A fresh wave of judicial activism has raised issues about the judiciary’s role vis-a-vis the executive and the legislature. In response to our debate yesterday, we have received a flood of comments from experts.
IS JUDICIARY CROSSING ITS LIMITS?
A DISCUSSION PUBLISHED IN THE TRIBUNE CHANDIGARH
It’s acting in public interest
I am glad that the Supreme Court has issued several directions to the executive in the recent past. The people should welcome this kind of judicial activism and appreciate it because the directions it has issued are in public interest. The Supreme Court’s directions to the executive to bring out the black money deposited by Indians in foreign banks are laudable. The Supreme Court should ensure that all the ill-gotten monies stashed away in foreign banks are brought to India and confiscated by the Central Government. All these tax evaders and black marketeers deserve exemplary punishment. One should not take any lenient view on this matter.
The Supreme Court’s directions in this regard are aimed at serving the public interest which will, in turn, help check inflation. As regards the Supreme Court quashing the appointment of Mr P.J. Thomas as the Central Vigilance Commissioner, the Prime Minister has told in Parliament that it was an “error of judgement”. The Prime Minister has also owned up responsibility for the CVC’s appointment. Once such a statement is made by the Prime Minister, there is no need for investigating the matter any further and this is the right time to close the issue.
Justice A.R. Lakshmanan, Former Supreme Court Judge and Chairman, Law Commission of India
Constitutional balance intact
Judicial activism has become necessary because of a number of lacunae in the functioning of the legislature and the executive. Both the legislature and the executive are guilty of either over-action or inaction. We also find that members of the legislature are turning out to be more and more corrupt and some corrective steps need to be undertaken. So we feel that the judiciary needs to step in. There is absolutely no question of the balance between the legislature, the executive and the judiciary being disturbed because of judicial activism. For instance, the Prime Minister himself was pulled up by the courts over the appointment of Mr P.J. Thomas as the Central Vigilance Commissioner. And the Prime Minister had to admit that he had made an “error of judgement”. So there has been a correction.
Moreover, India’s judiciary has been careful not to overstep its limits. Courts are very conscious of their roles. However, politicians are unhappy because their interests have been hurt.
M.P. Rao, Secretary, Bombay Bar Association, Mumbai
Time to root out corruption
Whatever is happening is for the good of the country. Corruption is spreading like cancer. Time has come to use harsh remedial measures. Corruption amounts to violation of human rights of the poor people because this money otherwise would have gone to them. This is also the right time for creating a better legal framework for tackling the menace of corruption. At a time when our Prime Minister, Chief Justice of India, Defence Minister, Service Chiefs and Cabinet Secretary are persons of unimpeachable integrity, honesty and character, it is rather surprising that a large number of corruption cases have come to the fore and an impression is gathering that everybody is corrupt.
Amarendra Sharan, Former Additional Solicitor-General of India
It’s ordained by statute
It is a conscious and conscientious discharge of duty by the court ordained by the Constitution and a matter of judges being true to their oath. This has nothing to do with activism or passivism. It is plain and simple discharge of duty.
Judges must undo the wrong
There is nothing like judicial activism. The judges must decide the cases which come before them in accordance with the Constitution and laws. Matters which affect the people in high positions are rightly highlighted by the media.
By and large, the judges are discharging their duties and whenever things go wrong they have to correct them. It is the credibility of the judges which makes people feel that they are doing a good job. People don’t know the niceties of the Constitution or law, but it is their confidence in the judiciary which keeps the judges going. I very much appreciate what our judiciary is doing.
Pravin H. Parekh, Senior Advocate, Supreme Court
Applying course corrections
If there is no activism at this juncture, the situation will worsen in administration. People have become aware of the level of corruption because the Supreme Court is directly monitoring the investigations in big scams and the media is disseminating the news in a big way. There is need for reform in every field, particularly in education, to restore the sense of nationalism among people. Foolproof laws would rein in people in position from doing wrong things. India’s image in the international arena would be enhanced only if steps are taken in this direction.
J.S. Attri, Senior Advocate, Supreme Court
Nothing radical about it
Is activism by judges something new? It is something expected of the judiciary. Judges have always been activists. Senior judges like Justice P.N. Bhagwati expanded the scope of roti, kapada and makan. Compared with judges like Justice Bhagwati, you cannot call the present-day judges activists.
The Indian Constitution clearly defines the role of the judiciary. Under the provisions of the Constitution, judicial review of the functioning of the legislature and the executive is mandated. So there is nothing radical about it. There is no question of the constitutional balance being upset simply because judges are not going beyond their prescribed roles. It is the duty of the judiciary.
Justice Hosbet Suresh, Judge, Bombay High Court
Fearless, honest judges
Ordinary people can hope to obtain justice because judges like Chief Justice of India Justice S.H. Kapadia are fearless and honest. It is because of such judges that the judiciary can hope to bring about a change in the country. The judiciary is acting within the framework of the Constitution when it looks into the functioning of the executive and the legislature. The court gives a ruling when the matter is placed before it. So there is no question of the judiciary interfering in the working of the executive as far as the CVC’s appointment is concerned. An activist judiciary does not disturb the constitutional equilibrium. Judges are not going against the constitutional framework by taking up matters pertaining to the functioning of the executive or the legislature.
Benedict Lobo, Senior Advocate, Bombay High Court
As told to R. Sedhuraman in New Delhi, Shiv Kumar in Mumbai and Saurabh Malik in Chandigarh
Dont undermine the role of other branches of govt
The judiciary should not exercise its power of judicial review to undermine the legitimate role assigned to other branches of the government…The role of courts and judges in making law an instrument of social stability and progressive change cannot be overemphasised. The Supreme Court has delivered several landmark decisions in public interest litigation cases that are now part of the evolution of India’s own constitutional jurisprudence. The judicial process has a dynamic role to play, both as the guarantor of justice to litigants and as upholder of the constitutional conscience. But at the same time, it has to be ensured that the Basic Structure of our Constitution is not subordinated to political impulses of the moment or to the will of transient majorities.
Prime Minister Manmohan Singh at the Commonwealth Law Conference in Hyderabad on Feb 6, 2011
Tension will help develop law
Tension between the courts and the government is necessary for the law to develop. The contours of rights have to be decided by courts, not Parliament. The courts’ decisions on the legality of laws or executive action are based on many objective factors such as whether the law was restrictive, unreasonable or arbitrary. It would have been different had the rulings been based on a subjective view, and if the courts were to sit on judgement over Parliament.
Justice S.H. Kapadia, Chief Justice of India during a hearing in the Apex Court on March 10, 2011
Don’t exceed briefs
The judiciary should not exceed its briefs through judicial activism. According to a British Judge, “Judicial activism beyond a point is against the rule of law…” and “that is why I always tell my brother judges, ‘please see to it that we also should continue to learn’”. When we talk of ethics, the judges normally comment upon ethics among politicians, students, professors and others. But I would say that for a Judge too, ethics, not only constitutional morality but even ethical morality, should be the base…If the Judge is clear on concepts…he/she will be able to decipher the difference between judicial activism and judicial restraint.
Justice S.H. Kapadia , at the National Consultation on Second Generation Reforms in Legal Education in New Delhi on May 2, 2010
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