Governance, under the Indian Constitution, is a tightrope walk of checks and balances. While Parliament is vested with enormous powers to legislate, the judiciary is empowered to examine the constitutional validity of such Acts. Judicial review has, in fact, become an important vehicle over the years for protecting our freedoms and fundamental rights. Yet, the courts may now well have started stepping on the toes of the other constitutional limbs of governance. That Prime Minister Manmohan Singh has been joined by some members of the higher judiciary itself in warning the courts to exercise restraint speaks of the extent to which judicial activism is now being seen to infringe on, and to interfere with, the role of the executive.
The reason for the legislative branch’s growing unease is easy to discern, considering the number of legislations that have recently been struck down or challenged by the courts. The Supreme Court’s assertion that even laws included in the Ninth Schedule are not free from judicial review further stoked the executive’s ire. After all, the Ninth Schedule had expressly been included in the Constitution to curtail the court’s powers to review certain legislative acts. Still, even in this, the judiciary was well within its limits, since it has every right to invalidate legislations that violate the basic structure of the Constitution.
However, the judiciary’s credibility could well be at stake unless it takes every precaution not to be misused by vested political interests. Public interest litigations (PILs), which courts have been entertaining with increased frequency, at times, without verifying the antecedents of the petitioners, have become one such potent tool. While PILs are meant to provide the underprivileged respite from harsh executive action, they have been seen to be used to serve political or private interests. Worse, recent court rulings have been held up as the very reason for such excesses. From spearheading the sealing drive in Delhi to the forcible removal of urban slum-dwellers and hawkers without either serving notice or awarding due compensation, the court has been enlarging the scope of its jurisdiction and assuming a role on which it has little expertise. Judicial review is an important element in keeping the powerful parliamentary executive well within its limits, but certainly not to challenge the latter’s authority.