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Showing posts with the label judicial overreach

Decision Making as Output and Bounded Rationality

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  The classical economics theories proceed on the assumption of rational agents. Rationality implies the economic agents undertake actions or exercise choices based on the cost-benefit analysis they undertake. The assumption further posits that there exists no information asymmetry and thus the agent is aware of all the costs and benefits associated with the choice he or she has exercised. The behavioral school contested the decision stating the decisions in practice are often irrational. Implied there is a continuous departure from rationality. Rationality in the views of the behavioral school is more an exception to the norm rather a rule. The past posts have discussed the limitations of this view by the behavioral school. Economics has often posited rationality in the context in which the choices are exercised rather than theoretical abstract view of rational action. Rational action in theory seems to be grounded in zero restraint situation yet in practice, there are numerous restra
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Judicial Interventions in Hindu Cultural Matters : A Note

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  In India, the judiciary in theory can be a dictator with very little options existing to question its choice. It can turn itself into an institution without accountability at the whiff of the hat. It per se exists in current boundaries only due to its own restraint and this is by its own admission at different points of time. With passage of and more so in recent years, the court has turned a law into itself exercising jurisdiction on things all and sundry. It seems to have an opinion on everything under the sun. Often it functions to the gallery rather than application of judicial principles on matters of law. It has taken refuge on the grounds that it fills the vacuum when the executives abandons its role. The fact of the matter however is often it seeks to encroach into executive powers on the grounds of inefficiency of executive in implementing what can be termed as pro-people decisions. In exercising power under the garb of protecting welfare of the people from the hands of alle
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Indian Judiciary and Pending Cases

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  A recent tweet by LawBeat puts out an interesting perspective on the cases before the judiciary. It quotes the Law Minister Ravi Shankar Prasad as stating there were nearly 67000 cases pending before the Supreme Court. If one were to take the cases pending before the High Courts, there would be 58 lakh pending cases. Given there are 25 High Courts in the country, an average of more than two lakh cases are pending before each High Court. If one were to dig deeper and look at the lower courts- primarily the District Courts- the number touches around 3.3 crores. The number is expected to increase with passage of time rather than decrease. This virtually implies there is very little time for each court to sit and adjudicate on the cases and perhaps even lesser time to write judgment on those cases. Assuming Supreme Court to sit around 200 days per year, they have to handle 300+ cases per day of their sitting to dispose of the current pending cases and on an assumption of accepting no fr
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Judicial Restraint : A Note

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  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 el
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Deciphering Judicial Overreach

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  Article 142 of the Indian constitution provides for enforcement of Supreme Court decrees. The cause was the carriage of justice. If the victims knock at the court of justice and if justice is delivered, it has to be enforced too. Therefore, the judiciary must have the power to enforce its orders. Thus arose the need for Article 142. The lower courts while having the power to enforce their decrees are also subject to the review by their higher courts. Since Supreme Court is the highest judicial body in the country, naturally its decisions are not subject to review unless it takes up its own review. Secondly, even though justice might have been delivered on paper, it needs to be enforced on the ground. For instance, there is an eviction order, but the person refuses to leave the property. So in this context, the constitutional backing allows the judiciary to enforce its orders anywhere in India. Yet, with the passage of time, there exists a possibility of the Supreme Court overreaching
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