The roots of judicial activism may be traced in the role of Supreme Court and high courts in exercising the power of judicial review as well as in making wider interpretations of the constitutional provisions while entertaining public interest petitions and trying them in an expeditious manner. Art. 13 and 32 of the Constitution of India respectively empower apex judiciary to strike down any law or executive action on the ground of being inconsistent with fundamental rights of the citizens.
“POSITIVE ASPECTS OF JUDICIAL ACTIVISM
Almost two decades ago judiciary relaxed the rule of locus standi while liberally interpreting the constitution and thus expanding the rights of the people the court also changed the laws regarding locus standi and public participation in the judicial process. Due to inactivity, inefficiency and non-performance on the part of the executive, people were and still are virtually crying for justice.
In this backdrop judiciary provided relief to certain extent as against the government looking into many areas when there was rampant corruption i.e. in allotment of official accommodation to the public servants, cause of the spread of epidemic hazardous to human life, distribution of petrol and gas dealership, protection of an environment, involvement of politicians and top bureaucrats in hawala transaction, various scams relating to animal fodder, ayurvedic medicine, sugar scam, share scam, Bofors scam, or victims of Union Carbide case or Sardar Sarovar project etc. people in fact welcomed judicial activism of the apex court because it provided relief to the aggrieved party by allowing public interest litigations. Such a role played by the high judiciary has been regarded as active, even adventurous, though widely appreciated by the common people but not immune from certain inherent weaknesses.
NEGATIVE ASPECTS
Even after “independence” and the constitution came into force the judiciary started playing the role of technocratic judiciary instead of constitutional judiciary. When Nehru was the Prime Minister, Parliament wanted to bring a new legislation to change the old socio-economic structure to suit the principles of the preamble of the constitution, the apex court took a very conservative view by opposing the constitutional spirit of creating an egalitarian society based on trinity — liberty, equality and fraternity — and started giving technocratic and over legalistic rulings and scuttled the efforts of the governments and parliament to establish socio- economic democracy.
“BASIC STRUCTURE” NOT DEFINED
The judiciary took a diametrically opposite view against parliament on fundamental rights in Golaknath case. In the Keshvanand Bharti case, the judiciary accepted the view of parliament that it has supreme power in the sphere of amendment of the constitution, and it has the power to reduce the list of fundamental rights but laid down the doctrine of “basic structure”, meaning thereby that the basic structure of the constitution cannot be altered or touched. But the judiciary did not define the concept of basic structure:
POWERS OF EXECUTIVE & LEGISLATURE STOLEN
In recent years the judiciary began to usurp the powers and functions of the executive as well as the legislature. This trend and tendency on the part of the judiciary not only undermined the executive and legislative organs of the state but it openly violated the provisions of the constitution. Though the government sometimes paid no attention to the problems of the people, instead of usurping the executive powers and functions it could have asserted its authority under Article 32 of the constitution.
JHARKHAND INSTANCE
To overstep the authority of executive is neither constitutional nor justifiable. In the hawala transaction, judiciary straightway took over the CBI under its control and made it answerable only to itself instead of the Home Ministry. This is a case of clear-cut violation of the constitution.
In the February 2005, elections to the Jharkhand Assembly no party or their alliance got even simple majority to form the government. Both the alliances, one led by BJP and the Congress-JMM, asked Governor Sibte Razi to invite them to form the govt. claiming majority support. Both the alliances had 36 MLAs each and claimed they had support of 5 independent MLAs. Razi invited Shibu Soren of the JMM to form the govt. and gave him 20 days to prove the majority. The BJP alliance objected sought Presidential intervention saying the 20-day time-limit would encourage horse-trading. Presidential intervention cut 20 days to 15. Meanwhile, 4 BJP MLAs went to Supreme Court which cut the period from 15 days to 11 days and directed that notice issued to Assembly be treated as notice for inviting the session of Assembly.
Here, the Supreme Court overstepped the jurisdiction of legislature and the executive — especially the “Jharkhand Governor and Speaker of the Assembly — by flouting the provision of the constitution.
SPEAKER’S AUTHORITY BYPASSED
Summoning the Assembly is the sole prerogative of the Governor of the state as per the constitution. In the absence of a majority, who should be invited to form the government is a discretionary power of the Governor. Hence the judiciary grabbed not only the power and functions of the Governor but also the powers and functions of the Speaker. How to conduct the business of the Assembly is the sole prerogative of the Speaker and not the court. Here the court bypassed the authority of the Speaker and brought him under the jurisdiction of the Supreme Court. It directed the Speaker how to conduct the business of the house directing him for video shooting of the proceeding and reporting each matter relating to casting of vote to the Supreme Court.
SOMNATH CHATTERJI PROTEST
Legal luminary Somnath Chatterjee, Speaker of the Lok Sabha, took serious objection to this act of the judiciary and said the judiciary has violated the constitution by destroying the doctrine of separation of power and called presiding officers of all legislative assemblies in New Delhi to discuss on the problems created by the Supreme Court.
LAHOTIPS ANTI-QUOTA JUDGMENT
Another example of violating the principle of separation of power is the recent judgment given by seven judges of the Supreme Court headed by Chief Justice R.C. Lahoti ruling there shall be no reservation and government quota in non-aided professional education and even in aided educational institutions run by the minorities. The court said these institutions have unfettered right to select the candidates for admissions of their choice and these institutions will have full freedom to charges the fees and judiciary has carved out 15% quota for non-resident Indians.
This decision is not only full of contradictions, but the judiciary usurped the powers of executive as well as the legislature.
ERRONEOUS VERDICT ON QUOTA
Very strong reactions against the judiciary came from the various sections including parliament, state legislatures and executive organs of the government. MPs got furious. The government assured the house to bring new legislation in the current session of parliament. The discrepancy in the SC judgment is that on one hand it abolished reservation and govt. quota and on the other it created a 15% quota for NRls.
Carving out quotas is not the function of judiciary. This is a policy decision which falls within the purview of the executive organ of the state. Therefore, the ruling in this case is not only erroneous but unconstitutional in nature.
CAN COURT CUT POWERS OF LEGISLATURE?
Chief Justice Lahoti, annoyed over MP’s criticism, grilled an Attorney General saying desperately that legislature wanted to have confrontation with the judiciary. If the government does not want to obey the judiciary, then it should close down the courts and do whatever they like. At a Bhopal seminar he publicly said that all the three organs of the government should act in accordance with the provision of the constitution and to keep other two organs in control the judiciary has the power to clip the wings of parliament and executive.
The question is who will clip the wings of the judiciary when it is committing wrongs and going beyond the powers given in the constitution.
CREAMY LAYER JUDGMENT
On Oct.25, 2005, it ruled that the criterion of “creamy layer” shall be applied to SC/ST reservation. To apply the criterion of “creamy layer” is a policy issue to be decided by the executive and not judiciary. Economic criteria cannot be considered as a base for providing reservation which has been already decided by the larger bench of 11 judges in the Indira Sawhany case which is called as fait accompli.
On the issue of banning bar dance in restaurants, the Supreme Court issued notice to Maharashtra Assembly Speaker. The constitution says courts have no power over the legislature proceedings and the ruling of the Speaker. For criticizing the decision of Maharashtra Assembly, Sethi leader of the union of bar dancers, was punished. He went to the Bombay High Court which issued notice to the Speaker. The assembly unanimously decided not to answer the HC notice or represent the case before the HC. Subsequently HC dismissed the case of Sethi who challenged the verdict in Supreme Court. Supreme Court issued notice to the Speaker again. The Assembly decided to be silent since the notice encroached upon the powers of the legislature brazenly violating the provisions of the constitution. The Lok Sabha had earlier taken a similar decision.
When the judiciary had issued notice to the Lok Sabha Speaker in 2005 in the money for query scam in which the Speaker of Lok Sabha had sacked 11 MPs under his constitutional power of disciplinary action against errant members, the said action was unanimously supported by the entire house.
Recently the SC challenged the Schedule IX of the constitution and decided to take up the matter in January 2007 for hearing to decide whether the SC has the power to examine its validity or not under power of judicial review.
Though judicial activism is an essential aspect of the dynamics of constitutional court, it does not mean that it is a governance by the judiciary. The Court must not only be fair it must also appear to be fair.
This fact cannot be denied that in the sphere of social justice for over two decades judiciary took very conservative and narrow view. It gave plenty of anti- reservation rulings in spite of the many constitutional provisions in favour of the weaker sections of the society. As a result the Backward Classes have lost their confidence in the judiciary.
Besides, it unnecessarily entered into conflict with the executive and the legislature creating constitutional problem in the smooth functioning of the administration of the country.
HOW TO CONTROL JUDGES
In view of the judicial excesses on the part of judges of the apex court as well as high courts against the Dalits and minorities (barring few judgments in favour of affirmative action), it is necessary to make judges accountable to keep them within constitutional limit so that they will not transgress their limits. The parliament should, therefore, enact a law to hold the judges responsible and accountable for giving judgments against the provisions of the constitution. It is found that while deciding the cases some judges are biased and prejudiced and represent their class or caste ideology or personal grudge against a particular class or caste.
The time has come to introduce a legislation in parliament to hold the judges accountable and responsible for their actions and to impose certain restrictions on the acts of those judges who are directly or indirectly violating the provisions and spirit of the constitution and flouting the norms for establishing welfare state and denying social justice to the beleaguered and deprived population.
Judges are also human beings hence they cannot be expected to be infallible. In a democracy ultimate power or supreme power lies with the people. That is the rule of democracy. Ours being a parliamentary democracy, parliament must have the authority to regulate the unrestrained freedom of the judges.
