Not in the court room

Three decisions by the apex court return the power to make policy to the executive

The Supreme Court's decision on Friday to set aside the Orissa high court order against allocation of an iron ore mine to steel major Posco it has asked the Centre to examine objections and take a final decision follows two other major court decisions. Early this month, the court dismissed a PIL challenging the Centre's policy allowing FDI in multibrand retail. And this week, it refused to entertain a petitioner's plea against the Vedanta-Cairn India deal by citing a CAG report indicating presumptive losses to the country. Taken together, these three decisions should help begin to clear the air of anxiety about notional objections setting off institutional blocks to executive policy decisions. The court has restored the balance, returning the power to make policy to the executive realm. It has heeded institutional propriety specifically, the government's discretion to make policy on the strength of enjoying the confidence of the elected legislature.

Assorted observations by the Supreme Court deserve study. In the FDI case, it said, "This court does not interfere in the policy matter unless the policy is unconstitutional, contrary to statutory provisions or arbitrary or irrational or there is total abuse of power." In the Vedanta case, the court noted the need to understand the risk that necessarily informs most project decisions, and drew a distinction between a mala fide deal and a risky one. Equally, it cautioned against taking the auditor's finding as the final word before it has cleared parliamentary scrutiny. As unexceptionable as these points are, amongst many others emphasised by the court, it is unlikely that they will be enough to inhibit the filing of frivolous objections aimed at stalling policy decisions in future. There is, of course, a limit to the extent courts themselves can go to put in place a standard by which to throw out, if not penalise, frivolous petitions. The task of raising the bar on how policy is debated, weighed and legally challenged lies in the executive and political sphere.

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