Abstract
We examine why India’s Supreme Court has selectively intervened to enforce environmental laws. While the Indian Judiciary has substantial political insulation, judges recognize the need for tactical balancing to preserve the legitimacy of their institution. We examine four cases: judicial interventions to check water pollution from tanneries and to phase out diesel engines, and judicial non-intervention to prevent degradation of wetlands and to check crop burning in states adjacent to Delhi. We suggest that judges intervened to correct enforcement failure when they do not anticipate pushback from organized constituencies. Where judicial action imposes costs on a large number of actors and motivates protests from organized groups, the justices have tended to overlook enforcement failures. In sum, in spite of political insulation, judges remain attentive to the popular mood and interest-group politics.
Highlights
The Judiciary is a co-equal branch of the Government, tasked with interpreting the law
Scholars note instances of enforcement failures where the Executive fails to enforce judicial decisions either because it does have the resources to do so or because it believes that the political and economic costs of enforcement far outweigh the benefits [1,2,3,4,5,6,7]. What if such enforcement failures are not pushed under the carpet but explicitly brought to the attention of the courts, either suo motu or in response to petitions from concerned citizens or interested parties [8,9]. Faced with this direct and open challenge to their authority, how should the judicial branch respond? While the Judiciary in most countries has some level of political insulation [10]—such as lifetime tenures in US federal courts, or the difficult process of impeaching Supreme Court judges as in India—we expect judges to be carefully attuned to the political, economic, and social implications of their rulings [11]
Drawing on environmental law cases from India of judicial assertion and non-assertion, we suggest that judges implicitly work from some sort of cost-benefit calculus from an institutional perspective, especially focusing on the political costs of correcting enforcement failures
Summary
The Judiciary is a co-equal branch of the Government, tasked with interpreting the law. Drawing on environmental law cases from India of judicial assertion and non-assertion, we suggest that judges implicitly work from some sort of cost-benefit calculus from an institutional perspective, especially focusing on the political costs of correcting enforcement failures. The Judiciary has chosen not to use its considerable powers to compel the Executive to stop crop burning in states close to New Delhi—an activity that causes severe air pollution in Delhi each winter Using these four cases, our exploratory study examines the possible reasons for varying level of judicial assertiveness by drawing on the theory of tactical balancing
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