Session Report
Arjun Tandon
LPPYF Law and Public Policy Youth Fellowship is an Online National Summer School Program, a Two- Month Online Immersive Legal Awareness & Action Research Certificate Training Course and Internship Program, from June-August 2023 by IMPRI Impact and Policy Research Institute. An informative and interactive panel discussion on “Policy Initiatives and the Role of Indian Judiciary” was held on the 19th of June, 2023 by Professor Uday Shankar Professor of Law at Hidayatullah National Law University, Raipur.
The chairperson for the programme is Professor Vibhuti Patel, who is a distinguished visiting professor at IMPRI, and Panel expert Professor Uday Shankar.
The opening remarks were made my Professor Vibhuti Patel, who provided a brief outline of the discussions taken place so far about the overlaps between law and public policy in previous sessions, before opening the floor for Professor Uday Shankar to share his insights.
Professor Uday Shankar began sharing his insights about the role of judiciary in policy initiatives. He begins by highlighting the distinction between a policy and a law, stating that the former is more susceptible to change with changing environments, whereas a law is more concrete and rigid, often a result of heavy deliberation on constitutional values and goals of the state.
He elaborates on the function of the executive by stating that policies are, more often than not, a result of data-driven analysis of the contemporary environment. On the topic of judicial involvement, Professor Shankar spells out 2 schools of thought. One advocates minimal review or involvement of the judiciary in policy initiatives as that is the executive’s jurisdiction, and the other highlights the key competencies and specialisations of various branches of government are different from one another.
Professor Shankar elaborates on the first school of thought by citing the constitutional spirit of separation of powers, and that intervention in areas out of one’s jurisdiction leads to inefficiencies. Policy being a responsibility of the executive, unless it turns into a law or an Act, should not require judicial attention. Along with that, he points out that the court may lack a certain amount of awareness of expertise of the ground level realities, the analysis of which has led the executive to frame a given policy.
Unnecessary intervention would create a culture of competition and inculcate unhealthy traditions, which go against the spirit of separation of responsibilities, he added. As long as constitutional values are not challenged, this school of thought suggests that various policies are situation-specific, or may be ad-hoc solutions, and hence should be left to their devices without judicial intervention.
However, he presents the other school of thought by highlighting cases of constitutional breaches, and the importance of keeping a system of checks in place, with bodies that are independent. In case of policies, the independent body with the competence to review effectively is the judiciary. He substantiates by providing examples of certain cases where the court refused to intervene such as certain cases of worker protest against privatization of a public sector undertaking, as well as cases where intervention was necessary such as the 2G spectrum case, which is the case when an existing article of the constitution is being violated, or the public welfare is being compromised.
He reiterates the distinction that the judiciary follows when taking up such reviews, which is that of illegality and irregularity, intervening mostly in the former and rarely in the latter. He also eloquently differentiates between the concept of separation of powers and separation of functions, stating that the separation of powers is much more prominent in a country like the United States as compared to India, with the latter having a more clearly demarcated boundary of functions rather than jurisdictions. Professor Shankar ends his note by stating that unless there is a very clear breach of constitutional values, an intervention from the judiciary is undesirable.
Then, Professor Vibhuti Patel takes over the discussion, and cites important judgements made in the 70s and the 80s which have had to do with policy decisions. One such example she takes is changes in the Forest Act, as well as important judgements related to manual scavenging and women’s safety have come into play in the policy making and implementation process.
The discussion on the theme ended with questions from the participants as well as the Panelists, wherein there were some insights provided about challenges to the judiciary in terms of backlogs and lose interpretations of the law causing more cases to build up.
Arjun is a research intern at IMPRI.
Youtube Video of Inaugural session for Law and Public Policy Youth Fellowship Programme: https://youtu.be/fT0XLKGJ6LY
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