It is not without reason that lawyer and finance minister Arun Jaitley has been going out of his way to point out that the judiciary was tending to ignore the constitutional separation of powers between the executive, the legislature and the judiciary. This is not the first time he has brought up the concept of a “Lakshman rekha” with regard to the courts straying beyond interpreting laws and virtually making them. Mr Jaitley said all this even when he was in the Opposition. Nor is he the only politician or minister in the Union Cabinet stressing this point about judicial activism.
Former Prime Minister Manmohan Singh and one of the CJIs during his time used to have running arguments in public forums about the thin dividing line between judicial activism and judicial overreach. In his typical subdued and academic way, Dr Singh used to say this was a delicate issue and needed to be addressed cautiously. Things may have changed somewhat since Mr Singh’s time to bring about this sharp debate and trenchant criticism of the judiciary.
Judicial overreach has been seen to be steadily encroaching upon executive functions. A glaring example cropped up in the matter of the top court ordering the creation of a third fund to deal with a national disaster in the form of a severe drought this summer, which had Mr Jaitley fuming about the country’s Budget-making being subjected to judicial review. It is acceptable that weak executive action, some of which may stem from the difficulty of having to choose in complicated issues, and shoddy law-making might have to be pointed out by the judiciary.
But there have been too many instances of overreach which seem to suggest the courts may be getting carried away by the popular perception of their actions. Matters encompassing a range of issues — from complex constitutional matters and the public sector banks’ bad loans problem to the dancing girls of Maharashtra and IPL cricket matches in times of drought — tend to end up in the country’s courts.
Judicial activism is of more than academic interest currently as the Supreme Court has retained total control over the judicial appointments process with the CJI objecting to any of the collegium recommendations being questioned, even if they be on grounds of national security concerns.
While the argument between the collegium system and National Judicial Appointments Commission may have been finally settled purely on the basis of the top court’s wishes, the tardiness of the justice delivery system brings up crucial questions about the physical functioning of one of the three great arms of democracy. The independent judiciary is a giant wheel on which the country is rolling now, but it should not impede the other two basic structures is the message couched in the criticism against judicial activism which the judiciary cannot ignore.
