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Asian Tribune is published by E-LANKA MEDIA(PVT)Ltd. Vol. 20 No. 109

Law Makers vs. Judiciary

By Sarla Handoo - Syndicate Features

Nothing could have been better music to the ears of politicians of all hues, than the recent remarks of the Supreme Court Judge, Justice Markandeya Katju. He made no bones about expressing himself against the practice of Special Leave Petitions coming up before the apex court on all and sundry issues and went on saying he would even lodge a formal complaint against the practice. Justice Katju advised his fellow judges to exercise some self- restraint in entertaining PIL’s

The timing of the remarks too has been ideal for the politicians. For quite sometime, the debate about judicial activism has resurfaced once again, with politicians alleging that the courts have been overstepping their jurisdiction.

At a function recently, the Chief Justice of India K.G.Balakrishnan while welcoming ‘fair’ criticism of the judiciary cautioned that irresponsible comment could damage the institution.

The Prime Minister Dr. Manmohan Singh too has given expression to the pent-up feelings of the political class, most of who have been chaffing over the Supreme Court’s stay order on the quotas for OBC’s in the IIMs and IITs. Their point is it is the business of parliament to make laws of the land and the courts should not interfere. Undoubtedly, there may not be many takers for this contention. That is beside the point.

The political class finds one too many irritants in the relations between the legislature and the Judiciary, all because of the judiciary. The recent Supreme Court verdict that makes even laws placed under the 9th Schedule of the Constitution justiciable has upset the political parties of all hues. Because, since the fifties, the executive has been using the 9th Schedule as some sort of protection to ‘progressive legislation’. Of late the tendency is to push into the 9th Schedule any law that has the remote chance of inviting the wrath of the judiciary.

The courts, on the other hand, have a duty to perform and that is to ensure that all laws adhere to the letter and spirit of the Constitution. The courts also have another responsibility namely ensuring that the basic structure of the constitution is compromised in any manner. So much so, any law or executive action that is seen as circumventing the spirit of the Constitution by resorting to its other provisions would not be allowed.

The framers of the Indian Constitution have adopted the principle of separation of powers by giving the three wings of the system, the Legislature, the Executive and the Judiciary distinct jurisdictions. The purpose has been to adopt a system of checks and balances for the smooth functioning of the structure they raised after prolonged discussions. Why should this come under strain now?

According to Chief Justice Balakrishnan, “Judicial review to determine constitutionality of the legislation and to review the executive decision sometimes creates tension between the Judges and the legislative and executive branches. Such tension is natural and to some extent desirable”.

Nonetheless, tension beyond a point may not be desirable. This was evident when Prime Minister Dr. Manmohan Singh said that the PIL’s should not become vehicles for settling political or other scores. “We need standards and benchmarks for screening PIL’s so that only genuine PIL’s with justifiable cause of action based on judicially manageable standards are taken up” Dr Singh said. He cautioned the judiciary against what he described as “judicial overreach”.

On its part a bench of the Supreme Court in a recent case clarified that “Legality of the (Government) policy and not the wisdom or soundness of the policy is the subject of judicial review”. It further said “Courts do not and cannot act as Appellate Authorities examining the correctness of a policy. Nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate”.

Not to leave anything to doubt the bench also said “the scope of the judicial review when examining a policy… to check whether it violates the fundamental rights of citizens, is opposed to provisions of the constitution or opposed to any statutory provisions or (is) manifestly arbitrary.” The statements clearly stresses on the division of powers between different wings, which need to be adhered to. No dispute on that.

The trouble starts when the executive fails to discharge its responsibilities, which compels the judiciary to come into the picture. The latest instance of such a situation is the direction from the Delhi High Court to the Traffic Authorities in Delhi that all traffic rules should be followed and the violators punished.

Had the Delhi Government done this on its own, which it is supposed to do anyway, there is no need for the court step in and to nudge it to do its basic duty. In another case a few years ago, the stern warnings from the Supreme Court compelled Petroleum Ministry and Delhi government to introduce CNG for public transport in the capital.

Till the time the apex court took a serious view, the bureaucracy and the political executive dilly-dallied offering one excuse after another claiming all the while that there was no adequate supply of CNG and that it was not a time tested fuel. Funnily, the policy on CNG as fuel was framed by the government of the day after a number of committees studied the issue in great detail.

The point is the term judicial activism is misplaced. If the legislature and the executive do their job properly, there is no need for the Judiciary to step in in the aid of the common man. As experience shows it does so only when other wings fail to do their job or afraid of doing their job because of vote bank considerations.

- Syndicate Features -

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