Maj Gen C P Singh, (Retd)
Legislative, Executive and Judiciary are three pillars of a stable democracy. If one pillar becomes large or oversize, the stability of the democracy is in danger. The Constitution of India embraces the idea of separation of powers of the legislature, executive and judiciary, in an implied manner. Unfortunately, the ongoing adjudication of cases related to Covid management by courts across India has set a worrying precedent of judicial adventurism. In the checks and balances provided by the Constitution, the executive is answerable to Cabinet of Ministers which is answerable to legislation and elected legislative members are answerable to public and voters. However, there is no direct answerability of Judiciary, on the premise that they will exercise self discipline, while imparting justice. In recent past, it is observed with concern that over zealous Judiciary is usurping the role of the legislature and the executive. The courts are directing the Govt and the bureaucracy on how to frame laws and govern the country. Nobody can question them or criticize since the “Contempt of Court” is hanging like a ‘Sword of Damocles.’
Judicial review refers to the power of the judiciary to interpret the Constitution and to declare any such law or order of the legislature and executive, void, if it finds them in conflict with the Constitution. Judicial activism is one step ahead of judicial review. Since the early 1990s, the Indian courts have stepped in with greater frequency on legislative, political and policy matters, leading to constant friction between the three organs of democracy. There is a thin line dividing judicial activism and judicial overreach. Judicial overreach is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government. Judicial adventurism is a dangerous trend, as recently exhibited by courts, during the fight against the COVID pandemic.
Examples of Judicial Adventurism
Judicial overreach has been on the rise at a trajectory higher than Covid cases. Some of the glaring cases of judicial adventurism are flagged as under-
- Recent disparaging remarks made by the Madras High Court against the Election Commission of India, calling the institution, “Murderers”, saying that it was solely responsible for the spike in Covid cases.
- Lower Court in Telangana sentencing a serving Major General of Army to one month imprisonment, for acts done in official capacity.
- Ban on Firecrackers on Diwali festival.
- Punjab and Haryana High Court refusing safety and security to live-in adult partners because this relationship is “morally and socially unacceptable”, though permitted by law. Courts are now into moral and social policing also.
- Courts asking the rape accused to marry or tying a raakhi to the victim, rather than punishing the culprit.
- The Allahabad High Court passed an order stating that children of public functionaries/ bureaucrats in Uttar Pradesh should be enrolled only in government schools.
- Proactive censorship on film Jolly LLB 2 passed by the Central Board of Film Certification (CBFC) because it shows the reality of present judicial system.
Covid and Judiciary
The judicial intervention and shooting ‘off the cuff’ remarks by ‘Milords’ during covid crisis has hit the ceiling. Just a few noteworthy examples of our learned judges passing orders / remarks during COVID fight are listed as under-
- Remarks like “The health care system is Ram Bharose” and calling state governments“ Murderers” for lack of oxygen supply.
- Allahabad High Court suo-motto declared that five cities of Uttar Pradesh must go into a lock down, due to COVID. The top court mercifully stayed the order.
- Allahabad High Court directing UP Govt to provide two ambulances with ICU facilities to every village in the State.
- Delhi High Court ordering to ensure 600 Mt/day of oxygen supply to Delhi during COVID Crisis.
- Delhi High Court saying that officials responsible for delay in manufacturing of vaccines should be charged for ‘Manslaughter.”
- Delhi High Court passing order that no advocates will be stopped/ checked by any officer or police during lock down, signifying that advocates are immune to COVID. Isn’t it a favour to own brethren?
- The Supreme Court, declared Delhi as a “representative of the entire nation” and asked the Centre to supply oxygen to it by whatever means. It gives an impression of favouritism to the elites residing in the capital.
Competence of Judges
It’s prudent that we have a look at the competence of the persons making such remarks or judgment. Some of the key issues are flagged as under-
- Qualification of Judges. Judges mostly hold a graduation or master’s degree in law and are only qualified in the legal domain. The experience that qualifies them to become a judge in High Court or Supreme Court is also in legal matters. They live in a bubble of judicial world with no exposure to leadership, administration or management.Need to have an All India Judicial Service like IAS/IPS is the need of the hour.
- Selection of Judges. The judges of lower court are selected by state level competitive exam. Only a few make it to High Courts on promotion. Judges of High Courts and Apex Court are selected from practicing advocates having requisite experience. They are selected by collegiums of serving judges. Nowhere in the world do judges select and appoint judges as they do in India. The Collegium System has no constitutional basis and it has turned out to be more of networking, promoting each other candidates, personal likes and dislikes—rather than selection on merit. Now, imagine, these people sans merit, who have reached the high pedestals of judiciary by back door entry, are passing comments on legislatives, elected by the public or Govt servants who have come through competitive exams, promoted on merit and having loads of experience in administration and management.
- Competence Judges of different courts have same evidence and same provisions of law, yet their judgments are totally opposite. It’s question of somebody’s life, liberty and reputation which is at stakes. They take years to examine a case and decide, which is turned upside down by the higher court again after many years of re-examination. Either of them is obviously wrong. There should be some accountability of their wisdom and competence of the judiciary also like any other profession.
- Functionality India currently has over four crore pending cases across various courts. I am surprised how courts can have summer vacations or ‘Work From Home’ with millions of cases pending. Surprisingly, where serious cases of murder and rape are not even listed for months, the courts are opened at midnight for anti-nationals and influential people. The archaic and whimsical functioning of the courts is laced with favouritism, corruption and arbitrariness. Common public really gets disgusted at the state of affairs and repent the day they had to come to court. The awful delays in dispensing justice are also responsible for increasing crime rate in the country. It may not be out of place to say that NOT Govt, but Judiciary is running ‘Ram Bharose’.
Post Retirement Rehabilitation
Earlier days, the judicial positions were considered so honourable and coveted that no judge felt the need for second innings. The increasing life expectancy and aspirations in highly competitive world are driving the judges to seek post retirement rehabilitation. Acceptance of office of profit like judicial commissions, tribunals and arbitration courts is gaining traction. Retired Supreme Court judges have also been appointed Governors. Post-retirement appointments are a deterrent to an independent judiciary. The first Law Commission also recommends no post retirement favours for the judges.
Playing to the Gallery
The common citizen often perceive a judge as supreme and one who gets to have the last word, especially on issues of public importance. Words uttered by a judge are considered pearls of wisdom and often oral exchanges between the bar and bench become national headlines. Judges are today passing off the cuff and often sarcastic remarks from their cushy, insulated environs. Armed with PIL and ‘Suo moto Cognizance’ as weapons, they are asking questions on any subject on earth. Judges grandstanding inflicts real damage with their ill-considered oral remarks and immature decisions, beyond the scope of their jurisdiction.
Milords! Let us Work.
Overzealous Judiciary is conveying to the nation that they are the only one managing the country and even disaster like COVID. Govt officials are busy preparing documents to reply to court or wasting time appearing in courts rather than doing their legitimate job at this hour of crisis. Government officials are having to brief the bench about the prevailing circumstances for hours instead of being allowed to act in real-time. It would be earnestly desirable that the judges confine themselves to legal matters and leave the experts to work in their own affairs, without judicial intervention.
Judicial adventurism is intruding more and more in the exclusive space of the legislature and the executive, thereby creating unhealthy asymmetry in the delicate balance among various institutions of this democratic country. Although, judicial review is legitimate domain of judiciary but then a limit or boundary has to be drawn. It should not become a super parliament that frames laws and a super executive that seeks to implement them.
GOI for the first time, in a diplomatic language has told Supreme Court NOT to interfere in executive functions of the Govt, for which Judges do not have competence. I would like to submit – “Milord!! Let us work and you please manage your own house which itself is crying for your attention.” I am also cautious of the fact that some court might take suo motto cognizance of this article and charge me for Contempt of Court. Therefore, “I sincerely apologize and seek your pardon ,Milord!!”
(Maj Gen C P Singh, Retd is a scholar soldier, social activist and writer)
Disclaimer : The views expressed by the author are personal