Is the proactive judicial activism diluting the basic structure of the Indian Parliamentary democracy?
Ans: The traditional
understanding of the judicial process is that while the legislature makes laws
and the executive implements them, the judiciary’s function is only to
interpret and apply the law to the facts of a particular case.
As an organic
document, a written Constitution chiefly performs two main tasks–firstly, it
sets up the organs of the governance and secondly, having set up these
institutions, it provides a recourse against the abuse of power by these
judicial activism as good thing, because for them judiciary is filling the void
created by legislature and executive.
For others, it is a matter of concern that over the years this original,
beneficial and unexceptional character of the court’s activism (in the form of
a Public Interest Litigation) has been largely converted into a general
supervisory jurisdiction to correct actions and policies of the government,
public bodies and authorities.
Litigation is a good thing when it is used to enforce the rights of the
disadvantaged. But it has now been diluted to interfere with the powers of the
government to take decisions on a range of policy matters.
Takshasila IAS Academy Managing Director Dr BSN Durga Prasad said that the constitutional makers believed in separation of powers, so even if there is a void, legislature and executive would pay for it accordingly, there is simply no need for judiciary to intervene. “Already we can crores of cases pending in courts, so it would be much appreciable if the judiciary concentrates on that, as at the end we all know that justice delayed is justice denied,” Dr Prasad said.
Over the past
several years, Parliament has become dysfunctional, the executive has abdicated
its duties and the judiciary is cracking the whip. Many think that it is
cracking the whip too much. An active
judiciary is one that takes its task of defending the fundamental rights of the
people and their liberties against the onslaught of the State, earnestly.
Ruler of England
Stuart King James 1 on November 13, 1608, entered the royal courts and claimed
that he could take any case he chose, remove it from the courts, and decide it
in his royal person. Chief justice Coke answered that he could not do so but
the case ought to be determined and adjudged in a court of justice according to
the law and custom of England.
The king was
greatly offended and replied, “This means that I shall be under law which is
treason to affirm.” Coke replied, “ the king should not be under man but
should be under God and law.” Chief Justice Coke’s reply was an affirmation of
the judicial power while upholding the rule of law against the arbitrary
decisions of the sovereign. This was judicial activism of finest.