Courts should curb policymaking instinct–editorial –the economic times

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The Kerala High Court directing, in suo motu proceedings, the state government to set up Campus Police Units to tackle drug use in educational institutions and their campuses is a case of judicial overreach and transgression into the executive’s domain. This is not the first time that courts in India have stepped beyond their remit to take on the functions of the executive. The trend undermines the rightful roles of the judiciary, as well as of the executive. The courts should stay the arbiters and upholders of the law and Constitution they were designed to be, not policymakers.

The courts — particularly the high court and Supreme Court — should focus on adjudicating on the basis of statutes and the Constitution. Over last three decades, there has been a tendency to step in for the executive, on the ground that the executive has failed to act. In some cases, it would seem that the executive is not averse to this transgression, as it allows for decisions on politically sensitive matters. But the basis for a court to step in must always be a matter of law since that is its core competence. Courts do not have the technical and administrative competence to provide policy inputs or issue administrative orders. It can, however, call on the executive to take action in order to ensure compliance with laws, regulation and constitutional provisions, while not falling down on its own job of protecting liberty.

Judicial overreach is particularly egregious in the Indian context where judicial accountability is ineffectual, with impeachment by the legislature being the only recourse open to the other organs of the State. Democracy wins when each of its pillar performs its duties to the optimum, without trying to trip the others.

This piece appeared as an editorial opinion in the print edition of The Economic Times.


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