OROP | Rely on democratic dialogue rather than judges to solve policy issues: Supreme Court judgment

Increased reliance on judges to solve pure policy matters diminishes other political organs, apex court observed

Updated - December 23, 2022 09:38 pm IST

Published - March 16, 2022 04:47 pm IST - NEW DELHI

Supreme Court of India. File

Supreme Court of India. File | Photo Credit: Sushil Kumar Verma

Banking on judges to resolve questions of “pure policy” diminishes the role of other political organs, the Supreme Court said in a judgment upholding the Centre’s one-rank one-pension (OROP) scheme on Wednesday.

“The overall policy may only be challenged on the ground that it is manifestly arbitrary or completely capricious,” the apex court drew the line.

Noting that there is an increasing trend of challenging issues of policy in courts, a Bench led by Justice D.Y. Chandrachud said unhappiness over government policies in a democracy are better resolved through democratic dialogue than adjudication.

“Increased reliance on judges to solve matters of pure policy diminishes the role of other political organs in resolving contested issues of social or political policy which require democratic dialogue,” Justice Chandrachud observed.

Courts are more suitable to answer “either, or” problems. “Most questions of policy involves complex considerations of technical and economic factors. They involve balancing competing interests for which democratic reconciliation, rather than adjudication, is the best remedy,” the Supreme Court observed.

The court referred to how petitioners have challenged the OROP scheme through public interest litigation (PIL) in court when the issue pertained to a domain reserved for Executive policy. “We must remember that adjudication cannot serve as a substitute for policy,” Justice Chandrachud noted.

Referring to American legal philosopher Lon Fuller, the court said questions of policy involved “polycentric problems”. That is, these questions involve multiplicity of variables and interlocking factors.

Decisions on policy matters are more suitably addressed by elected representatives as they require negotiations, trade-offs and a consensus-driven decision-making process, the court explained.

However, the court said, the judiciary cannot refuse to intervene if a government policy impinges on constitutional rights.

“That is not to say that this court will shy away from setting aside policy that impinges on constitutional rights, rather it is to provide a clear-eyed role on the functions that a court serves in a democracy,” Justice Chandrachud observed.

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