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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

5 Comments

  1. Wtf am I even doing here says:

    Idk, who is more beautiful, the author of the article or article itself. Anyway, it’s well written. I never got to read one of your articles before, thanks to you, but now I have.
    You could have included the reference to the Anuradha Bhasin vs Union of India case, whereby the Hon’ble court declared the right to access the internet as fundamental right under article 19, only to never walk the talk.
    At the last you go on to assert that you don’t want to cast aspersion on the integrity of the court, which to me sounds like you are sort of defending the court and strengthening your belief that court can do no wrong as you are budding lawyer yourself. People dither from criticising court not because the courts can do no wrong, but for the fear of (criminal) contempt may be. For example, when the very Hon’ble judge Justice Arun Mishra who praised Mr. Modi sometime back in highest terms is the one heading the bench on recent case filed by Rajsthan Assembly Speaker relating to the disqualification proceedings and the bench disregards the precedential judgement in Kihoto Hollohan (1992) case which expressly barred court proceedings before the final disqualification order by speaker of the house as it will contravene the article 212, how can it stoke confidence in common man?? I don’t think anybody is that foolhardy.
    And if you don’t know, here is a truth, the corruption in judiciary, especially at lower levels, is rampant, and cases are delayed for ages. So, hold your beer for the day you enter this quagmire.

  2. Tyrion says:

    Stop being childish and removing well meaning comments. Talk of freeedom of expression and then proceed to remove the comments. I mean, don’t you think there should be limit to hypocrisy?, which admins (you are one of them too) don’t seem to care about. You guys so much admire the concept of transparency and all, then why is not your policy on comments and their removal public? Doesn’t a person whose comment got removed has a right to know the basis on which it was done? Don’t you think it’s unfair at many levels? Practice what you preach.
    Anyway, atlast I get to read one of your article, which is exquisite just like you know who, which I never got to before, all thanks to you.
    Well written article btw. One more case pertinent to this article, which you probably forgot to mention, is the judgement of the Hon’ble SC in Anuradha Bhasin vs Union of India case wherby the right to access the internet was declared to be a fundamental right under the ambit of article 19 and 21, but at the end of the day SC never enforced this in its earnest.
    As far as the belief in and functioning of the judiciary is concerned, people including you know better than to point fingers at judicaiary. Everybody fears (criminal) contempt.
    And as far as judicial deferrence is considered, it’s necessary in some cases as you have rightly pointed out.

  3. No one says:

    Damn, that’s a nice article.

  4. No one says:

    When Chinese govt is your inspiration for censoring the comments in guise of moderating them, forget transparency and free speech, how can you think that 4G non availability in Kashmir valley is even a problem? Hypocrisy. You know I’m laughing at this, and may be you are too. Period.

  5. No one says:

    Virtue signalling is not a virtue, for god’s sake! This is probably last one.

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