DEAR COURTS, POLICY MAKING IS NOT YOUR JOB

Mukesh Devrari

Courts must not cross constitutional boundaries? Courts and legislature, let me put it properly, judiciary and legislature have two different roles to play. Making policies for the nation and citizens is the task of the legislature. It is the job of our higher judiciary to check whether the laws, rules and executive orders are compatible with the provisions of the constitution.

Policy formation is not the job of the judiciary. Two decisions recently highlighted this problematic trend. Supreme Court ordered that national anthem will be mandatory in Cinema Halls. If citizens do not stand up as a mark of respect, then they can be punished. They may face a jail term up to three years. In a mature liberal democracy like India, this decision marks a low point in judicial history. In a film festival, participants watch many movies. They will have to stand every time the new movie starts. That’s the first thing. Second, these films what Sunny Leone and her films have to do with patriotism.

In another instance, Nainital High Court in Uttarakhand ordered that sale of alcohol should be banned in three districts where four important shrines of Hinduism are located. According to an editorial in ‘The Hindu’ courts justified it by quoting and mentioning provisions of Part IV of the constitution which is non-enforceable and titled as Directive Principles for State Policies.

This tendency is dangerous. It will override the functioning of the elected government. It will undermine their functioning. No matter how terribly elected governments are governing. They represent the collective will of the electorate. On the other hand, judges represent their individual and personal consciousness, convictions, notions and conscience. Relying on it for progress and a better future is more dangerous.

This author would not go to the extent of saying that the powers acquired by the judiciary on its own over the years must be reversed by the legislature. Unfortunately, they also cannot do it. We have come too far. It would be sensible to say that these powers must be used cautiously and only in exceptional and extreme circumstances. Judiciary must not routinely usurp the powers of the legislature.

The latest controversy also compels us to think what empowers judiciary that it so easily transgresses its mandate and intervenes in the space rightfully allotted to the legislature.

The answer lies in decline in the level of our leaders. Our political class has lost its clout and respect. We hardly have leaders with pan Indian presence who are known and respected across the country. In the era of Nehru and Ambedkar, the judiciary would not have dared to resort to similar actions.  

Indian constitution walks and prefers to tread on the middle path. It tries to strike a balance among all organs of state - judiciary, legislature and executive. No matter how noble are the intentions and interventions of our honourable judges, it is just not correct on their part walk on this path. It can have serious consequences for the health of our democracy if judges decided to launch initiatives to shape public policy in India.

end.