Delving into the Concept of Judicial Deference- Against the backdrop of Kashmir 4G ruling

The principle of Judicial Deference has been overwhelmingly used by the Indian courts in various cases especially in the recent past. This rampant usage leaves no choice but to explore this principle and its inherent nature. Over the years, courts have used this principle for arriving at a better decision regarding matters requiring technical expertise of any organ of the government with the primary focus being the interest of people. Recently, in Foundation for Media Professionals v. UT of Jammu & Kashmir, the Supreme Court constituted a committee to look into the matter of access of 4G internet on the grounds of executive better knowing the situation of the valley for preventing terrorism and national security. The investiture of power into the executive asks for reflecting upon the position adopted by the court with respect to this practice in its past Judgments and analyse the evolution of this concept.

Contours of Judicial Deference

This principle, however, frequently used remains ambiguous regarding its usage. Even the courts haven’t thrown much light on the concept. It derives colour from the idea of institutional competence of legislature and executive over the judiciary to effectuate the balance between rights of citizens and limitations imposed on them with respect to certain matters. It is pertinent to note that many times courts would not be able to ascertain whether any act/limitation is proportional or not, in restricting any right, due to the lack of expertise. Then, in such situations, courts may recognise the discretion of the decision-maker. This concept has evolved through various rulings widening the circumference of its application on a variety of issues but no straitjacket formula can be chalked out.

Precedential history takes us back to the discussion of SC in R.K. Garg v. Union of India; (1981) in relation to the economic laws where it was enunciated that courts should be more inclined to give judicial deference to the legislative expertise in economic regulation rather than the areas where fundamental human rights are involved. This was reiterated in the case of Swiss Ribbons Pvt. Ltd. & Ors. v. Union of India (UOI) & Ors;(2019).

Further, The court in State of Bihar v. Bihar Distillery Ltd. (1997) attached the significance of this idea with maintaining the checks and balances between different organs of government as enshrined in the constitution. Subsequently, the position regarding policy decisions was propounded in the Balco Employees Union (Regd.) v. Union of India & Ors; (2001).SC confined the role for courts in reviewing policies on economic/developmental matters noting that deference shall be accorded to the executive on economic policies. It was stated that “In respect of public projects and policies which are initiated by the Government, the Courts should not become an approval authority. If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in Public Interest to require the Court to go into and investigate those areas which are the function of the executive”. BALCO emphasised that policy decisions are empiric and based on, ‘trial and error method’. Therefore, its validity cannot be tested on the parameter of any rigid, pre-established doctrinaire.

A high deferential standard was adopted by the apex court where an executive policy regulating liquor sale was challenged in the matter of Ugar Sugar Works Ltd. v. Delhi Administration & Ors; (2001). The court noted that– “It is well settled that the Courts, in the exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive, unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional”. This Judgment highlighted that in tax and economic regulation cases, judicial restraint shall be exercised by the courts. It emphasised that courts shall leave the decision of whether any such policy should have been adopted or not at a particular time or situation to the discretion of the state.

Later, the apex court laid down the approach that should be adopted in reviewing any policy decision in the case of Delhi Development Authority Vs. Joint Action Committee, Allottee of SFS Flats,(2008).It was held that any policy can be subjected to judicial review when it is unconstitutional; if it is dehors the provisions of the Act and the regulations; if the delegate has acted beyond its power of delegation; and when the executive policy is contrary to the statutory or a larger policy.

From the analysis of these judgments, it is amply clear that deference shall be allowed to an extent where the expertise of any organ of the government can’t be overlooked and judiciary can’t be the best judge to look over any particular matter. The above analysis doesn’t put forward a coherent scheme on the applicability of deference as a principle. Nonetheless, it establishes a ground rule that when the question of breach of fundamental rights arises, courts can’t be the mute spectators and relinquish their role of protector of rights.

Changing dimensions

 In recent times, the principle has lost its essence and deviated from the original reasoning or approach devised by precedents. Its application is no longer limited to economic legislation/policy but expanded in other areas as well. Therefore, the usage of this concept has raised some eyebrows over the working of courts. It seems, the courts, in order to maintain the equilibrium between fundamental rights and various necessary matters like (national security, the interest of the larger public, etc.), are breaking up the wrong tree. Earlier, it was used as a way to propagate the doctrine of proportionality, grounded on the institutional virtuosity of non-judicial bodies. However, it seems, now the courts are abdicating their constitutional duties under the guise of this principle

Looking into the recent 4G order, the SC deferred the decision of evaluating whether faster internet access can be feasibly allowed in the valley to a national level executive committee without giving any substantive remedy. The task bestowed upon the committee is to examine the effectiveness of government policy to restrict internet access in J&K. Here, the court tacitly passed on the duty to scrutinize the efficacy of policy to policymaker itself. Further, the court did not address the issue of violation of fundamental rights (right to education, freedom of speech and expression, right to health, etc.) pointed out by the petitioners. It shied away from dealing with it, stating the need to ensure the balance between fundamental rights and national security as the incidents of terrorism are increasing day-by-day.

Also, SC showed complacency during the worst of times and in the sensitive issue of migrant workers. The court disposed of various PILs on different matters related to migrant workers (seeking directions for migrant workers to return to native states without fare, transfer of wages, etc.). The court winded up the matters by stating that all the necessary steps are being taken by centre and states. It also called upon Central Government to look into the matter and do the needful to resolve the issues without giving any specific directions. This extreme deference is very much indicative of the fact that courts are willing to hand over the baton to the executive to adjudge the efficacy of its own decisions. However, workers breathed a sigh of relief when the court stepped up and took the Suo-moto cognizance of the matter and passed orders to ease the misery of migrant workers.

As the previous Judgments on the idea of deference point out that courts shall refrain from exercising judicial review on policy matters till the question of violation of fundamental rights steps in, it becomes essential to weigh the current ball game. Even the DDA judgment (Supra) elucidates that courts may not interfere with the nitty-gritty of the policy, or substitute one by the other but it will not be correct to contend that the court shall lay it’s judicial hands-off. The recent attitude of Apex court has surely ruffled some feathers and triggered backlash as it defies the logic and leads us on the edge of a precarious road. Furthermore, it failed to stick by a very basic norm of common law i.e., where there is a right, there is a remedy. In many instances, no effective remedy was granted despite finding the violation of rights.

However, the narrative has nothing to do with casting aspersions on the integrity of the courts but to evaluate the impact of these judgments which are disparaging the trust that citizens have endowed upon the court of the highest regard. This dubious path paved marks a departure from the character played by SC from being the stalwart champion of protector of rights to a mere spectator. One can only hope that SC takes over the reins to hold the rule of law above everything else and embrace transparency.

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ABOUT THE AUTHOR

Saumya Gupta, is a 4th-year law student at the National University of Advanced Legal Studies, Kochi.

In Content Picture Credit: The Dispatch