Court affair

Don’t cross the Laxmanresha. This was sort of a message given to judiciary in the country by a two-member bench of the apex court, this week. Repercussions then began to hover immediately when the very next day, various courts refused to admit or hear the PILs. Circle was finally completed after SC itself intervened and chief justice K G Balkrishnan along with other two justice clarified that “SC’s earlier remarks are not binding upon…. the decision to dismiss a PIL depends on the issues involved”.

OPENION: To ask various courts in the country to maintain self-restraint while usurping into legislative and executive’s territory is understandable. It is one way out to refrain courts from judicial activism and overreach.

But to suggest that addressing PILs on social issues amounts to judicial overreach would mean shutting down the door which remains a last hope for justice to a common man in case of democracy’s other two organs fail to perform.

The Indian Express in its editorial on Dec. 12 states in the last paragraph, that:

Former Supreme Court chief justice J.S. Verma had, in April this year, given depth to this choice with a question: “Judiciary having no machinery for implementations of the orders, what happens in the event of refusal of the executive to cooperate?” In other words, what happens in the event of a rebuff? The higher judiciary in India, as in any other democracy, is the ultimate custodian of the rule of law. It fulfils this role on the strength, above all else, of its moral position. That strength is maintained primarily by keeping the judiciary above the prospect of a rebuff. Mathur and Katju have begun a debate on how to protect the independence of the judiciary (by asking courts to maintain self restrain).

I understand, Judiciary’s job is to implement the law, not to enact it. It is a respect shown to democratic process in which highest powers lie with legislative. But to stick for only implementation of old laws would mean letting the two already overactive organs of the state to either go wild or sit idle.

As we have seen in the case of Tamil Nadu; the state overruling the judiciary had crossed the reservation cap of 50 per cent as defined by SC to take it to 69 per cent.

Finally the apex court at the beginning of this year ruled that any law placed under the Constitution's Ninth Schedule after April 24, 1973, providing immunity from legal challenges are subject to scrutiny of courts if they violate fundamental rights.
Court that time also rejected the government's claim that certain laws, even if they infringed the fundamental rights of citizens, cannot be subjected to judicial review, if the legislations were placed under the Ninth Schedule.

So isn’t the above case was a classic example of overreach or over-activism on the part of legislature, first, and to control that, judiciary had to intervened through its own activism.

Here some experts including Loksabha speaker Somnath Chatterjee sounded a note of caution saying judiciary’s confrontation with legislative is harmful for the country. I agree with this.

But then what is the way out of all ?.

I think its better to face judicial activism, that to me is unbiased, than the over action from legislative’ or executive, which is often politically motivated.

Between you and me.

UPDATES: The initial doubts over which way courts should go have been put to rest. SC on Friday clarified that it would lay down guidelines on entertaining PILs.

I hope this will end the confrontation between judiciary and other two branches of the government.

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