It is a well accepted principle that policy making is the function of the legislative and executive wings of government. The legitimate function of the judiciary is to interpret the constitution and the laws. Even this interpretative role of the judiciary cannot be activated suo motu, but only as a part of the adjudicative process. The judiciary has in a number of cases reiterated the principle that policy making is not the function of the courts.
In reality the process of interpretation often assumes a larger dimension. When interpretation becomes creative and dynamic, it cannot be distinguished from law making. Giving a new content to right to life in Art. 21, and expanding the contours of the concept of equality in Art. 14 are prominent examples of this trend. In other cases, either in the absence of a law or re-interpreting the existing law, judiciary lays down guidelines and norms, which in effect amount the policy making by courts. This is contrary to the professed stand of the judiciary.
Examples of judicial policy making are easily found in any branch of law. However the most prominent instances of judicial policy making could be seen in the field of education. Though there are earlier instances of such activism, we may take Pradeep Jain v. UP (AIR 1984 SC 1420), as the starting point. Treating admission to medical colleges all over India as a problem of unity and integrity of India to be solved by the Court, the Supreme Court stated that “it was laying down the law for the entire country”. The consequences of this decision were chaotic, as many subsequent decisions reveal.
Later the Supreme Court laid down policy on admission to all professional courses in Unnikrishnan v. AP (1993) 1 SCC 645). Ten years later upsetting the scheme laid down in Unnikrishnan the Supreme Court came out with an entirely new policy which granted almost total freedom to self-financing professional colleges in the matter of admission ( Pai Foundation and Inamdar cases) This was done apparently because there was no law governing admission and the court repeatedly was asking Central and State governments to enact legislation. Judicial intervention was justified using the ‘vacuum theory’. What is surprising is that even after a law was made by the Kerala Legislature ( in 2004 and in 2006) the court adhered to its policy as laid down in PaiFoundation and struck down operative provisions in the Acts.
Apart from admission the judiciary has acted as a policy maker in academic matters and in such important matters as campus politics. It is a matter of concern that the value preferences and social philosophy of judges act as decisive factors in judicial policy making.
It is also a fact that questions of educational policy cannot be determined within the framework of the adjudicative process, which proceeds on the basis of affidavits and arguments. Very often the multi-dimensional nature of the problem eludes the judges and the social consequences are beyond their comprehension.
The paper examines in this background questions such as: is the court competent to act as a policy maker in such an important field as higher education ? Is it not wiser to leave policy making to the democratic process and also to statutory bodies such as Universities and expert professional bodies like MCI, AICTE and BCI ?
The paper also analyses the consequences of educational policy making by the court, especially in relation to preventing commercialization of education, and ensuring access to education and social justice.
In reality the process of interpretation often assumes a larger dimension. When interpretation becomes creative and dynamic, it cannot be distinguished from law making. Giving a new content to right to life in Art. 21, and expanding the contours of the concept of equality in Art. 14 are prominent examples of this trend. In other cases, either in the absence of a law or re-interpreting the existing law, judiciary lays down guidelines and norms, which in effect amount the policy making by courts. This is contrary to the professed stand of the judiciary.
Examples of judicial policy making are easily found in any branch of law. However the most prominent instances of judicial policy making could be seen in the field of education. Though there are earlier instances of such activism, we may take Pradeep Jain v. UP (AIR 1984 SC 1420), as the starting point. Treating admission to medical colleges all over India as a problem of unity and integrity of India to be solved by the Court, the Supreme Court stated that “it was laying down the law for the entire country”. The consequences of this decision were chaotic, as many subsequent decisions reveal.
Later the Supreme Court laid down policy on admission to all professional courses in Unnikrishnan v. AP (1993) 1 SCC 645). Ten years later upsetting the scheme laid down in Unnikrishnan the Supreme Court came out with an entirely new policy which granted almost total freedom to self-financing professional colleges in the matter of admission ( Pai Foundation and Inamdar cases) This was done apparently because there was no law governing admission and the court repeatedly was asking Central and State governments to enact legislation. Judicial intervention was justified using the ‘vacuum theory’. What is surprising is that even after a law was made by the Kerala Legislature ( in 2004 and in 2006) the court adhered to its policy as laid down in PaiFoundation and struck down operative provisions in the Acts.
Apart from admission the judiciary has acted as a policy maker in academic matters and in such important matters as campus politics. It is a matter of concern that the value preferences and social philosophy of judges act as decisive factors in judicial policy making.
It is also a fact that questions of educational policy cannot be determined within the framework of the adjudicative process, which proceeds on the basis of affidavits and arguments. Very often the multi-dimensional nature of the problem eludes the judges and the social consequences are beyond their comprehension.
The paper examines in this background questions such as: is the court competent to act as a policy maker in such an important field as higher education ? Is it not wiser to leave policy making to the democratic process and also to statutory bodies such as Universities and expert professional bodies like MCI, AICTE and BCI ?
The paper also analyses the consequences of educational policy making by the court, especially in relation to preventing commercialization of education, and ensuring access to education and social justice.
