The Supreme court yesterday in a far reaching observation said that the judiciary has crossed the thin yet important line that separates the judiciary from the other two branches of governance ; the executive and legislature and the time has come for the courts to refrain from indulging in what it called ‘judicial over-reach’.
A two-judge Bench of Justices A K Mathur and Markandey Katju slammed the judiciary for over-reaching its limit and stepping into the shoes of legislature and executive.
The effects of yesterdays judgment were immediately felt as citing criticism of judicial over-reach, a two-judge bench of the Supreme Court refused to hear a PIL seeking relief for ''sex workers''. The petition was filed in the form of a PIL by an NGO Prajwala seeking rehabilitation of victims of flesh trade.
The two bench observation humbly conceded that judicial activism has reached the fifth gear and it should be pulled back. They reiterated the same point which the legislative and the executives have been saying time and again, “Courts should be limited to overseeing that the existing laws are upheld and it shouldn’t take to creating laws.
The observations shocked the legal fraternity and the immediate effect was felt even on the Apex Court the following day as Justice S B Sinha and Justice H S Bedi, literally set the agenda for debate on judicial activism as their Lordships observed " Parameters for hearing the PIL now needed to be fixed by a larger bench ."
They declined to hear the PIL which they had been hearing for the past four years and referred the matter to the Chief Justice for guidance. The petition was filed in the form of a PIL by an NGO Prajwala seeking rehabilitation of victims of flesh trade.
Same day, the Delhi High Court bench presided by Justice Mukul Mudgal, declined to hear the matter relating to ban on Begging in view of the forthcoming Commonwealth games and observed the court would proceed in the matter only after reading the observations of the Supreme Court.
The judiciary, particularly the High Courts and the Supreme Court were charged with governing the executives. Probably the statement holds an iota of truth. In many cases the courts intervened only when the executive failed to deliver goods to the common man, be it the ban on diesel run buses in New Delhi or commercialization of residential flats in the capital.
However, the Supreme Court had to face criticism when it issued guidelines for vote of confidence proceedings in Uttar Pradesh and then in Jharkhand state assembly and there were accusations that the judiciary encroached upon the functioning of the legislature.
Although it was the judiciary it-self that introspectively came out with the observation but for the present it seems that the executive and the legislature have had the last laugh. The humble self-judged comment by the two judge bench may push back the judiciary into a shell giving executive ample opportunity to deteriorate further.
Although it was the judiciary it-self that introspectively came out with the observation but for the present it seems that the executive and the legislature have had the last laugh. The humble self-judged comment by the two judge bench may push back the judiciary into a shell giving executive ample opportunity to deteriorate further.
Maybe the judiciary has erred while passing the above observations. Although it shows the level of maturity the judiciary possesses and the sanctity it has attained all through these years but the message that will go out would not be too good for the system in the larger context.
In a constitutional setup like ours none of the three branches of governance can be at the same footing, albeit this is what constitution calls for. Though the constitution talks about an ideal setup where each of the three branches of governance will work in its own distinct sphere still it can be reasonably expected that the either of the three will transcend its boundaries and unconsciously and for a good cause will dishonor the separation of power structure.
And if this tilt in balance occurs, as it is happening now then it should be in the favour of judiciary and the it’s the judiciary that should be on a higher pedestal.
Judicial activism traces it roots back to 1980s when the concept of PILs (public interest litigation) came into focus under the learned guidance of Justice P N bhagwati and Justice V.R.Krishna Iyer. It was these PILs that highlighted the environmental pollutions, the sorry state of river Ganga under a series of case filed by MC Mehta.
According to a study by Hans Dembowski, PIL has been successful in the sense of making official authorities accountable to civil society organizations in India
Agreed, that as stated by the Supreme Court bench the judiciary has sometimes crossed the “Lakshman rekha” but as said earlier this things are expected. In Shakesperian language it’s about forgoing the lesser evil for a greater cause. And it should not be forgotten that we are not residing in a perfectly-built-ideally constructed world.
The court may have been forced into making these observations in view of the recent vociferous demands by the legislature for bringing judges accountability bill and this was evident when mincing no words the bench cautioned the judiciary to exercise restraint as the reactions from politicians may result in the curtailment of power and dent in independence of judiciary.
If a civil society faces problem and the executive thinks that problem doesn’t warrant attention then is it right to say that even the judiciary should tow the same line? Or the judiciary should portray a picture of blindfolded idol and say that since there is no law to deal with the problem hence there can be no enforcement or wait for a law to be enacted, violated and then decide to look into it.
The three arms of governance are independent and yet dependent on each other. If any one of them is given even a subtle hint of having a free run then there will chaos and anarchy and perhaps the executive has just received that message.
The judiciary is the always the last resort against the oppression of the executive and the legislature and if that last resort too decides to look the other way and ignore its ‘extra-resposible-activism, the country may still survive but then the picture will not be too bright.
No comments:
Post a Comment