When the Indian Constitution was adopted on November 26, 1949 after exhaustive discussions spread over two years, 11 months and 18 days; the architects of the Bible of our democracy envisaged a perfect balance between the legislature, the executive and the judiciary.
But some of the recent judgments and orders of the Supreme Court (SC), including legalising passive euthanasia and quashing the appointment of tainted Chief Vigilance Commissioner PJ Thomas have raised concerns about a pro-active judiciary, ready to take on the executive or the legislature. No wonder Justice AK Ganguly of SC recently said, "Courts are widening their jurisdiction and are now functioning as institutions of governance and not merely as arbitrators of disputes." Is it good for the Indian polity?
Senior advocate Shanti Bhushan says, "The Supreme Court has power of judicial review over every authority. So far it had been hesitant in using this power. But faced with cases such as 2G-spectrum scam and black money issue, they have become pro-active." He said there was nothing wrong in courts exercising their power of judicial review to rectify the mistakes.
While approving of the court's intervention in high-profile cases and monitoring of progress in investigation, Law Commission Vice Chairman KTS Tulsi said: "Judicial activism cannot be a substitute for good governance." Interestingly, the judiciary has become pro-active in the last two decades during which India witnessed political instability at the Centre. There have been seven general elections since 1989 and no government has enjoyed an absolute majority since then.
"Judicial intervention - whether activist or otherwise - can at best provide occasional solace to the Indian citizenry, but cannot be a substitute for the much needed transformation in the quality of governance based on transparency and accountability," says C Raj Kumar, Professor of Law and Vice Chancellor, OP Jindal Global University. ___
Unsparing yet sympathetic
The 2G spectrum scam has put all the other scams to shame," Justice GS Singhvi, heading the bench, had said during one of the hearings. The remarks against the executive's functioning have probably never been more critical. Justice Singhvi had last year questioned the government's decision to continue with Raja as the telecom minister despite the year-old CBI probe pending against him. He has also directed the CBI to show its final investigating report to SC before filing it in the sessions court.
Justice Singhvi has not only taken the executive to task but hasn't shied away from self-indictment. "The worst has come from here (SC)," he once said in court while referring to the mistake the apex court made in the ADM Jabalpur case during the Emergency, suspending fundamental rights. He had often pointed out how some high court judges did not know the basic concepts of law. Taking a dig at political parties, he had said: "No government wants the judiciary to be strong…a paltry allocation of 0.76 per cent of the national budget is for the judicial functioning."
In land acquisition matters he has always stood up in support of the "poor farmer" and has denounced the practice of government acquiring land under the urgency clause and paying peanuts to landowners. Born in Jodhpur, Justice Singhvi headed the high courts of Rajasthan, Punjab and Gujarat before being elevated to SC.