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Reasons why the Supreme Court gets into policy decisions, Government neglect




Each time there is a serious judgment by the Supreme Court or a report by the CAG which goes against the Government, there are a number of people who get up from the Government side and claim that all these constitutional bodies are over-stepping their boundaries and that it is only the Government which can make policy. Further, there is a claim that the people of India vote through their elected representatives who sit in Parliament, and the Government in turn is dependent on the support of these representatives, and so, since the will of the people is supreme, any Government policy is actually the express wish of the people and to thwart these wishes is not good.
Fortunately, most people recognize that such an argument is a defensive tactic. The world over, all democracies recognize that any system which elects representatives who in turn have a Government needs many checks and balances. In most cases, this is through a strong court system which guards against excesses by the executive. So, in theory, the Government takes actions, and the Court determines whether the actions are right or not, checking these actions against the fundamental rights of citizens as well as the constitution.

And this is where the courts are stepping in more and more. In many areas where there is a perceived lack of any Government action which impacts the rights of citizens, or where Government action is seen as favoring somebody, the courts step in and either set policy or over-rule the Government action, and that is where the Government cries foul over rights and over the court over-stepping its boundaries. So it was either the court trying to set policy due to lack of Government action, or it was that no action would happen since the Government was not doing anything.
But consider the following cases where the policy is being set by the courts due to lack of Government action. Ragging was rampant in colleges, with people getting impacted due to ragging (and there were some atrocious cases of physical injuries and impact on the psyche of people). It was the Supreme Court which came out with a set of guidelines over what to do and these are now enforced. In another case, it was the Supreme Court which came out with a set of guidelines for prevention of sexual harassment in the workplace. In yet another case, the courts ruled on setting policy for ensuring that polluting industries were removed from the middle of cities and moved out to areas where the concentration of citizens is much lower. The 2G case is indeed very interesting as an example of Government policy. The telecom minister of the Government set policy that was flawed, favoring a set of companies over others. These were well documented by the media; however, the Government, for fear of being seen as corrupt and due to fear of an ally, refused to acknowledge all such allies and kept on insisting that everything was correct. It was the court which stepped in and declared the action as null and void. However, the courts cannot act with all the nuances that the Government could do if it is setting a policy, court actions are a blunt stick.
As a further example, let us consider the following case where the Government has been unable to do something that is expected. As part of policy, the right to education is a fundamental right and critical for the success of the country in the long term. For this, schools, especially in poorer areas, have to basic amenities, which the state is sometimes not able to provide, and which is extremely shameful. The Human Resources Minister, Kapil Sibal, who is otherwise so eloquent on all other matters, keep quiet on such extremely critical matters. It was left to the court to instruct the Government to do an action that the Government should have been doing. Read this (link to article):

The Supreme Court today directed the Centre and state governments to provide basic infrastructure, including drinking water and toilets, in all schools within six months. A Bench headed by Justice K S Radhakrishnan fixed the time limit and asked the governments to take steps to provide the basic facilities in schools across the country.
The Bench said that all its previous directions pertaining to providing infrastructure should be implemented within the time frame fixed by it. On October 18 last year, the apex court had directed all states and union territories to build toilets, particularly for girls, in all government schools.

For people who have not been following the development of critical infrastructure, the Government lacks the necessary push to develop core infrastructure, such as education and health, especially in rural sections of the country.




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