Judiciary: Time To Revisit Its Role

Prof. Rajvir Sharma12

India decided after being free from the colonial rule to opt for a constitutional mechanism based on west minster model; constituted a constituent Assembly to work out a constitution that should help construct a new age India to be governed on the principles of rule of law, equity, justice, fraternity, human dignity and liberal democratic ethos. It sought to strike a balance between political and social democracy to serve the cause of social re-engineering. This is all summated in the preamble, the fundamental rights and the directive principles of state policy.

Further, the polity was designed as per the dictates of constitutionalism. Rule making, rule execution and rule adjudication were assigned to three separate organs of the government, that is, the Legislature, the Executive and the Judiciary respectively. The functioning of the government was supposed to be broadly regulated by the canons of balance of power.

This arrangement functioned as expected till almost the mid-sixties. The judiciary, though intervened in matters of legislature’s encroachment of fundamental rights mainly contained in the section on right to freedom and Article 31 (now removed) guaranteeing right to property and declared several legislative and executive actions as null and void, did concede the right of the Parliament to finally arbiter the ways to bring about socio-economic change reconciling the values of freedom and justice.

The inclusion of 9th schedule in the constitution is an example. Similarly, Articles on freedom (19-22) were in general interpreted by the courts keeping in mind the balance between individual and social collective interests and also in accordance with the attached limitations thereon. Judiciary seemed to be in agreement that article 13 gave an exclusive domain to the parliament to amend any part of the constitution including fundamental rights enshrined in part three.

In addition, the courts refused to interfere in cases that were prima facie perceived political in nature like the role and functions of the president of India or a governor of a state relating to their powers vis-à-vis the legislature and/or the executive. This was almost true till1994 when in SR Bomai case, the Supreme Court not only agreed to examine the validity of action under Art. 356, invalidated some of them, but also laid down the procedure of settling the issues of majority support to the government on the floor of the House, denial to the executive of the right to dissolve the state assembly before the legislative approval thereof and so on. It had a salutary effect on the prevention of misuse/abuse of the constitutional provisions by the executive. Even though it tantamount to judicial takeover of the parliamentary power to amend Article 356 if it so deemed and an implicit breach of the principle of division of powers as provided under the sacrosanct document, voices were not raised much against this development, rather it was welcome in the backdrop of rampant/ frequent action against the governments run by the political party/ies opposite to the one at the centre.

However, the trend of crossing the constitutionally defined boundaries by the judicial organ of the government could also be seen when the parliament was robbed of its constituent power by inventing and imposing a new theory of basic structure of the constitution. It appeared from 1967 as if the judiciary was expressing an implicit no confidence in the integrity and social/national commitment on the part of the highest law making body of India under one or the other pretexts. It compounded its powers under the rubric of implied powers. It has further extended its area with legislative or administrative import through application of the system of Public Interest Litigation.

While it is a welcome judicial step to hear a petition on the part of the suppressed and the poor incapable of knocking the doors of the court for justice, may be because of the prohibitive costs of litigation or because of fear of the powerful, filed by any one not directly connected with the case, but to amend the ambit of the fundamental rights in sync with the changing needs of the modern complex society through judicial interpretation needs be questioned. It is not that the right to life does not require including all that the courts have prescribed, yet it should be the jurisdiction of the people’s representatives to assert them as envisioned by the framers of the supreme legal document, the constitution.

Another undesirable tendency in the judicial behavior is making comments/observations basically with political connotations on an increasing scale. This is not questioned because of the fear of being punished for contempt of court, rather than their utility or relevance. Such comments also have the potential of creating alienation between the people and the executive harming in the long run political stability. It may also harm its independence. Governance and policy formulation and administration should be left to the Legislatures and the executive. Judges are or should be no body to observe as a counter that judiciary comes when government fails to deliver. It is overstepping its constitutional mandate and equivalent to exploiting the popular sentiments against the executive inefficiency or her cruel indifference to the problems plaguing the society.

Similarly, judiciary must examine the cases of criminal justice administration when they are presented to it for trial, particularly the cases involving security matters or the cases of Naxals/ terrorists must not be preempted on the basis of doubting the intentions of the state, nor should it ever send a message that court is ready to be used at any point of time in the day/night by the politically tempted battery of senior and eminent lawyers for the those who are arrested  on the ground of suspected or real threat to the people and property of the nation. Let the judges intensively, closely and deeply examine the evidence on record or may even ask searching questions to unearth the reality when the trial begins, but they should not be available to the opponents, even if only suspects, of the system. This might again erode peoples’ confidence in the impartiality and autonomy of the judiciary.

The legitimacy of administrative or political-social decisions, unless taken beyond the constitutional parameters, is meant to be judged and approved or rejected by the electorate, not by the courts. If it does not happen, it may open the doors for judicial tyranny and the principle of balance of power may be a victim of self righteous arrogance of the judges leading to several new challenges to democracy and democratic value system.

In conclusion, it can be submitted with due regard and deference to our courts, yet unhesitatingly, that judicial overreach or hyper activism needs a revisit by the judiciary in the interest of defending constitutionalism, mutual trust between the three organs of the government and in the interest of safeguarding its own independence and apolitical image. The western training of mind should not be allowed to overshadow the Indian socio-economic and political realities.

(The writer is a senior social scientist. The views expressed here are his personal)


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