Economic & Political
January 1, 2011 vol xlvi no 1
referred to a decision given in the
Marvin vs Marvin
case. In that case,lm actor Lee Marvin lived with a womannamed Michelle for many years withoutmarriage. Later he deserted her and sheclaimed maintenance.The present case before the
wasa matrimonial case, and not a publicinterest litigation
. It is surprisingtherefore that the
went a step furtherand laid down the guidelines, which isnothing short of judicial legislation. Theproper thing in such a scenario wouldhave been to decide the matter pertain-ing to the parties to the dispute and notlay down the law to be followed by theentire society.
In July 2005, the Gujarat High Courtpassed an order requiring cattle to bemoved off the roads within 72 hours. Any reasonable and prudent person knowsthat this is impossible. Legal experts havealways believed that courts should refrainfrom issuing orders which cannot beexecuted. Such orders undermine theauthority and dignity of courts.The then Chief Justice of India,R C Lahoti
cautioned his brother and sister judges about judicial activism,
To preserve the sanctity and credibility of the judicial process and to overcome thecriticism of judicial activism, it is necessary to practice self-restraint while innovatingnew tools.
Unlike the cattle removal order, onnumerous occasions, the judges champi-oning public interest have exhibited exem-plary self-restraint and considered theground realities. Socio-economic condi-tions do not change overnight. Similarly,law and order cannot be improved over-night. Sufcient time has to be provided tothe agencies so that the desired improve-ment can be attained. Whether it is therunning of
buses in Delhi or improve-ment of the Taj corridor, patience is thekey. The law can and should be used as apotent tool to bring about positive socialchange. But for doing so, the requisitetime and resources should be earmarked. A knee-jerk reaction is not going to work.Even after ve years of that order, cattleroam freely on the roads in Gujarat – and Ahmedabad.On 31 August 2010 the
Times of India
reported that the
had directed thegovernment counsel, saying “It was not asuggestion. It is there in our order. You tellthe minister.”Earlier, on 12 August, the
had askedthe government to distribute foodgrains– rotting in government godowns or rot-ting due to lack of storage facilities – forfree to the poor and hungry. It was widely reported in the print and electronicmedia. According to the
The foodgrains are rotting. You can look after your own people. As a part of short-term measure, distribute it to the hungry for free.
Reacting to this, the Union AgricultureMinister, Sharad Pawar said that it wasnot possible to implement the “sugges-tion” made by the
. Thus, the
made it very clear that it did not make a “sugges-tion” to the government; it was an “order”.The
had passed this order whilehearing the
led by the People’s Unionfor Civil Liberties (
). Besides this, thecourt “suggested” that (i) the governmentshould increase the quantity of foodsupply to the people living below poverty line (
), (ii) the government shouldopen the fair price shops for all the30 days in a month, (iii) the governmentshould construct at least one large FoodCorporation of India godown in every state and also consider the possibility of constructing a godown in every divisionof every state, if it was not possible to doso in every district.The
reacted strongly to media re-ports which quoted the agriculture minis-ter’s statement. The
bench comprising justices Dalveer Bhandari and Deepak Verma made it clear that it was an orderand not a suggestion. The governmentcounsel was told to communicate it tothe minister, which was a bit too much forthe minister and the prime minister toswallow. The judiciary was plainly usurp-ing the powers of the executive and tryingto enter into a domain which is clearly marked as policymaking. This wasexpected to be resisted by the executiveand in a couple of days, the de factochief executive of the country, the PrimeMinister of India, Manmohan Singh,told the apex court politely but rmly inunambiguous terms that he had respectfor the court’s sentiments but was againstthe idea of giving away foodgrains for freeas it would kill farmers’ incentive to pro-duce, thus creating a different set of prob-lems. The prime minister said that the
should not get into policy formation.
had no choice but to conciliateand surrender. Had the court decided totake the bull by the horns, it might haveresulted in immense erosion of condenceand trust in the highest judicial body inthe country. In the rst place the
entered into the policymaking domain which is clearly reserved for the execu-tive. Secondly, it is a matter for severalexperts coming from different specialisedknowledge areas to deliberate and for-mulate a policy. It cannot be done in a jiffy by a bench of the
. No one ques-tions the concerns and intentions of the judges on the bench. However, judicial re-straint has to be practised and this is pre-cisely what the prime minister conveyedto the apex court. A couple of questions need to be an-swered. Was it necessary for the
to takesuch an adventurous and bold step andthen retract submissively when the execu-tive rubbished its stand? Is it proper forthe judiciary to take a step backwards insuch a meek manner? Was it a hasty deci-sion made by the
? Did it anticipate sucha strong reaction from the executive?
Keeping Away fromPolicy Formulation
It is up to the courts to remain away from policy formulation by exercising self-restraint. A ne example is the
SupremeCourt decision in the DaimlerChrysler case
in 2006. The court held that taking decisionson spending was the task of the executiveand taxpayers have no standing to challengethem and the courts will do well to remainaway from policymaking as it was in the
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