The Politician’s Syllogism is a fallacy first identified in the satirical British sitcom Yes, Minister back in 1988: “We must do something. This is something. Therefore we must do it.”
In India, however, rather than politicians it seems to be judges who have fallen into this trap. On Wednesday, the Supreme Court took it upon itself to solve Delhi’s pollution crisis. In a whirlwind hearing, the Supreme Court pulled no punches, roundly criticising the Centre and state governments and even devising steps to take in order to tackle the problem. The court ordered the Union government as well as states around Delhi to take immediate measures to stop the burning of crop stubble, which contributes a great deal to atmospheric pollution in the National Capital Region. To do this, it took some unorthodox steps for a court of law. It issued an incentive of Rs 100 per quintal for small and marginal farmers who have not yet burned their crop stubble and even threatening to suspend bureaucrats if pollution was not curbed.
Given the extreme emergency nature of pollution in Delhi, this hearing was received enthusiastically by many. Yet, to go back to the syllogism, simply doing something isn’t the same as solving the problem.
For one, it is obviously absurd to think that a hearing by a court could solve a problem as complex as Delhi’s pollution. A lightning hearing might make great headlines but unless the hard, complex work of studying pollution is undertaken, little will happen. Wednesday’s hearing, for example, was completely free of data and the court took its decisions with barely any expert inputs. The court did not try to model what ground impact its policy – decided on the spot – will have.
This is not how effective policy is framed.
This lack of rigour in policy making is not unexpected. Courts of law are simply not meant to make policy. For that there are governments, which come with massive bureaucracies, resources and the ability to interface with the public.
Not only are courts ill-equipped to frame policy, given that courts are not elected bodies, the idea of judges framing policy is troubling from a democratic point of view. In a democracy, only elected politicians, answerable to the people, should have the right to make policy. The domain of the courts is clear: protect the law and citizens’ rights.
Without a democratic feedback loop, courts are poor arbiters of where resources should be prioritised. It is, for example, unsurprisingly that the Delhi-based Supreme Court only swung into action when the pollution situation in Delhi became acute. Pollution in rural areas or even in other cities seems to have bypassed the attention of the judges of the Supreme Court. This model of personalised policy making is unhealthy in any country – doubly so in India, given its size.
Also troubling is the court’s threat to suspend bureaucrats – a power that the judiciary does not have as per the law. This is not the first time that courts have expanded their power using issues that made for good headlines. The institution of public interest litigation is another example of the courts assuming powers that have not been awarded to them in the Constitution or under any law. This might seem harmless in the moment but the unchecked use of power could lead to ugly outcomes.
One egregious example of PILs being misused was in the case of Assam’s National Register of Citizens, where the Supreme Court took it upon itself to frame and even execute India’s citizenship policy. The result was disastrous, with 19 lakh people excluded from the register.
Pollution is certainly a terrible problem facing Delhi. But a court, instituted to protect the law, not make policy, should not involve itself in it.
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