Editorial Notes

[Editorial Notes] Judging wisely in Tough times

An error committed by the legislature or executive is capable of being corrected, but an error in a judicial order, however grave it may be, may not be capable of being corrected with that ease.
By IASToppers
June 02, 2020

Contents

  • Introduction
  • Exceptional powers of Judiciary
  • Judicial Activism
  • Limitations of Judiciary
  • Present Challenges
  • Understanding current situation
  • Road Ahead
  • Conclusion

Judging wisely in Tough times

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Introduction:

In a democracy, sovereign power of the state rests on three pillars — legislature, executive and judiciary. Well-defined boundaries prevent encroachment by one into the area of the other. The judiciary is the trustee of democracy and fundamental rights of the people. It has the power of judicial review over the legislature and the executive.

Exceptional powers of Judiciary:

  • The Supreme Court in 1980s devised Public Interest Litigation methodology, relaxing the rule of locus standi, if a case for the Court’s intervention is made out, in particular, where the fundamental rights of poverty-stricken, disabled, downtrodden or hapless are involved.
  • The constitutional courts have also commenced taking suo motu cognisance of such facts, as compelling them to act if the fundamental rights of such people run the risk of being lost or irreparably damaged.
  • The Constitution empowers the judiciary to issue several writs.
  • The jurisdiction often exercised by the constitutional courts is to issue the writ of mandamus, a high prerogative writ, used principally for public purposes and to enforce the performance of public functions and mandatory duties by the state.

Judicial Activism:

  • With the decline of purity in politics and the onset of corruption and inefficiency in public services, the judiciary has been emboldened into assuming more and more power over the legislature and executive.
  • This has come to be known as judicial activism.
  • PIL and judicial activism have earned applause as they have enabled the people to secure prompt relief and protection of their rights, which they failed in securing from the other two wings of governance.
  • The oath taken by every judge is inter alia of being bold and independent and judges shall never succumb to any pressure.
  • The public opinion reaching the judges through media reports or the utterances of influential people shall neither force them to act nor deter them from acting.

Limitations of Judiciary:

  • The judiciary has some inherent limitations. Judges are appointed and not elected.
  • The judiciary does not have any investigation agency of its own to verify the truth of the averments made before it and assess the impact of its commands on people and the other two wings of governance.
  • The notions formed by the judges and reflected in their opinions depend on their own teachings and upbringing, which may not necessarily be reflective of the public opinion, which in a democracy can be voiced only by the elected representatives of people.
  • An error committed by the legislature or executive is capable of being corrected either by themselves or by the judiciary in the exercise of its power of judicial review.
  • But an error in a judicial order, however grave it may be, may not be capable of being corrected with that ease.
  • Several well-known instances from the past two decades show some judicial commands have created a lot of confusion and misunderstanding and also resulted in slowing down the normal process of governance.

Present Challenges:

  • It is common knowledge that during the coronavirus pandemic, unscrupulous news reports have used photographs of absolutely unconnected and past events, associating such photographs with the current reports to highlight that the situation is grim.
  • By the time such designs are exposed, it may be too late. The country is passing through testing times.
  • There are problems handed down to the present from the past, developed over the years and are yet to be solved.
  • And, the coronavirus is not alone! There are earthquakes, fires, locust attacks, Amphan and so on.
  • At the top are our neighbouring countries who, far from joining hands with us in fighting against the challenge to humanity, are threatening us.
  • More the problems, more the need to concentrate on fighting adversities — public functionaries working day and night need our support and not pin-pricks.

Understanding current situation:

  • Faced with any extraordinary adversity such as a pandemic taking over the country, the government is suddenly called upon to act on multiple fronts.
  • Whatever good is done is often lost sight of and a casual view is formed that the government has failed to act with the speed and vigour that some expect.
  • It catches public attention and, sometimes, those who assume for themselves the role of flag-bearers swing into action.
  • The media — print and electronic — may have failed in adequately highlighting the positive part of the executive’s actions.
  • The inactive or less active parts of the executive are at times highlighted by the media, which consider it a part of their obligation to activate governance.
  • Such highlights are not to be seen in isolation, segregated from immensely positive governmental planning and programmes.

Road Ahead:

  • The judiciary should be extremely cautious to see that it is not unwittingly lending its shoulders for somebody else’s gun to rest and fire.
  • Too much judicial activism may turn out to be counter-productive.
  • It may obstruct the normal functioning of the executive and divert the attention of public officials to collecting material for being placed before the court, drafting the pleadings and affidavits, briefing the government advocates (sometimes personal presence in the courts).
  • This will divert the time and resources meant to be better utilised in the service of the nation and performing public service focused on meeting the challenges of calamities and endemics.
  • Faced with notice of the court, the executive may feel compelled to alter its well-thought-out priorities, resulting in imbalance.
  • The means and resources of the executive are also limited and need a rational allocation.

Conclusion:

A long-standing political tradition and significant government restraint in exercising power — including judicial restraint based on the view that the judiciary is itself a branch of the state are all that can prevent a crisis. The three wings of governance ought to trust each other and should not begin with the assumption that the other wing of governance must have faltered.

The extraordinary times require extraordinary cooperation and strong will to handle the crisis.

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