Monday, October 4, 2010

No interference……Please….

The recent war of words between government and Supreme Court regarding distribution of rotting food grains has again brought the issue of judicial interference and its necessity under debate. As a matter of fact almost everyone aware of constitutional institutions agrees over the fact that judiciary must exercise restrain while dealing with policy matters. This paper tries to see why judicial activism is necessary and whether it is required to impose any limits on this in an administrative setup that exist in India?


The history of judicial activism in India

The history of judicial activism in India can be traced to mid 1970s when Public Interest Litigations (PIL) found legitimacy in our judicial system, thanks to Justice P. N. Bhagwati and Justice V. R. Krishna Iyer. PILs have seen mainly three phases of the manner in which it was used. In first phase, till 1980s PILs were used as an instrument to get justice for disadvantaged sections of society.

The next phase of PILs is found in 1990s when PILs started to address issues related to anything and everything of public importance including environment and Right to Education. This was a decade of political uncertainty in country, so judiciary came forward to fill the gap in governance, especially in later half of the decade.

Come 2000 and PILs became an instrument of achieving selfish private interests. The courts were full of frivolous PILs and it became an instrument to get publicity. This was the time when everyone started talking about ‘managing’ PILs.


The need of judicial activism

The administrative structure in India is known for its apathy towards the public concerns and mass scale corruption. These problems in bureaucracy have been traditionally attributed towards two things, lack of transparency in the decision making process and complete absence of a grievance redressal mechanism.

The Right to Information Act tried to address both the problems but partially. The citizens now have a right to know why some official action was taken and if officials are not ready to reveal the information, there is a grievance redressal mechanism. The question arises over how effective these tools have been. While RTI registered a phenomenal success in initial years in bringing bureaucracy on its toes, the piling number of cases and continued bureaucratic apathy poses danger of making this mechanism ineffective completely.

Next question is once people have the information that something wrong has happened, what to do with that? In the absence of any other mechanism they are left with nothing but judiciary to approach for. And how helpless will people feel if judiciary also says, “Sorry, we cannot help you, it’s a policy matter and we don’t have a jurisdiction in that area.”

Take the example of recent controversy over rotting food grains. In past decade, country is facing a problem of fluctuating food grain reserves. We had surplus food grain reserves in years 2003-04 and 2008-09 and deficit in 1998 and 2007. These anomalies were result of a flawed price structure policy and a malfunctioning Public Distribution System (PDS). In years of surplus, Government used some mechanism get rid of this surplus, part of which was exporting it at reduced price to international market (where it was used to feed cattle) and increase the supply in PDS. The same condition has occurred in 2009-10. Now if a citizen is concerned about that why such bad decisions are made which produce a paradoxical state of surplus rotting food reserves, double digit inflation in food commodities and around 40% of starving population, what he should do. Should he wait for the next election when Ruling Party will come to him to clarify its stand or he should he try to take the judicial route to pursue government to put its act together.

The basic problem is that nobody heeds the ‘common man’. Is there any forum on which a villager can go and ask the government that why did you choose to refurnish the road in a village from where ruling party has won instead of another much more needy village without any road but from where it lost? There is neither a system of hierarchical accountability in administration, nor a system where the administration is bound to respond to the complaints.

In this scenario is our Prime Minister really justified in saying that judiciary must not interfere in policy matters? Instead of clarifying the reasons which led to the rotting food grains in country, he went on to tell judiciary to mind its own business. If government really wants that judiciary must not interfere in its business, it needs to conduct its own business with more accountability and responsibility. There is an urgent need to put a system into place that makes public officials more accountable to citizens.


  1. On the question whether judiciary has to interfere in the policy making of government or not, the answer lies generally in negative. But we have not to forget this fact that both of the above institutions are under the Constitution, so the foremost spirit of the Indian Constitution has to be kept in mind. Under the Constitution, judiciary has been assigned roles, firstly, to act as a court of justice and to grant remedy in order of doing complete justice; secondly, to Decide the disputes between the parties concerned and lastly, to act as a guardian of the Constitution. Obviously, government has a discretion and plenary power to take policy decisions but that power also, like any other power, has to be exercised according to the spirit of Constitution. And when government omits to fulfil it's public duty envisaged by the Constitution, the judiciary has to interfere. PIL is only one of the way to make that duty enforceable. This is what we call Constitutionalism that is no other organ but the Constitution is supreme and the Constitutional spirit should prevail.

  2. By the way, your posting is very informative :) Keep writing your thoughts like that.

  3. Loved your post!Very imformative
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  4. if the judiciary is the gardian of the constitution, then who shall have to be the gardian for the common man?

  5. Right Vijay, but our consti has a provision that justice needs to be delivered by whichever even if constitution is followed in spirit, judiciary is free to take on such matters...

  6. hi abhishek, i agree with u to some extent. But, this should not lead to "judicial-overactivism " as it might have some grave repurcussions. For example, if u cud remember, the SC judgement relating to shutting down of commercial complexes in Delhi had its own hidden agenda. Trespassing into executive's jurisdiction by the judiciary should not become a HABIT. Judicial activism is good only when sparingly used.

  7. Agreed with you Kannan. Judiciary also doesn't have a completely clean image, as it has been spoiled lately by many events, and surely policy matters are the exclusive area of legislative but judiciary should always fill up the gap when nobody is listening......