Judicial over reach could be problematic

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judicial“We are under a Constitution and the Constitution is what the judges say it is” is a statement made by Justice Hughes, a former Chief Justice of the US Supreme Court. When judges of India’s higher courts solemnly march in to the court rooms every morning, they enter what could rightly be described as one of the most powerful courts in the world. The various Articles of the Constitution and the appellate powers bestowed on them by different statutes make Indian judiciary really powerful. In such a setting, even the normal and natural exercise of powers can lend credence to the observation that India’s judiciary has been over reaching in the use of its powers. Hence, in examining judicial over reach, one has to be very careful and circumspect, and rather than pointing fingers at individual judge(s) or their judgment(s), it is wiser to exercise restraint, by indicating trends where judicial over reach becomes obvious and suggesting how they ought to be avoided in the interest of judicial impartiality and Constitutional propriety.

In the federal polity in which our judges function, they are asked to be models, by steering clear of what is not their responsibility. But with the enormous workload that judges encounter, and the variety of litigation they get exposed to, combined with bureaucratic ineptitude and legislative opportunism, the chance for judges to travel beyond their domain is very high and is often the case. The judge is often justified in his moral conviction that the litigant before him deserves justice, if that is his due, whatever way the system works. And an innovative judge, can use his creativity, to subtly overcome obstacles in the way to attain this objective. In the process, the sacrosanct boundaries laid down for the judiciary vis-a-vis the other organs of government get trampled upon. The inactivity of the other organs of the government before the real problems faced by an ordinary citizen or group of citizens justifies such action on the part of the judiciary overlooking its long term repercussions on the polity.

The chickens do come home to roost, as the old adage says. The question before us is not whether there exists judicial overreach in our scheme of affairs or not, but how much of it can the system absorb. The beauty of the Mostesquieuian arrangement of division of powers is that the system comes with shock absorbers that can contain strains on the system caused by transgressions from various organs. In fact, we lived through the Seventies, when the Executive, reigning supreme, enunciated its idea of a ‘committed judiciary’ and came close to wrecking the established order with the 42nd Constitutional Amendment. The innate wisdom of the ordinary Indian could understand this danger without being conscious of its theoretical implications and put a stop to it, when least expected to do so.

Having accepted judicial overreach as a byproduct of the contemporary state of affairs for which a remedy seems distant in the immediate future, the question to be asked is how much of it can the polity absorb without being fatal to the existence of the Republic. When the Judiciary is seen as intruding in to the territory of the Executive and the Legislature, how far will these organs of Government tolerate it? Agreed that for what the Judiciary does, so for there is no other alternative! Agreed that the Judiciary are motivated by public weal, and does gain public applause. Yet the checks and balances which hold governance in place needs to be reinforced and not weakened if the democratic way of life is to be sustained. Do such Judicial actions enable the former? The line dividing one from the other is razor sharp in our scheme of affairs and hence too difficult to predict or assess.

Also, it needs to be taken in consideration that in our scheme of affairs, it is the Judiciary that will suffer in the long run, if the judiciary acts on issues that do not fall within its purview. Some Initial actions may be welcomed, the motives behind it may be laudable and noble, but sooner or later judges may find their courtrooms beset with intractable problems for which they have neither the expertise to tackle nor the resources to ensure proper implementation. And if people find their Judges wanting, it would be the herald of anarchy in our system. To quote an incident from the nineties, when courts started intervening in to the issue of collection of capitation fees by private professional colleges, an issue which could have been best left to legislative resolution, things reached a point where different orders came out on consecutive days with regard to allotment of seats in professional colleges, making the admission process go haywire.

There are obvious problems when Judges stray in to alien lands. In such situations, especially in a country of 1.25 billion people, where many problems are intractable, it is ideal that Judges, like governments, exercise restraint.

The Judges should not turn the Judiciary to a super legislature or a super executive, whatever the temptations placed before them. In tune with what the Constituent Assembly intended, the Judiciary should limit itself to its assigned role and offer space to the other branches of government to discharge their responsibilities. Only then, can true sovereignty, be protected and the visions of our Constitution makers, realized.

Shaji Krishnan | The writer is a senior legal consultant. The views expressed are writer’s own and may not reflect the opinion of Governance Today