Holding the higher judiciary accountable seems to a recurring theme in recent posts on the blog. A typical feature has been an expressed concern about how one can engage in such discussions without running foul of the Supreme Court’s strict approach towards contempt of court actions. Pratap Bhanu Mehta has a characteristically blunt and hard-hitting op-ed in today’s Indian express which, perhaps in recognition of such concerns, has the tongue-in-cheek title, “With Due Respect,Lordships.” In the piece, Mehta focuses on the following recent events:
“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.”
While reiterating ideas he has expressed before, Mehta identifies the following problems with this trend:
“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.
The second issue is this. Often judicial interventions, unless disciplined by a law and carefully crafted, produce worse outcomes. In some ways judicial policy-making magnifies rather than corrects for the deficiencies of executive policy-making. The fiasco over admission policies in Delhi schools is a case in point, where our honourable judges did not pay due attention to how incentives operate under different regimes, what the connection between cause and effect is in producing desired outcomes. Ad hominem interventions, based on nothing more than confidence in the judges’ good intentions, are no substitute for a policy-making process.
Third, the more capacious judicial intervention becomes, the more the judiciary will undermine its own authority. If much of what the judiciary does becomes more like discretionary and arbitrary exercise of policy choices rather than enforcement of the rule of law, the whole integrity of law is undermined. What remains of the central elements of the rule of law: consistency, predictability, integrity, constitutional morality and proper authorisation?”