Judicial Activism or Judicial Overreach

Some recent decisions of the Supreme Court, have prompted certain top leaders of the country, to make comments thereon which can have a far reaching effect on the working not only of the Judiciary but the Country as a whole.

The Finance Minister speaking in the context of the G.S.T. Bill urged MPs not to hand over budgetary and taxation powers to the judiciary. He claimed that the judiciary has been encroaching on legislative and executive authority. Quoting the exact words used in the news paper report of a leading newspaper step by step brick by brick the edifice of Indias legislature is being destroyed This was said during a discussion on the Appropriation No.2 Bill 2016 and the Finance Bill 2016 (Indian Express 12 May 2016) .

At a later function Mr. Jaitley further expressed concern in the following manner :
Pointing out that executive decisions have three layers of accountability in that the people can seek changes in its decisions the courts can strike them down and they can be voted out by the people Jaitley said: Courts can not substitute the executive and say I (Judiciary) will exercise the executive power. If you do so, the three options will not be available, which are there when the executive takes executive decisions. Interacting with media persons at the Indian Womens Press Corps, Jaitley expressed concern over judicial overreach and said a line needs to drawn: Judicial review is (a) legitimate domain of judiciary but then the Lakshman rekha has to be drawn by all the institutions themselves. (The Lakshman rekha is very vital.. executive decisions are to be taken by the executive and not the judiciary.

He argued: Just as independence of the judiciary is part of basic structure, the primacy of the legislature in policymaking is also part of basic structure In the name of independence of judiciary , we cannot compromise the other two basic structures”.

Referring to protests by many states over Supreme Courts decision on National Eligibility Entrance Test, Jaitley asserted that the manner of holding the entrance test across the country is essentially an executive matter since it is in policy domain.

According to the finance minister, the judiciary and the executive are on the same page over maintaining the fairness and integrity of exams at all costs.

Jaitley also maintained that despite the acrimonious debates between the Treasury and the Opposition benches, civility in discourse should be maintained in politics. We can have argument in a language that does not embarrass the polity.

Defence Minister Manohar Parrikar, very recently said that some of the directions of the judiciary were senseless and without any scientific basis. The Honble Minister said with reference to the Supreme Court Ban on vehicles with an engine capacity of 2000 cc and above in the capital. He is reported to have added some people who do not understand science have begun interpreting it. These statements coming from the most important functionaries of the Govt, have sent a chain reaction in the senior members of the Bar.

Mr. Fali S Nariman, in his article Surely, Mr. Jaitley Judges can, and have, crossed the line for a good cause appearing in the Indian Express dated May 19, has quoted the learned professor of Law Upendra Baxi as under:
He says the highest court has mutated the discourse of judicially unenforceable directive principles (as originally enacted) by incorporating them into Article 21 (as now interpreted) and so converted human needs into human rights. It is therefore erroneous to speak of judicial overreach in the present-day Indian context when under our Constitution, enforcement of Fundamental Rights, including the right guaranteed under Article 21 (now expanded into infinitely diverse areas only remotely connected to life and living) has become a constitutional duty, performed on an almost daily basis by judges in the Supreme Court (under Article 32 and 136) and by judges of high courts (under Article 226). It is just too late now for anyone even a worthy cabinet minister to cry halt to what Professor Baxi has so eloquently described as the ongoing judicial discourse about converting human needs into human rights.

However another learned member of the Bar T.R. Andhyarujina A) Arun Jaitleys remarks on judicial activism are timely. The Supreme Court is increasingly, and controversially, asserting control over the executive and legislature.

The PIL was originally conceived as a jurisdiction firmly grounded on the enforcement of basic human rights of the disadvantaged unable to reach courts on their own. The courts function was to supplement the other government departments in improving the social and economic conditions of the marginalized sections. It did not assume the functions of supervising and correcting the omissions and actions of government or public bodies; it, rather, joined them in a cooperative efforts to achieve constitutional goals.

The public of India has now become accustomed to seeing the Supreme Court correcting government action in trifling matters which should not be its concern. The apex court has original jurisdiction only to entertain petitions for breach of fundamental rights under Article 32 of the Constitution, and therefore, these micro-managing exercises are hung on the tenuous jurisdictional peg of Article 32 taken with Article 21 or Article 14. In reality, no legal issues are involved in such petitions; the court is only moved for better governance and administration in such cases, which does not involve the exercise of any judicial function. Jaitleys pungent statement, therefore, should revive the debate on the overreaching jurisdiction of the Supreme Court.

Chief Justice T.S Thakur, recently said that the onus is on executive if it wants less judicial interference and that the judiciary intervenes only when the executive fails in its constitutional duties.

Extent of judicial interference in governmental issues depends on how effectively and efficiently the government does its job. Which court would want to intervene if the government works efficiently and sincerely ? The courts only fulfil their constitutional duty and need would not arise if the governments do their job, the CJI was quoted as saying in an interview to ETV News Network at Srinagar.

Days after Union Finance Minister Arun Jaitley claimed in his speech in Rajya Sabha that the judiciary had been encroaching on legislative and executive authority and that step by step, brick by brick, the edifice of Indias legislature is being destroyed. The CJI said that if there is neglect and failure on part of government agencies, judiciary will definitely play its role.

This statement resulted in the following reaction, on the said statement by Mr. Nitin Gadkari, who was reacting to Chief Justice of India T S Thakurs assertion that the judiciary intervenes only when the executive fails, said there is a fair chance of failure in every field but to what extent a field can be allowed to intervene with the other is still debatable. If the executive fails, just like if our government fails in the legislative wing, then people have a right to change us. But as far as executive wing, judiciary and media are concerned, their rights and duties have been clearly mentioned in the Constitution, he said.

As an author of the books Makers of Indian Constitution and Makers of the Supreme Court, which were released by the then Chief Justice P Sathasivam, on 1 March 2013 and by Honbe Mr. Just5ice Dipak Misra, Judge Supreme Court on 3 May 2016, I would like to quote the speech of Honble Mr. Justice Harilal Jekisundas Kania, delivered on the opening of the Supreme e Court on 28th January 1956.

The duty of interpreting that Constitution with an enlightened liberality falls on the Supreme Court. The Supreme Court will declare and interpret the law of the land, and, with the high traditions behind the Judiciary of this country, we are convinced that the work will be done in no spirit of formal or barren legalism. It will be our endeavour to interpret the Constitution, not as a rigid body, but, as a living organism, having within itself the force and power of self-government. We trust, that, in doing so, we shall allow the constitutional usages and conventions recognized in all civilized independent countries to be respected. The Supreme Court, however, under the colour of interpretation, cannot alter or amend the law. But, within the limits prescribed, we are quite sure that the Supreme Court will be able to make a substantial contribution towards the formation of India into a great until retaining its own civilization, traditions and customs. With the establishment of the Supreme Court of India, we shall develop our own jurisprudence based on our historical background and we trust that that will be an important and useful contribution to the creation of International Law.”

Initially, the Courts exercised Powers of judicial review in a narrow sense, for striking down legislation only on the grounds of violation of fundamental rights and/or ultravires of the Constitution. However, later on administrative actions and orders were struck down on the ground of arbitrariness and unreasonableness, as enshrined under Article 14 of the Constitution, but the Courts were reluctant to strike down Provisions of the Constitution.

However, the Supreme Court asserted its wide powers in the path breaking case of Kesarananda Bhartis case in 1973, by holding and overruling its earlier decision in Golok Naths case by holding that even no amendment could be made to alter the basic structure of the Constitution.

Post-emergency, the courts took upon themselves a more activist and social approach. The beginning of P.I.Ls in India, threw open the gates to the socially and economically sections of the Society, for their benefit. However later on in the 90s the courts started entertaining PILs relating to environmental issues and even started monitoring issues relating to Pollution protection, conservation of forests and even vehicular pollution.

In recent times, the traditional and conservative approach of the courts in exercising powers of judicial review have been vanishing and sphere of judicial activism has been expanded. Reference may be made only to 2 G Spectrum allocation cases (2012) and the recent judgement in allocation of Coal blocks (2014). Critics have been vary of the facts that the scope of judicial review has been widened, and the courts have struck down various legislations on the ground of arbitrariness, unreasonableness and malafides, and even interfered with Policy decisions.
The tussle between the judiciary and the legislative/Govt reached its zenith in the striking down of the law formulated by the Parliament and supported by the various states legislative assemblies, in relation to law relating to appointment of Judges to the highest judiciary.

Lately the dispute is still pending in respect of the memorandum of Procedure framed by the government in relation to appointments to the higher judiciary, which has halted the progress of appointments of judges to the higher judiciary. Presently there appears to be a stalement, with little signs of a settlement, which is amplified with the conflicting views of the Senior members of the bar, referred to in the above article.

Mr. Keshav Dayal 
Senior Advocate , Supreme Court Of India
Patron :Dayal Legal Associates.
DEEPAK DAYAL (MBA, LLB) | Managing Partner,
Dayal Legal Associates .India. 
Advocate, Supreme Court Of India. 

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