By Yash Budhwar
The government of India today is divided into the judiciary, executive and legislature. The powers and duties of each are also neatly defined by the Constitution. However, the partition of the holy trinity of the government is not defined as such in the Constitution. Although the clear separation is not provided for, there is a clear differentiation in the functions prescribed by the Constitution such that there is no overlap. The absence of any provides for the creation of three branches of government.
In these functions listed by the Constitution, two out of the three conferred upon the highest level of the judiciary in the country (the Supreme Court, in today’s age) involve being the interpreter of the Constitution and the protector of the fundamental rights of citizens. As such, it has been dutifully conferred upon the Supreme Court (and the High Courts) to review the actions of the executive and legislature so that they do not fall outside the boundary set by the Constitution. This is the foundation upon which the judiciary can take part in activism. Such demonstrations should not be outside the purview of the Constitution, however.
Provisions of activism by the Constitution
Judicial Review is the process by which the Judiciary can review the validity of laws passed by the legislature. In so far as India is concerned, with respect to the fundamental rights, Article 13 of the Constitution confers the same. With respect to the rest of the constitutional provisions, Articles 32 and 226 implicitly convene the same to the Supreme Court and High Courts under the five writ jurisdictions. The first writ is that of Habeus Corpus (to release a person who has been detained unlawfully whether in prison or in private custody). The second one is that of Mandamus (to secure the performance of public duties by a lower court, tribunal or public authority). The third one is that of Certiorari (to quash the order already passed by an inferior court, tribunal or quasi-judicial authority). The fourth one is that of Prohibition (to prohibit an inferior court from continuing the proceedings in a particular case where it has no jurisdiction to try). The last one is that of Quo Warranto (to restrain a person from holding a public office which they are not entitled to).
The next form of remediation for citizens of the country are public interest litigations (PIL) and suo moto cases. The concept of a PIL is in consonance with the principles enshrined in Article 39A of the Constitution to protect and deliver prompt justice with the help of law. Before the 1980s, only the aggrieved party could approach the courts for justice. After the emergency era, the constitutional courts of the country reached out to the people, devising a means (the PIL) for any person of the public to approach a court seeking legal remedy in cases where the public interest is at stake. Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PILs in court. Suo moto cases or actions are instances wherein the High Courts and the Supreme court of India initiate a hearing by itself without anybody filing any appeal or writ petition or PIL. The rationale for such actions also draws upon the desire of the courts to broaden the reach of justice to those who might not be able to access the court.
Ambiguous use of activism procedures
Given that a PIL was designed to safeguard the provisions of fundamental rights and to deliver justice to the entire population, its use can be therefore widespread. After the recognition of rights such as the right to free elementary education, the elimination of air and water pollution and so on since the rereading of the constitutionally conferred fundamental rights in 1979, the Supreme Court has been active in influencing numerous daily aspects of the lives of Indian citizens. An example would be to mandate the running of CNG-only public vehicles in Delhi given the worsening air pollution situation of the city. The highest judicial authority of the country has also ruled on the monitoring of the distribution of food-grains to citizens below the poverty line, has implemented the mandate for the interlinking of two river projects, has influenced and deliberated over the proceedings of the Jharkhand legislative assembly, has prohibited the entry of tourists into the core area of tiger reserves and has made an order in a military operation in 1993.
While measures to curb pollution in Delhi can be argued to be done to preserve the fundamental right to life of citizens, its interference in a military operation, although done for the rightful cause of providing sufficient food to hostages, fell outside its boundaries as provided for in the constitution. Even its mandate to the speaker of the Jharkhand legislative assembly was against Article 212 of the Constitution which explicitly declares that the judiciary should not affect legislative proceedings. However, the question is if anything is indeed outside the purview of the judiciary as provided for in the Constitution as it has been given the duty of being the interpreter of it.
Institutionalisation and effective checks required
Despite the seeming overreach of the judiciary in the above-mentioned cases, such measures are necessary. In a country as vast, populated and dependent on government-funded schemes for the maintenance of livelihoods as ours, the appropriate implementation of central schemes is of the highest necessity. However, with the track record of the government as it has been in recent years, with so many promises and aspirations not being met or fully realised, the function of the judiciary to preserve and safeguard the fundamental rights of its citizens has never been greater. Nevertheless, the recent controversy surrounding four Supreme Court judges who accused the Chief Justice of India of bias highlights the sickness plaguing the judiciary of the country. This, along with the above-mentioned instances of an overreach of judicial power, is coupled with the fact that India is the only country in the world where the power to appoint judges to the constitutionally recognised courts of the country is conferred upon the judges themselves. Thus, the judiciary should not also be given supreme power to interpret and influence the Constitution as it sees fit. For this, the institutionalisation of the procedures of judicial activism as well as effective checks to keep the judiciary and those same methods at bay, are required.
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