The bane of Judicial activism
A single, integrated, hierarchical judiciary is the hallmark of the Indian Parliamentary democracy. At many instances in the past, we have experienced the pros of having an independent judiciary which safeguarded the rights of the citizens thus being graced upon as the custodians of the rights of the citizens. Along with interpreting the Constitution & adjudicating disputes, the judiciary was also endowed with task of safeguarding the Constitution of India. Along with independent judiciary, the Constitution also speaks about the separation of powers between judiciary, executive and legislature with a caveat that when only necessary would they interfere into one another’s job. Given today’s scenario this aptly fits in to remind everyone that the three organs of the Government should never be at loggerheads and instead be cooperative and understanding in self. (With reference to ongoing tussle between government and judiciary)
These days the pattern of orders, observations and the judgments by the courts makes one wonder if judiciary is elected to handle the policy matters of India! Be it Supreme Court or High Court, the observations made are appalling! Just in case to explain; let’s examine the Uttarakhand fiasco. The CM was found horse-trading; caught on camera and later even admitting that he was involved in act of bribing; yet this fact was conveniently avoided by the judiciary and for the first time in history of independent India, a government which failed to pass the appropriation bill was reinstated by the judiciary! The same judiciary which vehemently opposes corruption, puts corrupt officials behind bars, helped the Uttarakhand CM gain office again, even challenging the authority of the President of India by questioning the President’s Rule imposed in Uttarakhand.
Recently the court ordered the airlines to draw up air routes from Shimla to Delhi. The Court also ordered an increase in green tax in Capital! Not far but day ago, the court struck down the TRAI order! It recently asked the RBI and Centre to form a panel to look into bad loan scams by the bank! If this wasn’t enough, the court heard a petition on bringing back Kohinoor directing the government to take action in this direction! This all comes at a time when there are lacs of disputes pending before the courts of much more importance than Kohinoor! So, it seems the ministry of aviation, finance, telecom, foreign affairs etc should work according to what the court says not the laws or the decisions taken by the Cabinet!
Above all, the Supreme Court of India is hearing petition filed by Jairam Ramesh against the GOI for introducing Aadhar Bill as money bill in Parliament. Since when has it become a prerogative of the court to decide whether the bill is to be presented as money bill or not? According to Art. 110 (3) If any question arises whether a bill is a money bill or not, the decision of the Speaker of the House of People thereon shall be final. Therefore, isn’t the court stepping outside its domain by agreeing to hear the arguments on the petition when the matter lies in discretion of the Speaker?
The Supreme Court was criticized for striking down National Judicial Appointment Commissions Bill, which was passed unanimously by the parliament. Declaring NJAC unconstitutional made the Supreme Court more vulnerable to criticism at a time when there’s a huge debate on accountability of the courts! All those actions of the court have left it open to public ridicule! All the decisions that are to be taken by elected governments are being taken by the courts; those are accountable to none! Moreover the policy & Taxation related matters too are being taken care of by the courts!
The roots of this cause lies in the belief of the court that all democratically elected governments are defunct and all politicians are corrupt. Hence, the judiciary thinks that it is upon itself to look after 1.25 billion people. In words of Robert H. Bork, a famous jurist, “Most members of the courts seem to be Gnostics; firmly believing they have the access to wisdom denied the rest of us.’ ’Although, his commentary was on American judiciary, it’s totally relevant today to the Indian Judiciary. Rise in judicial activism or over activism is not good for a democracy. It is rather against the ethos of constitution. The functioning or non performance of the government doesn’t pave way for the judiciary to step into the shoes of government and act like one. Judiciary was made to protect the people against tyranny and not become ‘Tyranny of Unelected’ as phrased by finance Minister Mr.Jaitley.
The people of this country have had great patience to listen to the tyranny of the courts. Many of the judgments or decisions of the courts have been laughed at! The lethargy with which the courts function is also being questioned. If punishing the government for its act is what the court think their duty is then why do we have elections after every five years? If the government is not performing well, the people will vote it out after 5 years! This is an exclusive right of Indians and the courts should protect it instead of acting like a government itself.
The judiciary is respected by Indians at large because they think the judge to be a messenger of Lord and the court to be the ultimate temple of justice. But the recent trend of the courts entertaining matters which are of less importance has made the public rethink about the status of the courts! Too much of judicial activism has led to a valley of severe distrust and disrespect between the people and judiciary. In order for the judiciary to gain back the trust of people, it should rather think upon the matters like judicial accountability, quick decision making, transparent functioning, and quick and easy access of justice.
Lawyer based in Nagpur. Fine interest in current and legal affairs, foreign policy and matters of social importance.