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Arunachal Pradesh verdict an example of judicial override?

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Rucha Dhakras
Practising Lawyer based in Nagpur. Occasional Blogger With An Interest in Socio Legal and Political Scenario.

It is generally assumed that an elected government with popular majority is supposed to run the state. But given the recent overrides the courts in India have had, we can presumably say that ‘’Let Courts be the Governments’ .  Let it be the controversial judgments of the Courts banning diesel cars in National Capital or be its order questioning the wisdom of the President in recent Uttarakhand verdict. All those cases if closely observed gives you a hint about the power struggle. The struggle for supremacy;  which has led to a big power tussle between Centre and Judiciary that is bad for democracy.

India is a Parliamentary Democracy whereby Legislature, Executive and Judiciary are separated from each other to avoid any conflict between the three. The makers of our constitution believed that in order to ensure that the Government does not acts against the welfare of its people, it is necessary to have an independent judiciary that could stop the government from working in mala fide and uphold justice. Yet, given the recent observations and verdicts of the courts, its style of functioning etc we must admit that the faith of common man in our judiciary is declining day by day. Not far away from today shall a day come when people might start questioning the Courts judgments.

Take the case of Arunachal Verdict. The court has virtually reinstated an unconstitutional government in the crucial border state like Arunachal. In nutshell, the case can be explained that, the Tukki Government became a minority government in the state given the rebellion of its 30 MLA’s (INC). The ruling Congress was left with only 15 MLA’s . Thus, now the opposition which is NDA has 45 MLA’s. Given this scenario, President’s rule was imposed. The INC challenged it in the Supreme Court of India and eventually after hearing both the sides, the court said that Governor was wrong and restored the Tukki Government.  For the first time in history, the court has restored a minority government and asked the majority to sit in opposition.

This case is similar to what happened in Sikkim in 1974. Only difference being, then the Court did not say anything and today its judicial activism has led to people questioning the wisdom of the court. The recent overturns the courts have been doing has made the common man weary. The more the courts intervene in the matters of the executive, the more it makes itself closed to the common man. Courts are meant to give justice to people and not to meddle in five star activism.  Just like the Prime Minister has said that time and again, that the courts are letting themselves be used by the activists who wish to stall India’s progress.

Just some days go the court passed an order inquiring into use of AFSPA by armed forces in Manipur and the areas where insurgency is at peak in North East. The court observed that the state cannot kill militants just because they defy its order and not agree with the State’s policies! State cannot kill militants just because they too are the citizen of this country! By this logic, the State must invite all the militants and insurgents to dinner and let them challenge the Sovereign and the State to remain a mute spectator?

The Court may be wise enough and right enough on humanitarian grounds, but the Sovereign has the responsibility to secure its national interest. The Sovereign cannot and should not leave its citizen open to insurgency just because the court says so! It has to protect its integrity. And according to the principles of sovereignty, integrity and national security anyone; be it even its own citizen, who threatens the three shall not be tolerated!

This is a dangerous trend. The courts delaying the matters of grave importance like FRCA violations by Teesta Setalvad’s NGO’s or even the coal scam but a quick decisions on president’s Rule or Green tax etc are not being appreciated by the masses. The Courts are still looked upon by the masses with great reverence and respect but this over-activism  by judiciary is reducing the goodwill day by day.

In words of Robert H. Bork, a famous American jurist, “Most members of the courts seem to be Gnostics; firmly believing they have the access to wisdom denied the rest of us.’ ’ This he calls Judicial Oligarchy.

The Indian Judiciary must refrain from becoming the American judiciary which creates hurdles in its own progress. Let the executive function the way it does, because it is accountable to the people. And the judiciary must function its own way not by interpreting the Constitution in the way they want but within the framework of Constitution. This nation owes a much to the Indian judiciary for saving the people from misuse of power by the powerful, and having to see the same courts acting just like powerful is not an appreciative stance.

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Rucha Dhakras
Practising Lawyer based in Nagpur. Occasional Blogger With An Interest in Socio Legal and Political Scenario.

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