Judicial Policy Making in India: A Myth or Reality

Policy making may be characterized as picking among possible strategies where ones activity influences the conduct and prosperity of other people who are subject to the policy maker‟s power. Put another way policy making is the authoritative allocation of resources. No one disputes that legislators, executive officials and bureaucrats make policy in every democratic country. But we resist the idea that judges are also policymakers and often raise certain serious question on judiciary for acting like a policy maker. It is also often seen as dereliction of judicial duty when ever judiciary come out from its conventional shell and plays dynamic role in nullifying the policy of government as unconstitutional. Nevertheless, the criticisms of judicial rulings is based on common belief that judges merely find or discover what the law is, they should not make law. Policymaking is the responsibility of the other branches of government, so judges who engage in policymaking are acting ultra vires. In any case, another perspective is that judicial policymaking is neither outstanding nor derived. Courts "say what the law is", over the span of deciding cases, and in dealing with cases definitely entangles them in policy debate. Their decisions may report definitive legitimate measures that characterize public policy within the jurisdiction they serve. Now and again their decisions may have an impact political activity and animate or impede societal change, paying little heed to whether judges choose the cases appropriately, and whether their decisions maintain or strike down. In the aforesaid back drop this paper endeavors to examine the quintessence and the Constitutional point of view of policy making function of the judiciary in elegance with the constitutionally conferred legislative powers of the legislature. It then turns to the second issue on discussions of the reason which justified the judiciary to indulge in policy making issues. It goes on to discuss weather judicial policy making is a myth or reality in reference to the decisions conveyed by the Supreme Court in the post emergency period.