The judiciary is shifting the balance of power

It is increasingly becoming the first port of call for solving all problems


Illustration: Jayachandran/Mint
Illustration: Jayachandran/Mint

Usually known to be measured with his words, finance minister Arun Jaitley cut loose with scathing criticism of the Indian judiciary on the floor of the Rajya Sabha last Thursday. He blamed the judiciary for actively encroaching on the powers of legislative and executive authorities. He claimed that “step by step, brick by brick, the edifice of India’s legislature is being destroyed” by the judiciary. Through a number of judgements, including the one Jaitley referred to in his Rajya Sabha intervention—ordering the creation of a National Disaster Mitigation Fund while national and state disaster response funds already exist—the judiciary has appropriated for itself a role far beyond its primary duties of dispensing justice and interpreting laws.

This encroachment is clearly a matter of huge concern. And to that extent, Jaitley is right. As far as his choice of words is concerned, it is also an indicator of how repeatedly used camouflaged phrases like “judicial overreach” have been incapable of instigating any self-correction by the honourable judges.

The judiciary in India is often called the most powerful among its tribe globally. While the creative interpretations of the text of law had started earlier, the post-Emergency phase marked a distinct turnaround in the Indian judiciary’s activism. After the ignominious failure to protect the fundamental rights of the citizens in ADM Jabalpur vs Shivakant Shukla (1976), the court believed a constitutional correction would be insufficient. So, the pursuance of constitutional legitimacy was replaced—in the words of Lavanya Rajamani and Arghya Sengupta—“by a quest for popular legitimacy”. A series of judgements, most notably S.P. Gupta vs President of India and others (1981), gave rise to a new legal instrument called public interest litigation. This instrument allowed “public-spirited individuals seeking judicial redress” on a variety of matters beyond what would be permitted by the traditional rule of locus standi, which specifically addressed the concerns of aggrieved citizens.

Through several judgements thereafter, the judiciary has unhesitatingly shuffled into the roles of both the legislature and the executive. It assumed wide powers in matters of protection of the environment. This process was, however, aided by the executive which dithered in taking politically difficult decisions that might have invited wrath from their constituencies. The overzealousness of the judiciary and the neglect by the executive helped along a gradual obliteration of the separation of powers between the judiciary, the legislature and the executive.

Jaitley is not the only one to speak out. When quizzed about the Supreme Court decision to move Indian Premier League matches out of Maharashtra given the drought in Latur and other parts of the state by an interviewer on NDTV, transport and shipping minister Nitin Gadkari said: “If judges want to do our job, they can resign and contest elections.” Not just the drought, the courts have also evidenced their concerns about the problem of pollution in the National Capital Region. Among a spate of orders, the apex court has doubled the entry tax on trucks entering Delhi. The intention is indeed laudable. But here is a question that should be considered by anyone making such a decision. Who will bear this tax—the truck owners or the citizens of Delhi? Well, it depends on the demand elasticity of goods in Delhi, an overwhelmingly consuming state. This example is ample proof of why the courts which are ill-equipped to weigh the economic, environmental and political costs involved should keep away from such issues.

To be fair, the judiciary has its own complaints of the executive. Speaking at the chief ministers and chief justices conference, chief justice of India T.S. Thakur grew emotional talking about the long backlog of pending cases. He blamed the centre for moving slow on the appointment of judges and increasing the number of courts and judges. Thakur may indeed be right, but he could have also looked at the propensity of the judiciary to continually expand its sphere of operations and the consequent effect on the backlog.

A bench headed by Thakur himself has been, in recent times, trying to fix the air connectivity to Shimla. And over the past few days, Olympic medallist Sushil Kumar had moved the Delhi high court to help him make the cut for Rio Olympics 2016. Even as the court has refused to interfere, this is another example, if any was needed, to show that the courts have become the first port of call for all problems—from air-connectivity of Shimla to securing nomination in the Olympics.

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