Breaching the lines

Courts would do well to limit the terms of their engagement with policy matters

In a climate of widespread cynicism about institutions, the courts have been exerting themselves to fix the failures. For some time now, the executive has been seen as drifting and purposeless, if not complicit in subverting processes. With its recent record of crippling partisanship and delay in critical bills, the legislature, too, appears to have dropped in public esteem. Matters of public interest are being seen to be left to slide and the judiciary has taken on a more activist role. But that impulse is now leading to a situation where the courts hold forth on policy matters small and big — from spectrum allocation and mining procedures to the minutiae of transport decisions, wildlife zone policing and setting guidelines for the media — that are squarely not in their domain. Apart from judgments and court-appointed investigations, high courts and some benches of the apex court have also articulated pointed positions on land acquisition and FDI in retail, trying to set the normative frames for these issues.

In the 2G judgment, the court gave the sweeping direction that all natural resources must always be auctioned. Instead of nudging the government towards transparent and fair decision-making, the court had virtually reached in and taken over its prerogative to make policy. This touched off confusion and panic, until a presidential reference clarified the matter. The Supreme Court then restored the balance, saying that "the courts lack the necessary expertise to decide the methodology for the disposal of natural resources, which is an economic policy". Perhaps the courts need to be periodically reminded of that principle. For instance, a court-appointed commission to investigate illegal mining in two states has ended up suspending and banning mining activity, plunging the sector into uncertainty and livelihoods into limbo, creating a shortfall of necessary ore. Such decisions by the court are highly consequential when they concern natural resources. While the impulse to intervene may be protective of the public interest, many of these decisions could trip up the executive at a time when the national imperative is also to revive growth.

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