Beware Judiciary! You’re at the crossroads
Those who advocate this school of thought opine that this type of ‘judicial review’ is absolutely needed in certain cases, and that the way law functions must change in accordance with time. While the Constitution provides us with laws for a dynamic democracy to function, it is understandable that at times there are changes required within that to show us a new way.
During these instances of constitutional provisions for judicial review and when we go through Constituent Assembly debates, we read Dr.Ambedkar who succinctly has said, “judicial review, particularly writ jurisdiction, could provide quick relief against abridgement of fundamental rights and ought to be at the heart of the Constitution.”
The Indian Constitution is unique in that it has beautifully balanced the division of power amongst its three pillars in order to ensure a smooth and fair democratic rule in the country. In its many provisions, it has demarcated with precision the difference between Executive, Legislature and Judiciary in order to maintain their individual functioning.
Point in case Article 121 and 211 of our Constitution issues estoppel for the legislature and executive both from discussing the conduct of any judge while discharging his duties. While Article 122 and 212 in turn forbid the judiciary from any interference in the internal proceedings of the executive and legislature.
Similarly, Article 105(2) and 194(2) do not allow the courts to interfere in the matters of freedom of speech and vote of the legislature.
It may well have been the intent of the Constitution to provide a strong and stable democracy to our country but as always there is a vast difference between what is, and what ought to be. And as is the pattern of the cycle of nature, the strong soon overpower the weak. The executive in the first some decades had a few really strong leaders in the system who had captured the imagination of independent India and its people. They soon used this power by subduing and manipulating the judiciary in many ways to their advantage, whether in terms of judicial appointments or judgements. During this period there seemed an oasis when Justice Jagmohan Lal Sinha in his ruling in Allahabad High Court in 1975, in the most judicious manner nullified the election of the then Prime Minister Mrs. Indira Gandhi on grounds of corruption and electoral malpractices. In reaction to this, the habit of wanting dominance over all three pillars reached its pinnacle when on the 25th of June, 1975, she declared a state of emergency. When the dictatorial whip of Mrs.Gandhi was cracked down, the three wings did not just bend, they crawled, as Mr.L.K.Advani had then famously said. The judiciary then saw unprecedented supersessions and suppressions. Another case in point here would be the famous Shah Bano case where the judiciary tried to deliver a righteous judgement for the upliftment of Muslim women, but the then Prime Minister, Rajiv Gandhi resorted to arm-twisting the judiciary through misusing his massive majority in Parliament and through a Constitutional amendment primarily to appease the vote bank of the male Muslim, struck down the judgement and deprived her and in turn all Muslim women, of relief.
The strength of the executive soon diminished because of the era of coalition politics that India saw after the year 1989. The age old adage of the strong overpowering the weak continued even then but the wheel of fate had turned. Because of the failure of the Centre to hold its own, the weak became the strong. The judiciary had now taken over. Judicial activism sans its positive tilt, had now converted to judicial overreach. One began to see it slowly showing up in judicial appointments- caste, quota and nepotism began to play a large part. The standard of judges suffered because of this. In turn judgements were below par and all that was gained was their total greed to dominate the executive and the legislature.
This continued well into 2014 but changed once a strong and stable executive came into power. Their first step to ensure transparency and safeguard the essence of integrity in the judiciary, was when in August 2014 they brought through the 99th Constitutional amendment, the National Judicial Appointments Commission(NJAC). Through this Act, it was proposed to form a very balanced body which would be responsible for the appointment and transfer of judges and legal specialists in India. This would also replace the faulty collegium system for the appointments of judges.
But having tasted blood, the tiger would not give in. In their misplaced presumption that this was a battle of hegemony, the judiciary in a huff set up a Constitution bench and struck down the NJAC Act as unconstitutional and void in October 2015. It was a majority decision of 4:1.
After this, the tiger has turned man-eater. It has gone completely berserk, wanting to dictate every move of every wing in the country. The Centre is left wondering where it stands. A series of ridiculous, impractical judgements have followed one after another. The Allahabad High Court imposes lockdown in the state which the Supreme Court rushes to overturn. It then wants two ICU level equipped ambulances for every village in the state- again overturned. The Madras High Court wants criminal proceedings against the Election Commission on charges of murder. Sometimes it’s a ban on Jallikattu, another time restrictions on celebrations of Holi, Diwali and Janmashtami in different ways. It seems they are hell-bent on destroying the very fabric of Hindu culture through these means, yet are wary of imposing any rules for any other faith in this country. The Sabarimala case is such an example whereas they refrained from any judgement on Hazrat Nizamuddin.
So that such blatant judicial activism does not convert into judicial overreach any further, there are two relevant judgements of the Supreme Court itself that are of value here.
In Ram Jawaya v. The State of Punjab (1955), the court observed: “Our Constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another.” This implies that there should be a broad separation of powers in the Constitution among the three organs of the state (legislative, executive, judiciary) and that one organ should not encroach into the domain of another. If this happens, the delicate balance in the Constitution will be upset and there will be chaos.
The Supreme Court on Friday, 21st of May 2021 stayed the Allahabad High Court’s order directing the Uttar Pradesh government to provide two ambulances with ICU facilities to every village in the state. Staying the high court ruling, the apex court said that “high courts must ponder over the practicality of their orders and not pass orders that are not possible to implement.”
The judiciary remains in a state of confusion with regards to the continuous establishment of their supremacy. On the one hand, while it ensures safe passage in a ludicrous manner to the Prashant Bhushan type of people, who manage to scare them with their brand of notoriety, they try and overreach beyond their powers in their activism against the other wings of the Constitution.
It is a clarion call from the author, a member of the legal fraternity himself, to the judiciary to restrain itself and not continue or worsen their brand of judicial activism. They have stooped to cleaning of the sewers to maintenance of motor vehicles on the road. They should remain balanced and fair and strive to protect whatever is left of their sacrosanct image in the eyes of the people of this country. It would do them well to remember that the judiciary is only there to review and interpret law and not interfere in matters of governance. If there is bad governance, let the people through elections decide what needs to be changed. Alternately it should not come to be that the will of people change and reflect in the behaviour of the executive and the resultant strength force them to use their might.
In the end, the judiciary needs to protect the beauty and completeness of the Constitution of this country. Failing which, one is headed for complete anarchy.
By Amitabh Sinha