Indian judiciary is on fire, throwing abrasive comments left and right, in the wake of Coronavirus’s second wave hitting a peak and killing several people. In April, the division bench of the Delhi High Court observed that they would hang any person to death who creates an obstruction to hospitals and oxygen supply. This statement was made when India was grappling with deaths owing to lack of oxygen, ventilators, oxygen concentrators, remedesivir and hospital beds.
Judiciary In Bengal
Surprisingly, Bengal assembly elections were held when the second wave was claiming lives here and there. Ideally, elections should have been avoided or postponed because the election process consists of rallies and assemblies. These rallies and assemblies become breeding ground for COVID-19 because political leaders, as well as followers, do not follow masking up and social distancing, which further jeopardises the already ailing health infrastructure.
A bench of the Madras High Court on 27th April observed that the election commission should be tried on murder charges because it failed to ensure adherence to COVID-19 protocols in election processes. They also observed that the election commission is the most responsible entity for the second wave. Supreme Court later had to reduce the damage made by these outrageous remarks against the state machinery and called them harsh and inappropriate. In this race of inappropriate, harsh and outrageous remarks, the winner is Delhi High Court when the bench directed the government on the use of Amphotericin B.
Jeremy Bentham and JS Mill possibly inspired the remarks because they asked the government to prioritise young people over elders while supplying medicine for black fungus or mucormycosis. According to the court, the young patients are the future of the nation, and the elder ones have lived their life hence need not be prioritised. Every human life on this earth is essential irrespective of religion, race, caste, sex, place of birth and age. Differentiating human beings on these grounds is unfair and delivering justice is the sole work of the judiciary.
India is a democratic country and according to the preamble of the Constitution people of India are the source of power. The Indian democracy engages in elections every five years where people vote and choose who will represent their best interests at heart. These elected representatives sitting in the Parliament and assemblies have the sole power to make laws and frame policies. If people feel that their concerns are not being addressed, the elected representatives are ousted.
This five-yearly exercise called elections reminds every legislator sitting in the Parliament that their powers are not absolute. It is the people of the nation who have given them these powers temporarily. The Constitution has provisions that also makes sure that the country is not run at the whims and wishes of the legislators. According to the Chief Justice of India, the right to change the ruler every five years does not guarantee the democratic future of the country.
The absolute powers of legislators are curbed by the application of various laws, rules and procedures. Article 368 of The Indian Constitution ensures that the legislators do not change the basic structure of the Constitution to favour political gains over the betterment of the country. But these laws also do not mean that the higher judiciary is off the hook on abrasive comments on policies formulation and lawmaking.
Collegium system and judicial appointments have been under fire from media and Parliament for its opaque selection process. Collegium System is marred by nepotism and prioritises seniority over talent. The people of India do not elect the judiciary; hence it also raises the question of how to deal with the tyrannical nature of an unelected but powerful office. According to the law, the judiciary is the only arbiter of rules and not its maker.
Judicial activism is born out of the belief that every politician and legislator sitting in Parliament is corrupt. At times appropriate judicial activism has proven beneficial for the country, but a balance must be sought. According to popular statistics and pop culture judiciary has pending cases, which increases as days pass. The court’s time needs to be directed towards clearing an old lot of pending cases because, according to a famous saying, justice delayed is justice denied.
Nirbhaya had to wait for almost a decade before her perpetrators were hanged to death. Article 142 of the Constitution allows the judiciary to supersede the executive and the legislative at times. It deals with the enforcement of decrees and orders issued by the Supreme Court. It enables the Supreme Court to pass verdicts to ensure complete justice; such orders are applicable throughout the country. It is article 142, which sometimes takes the form of judicial activism and overreach.
The judiciary, according to article 142, is not accountable for its judgements hence not responsible. When the judiciary banned e-rickshaws in Delhi, it was not held responsible for violating the right to livelihood or arranging alternate employment. The use of article 142 has brought relief in cases like Vishakha judgement, coal block allocation case, Union carbide case, ban on the sale of liquor on highways, the Bandhua Mukti Morcha case, Olga Tellis case.
A proper balance must be maintained between the three pillars of the democracy, namely legislature, executive and judiciary, to ensure smooth working. If judicial overreach is terrible for democracy, judicial underreach is not good either. Few cases and verdicts of the Supreme Court have stated that courts cannot interfere in policy matters of the state in ordinary circumstances.
In the Census Commissioner and others versus R Krishnamurthy, the High Court’s decision opted for social justice, but Supreme Court held that it is out of the court’s jurisdiction to legislate. The court can only declare laws unconstitutional but cannot interfere in policymaking or tweaking policies by issuing writs. Mandamus is issued only to transfer the cases, not change policy; in such circumstances, judicial restraint has to be observed.
In the Union of India versus Indian Radiological Imaging and Association, it was observed that legislature could not be considered incompetent in policy-making. The court cannot substitute or supersede legislature in the name of judicial review. Judicial review cannot be used to evaluate the ability of a policy to produce desiredresults.
Francis Bacon has rightly said, judges are more learned than witty, more reverend than plausible and more advised than confident. Let the judges also remember that Solomon’s throne was supported by lions on both sides: let them be lions but yet lions under the throne.
As John Acton says, power tends to corrupt, but absolute power corrupts absolutely; hence every machinery of the state needs checks and balances. Judicial activism is important for a democracy to deliver social justice. Though Judicial activism cannot be traced in any article of the Constitution, the invention of suo motto, public interest litigation PIL, and new doctrine has proved beneficial for society.
The creation of basic structure doctrine in the Keshavananda Bharati versus State of Kerala case 1973, incorporation of due process of law instead of procedure established by law, the institutionalisation of PIL, banning smoking on public spaces based on a PIL, order of the apex court to provide mid-day meal to school children is few examples.
The Constitution is designed so that no lions, namely legislature, executive and judiciary, are above the throne or the people of India. There are checks and balances established so that no organ becomes a tyrant. The role of media is also essential to bring out the truth, which is free from bias and personal gain.