, and vaccine strategy. In Re: Distribution of Essential Supplies and Services During Pandemic, the Supreme Court analyzed executive action on the health emergency situation and made directions that were expected to secure the enjoyment of basic rights. These instances highlight the growing tendency of judicial review in areas where the failure in governance has immediate effects on the right to life enshrined in Article 21.

Social Welfare and Fundamental Rights

The influence of constitutional courts extends to other sectors such as education, food security, and social welfare. The Right to Food Cases established new welfare entitlements by requiring governments to improve their policies on food distribution systems. For many years, the courts monitored the implementation of policies, effectively establishing a system of policy implementation. Decisions on education, disability, welfare benefits, among others, have also guided administrations.

Arguments in Favor of Judicial Intervention

There are several justifications for judicial participation in policy-making.

1. Firstly, the role of constitutional courts is the protection of fundamental rights. Where there is potential violation of the constitution through inaction, the judiciary may provide the necessary remedy.
2. Second, courts can help secure governmental accountability. The power of judicial review enables the courts to prevent arbitrary actions and reminds governments of the constitutional limitations on their actions.
3. Third, judicial action facilitates the bridging of institutional gaps. The Vishaka guidelines show that courts can temporarily deal with pressing governance matters without an enabling legislation.
4. Fourth, constitutional morality demands that institutions embody constitutional principles. This is a unique function of courts, especially where there are threats to constitutional principles from majoritarianism or from neglect by state institutions.
5. Therefore, judicial involvement in policy-making may actually promote constitutional governance.

Judicial Policy-Making and Constitutional Governance: A Case for Concern

While there are reasons to support judicial policy-making, there are several reasons why judicial involvement in policy-making should be a cause for concern.

First, judicial policy-making creates problems of democratic legitimacy. Members of the judiciary are not elected and thus do not possess political accountability. Policymaking requires the consideration of complex social, economic, and political factors best left to elected representatives.

Also, there is problem of institutional competence. Courts usually lack expert knowledge in specialized areas such as economics, environment, healthcare, and financial planning.  Moreover, judicial policy-making may infringe on the doctrine of the separation of powers, which dictates that the judiciary is prohibited from assuming any role associated with the executive branch in its operations.

Additionally, excessive judicial activity in governance might impair political accountability since it leads to dependency on the judiciary’s orders rather than independent government action on matters of policy. All these factors point to the necessity for judicial restraint.

 

Approach of the Recent Supreme Court: Towards Institutional Restraint?

 

Supreme Court judgments over the last few years clearly show an increased understanding of institutional limits. In many instances, the Supreme Court has made it clear that decisions regarding policy belong to the executive branch and should not be overturned simply because there exists a different policy position.

The distinction between judicial review of a policy decision for constitutionality and judicial substitution of policy is becoming more evident in recent judgments of the Supreme Court.

At the same time, the Court is not refraining from judicial activism wherever constitutional violations of fundamental rights or reasonableness are present.

Analysis: Can Constitutional Courts Direct Policy Making?

Somewhere between these two extremes lies the truth.

The constitutional courts should not be treated as alternative bodies for making policies. Making of policies has been entrusted by the Constitution largely to elected political representatives of the people. Courts have neither the democratic legitimacy nor the technical capacity to govern.

Nevertheless, constitutional courts will be unable to perform their function of judicial review in any meaningful sense if they do not have the authority to make directives that guarantee constitutional compliance.

This is where the difference between ordering a certain policy objective to be fulfilled and ordering compliance with the Constitution becomes important. Courts can order the fulfillment of constitutional obligations but should not order the means of achieving that objective.

Conclusion

It is no exaggeration to say that the ability of constitutional courts to influence policy-making processes is one of the key constitutional questions today in India. It has been observed that the judiciary played an extremely important role in the enforcement of fundamental rights, environmental management, women’s rights, and the accountability of administration. Cases like Vishaka and Prakash Singh prove that courts have the ability to make a difference when the need arises.

However, too much court interference with the process of policy-making may jeopardize the legitimacy of democracy, the capability of political institutions, and the principle of separation of powers enshrined in the Constitution. Therefore, courts should exercise self-restraint as well as play an active role in certain situations.

Constitutional courts are not responsible for governance; their mission is rather to ensure constitutional governance. When fundamental rights are violated, the courts must be actively involved. However, when it comes to policy-making, they should normally leave the field to elected institutions. In conclusion, constitutional courts must not be spectators as well as replacements for governments. The appropriate role of constitutional courts consists in guaranteeing constitutional principles within a democratic framework.

 

 

 

 

Bibliography

A. Primary Sources

Constitutional Provisions

1. Constitution of India, 1950.
2. Constitution of India arts. 32, 73, 162, 226.

Statutes

1. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, No. 14 of 2013, India Code (2013).

B. Cases

1. Hussainara Khatoon (I) v. State of Bihar, (1980) 1 SCC 81.
2. Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
3. C. Mehta v. Union of India, (1987) 1 SCC 395.
4. Prakash Singh v. Union of India, (2006) 8 SCC 1.
5. In Re: Distribution of Essential Supplies and Services During Pandemic, 2021 SCC OnLine SC 376.
6. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
7. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.
8. P. Gupta v. Union of India, 1981 Supp SCC 87.
9. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.
10. People’s Union for Civil Liberties v. Union of India, (2013) 2 SCC 688.
11. State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117.
12. Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683.
13. Common Cause v. Union of India, (1999) 6 SCC 667.

C. Books

1. P. Jain, Indian Constitutional Law (9th ed., LexisNexis 2023).
2. M. Seervai, Constitutional Law of India: A Critical Commentary (4th ed., Universal Law Publishing).
3. N. Shukla, Constitution of India (Eastern Book Company, latest ed.).
4. Durga Das Basu, Introduction to the Constitution of India (LexisNexis, latest ed.).
5. Upendra Baxi, The Indian Supreme Court and Politics (Eastern Book Company).
6. Granville Austin, Working a Democratic Constitution: A History of the Indian Experience (Oxford University Press).

D. Journal Articles and Academic Literature

1. P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J.L. & Pol’y 29 (2001).
2. Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, Third World Legal Studies (1985).
3. Rajeev Dhavan, Judicial Activism and Judicial Self-Restraint in India, Indian Law Institute Journal.
4. Aharon Barak, The Role of a Supreme Court in a Democracy, 33 Hastings Int’l & Comp. L. Rev. 1 (2010).
5. Manoj Mate, Public Interest Litigation and the Transformation of the Supreme Court of India, 38 Boston College International & Comparative Law Review 1 (2015).

E. Government Reports and Commission Reports

1. Law Commission of India, 230th Report on Reforms in the Judiciary (2009).
2. National Commission to Review the Working of the Constitution (NCRWC), Report (2002).
3. Second Administrative Reforms Commission, Ethics in Governance Report (2007).
4. Ministry of Law and Justice, Government of India, Annual Reports.

F. Online Sources

1. Supreme Court of India, https://www.sci.gov.in
2. India Code, https://www.indiacode.nic.in
3. Law Commission of India Reports, https://lawcommissionofindia.nic.in
4. PRS Legislative Research, https://prsindia.org
5. SCC Online Database.
6. Manupatra Legal Database.
7. Journal of the Indian Law Institute.
8. Indian Kanoon, https://indiankanoon.org

Further Reading

1. Aharon Barak, The Judge in a Democracy (Princeton University Press).
2. Mark Tushnet, Weak Courts, Strong Rights (Princeton University Press).
3. Cass R. Sunstein, Designing Democracy (Oxford University Press).
4. Jeremy Waldron, Law and Disagreement (Oxford University Press).