Some recent judgments of the Supreme Court are being described as “judicial activism” and a debate, somewhat fuelled by media, has arisen on whether the judiciary is encroaching into executive domain. Coming in quick succession, these judgments definitely seem to have taken their toll on a government already faced with credibility issues. Taking note, the government recently changed its guard at the law ministry. The new law minister, a seasoned advocate known for his equanimous approach, has been judicious in not commenting on these judgments. But quickly after his taking charge, the government has sought a review of the apex court’s decision to appoint a special investigation team to the black money case. As a legal luminary pointed out, certain observations in the recent judgments “have a political flavour and are out of place in a judgment of the apex court”. Contrastingly, a judgment of the Supreme Court described as unfortunate the scenario when “directions are given for implementation of the laws enacted by legislature for the benefits of have-nots” and a theoretical debate is started by “raising the bogey of judicial activism and overreach”.
This ongoing debate once again raises the question of the link between the legal and the political. There is hardly any doubt that both politics and law determine one another. But is one subordinate to the other? In fact, does it even need to be for effective democratic functioning? Fortunately, under the Indian Constitution, the supremacy of one organ over another is hardly a matter of contention. The separation of powers, long established as one of the basic features of our constitution, ensures that each organ of government operates within its own sphere and none takes over functions assigned to the other. Consequently, Parliament and the Supreme Court enjoy equal standing and the issue is not really of establishing one’s superiority. On balance, as pointed out by a leading constitutional expert, “It is the constitution and the laws that are supreme.” The laws are enacted by the legislature, the executive is tasked with their implementation, and the judiciary is just the final interpreter of these laws.
Judges fulfil this constitutional obligation of the judiciary and hence a question arises on what is the role and function of a judge. Is it limited only to interpreting the laws or does it include making laws that advance the rule of law? Given the constantly evolving socio-economic scenario, law-making is definitely an inherent part of judicial process and functioning. Recognising that judges do make laws, even if in a manner different from the legislature, will help us understand why judges sometimes adopt an activist approach.
Still, one common criticism against the judiciary and hence judges is that, “In the name of judicial activism, the theory of separation of powers is overthrown and the judiciary is undermining the authority of the legislature and the executive by encroaching upon the spheres reserved for them.” Notably, the principle of separation of powers is equally a principle of restraint. The Supreme Court recognised this a few years ago, noting that, “Judges must exercise judicial restraint and must not encroach into the executive and legislative domain.” The same judgment goes on to state that, “Judges must know their limits and must not try to run the Government” and further states that “adjudication must be done within the system of historically validated restraints and conscious minimisation of the Judges’ preferences”. Thus, the judgment notes that while the exercise of powers of the legislature and executive are subject to judicial review, the only check on the judiciary’s exercise of powers is the self-imposed discipline of self-restraint.
At times it is difficult to exercise restraint when the executive and legislature are not doing their jobs properly. It is for this reason that the writ of Mandamus gives courts the powers to direct the government to carry on their statutory duties. And, as a leading jurist pointed out, the Supreme Court is the guardian of the Constitution and so the constitutional court has the power to “enforce the law and to compel the executive to obey”. The defence is that governmental inaction often leads the judiciary to trespass into administrative domain and, after all, the law provides for judicial review of administrative action. But can courts, under the power of judicial review, question government policy? Assuming they can, should they? Should not judicial review just be restricted to check the lawfulness of administrative action rather than examine its unassailability?
The law states that, “Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides.” Hence, the judiciary has to remember that, “Even while exercising power of judicial review of administrative action, the court is not an appellate authority.” The Supreme Court has itself ruled that, “If the legislature or the executive are not functioning properly it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfil their expectations”. It has long been established that the judiciary should not take over the functions ascribed to another organ and should always maintain the delicate balance of power enshrined in the Constitution.
To sum up, in the 60-plus years of constitutional working, the executive and judiciary have often clashed. It’s the mutual respect and respect of the constitution that has helped overcome these collisions. It’s time we recreate ways by which a healthy equilibrium between the two can be maintained. As opined by the apex court, “If the judiciary does not exercise restraint and over-stretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary.” Let’s accept it; none of us like the Parliament enacting laws only to overcome judicial rulings. The independence of the judiciary is a corner stone of our Constitution and it would be unfortunate if the judiciary was in any manner robbed of this independence. But, equal responsibility also vests on the government to fulfil its electoral mandate and do whatever helps improve the governance deficit that seems to have crept into political functioning. Eventually, if this so-called gap doesn’t get filled quickly, the real losers will be the citizens, whose rights the Constitution seeks to protect and whose interests both these organs of government are looking to protect.
First Published in THE FINANCIAL EXPRESS ON JULY 26 2011