"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Saturday, July 23, 2011

A Case for Judicial Policy

"... [I]n a case wherein a challenge was made to the Government of India’s telecommunication policy, the Supreme Court refused to entertain the matter on the ground that it purely concerned a question of policy. Similarly, public interest litigations that have sought to prohibit the sale of liquor or the recognition of a particular language as a national language, or the introduction of a uniform civil code, have been rejected on the ground that these were matters of policy and were beyond the ambit of judicial scrutiny. " - Growth of PIL in India, Address by Justice K.G Balakrishnan, at Singapore Academy of Law, Oct. 8, 2008
Two recent decisions of the Supreme Court of India raises certain questions, read in the background of the above statement. Reference here is to Salwa Judum and the Black Money Judgments. in both these cases the Supreme Court have come down heavily on the economic policy followed by the Government of India. On a final evaluation, both the judgments might have come to the right conclusions, but lack on convincing reasonings and legal basis.

It might not be wise idea to follow a hands off approach by the judiciary whenever policy question arise, given the Indian experience. At the same time, it is important to the court to deliver judgments which can stand shorn the rhetoric on convincing reasons and founded on legal arguments.

It therefore is important for the judiciary to develop common standards and practices with solid theoretical backing to deal with policy questions. Reading the judgments of the Supreme Court one is left to wonder about its fragmented nature. The classic example could be the take on entertaining of PIL. A reader gets confusing signals from the judiciary. The argument here is not for uniformity in opinions but having a broad framework for judicial policies.

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