Anil Anand
Judicial activism has become some sort of a buzz word these days. It is not that judicial activism did not exist earlier on but perhaps, it was confined to key issues of utmost national and public interest. What has so drastically changed that even Supreme Court, the highest court of the country, has been intervening with impunity in a broad spectrum of issues ranging from licenses for dance bars in Maharashtra, reforming the Board for the Control of Cricket in India (BCCI) or deciding that encroachment of land by allowing construction of religious structures was an “insult to God”.
So on and so forth. The list is long and unwinding.
There is no denying the fact that judicial activism or judicial intervention has at times seemed to be crossing the thin ‘Luxman Rekha’. But that is least to suggest that the Courts are headed towards an unconstitutional path. It is unthinkable and proved by the events in the past that the higher judiciary has stood firmly, as and when need arose, to protect the sanctity of the Constitution of India.
So, why the raging debate over judicial activism? Such a debate definitely has its genesis in the efficiency or inefficiency in the modern day system of governance both at the Centre and in the states.
So, is it an inactive executive versus the judicial activism syndrome, forcing the justice system (read higher judiciary) to take recourse to issue certain unprecedented proclamations? This is one strong argument which the supporters of judicial activism have been furthering. There certainly is the other view point that say would pertain to puritans, the governments, the BCCI etc.
Fact of the matter is that there is no clear cut explanation or even condemnation to current spate of judicial interventions in wide ranging issues. This certainly is a matter of wider debate that should happen at various levels.
None other than Finance Minister Arun Jaitley, a legal luminary and lawyer of international repute, came out scathingly against Supreme Court and stated that the judiciary was trampling all over the Constitution’s basic structure providing for separation of powers. “Step by step, brick by brick, the edifice of India’s legislature is being destroyed,” his terse one-liner ostensibly expressed the Government’s displeasure. It would be interesting to know whether lawyer Arun Jaitley would hold the same view.
Prior to that another observation by that Doyen of legal fraternity Justice Krishna Iyer, though made it in a different context, points towards the role of judiciary in a varied sense. Justice Iyer’s statement: “Every new decision, on every new situation, is a development of the law. Law does not stand still. It moves continually. Once this is recognised then the task of the judge is put on a higher plane,” has the scope to widen the canvas for debate on judicial activism though it was never specifically aimed at that.
Justice Iyer’s observation though had reference to judicial interpretations of issues but known his concern for public welfare it could have an imperative on judicial activism as well in this era of deficient governance. On the other hand Arun Jaitley commented purely as a politician of the ruling dispensation and more so as a minister of the Union.
An ideal situation would be of a total harmonious approach particularly between judiciary and the executive. It certainly cannot be interpreted as a cosy club functioning as in that event there would be a strong fear of the interest of the common mortals getting compromised in between. The harmonious reference is clearly towards Jaitley’s ire which is nothing short of censuring the Apex Court and in various matters, for instance the sordid episode of the then Chief Justice of India presiding over total ceiling of Delhi in the name of checking encroachment and unauthorised construction.
This disharmony is also strongly reflected in the manner in which various reformative issues particularly appointment in higher judiciary are being dealt with by both the sides. There is a fear of judicial or executive overreach under such circumstances which many legal and constitutional experts felt was unhealthy and unfathomable in the Constitutional scheme of things.
The objective of both the executive and the judiciary is the same that is welfare of the people. In fact the judiciary provides the people the necessary “auxiliary precaution” needed to ensure that the government functions in people’s favour, for their upliftment and for overall betterment of society.
Here comes the significance of the constitutional scheme of things that not only defines the roles of Judiciary, executive and legislature but also has a mechanism for checks and balances. The Constitution unambiguously gave the legislature, the executive and the judiciary primacy in their own domains. There is a growing impression in certain sections that somehow the judicial overreach was encroaching upon the territories of legislative and executive. Well, it could be true to certain extent but not in its entirety as in many cases the judiciary came forward and forced the dithering executive to act in matters of public interest.
There is a strong argument in defence of judicial activism or overreach in the face of all round poor standards of governance particularly in the states. But such a situation brings an added responsibility on both the sides. The way out for executive would be to strengthen the systems of governance and make it more responsive to people’s cause so that they do not look towards judiciary for resolution of issues that can be well handled at the administrative levels.
In some context judicial activism is directly related to yet another menace of the era that is media activism of the television variety. Who would not like to hear or see one’s face on the small screen and after all the Lordships are also human beings. Deficient governance should bring added responsibility on higher judiciary. The Lordships should be seen as dispensing justice without crossing the proverbial ‘Luxman Rekha’ as demarcated by the Constitution.
The good governance factor also relates to the judiciary in some ways and not only the executive. The two important pillars of the Constitution would have to improve upon to make their respective systems more efficient, honest and transparent. After all, some of the leading legal luminaries have been openly talking about corruption and opaqueness even in the higher echelons of judiciary.
The issue of judicial overreach also flows from the improper or no enforcement of laws that at times leads to violation of Fundamental Rights. Under such circumstances can the courts remain silent spectators? The answer is no as in such a case the pitfalls are different. A non-intervening judiciary would then be termed as inactive instead of proactive and fraught with more serious consequences for it.
But still there is a strong case that the courts should not get into road-building and beautification of government buildings and ordering ceiling of unauthorised buildings. Instead, they should actively intervene and protect violation of rights. The reluctance and inefficiency of the executive is resulting in violation of peoples’ rights with impunity. This is an area where the higher judiciary, in particular, can act strongly to shake the channels of governance out of inertia and inaction. If it happens the rest would automatically follow.
The hallmark of a great nation is its institutions. The stronger the ability of these institutions to uphold and preserve fundamental values, the greater the nation would be. For this to happen, the institutions must recognise and honour their limits. Of course, an occasional overreach here and there to keep the system functional would certainly not be considered an anomaly but a necessity.
It is rather ironic that certain developments in the recent past have created an impression as if the country was being governed by the judiciary. A natural corollary would be if the judiciary has established its supremacy over executive and legislature. This impression has to be dispelled which can be done collectively by all the three pillars drawing power from the common pool that is the Constitution of India.
feedbackexcelsior@gmail.com
Trending Now
E-Paper
Follow our WhatsApp channel