Protecting fundamental rights of the country’s citizens is definitely the mandate of Supreme Court of India. Chief justice Dipak Misra has rightly stated that it was the judiciary’s responsibility to protect the peoples’ rights.
Does that mean that judiciary can takeover the legislature and the executive? In the name of judicial activism, if such a thing happens, will it not lead to anarchy given that different organs of state trample upon the powers of each other? These are disturbing questions that have no easy answers. What if the executive and the legislature takeover the job of delivering judgments citing inaction, inefficiency, lethargy and rampant corruption in the judiciary?
Well, these questions need to be seriously debated at national level to ensure that a delicate balance between different organs of power structure with specified powers are maintained.
Finance minister Arun Jaitley has rightly stated that in the name of protecting fundamental rights of citizens, courts cannot takeover policymaking or running the administration. Let the judicial overreach or review not disrupt the delicate applecart that has been ensured in the Indian Constitution even at the drafting stage.
Otherwise, how can judiciary appoint former judges to head special investigation teams (SITs)? Should the former judges who have not been trained to administer run such bodies? Can the judiciary decide on movement of security forces within or outside the country?
Judicial activism is a phenomenon born out of concern for protecting and nourishing the independence of our courts, freedom for our judges to deliver judgments without favour or restrictions. This cannot be extended to run the country by diktats of the courts.
Yes, judiciary has the limited role of interpreting Indian government’s policies and implications there of. The courts are perfectly within their rights to advise, suggest or even direct the government when they feel the common man’s rights were violated abjectly. But there’s a thin separating line while exercising judicial review and the judiciary must resist the temptation of usurping powers of the executive or the legislature.
Judiciary should also resist the urge to hog headlines for the sake of it. For instance, should the Kolkata High Court decide on the movement of CRPF or para-military forces in the troubled Darjeeling areas? Should Supreme Court nominate its own former colleague to first make recommendations on how the BCCI should be run and then later have them implemented through its own nominees? It’s like bureaucrats appointing its own ilk to advise the government on policymaking irrespective of their own track record.
Was the Supreme Court right in ordering CBI chief to report directly on the progress of investigations, especially on black money cases? What happens if the government retaliates by ordering probe into corrupt practices of judges as seen in the case of medical colleges scam in Uttar Pradesh? What would happen if the law ministry unilaterally begins to appoint, transfer, promote or even constitute judicial panels? What prevents government from cracking down on lawyers’ fraternity known easily for peddling power, favours and huge cash transactions evading taxes?
In fact, the judiciary should focus its energies more on delivering justice to people and find innovative means to make courts accessible or deal with huge pendency. It is imperative that judicial system is transparent and affordable. For this norms for pricing judicial services should be initiated.
The judiciary should not aim at running the country from the precincts of courts, as it does not augur well for a democracy like ours. In fact, the courts, the executive and government must work in tandem and not at cross purposes.