The Indian judiciary has performed, in many respects, a vital function in sustaining democracy and promoting accountability. That is why it is all the more disconcerting when there are headlines that do not reflect well on the judiciary. To take an example, consider three stories from the last couple of days: the controversy over the appointment of Justice Bhayana; the Delhi High Court pulling up the government for proposing to levy congestion charges at peak hours at airports with heavy air traffic; and the remarks from an honourable justice of the Supreme Court to the effect that it would be desirable to hang a few people from the lamp post to deter corruption. Why should these incidents cause concern?

We can debate the merits of levying congestion charges. But we ought to be shocked that a court can so causally assume that this is a matter that falls within its jurisdiction. Think of the extraordinary consequences of courts acquiring the power to say that a particular government levy was “passenger unfriendly”. Most things that governments do, is in some senses citizen-unfriendly. But under what law, what conventions of democracy, what counsels of prudence, should courts pronounce on these matters? The Delhi High Court’s interventions are typical of what high courts across the country are doing: interfering with policy in ways that are injudicious. These trends raise significant questions about the judicial system.

It is becoming apparent that the Supreme Court is losing grip over judicial interventions made at the high court level. The apex court has on occasion gestured at the fact that policy decisions are the prerogative of the executive. But this lesson seems not to have percolated down the system, perhaps in part because the fundamental question of what falls within the courts’ domain has become confused in law and practice. When was the last time judges even so much as asked whether they should be pronouncing on policy matters that involve no legal technicalities or constitutional ramifications? It is simply not the court’s business to decide what the appropriate age of admission to schools should be, or whether the government should introduce differential time pricing at airports.

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