lawzmag.comPlato was of the view that the ideal form of Government is one in which there is concentration of Governmental power. Bodin,a modern political thinker suggested that the function of administering justice should be entrusted to an independent authority. He pleaded for the separation of executive and judicial powers in the interest of better administration of justice. The French philosopher, Montesquieu further developed the idea of Bodin into a theory of separation of powers. He advocated division of governmental powers to be assigned to three organs: Legislative, Executive and Judiciary. Through these organs have specialized powers and functions, they are expected to work in co- ordination and co-operation, if the polity is to function successfully. Strictly speaking, the role of the judiciary is not an active role. The real role of the judiciary is that of an umpire. The main function of the judiciary is to decide the disputes rather than to participate in policy making decisions.

During the last three decades or so, the judiciary has widened its horizon of jurisdiction. A new jurisdiction of ‘PIL’ (Public Interest Litigation) has emerged where the principal of Locus Standi is diluted under the pretence of better administration of justice. The courts are taking action on a post card sent to a judge, this being called epistolary jurisdiction. Similarly, the Courts are taking suo motu actions on the basis of news item appearing in the newspaper or a letter written to the editor of the newspaper. ‘Public Interest Litigation’ which was in its initial stage a kind of ad hoc jurisdiction, is now firmly rooted in the judicial soil. The cases of PIL, now, are not exceptional but numerous. Public Interest Litigation has not remained so; it has turned gradually into ‘Publicity’ Interest Litigation.

The Supreme Court, by restoring to extreme liberal interpretation of Article 21, has expanded to a large extent the ambit and scope of Article 21 of the Constitution to cover wide variety of rights. To name a few: Right to free education, right to livelihood, right to free legal aid, right to immediate medical assistance in accident cases, right to speedy trial, right to pollution free environment, right to know, right to travel abroad. Article 21 was inflated so much by  judicial interpretation even to include ‘Right to die’ as a fundamental right as in P. Rathinam v. Union of India, A.I.R. 1994 S.C. 1844. But the Court corrected this hyperactivism by putting a reverse gear and holding after a couple of years that right to die is not included in Article 21 as in Gian Kaur v. State of Punjab, A.I.R. 1996 S.C. 1257. It seems that the Court is attempting to rewrite the Constitution, especially Part-III thereof. The Supreme Court did not hesitate to assume direct legislative function in the case of Vishakha v. State of Rajasthan, as in A.I.R. 1997, S.C. 3011. In this case, the Supreme Court has virtually enacted a piece of legislation on the ground that there is a vacuum in the legislative field of sexual harassment of working women. The Supreme Court laid down some guidelines and norms which are directed to be treated as law. These directions were stated to binding and enforceable in law until suitable legislation was enacted to occupy the field. It is submitted that these guidelines cannot be treated as laying down a precedent under Article 141, but this should be treated as unauthorized ad hoc legislation by the judiciary.

This is an example, of judicial trespass in legislative domain. This is an example, not of judicial activism, but of judicial overactivism. The judiciary tried to justify its so called judicial activism on the ground that there is executive or legislative inaction or lethargy. But will judiciary tolerate the adjudicative action by the executive in case of possible judicial inaction or lethargy or delay? Interpreting certain provisions of the existing law and laying down certain principles in the form of the precedent is what is envisaged under Article 141 and not ad hoc legislation by the judiciary when there is a vacuum in the field.

Another example of the judiciary usurping the legislative function is the case of D.K.Basu v. State of West Bengal, as in A.I.R.1997, S.C. 610. In its anxiety to protect the interests of the arrested person, the Court has exhibited an instance of judicial hyperactivism, rather judicial waywardness. The Supreme Court arrogated to itself the constituent or at least legislative power in laying down 11 requirements in this connection. It is a case of out right judicial legislation. The Supreme Court, while interpreting a provision of the Constitution, may fill in the interstices, but the zeal to artificially create such interstices and then to fill it should be deprecated. Though these 11 requirements comprise human rights jurisprudence and it would be in  the fitness of the things, if these were law, these sweeping 11 requirements laid down by the Supreme Court cannot have the status of the law as its source is not legislature but judiciary.

In legal theory, the judiciary has no power to require the legislature to frame a certain law or to make certain provisions in a law. However, in Sarla Mudgal v. Union of India, (1995) 3 S.C.C. 635, the supreme Court has issued a direction to the State to take steps to secure a Uniform Civil Code relating to matrimonial or family laws. It is astonishing to note that the judiciary has asked the State not only to take steps for the framing of the Uniform Civil Code but also to report compliance! This additional requirement of ‘reporting compliance’ exhibits judicial hegemony disturbing grossly the theory of separation of powers between the three organs of the Government.

While expressing the concern over custodial deaths, the Court vehemently recommended an amendment to the law relating to burden of proof to create rebuttable presumption that death in a police lock-up is murder as in State of U.P. v. Ram Sagar Yadav, A.I.R. 1985, S.C. 416. In Ratlam Municipality v. Vardhichand (A.I.R. 1980 S.C. 1622), a municipality was ordered to provide drainage system irrespective of its budgetary limitations. Subordinate Court was ordered to monitor and supervise the implementation of the scheme. Overactive judiciary is assuming now a days the role of the executive also!

The writ jurisdiction under Article 32 is being used by the Court not only for releasing the person from illegal detention but also for compensating the victims by awarding monetary compensation as in Rudul Shah v.State of Bihar, A.I.R. 1983 S.C. 1086. Awarding monetary compensation under Article 32 is totally inconceivable  remedy under writ jurisdiction.

In legal theory, the judiciary has no power to require the legislature to frame a certain law or to make certain provisions in a law. However, in Sarla Mudgal v. Union of India, (1995) 3 S.C.C. 635, the supreme Court has issued a direction to the State to take steps to secure a Uniform Civil Code relating to matrimonial laws  

The judiciary evolved in Keshavananda Bharati v. State of Kerala (A.I.R. 1973 S.C.1461) a new ‘basic feature’ doctrine. This doctrine reinforces the doctrine of Judicial Review. Moreover, the power of ‘Judicial Review’ itself was held to be one of the basic features of the Constitution. The judiciary now claims the power to nullify even an amendment made to the Constitution if it alters the basic structure or framework of the Constitution. This result will follow notwithstanding that the procedure given in Article 368 of the Constitution is followed in making the amendment. The Supreme Court, by this doctrine, has invented limits to the amending power of which the Constitution says nothing. Striking down a constitutional amendment is in reality an exercise of constituent power itself by the court. This omnipotent ‘Judicial Review’ claims to extend not only over the legislature and the executive but also over the constituent authority! We have not only judicial checks and balances but judicial supremacy over  other organs of the Government.

Since Maneka Ganghi’s case decided in 1978, the Court, by gradual process, has practically introduced the American concept of ‘due process’ clause in the expression ‘procedure established by law’ in the text of Article 21 of the Constitution. This self- asserted power allows the Court to review the fairness and unreasonableness of any law affecting personal liberty. It is important to note here that the Constituent Assembly which framed the Indian Constitution, after due deliberation, had deliberately avoided the introduction of the American doctrine of ‘due process’ in Article 21 of the Constitution. The Court is interpreting the Constitution quite contrary to the intention of the draftsmen of the Constitution. In its quest for socio-economic justice, the judiciary has become an unruly horse. The Court should not overstep the limits of its judicial function and trespass into areas, which are assigned by the Constitution to the Executive and the Legislature. The tendency to expand the scope of judicial review has to be resisted by the judiciary itself. Against the backdrop of the present judicial overactivism, the need of the hour is practicing ‘Judicial Restraint’!

An opinion of H.G. Kulkarni, Principal, D.G.B. Dayanand Law College, Solapur.

LawZ Bureau

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