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Turf war

31 July 2011
Hindustan Times

Having been at the receiving end of various orders of the Supreme Court for a while, the government is crying foul over “judicial overreach”, describing the judiciary as an “over-ambitious institution”. 
Some recent Supreme Court orders (see box) haven’t gone down well with the political establishment, which has taken judicial activism with a pinch of salt. A section of the intelligentsia shares this concern.

Is it a theoretical debate? 
Notwithstanding the concern over blurring of separation of power and its long-term consequences, the SC has stoutly defended judicial activism. “Superior courts will be failing in their constitutional duty if they decline to entertain petitions filed by genuine NGOs and social workers espousing the cause of the underprivileged,” a bench headed by justice GS Singhvi said in a recent judgment. In fact, the bench dismissed the concern as a mere “theoretical debate”.

Separation of power 
The theory of separation of power enunciated by French philosopher Montesquieu forms the bedrock of our constitution. The legislature is supposed to make laws while the executive governs. The judiciary acts as the interpreter of the constitution and as an arbiter.
But the Judiciary also enjoys the power of judicial review. While exercising this power, it can declare a law passed by parliament or a legislative assembly unconstitutional and can quash an executive decision. 
According to Chief Justice of India SH Kapadia, constitutional courts’ power of judicial review is a guarantee against arbitrariness in government actions. 
At the Dr Kailash Nath Katju Memorial Lecture on What Ails The Indian Judiciary in April, Home Minister P Chidambaram said, “Many things are indeed broken but… they can not be fixed by judicial activism… An ambitious court tends to think that there is a ‘judicial solution’ to most problems. I humbly beg to differ.”

Where does the problem lie? 
According to former Lok Sabha Speaker Somnath Chatterjee, “Nowadays, the executive does not govern, the judiciary is happy to discharge the executive’s functions; and Parliament, with all respect to that great institution, is busy investigating (2G scam) rather than making laws.”
One of the major problems has been the erosion in the authority of the political class, mainly due to corruption and no government has had an absolute majority in the Lok Sabha since 1989. During this coalition era, judiciary has become more assertive. 
Every case of judicial activism cannot be termed as judicial overreach. “As long as PILs are confined to the enforcement of human rights, the judiciary is on the right side of judicial activism. The wrong side becomes evident when — judicial activism is not grounded on textual commitment to the constitution,” said Chidambaram. “Only the executive and the legislature…can attempt to deal with them (maoist problem or the ailing public distribution system), often by the method of trial and error,” he maintained.
OP Jindal Global University Vice Chancellor Professor C Raj Kumar agrees. “Indian judiciary’s assertive role in many areas of governance may not be sustainable due to the inherent limitations of judiciary, which is not adequately suited to formulate and enforce policies.”

Judicial activism abroad
In the US, the Supreme Court’s activist decisions do generate strong and it is argued that the un-elected judges are not supposed to be  second-guessing the will of the elected representatives, says Kumar. Judicial review is much broader in the US and is akin to how the Indian courts have assumed this jurisdiction, he adds.
However, in the UK, where parliament is supreme, judicial review is limited to examining whether the government authority concerned has exercised powers within the  limits set by the legislation.

What is the solution? 
According to SC lawyer Surat Singh, in the last 60 years, the judiciary has moved from judicial deference to judicial doubting and in the process its primary work of deciding cases has taken a back seat. 
Much of the problem has been caused due to the executive’s failures on governance front and the nexus between corrupt politicians, bureaucrats and those with money, says SC lawyer Sanjay Parikh. “The day the government starts discharging its duties properly, the problem will be over,” says Parikh.