The judicial
activism in India has attracted consternation in many quarters. The past posts
too have discussed at certain length the dangers of judicial activism and the
possible repercussions it might have on the balance between the three organs of
the state viz. the legislature, the executive and the judiciary. As long as
they functions within the confines of the boundaries, they would be ok. Yet
when one encroaches the domain of the other irrespective of the circumstances,
then the decay starts. To the legislature, it is the fixed term that acts as a
check and balance. The executive functions as subordinate to the legislature
and too survives as long as it has the majority in the lower house of the
legislature. Given the five year term and the consequent election or
re-election, the governments keep changing. Therefore, they are elected and
accountable to the people. They are punished if they do not perform. If there
is transgression, there would be severe retributions from the electorate at the
polls as witnessed in numerous circumstances not just in India but across the
democracies in the world. the third critical organ in a democracy is an
independent judiciary but there is no checks and balances since it is an
unelected body. The judiciary does get tremendous powers thanks to its primary
functions, yet the urge to over-reach might result in numerous problems. This
has been highlighted in the past posts. Therefore, a question that arises would
what has to be the role of the judiciary. The current post will delve into this
topic.
The Supreme
Court must return to its original mandate. It was a constitutional court and
must stick to this mandate. It can have original jurisdiction but the appellate
jurisdiction must be curtailed with setting up of Court of Civil Appeals and
Court of Criminal Appeals. The appellate jurisdiction must turn into perhaps a
discretionary jurisdiction in most cases. The Supreme Court can adjudicate on
constitutional issues but the rest are best left to the subordinate courts. The
courts must not wade into executive domain. They must resist that even though
there is nothing in current law that prohibits them from doing so. They are not
here to govern and are here only on interpretation of law. The PIL culture must
come to an end. The PILs must be admitted on very limited grounds. The bar of
admitting PIL must be set very high. The PILs have become an instrument to
derail executive agenda. While the judiciary might have had some valid reasons
in the past to admit PIL, there is no doubt that over the last decade and half
or so, the PILs have reached the stage of diminishing returns. The PILs are
becoming instruments whose outcome is the tyranny of the unelected. There are
better grounds for dissemination of justice than litigations in the name of
public interest when neither public is involved nor their interest is involved.
Few self-proclaimed lawyers are virtually running the industry.
Any activity
which is challenged must find an indication on what grounds of law does the
activity violate. For instance, the courts had no business in determining the
height of Dahi-Handi or restrictions on Jallikattu. The court’s role here would
only be to examine whether these activities would violate any of the laws
prevailing in the concerned state, city, town or even the village. If it does
not violate the provisions, the court cannot intervene in the same. The courts
thus restrained from arbitrating these policy issues would free themselves from
numerous cases which do not fall under their ambit. The courts cannot be
expected to be the policy makers. It should further be mandatory for any
litigation to mention the grounds of violations of law with respect to these
activities. The petitioners cannot simply claim the abdication of executive in
playing its role as ground for judicial intervention. The executive abdicating
its role would be adjudicated in the court of electorate at frequent intervals
but judicial overreach is purely a subject matter of self-restraint.
The court’s
examination of issues must restrict to provisions of legislative competence or
lack of the same or differing interpretations of law. The business of framing
laws is of the legislature. In case the legislature exceeds its competence, the
courts have a business in interfering and staying the law or even holding the
law invalid. There could be multiple interpretations of law. For instance, a
tax law could be interpreted differently by different people, the
practitioners, the firms, the chartered accountants, and the tax administration.
In such cases, the courts get into business interpreting the correct meaning of
the tax laws. This was just an example and this can apply to numerous
situations including property succession, marriage, land reforms, and land
acquisition, among many other such things. In this context, the court is merely
bound to interpret the law as it exists. The courts can further adjudicate the
grounds of violation of constitutional provisions. In case, any piece of
legislation violates the provision of constitution, then the courts can get
into the business of setting aside the concerned legislation. They can go into
the dynamics of constitutional amendments. In this context, the court must
again restrain itself with confining it the amendment violation certain specific
provisions. In other words, the amendment goes contrary to certain specific
articles. The test currently would be the Basic Structure test. This in itself
is controversial needing a debate in itself.
The judiciary
thus will have to restrain itself to its select domains. The High Courts as
well as the Supreme Court on more occasions than one have ventured into
policymaking with disastrous consequences and zero accountability. This has to
end. There needs to be legislative intervention towards the same. However, as
with the NJAC case, the courts will not allow any encroachment into their
domain. Yet, there needs to emerge a visionary among the judicial fraternity
who will take the steps to get the judiciary back to its domain. The domain of
examining the validity of legislative competence, the examination of differing
interpretations of law, the examination of violation of constitutional
amendments, the examination of violating current framework of legislations,
restraint from encroaching into the executive or the legislative functions,
resist the temptation to emerge as conscience keeper of so-called scientific
temper and modernity, resist the temptation of reforming the society through
activists who have their own vested interest, restraining themselves from being
the expert on each and everything under the sun. If this were to be achieved,
India would be back on track for progress.
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