Judicial activism, a dangerous trend

Union Finance Minister Arun Jaitley is not the first politician to raise the issue of judicial overreach which is upsetting the constitutional balance among the three organs of state – the legislature, the executive and the judiciary. Nor are politicians the only sections of people who are concerned with the increasing trend of the judiciary encroaching into areas where it has no mandate to enter and taking decisions and issuing orders which are for others to take. The idea of judicial activism, when it emerged in the public realm some decades ago, gained currency and some acceptance because it was considered necessary to correct the failings of the legislature and the misdeeds of the executive. But it has now grown into a situation where the idea of separation of powers, which should be considered a feature of the basic structure of the Constitution, is challenged. It is not good for the smooth functioning of parliamentary democracy.

The immediate issue which raised Arun Jaitley’s hackles was the Supreme Court’s directive to the government to create one more national fund to deal with the drought situation in the country. This amounts to taking over the budget-making powers of Parliament. There have been too many such orders in the recent past. Courts ordered the shifting of IPL matches out of Maharashtra and an increase in the environmental tax in Delhi and told Air India to consider resumption of flights between Delhi and Shimla. Even a positive view of judicial activism cannot justify such orders. Activism can deteriorate into overreach if the judiciary considers itself the sole custodian of public interest, interprets public interest in its own fashion and seeks to force the legislature and the executive to implement its version of it. Strictly, it is not its remit to define public interest. It has only got to interpret the laws and decide whether they conform to the Constitution.

It is the judiciary’s erroneous view that it is an autonomous system that made the Supreme Court invent the collegium mechanism for appointment and transfer of judges. It may be noted that judicial overreach gained more momentum and strength since the creation of the collegium mechanism. Parliament’s move to restore the legitimate role of the executive in judicial appointments and transfers was wrongly thwarted by the Supreme Court, and this was in defence of the newly acquired powers which were not always well used. Judiciary, like all institutions in a democracy, should be accountable and know its own limits. It should not become a super parliament that frames laws and a super executive that seeks to implement them.