Justice is the bread of the nation- it is always hungry for it. And, it is well known that justice delayed is justice denied. The role of judicial activism in India has been to provide a safeguard to the common man and indigent against an insensitive system. This noble task, taken upon itself by the courts, has provided succour, relief and requisite legal remedies to the needy and deprived, over the past few years of judicial intervention and cementing.
However, recently in a surprising censure of itself in recent times, the Supreme Court, has observed that judicial activism has disturbed the delicate balance of powers enshrined in the Constitution.
“Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State i.e. the legislature, the executive and the judiciary must have respect for the others and not encroach into each other’s domain,” observed a bench comprising Justices A K Mathur and Markandeya Katju. The Hon’ble Bench also observed that these were matters pertaining exclusively to the executive or legislative domain and if there was a law, judges could certainly enforce it but judges could not create a law and seek to enforce it.
The court was unwilling to accept the “justification” given for judicial encroachment that the other two organs are not doing their jobs properly. It said that even assuming if this was so, the same allegation could be made against the judiciary too because there were cases pending in courts for half a century. Judicial activism is not an unguided missile and failure to bear this in mind would lead to chaos. With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint.
While observing that the courts have “apparently, if not clearly, strayed into the executive domain or in matters of policy”, it questioned several orders of the Delhi High Court on the legality of constructions in Delhi, identifying buildings to be demolished, age and other criterion for nursery admissions, unauthorised schools, criterion for free seats in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in a hospital, the air delhiites breathe , begging in public , use of subways ,nature of buses we board ,size of speedbreakers on Delhi roads , autorickshaws overcharging and accidents and enhancing fines.
Due to the confusion following the carping comments of the Supreme Court on judicial activism, on the tendency of judiciary to encroach into the powers of the Legislature and the Executive, a two judge bench of the apex court declined further hearing of a matter relating to rehabilitation of victims of flesh trade and referred the 2004 PIL to a larger bench in view of the observations made by the bench comprising of Hon’ble Justices A K Mathur and Markandeya Katju. However, this temporary flux was resolved by a three judge bench of the Supreme Court, headed by Chief Justice K G Balakrishnan, which took the sting out of the earlier apex court order decrying judicial activism. 'We are not bound by the two-judge bench order,' the three-judge bench headed by the chief justice said, while issuing notices to the central and UP governments in a suit relating to the plight widows in Vrindavan and Mathura.
The Supreme Court has now asked the High Courts to follow guidelines it had laid down 14 years ago to “ruthlessly” weed out motivated PILs by ‘imposters and busybodies’ and reject petitions attacking justifiable executive actions for oblique motives “under the guise of redressing a public grievance”. It is a great relief to the common man that the record has been set right by the bench headed by the Chief justice of India because the courts are the last ray of hope for the oppressed, “bewildered” and politically powerless. Every democracy has to have a watch dog to check and balance the untrammeled powers of the state in order to ensure that, in the garb of “public interest”, the discretionary powers are not exercised arbitrarily to rough ride the fundamental rights of the citizen.
While it is imperative to exercise justifiable restraint
and caution to ensure that judicial activism does not
become judicial adventurism or tyranny, this power should
be exercised only in exceptional circumstances and that
too, only in public interest. Truly, judicial activism
“is the oxygen of the rule of law”. The constitutional
revolution, which was the vision of the Founding Fathers,
was entrusted to the judiciary, giving it powers to
enforce, through “writ power”, the socio economic liberation
implicit in the fundamental rights and other avant-garde
provisions of the Indian Constitution- the oasis of
our democracy. "It is the courts, which have stood
the test of time and served the cause of social-economic
justice only to preserve the fundamental rights and
duties of the citizen. When the executive violates these
rights, the court cannot abdicate its responsibility
or jurisdiction, oath bound as it is, to uphold the
Constitution."
It is, therefore, fair and just that the Chief Justice
of India has assured the country that the confusion
likely to flow from the two judge bench ruling, will
be set at rest by a larger bench laying down parameters
governing PIL jurisdiction and judicial activism without
trespassing into the realm of judicial overreach.
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VIKRANT PACHNANDA is the Founder and Associate Director, India Law Journal and a second year student pursuing B.A LL.B (Hons) from Gujarat National Law University (Ahmedabad). |
