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Judicial interference and policy making

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Finance Minister Arun Jaitly recently said that judiciary is breaking legislature brick by brick. Looking at recent judgments and directions there is no doubt that judiciary is dealing with issues which are by and large in policy making domain.

Reasons stated for this overreach are many but interconnected. They basically highlight the issue that quality of legislative and policy making work has deteriorated drastically in last couple of decades, mainly due to coalition governments and lack of strong leadership. This created a vacuum which allowed judiciary to usurp some power from other domains. At that time it was even cheered by many who have turned its critic now.

Sense of unrestricted power and chance to take populist decision will make it difficult for judiciary to give up its power voluntarily now.

But there is one more point which I believe is missing from this debate. Judicial overreach has given opportunity to individuals/pressure groups to have a direct role in policy-making. Those who feel that government is not taking sufficient measures in some urgent/important problem file PIL to get courts give direction to government. It also allows these individuals to get a well thought out response, a plan of action and written assurance from government on these issues of importance.

This I feel is very important point. It basically implies that all RTI queries get superficial responses, all suggestions given to government department may or may not fall on right ears. Even though PM’s grievance redressal mechanism is active, it usually takes care of individual grievances rather than policy suggestions. Even though MyGov portal has good visibility, its impact on actual policy is undetermined.

This points to same problem which RW twitteratti express repeatedly, which is complete communication breakdown. It takes a special meet arranged by Swarajya with MoS Finance to explain why this is not the worst finance ministry ever. Although he pointed out correctly that not all issues can be settled right now, it still does not explain why is there no communication on status of a policy measure, like whether some issues is being considered at all, if so what are some problems, why does government repeatedly publish draft policies which are nothing short of rubbish (eg IIM bill, Geospatial bill), why does it take many decision without explaining logic behind it and backtrack the moment there is outrage. It is ironic to note that Pandit Nehru is said to be best communicator in this regard, even in the days of no technology. It is said that he even told the logic behind his foreign policy in simple terms during his elections campaigns.


An obvious solution would be to to collect popular questions and publish periodically FAQs on all important policy matters, which genuinely tries to explain the current status rather than typical response of “matter is under consideration by government”. But given yesterday’s Textile Ministry incident, the question arises, ‘Does the government care?’

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