The legislative, executive, judiciary and media are four pillars of a stable democracy. If one pillar becomes large or oversize, the stability of the democracy is in danger. The Constitution of India embraces the idea of separation of powers of the legislature, executive and judiciary, in an implied manner. Unfortunately, the ongoing adjudication of cases related to Covid management by courts across India has set a worrying precedent of judicial adventurism.
In the checks and balances provided by the Constitution, the executive is answerable to the Cabinet of Ministers which is answerable to legislation and elected legislative members are answerable to the public and voters. However, there is no direct answerability of the Judiciary, on the premise that they will exercise self-discipline while imparting justice. In the recent past, it is observed with concern that the overzealous Judiciary is usurping the role of the legislature and the executive. The net result is that the courts end up directing the government and the bureaucracy on how to frame laws and run the country. Nobody can question or criticize them due to fear of “Contempt of Court” hanging like a ‘Sword of Damocles.’
Judicial review refers to the power of the judiciary to interpret the Constitution and to declare any such law or order of the legislature and executive, void if it finds them in conflict with the Constitution. Judicial activism is one step ahead of judicial review. Since the early 1990s, the Indian courts have stepped in with greater frequency on legislative, political and policy matters, leading to constant friction between the three organs of democracy. There is a thin line dividing judicial activism and judicial overreach. Judicial overreach is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government. Judicial adventurism is a dangerous trend, as recently exhibited by courts, during the fight against the COVID pandemic.
EXAMPLES OF JUDICIAL ADVENTURISM
Judicial overreach has been on the rise at a trajectory higher than Covid cases. Some of the glaring cases of judicial adventurism are flagged as under-
- Recent remarks made by the Madras High Court calling the Election Commission of India “Murderers” and solely responsible for the spike in Covid cases.
- A Lower Court in Telangana sentencing a serving Major General of Army to one month imprisonment, for acts done in official capacity.
- Punjab and Haryana High Court refusing safety and security to live-in adult partners because this relationship is “morally and socially unacceptable”, though permitted by law. Courts are now into moral and social policing also.
- Courts asking the rape accused to marry or tieing a raakhi to the victim, rather than punishing the culprit.
- The Allahabad High Court passed an order stating that children of public functionaries/ bureaucrats in Uttar Pradesh should be enrolled only in government schools.
- Proactive censorship on film Jolly LLB 2 depicting the reality of present judicial system.
COVID AND JUDICIARY
Some of the few noteworthy examples of judicial intervention and shooting off the cuff remarks by our learned judges during the COVID fight are as under:
- Remarks like “The health care system is Ram Bharose” and calling state governments “Murderers” responsible for lack of oxygen supply.
- Allahabad High Court suo-motto declared that five cities of Uttar Pradesh must go into lockdown, due to COVID. The top court mercifully stayed the order.
- Allahabad High Court directing UP Govt to provide two ambulances with ICU facilities to every village in the State.
- Delhi High Court ordering to ensure 600Mt/day of oxygen supply to Delhi during COVID Crisis.
- Delhi High Court saying that officials responsible for delay in the manufacturing of vaccines should be charged for ‘Manslaughter.”
- Delhi High Court passed an order that no advocates will be stopped/ checked by a police officer during the lockdown. Are the advocates immune from COVID? Isn’t it a favour to own brethren?
- The Supreme Court declared Delhi as a “representative of the entire nation” and asked the Centre to supply oxygen to it by whatever means. It gives an impression of favouritism to the elites residing in the capital.
COMPETENCE OF JUDGES
It’s prudent that we have a look at the competence of the persons making such remarks or judgment. Some of the key issues are flagged as under-
Qualification of Judges: Judges mostly hold a graduation or master’s degree in law and are only qualified in the legal domain. The experience that qualifies them to become a judge in High Court or Supreme Court is also in legal matters. They live in a bubble of the judicial world with no exposure to leadership, administration or management. Need to have an All India Judicial Service like IAS/IPS is the need of the hour.
Selection of Judges: The judges of the lower court are selected by state-level competitive exam. Only a few make it to High Courts on promotion. Judges of High Courts and Apex Court are selected from practising advocates having requisite experience. They are selected by a collegium of serving judges. Nowhere in the world do judges select and appoint judges as they do in India. The Collegium System has no constitutional basis and it has turned out to be more of networking, promoting each other candidates, personal likes and dislikes—rather than selection on merit. Now, imagine these people sans merit, who have reached the high pedestals of the judiciary by back door entry, are passing comments on legislative, elected by the public or Govt servants who have come through competitive exams, promoted on merit and having loads of experience in administration and management.
Competence: Judges of different courts often give different judgement with the same evidence and same provisions of law even when it is a question of somebody’s life, liberty and reputation. They take years to give a judgement which is turned upside down by a higher court again after many years of re-examination. Obviously, either of them was wrong but is allowed to happily get away with it. There should be some accountability of their wisdom and competence of the judiciary also like any other profession.
Pending cases: India currently has over four crores pending cases across various courts. I am surprised how courts can have summer vacations or ‘Work From Home’ with millions of cases pending. Surprisingly, where serious cases of murder and rape are not even listed for months, the courts are opened at midnight for anti-nationals and influential people. The archaic and whimsical functioning of the courts is laced with favouritism, corruption and arbitrariness. The common public really gets disgusted at the state of affairs and repent the day they had to come to court. The awful delays in dispensing justice are also responsible for increasing the crime rate in the country. It may not be out of place to say that the Judiciary is running ‘Ram Bharose’ not the Government.
POST RETIREMENT SOPS
In the good old days, judicial posts were considered so honourable and coveted that no judge felt the need for a second inning. The increasing life expectancy and aspirations in a highly competitive world are driving the judges to seek post-retirement rehabilitation. Acceptance of office of profit like judicial commissions, tribunals and arbitration courts is gaining traction. Retired Supreme Court judges have also been appointed Governors. Post-retirement appointments are a deterrent to an independent judiciary. The first Law Commission recommended no post-retirement favours for the judges.
PLAYING TO THE GALLERY
The common citizen often perceives a judge as supreme and one who ought to have the last word. Words uttered by a judge are considered pearls of wisdom and often oral exchanges between the bar and bench become national headlines. Judges are today passing off the cuff and often sarcastic remarks from their cushy, insulated environs. Armed with PIL and ‘Suo moto Cognizance’ as weapons, they are asking questions on any subject on earth. Judges grandstanding inflicts real damage with their ill-considered oral remarks and immature decisions, beyond the scope of their jurisdiction.
LET US WORK
The overzealous Judiciary is conveying to the nation that they are the only ones managing the country and even disaster like COVID. As a result many government officials end up wasting precious time appearing in court or preparing documents to reply to a court instead of doing their work during this hour of crisis. Government officials have to brief the bench about the prevailing circumstances for hours instead of being allowed to act in real-time. It would be earnestly desirable that the judges confine themselves to legal matters and leave the experts to work in their own affairs, without judicial intervention.
Judicial adventurism is intruding more and more in the exclusive space of the legislature and the executive, thereby creating unhealthy asymmetry in the delicate balance among various institutions of this democratic country. Although judicial review is a legitimate domain of the judiciary then a limit or boundary has to be drawn. It should not become a super parliament that frames laws and a super executive that seeks to implement them.
The Government of India has hence for the first time told Supreme Court in a diplomatic language not to interfere in executive functions of the Government beyond the comprehension and competence of judges.