This has been a welcome week of introspection for India’s higher judiciary. Criticism from certain quarters — especially members of the legislature and some members of the legal fraternity itself — of judicial over-reach has been getting quite shrill over the past several months. Voicing a similar concern on Monday, a two-judge bench of the Supreme Court warned the Delhi High Court against “trying to run the government” and “behaving like emperors” by encroaching on the powers of the executive and the legislature. Fortunately, a bench of the apex court, which included Chief Justice of India K.G. Balakrishnan, has now finally cleared the air of confusion that ensued among judges over public interest litigations (PILs), by recommending a balanced approach. On Friday, the CJI took this further by saying that the Supreme Court will issue specific guidelines on the hearing of PILs. What is noteworthy in this entire debate is the readiness being shown by the judiciary to scrutinise its own actions and develop a system of internal checks and balances.
Without doubt, some of the criticism directed towards judicial activism is not totally unjustified. The courts have been guilty of entertaining frivolous PILs or those by vested interests. Most important, they have, at times, crossed the line between judicial intervention and judicial over-reach by not just directing the public body concerned to do its duty, but actually taking over the function of the executive and supervising and controlling the implementation of its directives. This can be a dangerous trend, especially since the judiciary has fought tooth-and-nail against being made accountable to any other body but itself, and even then, has shown a troubling disinclination to examine allegations of corruption against senior judges. It is thus crucial that the judiciary starts exercising self-restraint and desists from disturbing the separation of powers between the judiciary, legislature and the executive.
Yet, with the legislature currently drawing battlelines with the judiciary, there is a crucial question it must ask of itself. Why is there such a rise in people resorting to judicial process for justice, for their fundamental rights and even for their basic needs? The obvious reason behind the public cheer for judicial intervention and the respect that the Supreme Court especially has come to command for precisely such actions, lies in them seeing years of inaction by the executive, and the lack of will shown by the legislature. Even now, despite expressing fears of judicial ascendency, these two constitutional bodies have sadly not shown the inclination to take any visible remedial actions. Where the people are concerned, they are finally seeing things happen on the ground. This, in turn, has given them the assurance to fight for their rights. If a constitutional balance has to be maintained, the executive must first be seen to be doing its mandated duty. This is the only acceptable way to tone down the present aggressive nature of judicial activism.