Courts vs govts
Whether in US or India, judicial intervention in policy is best restricted to constitutional questions
The tug-of-war between Trump and federal courts has made news through the first five months of his presidency. His executive orders on everything from birthright citizenship to govt downsizing keep stalling in these 600-odd courts. An aggrieved party can always find a friendly judge somewhere in the country – Americans call it 'judge shopping' – to block a presidential order. Not just for itself, but the entire nation. Trump's erstwhile buddy Elon Musk summed up the situation thus: 'If any judge anywhere can block every presidential order everywhere, we do not have democracy, we have tyranny of the judiciary.'
But America's supreme court has now put an end to this practice of trial courts issuing 'universal injunctions'. While hearing a challenge to Trump's order on birthright citizenship, the court said federal courts cannot 'exercise general oversight of the executive branch'. In these polarised times, this decision will be hotly debated. Critics say universal injunctions are a necessary check on Trump's despotic tendency. Years may pass before the supreme court decides appeals against his orders, and thousands could be deported, sacked, or made to suffer in other ways in the interim.
But objectively, such injunctions have stymied not only Trump but also his Democratic predecessors Biden and Obama. A judge in Texas blocked Obama's DACA programme in 2015. During the pandemic, federal judges blocked Biden's vaccine and mask orders. One judge even tried to ban the abortion pill, mifepristone, across America. What needs guarding here is not the president or the judges but the constitution. If the president's executive orders violate the constitution, courts should take a stand, but they shouldn't try to shape policy.
Which is exactly what CJI Gavai said in Nagpur on Thursday: 'judicial activism should not turn into judicial adventurism and judicial terrorism'. In India, as in US, it is not the judiciary's job to demand or make laws. For example, India's SC was clearly out of line when it made the national anthem mandatory in cinemas, in 2016. Luckily, it corrected its decision. But judicial overreach in executive matters has become common. SC's rejection of the resolution plan for Bhushan Steel and Power is a recent example. Earlier, SC had waded into the issue of farm laws. Even HCs have trespassed into the legislative domain – consider how Manipur HC's 'recommendation' of ST status for Meiteis in 2023 sparked ethnic strife. Clearly, governance by encroachment of powers is a bad idea.
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This piece appeared as an editorial opinion in the print edition of The Times of India.
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