The issue of judicial activism has again come to the fore following the pro-active role of the Supreme Court. It quashed the appointment of P.J. Thomas as the Central Vigilance Commissioner, directed the Centre to unearth black money stashed in foreign banks and put Hasan Ali Khan under custodial interrogation. Experts debate the pros and cons of judicial activism.
This is part of the judicial function of the court. Therefore, to say that because the government has not succeeded in these matters the court has stepped out of its crease would be a totally erroneous assumption.
It’s a pejorative phrase
However, there is a difference. While earlier, judicial activism was restricted to lower level offices, now its scope has expanded to higher authorities. While doing so, the judiciary is only carrying out its onerous duty as mandated by the Constitution.
Courts are not encroaching upon the domain of either the legislature or the executive. For instance, with regard to Mr Thomas' appointment as the CVC, he should not have been appointed in the first place in view of a charge-sheet pending against him. It's because the executive erred in appointing him that the Supreme Court had to quash it and declare it null and void.
The Constitution is supreme and no organ — the legislature, the executive or the judiciary —can claim supremacy. If any organ crosses its limits, there must be an instrument like the judiciary to set it right and protect the Constitution.
Judicial review is nothing but asking the legislature and the executive to act in accordance with the provisions of the Constitution. The judiciary has a constitutional obligation to undo the wrong and uphold the rule of law. It will be failing in its constitutional duty if it doesn't step in.
The objective behind judicial intervention is not just to protect larger public interest or safeguard the well-being of individuals but to restore people's faith in the justice delivery system.
People’s confidence in the judiciary has to be safeguarded from erosion with the tool of judicial activism. At times, it becomes essential for the Judges to look beyond the immediate, to scratch more than just the surface, to dig deep, to carry exhaustive study, to hold inquiries and see if there is more than what meets the eye.
After all, the courts, as custodians of law, cannot shut their eyes to illegalities, malpractices, violations, discrimination and arbitrariness.
Judicial activism has seen justice restored on the track, innocents being saved from the gallows, scandals being exposed, the famished getting a square meal, the jobless landing up with means of subsistence, and even children finding their way to the schools through the dark lanes of ignorance.
Compensations have been paid, non-deserving ones have been removed from posts, strictures have been passed, and directions issued to set things right. Any argument against judicial activism can hardly be justified.
Most of the important cases in which the judiciary has passed orders recently are about corruption in one sense or the other.
While the case relating to the Commonwealth Games was financial corruption, the litigation over the appointment of Mr P.J. Thomas as the Central Vigilance Commissioner (CVC) was related to corruption because the CVC is a vigilance institution and is the supreme watchdog of the anti-corruption establishment of the Government of India for its employees.
Who will save the institutions if the Supreme Court doesn’t intervene at the right time?
Black money is also a facet of corruption because it is used essentially for illegal and corrupt practices.
This is not judicial activism. Judicial activism is a pejorative phrase. The orders that have been passed by the Supreme Court in recent days are not at all an exercise in judicial activism, but judicial propriety because the Judges have examined the legality of the orders passed by the government and pronounced on them. Judiciary is doing its duty
Judicial review is a part of the constitutional set-up. If anything wrong has been done or is being committed, the judiciary is bound to intervene and undo the wrong. Judicial activism has been there for decades and it is wrong to say that it is a new phenomenon. However, there is a difference. While earlier, judicial activism was restricted to lower level offices, now its scope has expanded to higher authorities. While doing so, the judiciary is only carrying out its onerous duty as mandated by the Constitution.
Courts are not encroaching upon the domain of either the legislature or the executive. For instance, with regard to Mr Thomas' appointment as the CVC, he should not have been appointed in the first place in view of a charge-sheet pending against him. It's because the executive erred in appointing him that the Supreme Court had to quash it and declare it null and void.
The Constitution is supreme and no organ — the legislature, the executive or the judiciary —can claim supremacy. If any organ crosses its limits, there must be an instrument like the judiciary to set it right and protect the Constitution.
Judicial review is nothing but asking the legislature and the executive to act in accordance with the provisions of the Constitution. The judiciary has a constitutional obligation to undo the wrong and uphold the rule of law. It will be failing in its constitutional duty if it doesn't step in.
THE ONLY choice
Judicial activism is more a matter of compulsion than choice. It's only when the other wings of the administration shy away from carrying out their responsibilities and performing their statutory duties due to political considerations, populist compulsions, vested interests or just secretarial negligence that the judiciary has to step in. The objective behind judicial intervention is not just to protect larger public interest or safeguard the well-being of individuals but to restore people's faith in the justice delivery system.
People’s confidence in the judiciary has to be safeguarded from erosion with the tool of judicial activism. At times, it becomes essential for the Judges to look beyond the immediate, to scratch more than just the surface, to dig deep, to carry exhaustive study, to hold inquiries and see if there is more than what meets the eye.
After all, the courts, as custodians of law, cannot shut their eyes to illegalities, malpractices, violations, discrimination and arbitrariness.
Judicial activism has seen justice restored on the track, innocents being saved from the gallows, scandals being exposed, the famished getting a square meal, the jobless landing up with means of subsistence, and even children finding their way to the schools through the dark lanes of ignorance.
Compensations have been paid, non-deserving ones have been removed from posts, strictures have been passed, and directions issued to set things right. Any argument against judicial activism can hardly be justified.
War on black money, graft
The judiciary has, in fact, assumed an activist posture, and has construed the constitutional provision in a broader possible sense with the intent of safeguarding the basic civil liberties and fundamental rights. It’s for this larger public interest that the Indian judiciary has moved a little from the conventional and self-imposed limitations on its own jurisdiction.
No wonder, judicial activism has covered every aspect of life with a human touch — from checking child labour, illegal detentions, torture and even custodial deaths to rehabilitating slum dwellers, payment of minimum wages and a better deal for the bonded labour.
The judiciary does play a major role in the quality of the country's governance; an independent judiciary has become an essential feature of a democratic set-up like ours.
The judiciary has taken upon itself the task to enforce the basic rights of the poor and vulnerable sections of society and rightly so. It has proved to be a saviour and is here to stay.
This is not activism in a wider sense. It seems the Supreme Court is taking on corruption and issues related to this. The Chief Justice of India has stated on many occasions that corruption cases must be fast-tracked. Protector of Human rights
Justice is no more a distant dream even for the most vulnerable strata of society. And that's just one of the many contributions judicial acti-vism has made to Indian democracy. The past two decades have seen the judiciary go deep into issues not just for safeguarding the rights and freedom of the individuals but even to protect the environment and redress related concerns. The judiciary has, in fact, assumed an activist posture, and has construed the constitutional provision in a broader possible sense with the intent of safeguarding the basic civil liberties and fundamental rights. It’s for this larger public interest that the Indian judiciary has moved a little from the conventional and self-imposed limitations on its own jurisdiction.
No wonder, judicial activism has covered every aspect of life with a human touch — from checking child labour, illegal detentions, torture and even custodial deaths to rehabilitating slum dwellers, payment of minimum wages and a better deal for the bonded labour.
The judiciary does play a major role in the quality of the country's governance; an independent judiciary has become an essential feature of a democratic set-up like ours.
The judiciary has taken upon itself the task to enforce the basic rights of the poor and vulnerable sections of society and rightly so. It has proved to be a saviour and is here to stay.
The only hope of the nation
Activism of any kind is always welcome, especially from the judiciary. For it is the only institution in which the citizens continue to repose faith. Sadly, all other institutions have failed to live up to people's expectations. Examples of good law
The court, being part of society, is discharging its duty by taking cognisance of such cases.
How can the judiciary decide on the criteria for appointing a CVC? Will Judges now go on to make prescriptions for appointing the Chief of Staff, the Home Secretary or the Defence Secretary?...It will finally come down to how Judges theselves are appointed.
The role of the Judge is that of a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts, I must neither take part in it nor tell the players how to play…Judicial whistle needs to be blown for a purpose and with caution. It needs to be remembered that courts cannot run the government…
Policy matters, fiscal, educational or otherwise, are best left to the judgement of the executive. The danger of judiciary creating a multiplicity of rights without the possibility of adequate enforcement will, in the ultimate analysis, be counter-productive and undermine the credibility of the institution.
Courts cannot create rights where none exists nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles. Far from accepting the limits on their legitimacy, judges sometimes confuse the divinity of the judicial function with individual divinity or personal infallibility.
Broad guidelines should be followed by the courts in dealing with public interest litigations. There is the danger of inexperienced, indiscreet or embarrassingly naïve use of judicial power whereby PIL becomes a menace to public administration or an illusion for the people. Judicial usurpation erodes constitutional division of powers among the different instrumentalities. Our country has not entrusted governance to justices or legislation to courts.
Some judgements including those on the CVC and euthanasia are great examples of good law. Every time the Supreme Court lays down a good law it does not mean judicial activism. Good judgements are always welcome. The cry of judicial activism for the past few weeks is misplaced. onerous responsibility ‘Judiciary crossing the Lakshman Rekha’ The judiciary is crossing the lines by stepping into roles that haven’t been drawn up for them. It is important that everyone operated within their Lakshman Rekhas.There is confusion everywhere today as the judiciary is busy with executive functions, the legislature with investigations and the executive with everything other than governance.
It is a constitutional duty which the Supreme Court owes to the nation as corruption has become society's enemy number one. The court, being part of society, is discharging its duty by taking cognisance of such cases.
How can the judiciary decide on the criteria for appointing a CVC? Will Judges now go on to make prescriptions for appointing the Chief of Staff, the Home Secretary or the Defence Secretary?...It will finally come down to how Judges theselves are appointed.
The role of the Judge is that of a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts, I must neither take part in it nor tell the players how to play…Judicial whistle needs to be blown for a purpose and with caution. It needs to be remembered that courts cannot run the government…
Policy matters, fiscal, educational or otherwise, are best left to the judgement of the executive. The danger of judiciary creating a multiplicity of rights without the possibility of adequate enforcement will, in the ultimate analysis, be counter-productive and undermine the credibility of the institution.
Courts cannot create rights where none exists nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles. Far from accepting the limits on their legitimacy, judges sometimes confuse the divinity of the judicial function with individual divinity or personal infallibility.
Broad guidelines should be followed by the courts in dealing with public interest litigations. There is the danger of inexperienced, indiscreet or embarrassingly naïve use of judicial power whereby PIL becomes a menace to public administration or an illusion for the people. Judicial usurpation erodes constitutional division of powers among the different instrumentalities. Our country has not entrusted governance to justices or legislation to courts.
Most of the important cases in which the judiciary has passed orders recently are about corruption in one sense or the other.
While the case relating to the Commonwealth Games was financial corruption, the litigation over the appointment of Mr P.J. Thomas as the Central Vigilance Commissioner (CVC) was related to corruption because the CVC is a vigilance institution and is the supreme watchdog of the anti-corruption establishment of the Government of India for its employees.
Who will save the institutions if the Supreme Court doesn’t intervene at the right time?
Black money is also a facet of corruption because it is used essentially for illegal and corrupt practices.
This is part of the judicial function of the court. Therefore, to say that because the government has not succeeded in these matters the court has stepped out of its crease would be a totally erroneous assumption.
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