WHERE PROACTIVE JUDICIARY LEADS INDIA?

Be you ever so high, the law is above you’ said J.S.Verma Former Chief Justice of

India. The law of the country represents the aspirations of the people in running the

country in a democracy. That is the adhesive that binds the people, the country and its

administration together. That is the thread that holds them together into a system and

defines the latter’s ends and its means. In this sense, law is above the people, above the

country and above its administration. Taken away the law, people do not remain people,

country does not remain a country and administration does not remain administration.

Sans law, there just will be a jungle raj.

LEGISLATURE, EXECUTIVE AND JUDICIARY

Law protects people, country and the administration as much as people, country

and the administration protect the law. The ultimate responsibility of protecting the law

lies on the administration. Legislature, Executive and judiciary as Brihma, Vishnu and

Maheshwara, the all powerful trinity of the Hindu mythology, share the peise of

protecting the interests of the rule of law. Legilslature creates law, Executive enforces it

and judiciary adjudicates it. Difficulties surface while Brihma, Vishnu and Maheshware

begin to encroach into other’s domain for supremacy by claiming themselves as the true

arbitrators of the interests of the people, and each seeks to usurp the responsibilities of
the other eo nomine. India is witnessing the farce in its democratic system on the eve of

golden jubilee celebrations of its partition and independence.

A PAWN IN THE POWER-GAME

Sine Dubio, Legislature let down the country by over-indulgence in petty

politicking and Executive plunged itself in ineffciency and corruption to be any more

relevant to the interests of the country. Similarly, goings- on behind the veil of the threat

of contempt proceedings in Judiciary is in no way really sobering. Any one of them

taking advantage of the general breakdown by raising accusing fingers on the other and

assuming on itself, the role of the champion of public interest may not ported well to the

democratic traditions of the country. Such an eventuality does stir the hopes,

expectations and imagination of the frustrated and defeated hoi polloi. But, as time wears

off, they come to realise the power-game for supremacy among the contenders. The

plebeian more and more understands that he played as a pawn in the power-game. This

deepens his frustration and intensifies his sense of hurt, defeat and let down. This is what

is happening to Indians after half a century of self-rule in the rumblings of the pro-active

judiciary.

LIMITATIONS OF THE JUDICIARY

Legislature, Executive and Judiciary have their own roles to play as demarcated

by the Constitution. Article 142 (1) of the Constitution of India while dealing with the
enforcement of Supreme Court orders perspicaciously lays down as, ”The Supreme Court

in the exercise of its jurisdiction may pass such decree or make such order as in necessary

for doing complete justice in any cause or matter pending before it, and any decree so

passed or order so made shall be enforceable throughout the territory of India in such

manner as may be prescribed by or under any law made by Parliament and, until

provision in that behalf is so made, in such manner as the President may by order

prescribe. “ The Article provides a clue to the spirit of the Constitution in matters of the

responsibilities and limitations of the Judiciary vis a vis overall governance. The key

phrases that prescribe the role of Judiciary here are “in the exercise of its jurisdiction”, ‘

for doing complete justice, ‘ in any cause or matter pending before it’ and

enforceable….. as may be prescribed by or under any law made by Parliament . The

phrases make perspicuous two limitations on the Judiciary, namely that it shall act only

on matters pending before it in exercise of its jurisdiction for doing complete justice, and

that the operation of its decree or order is subject to the law made by Parliament or

Presidential order. The limitation of jurisdiction and the need of matters being pending

before it, together constitutes a serious limitation on the Judiciary to do anything ‘ for

doing complete justice. The role of the extant pro-active Judiciary has to be discussed

under the light of these limitations.

USURPING EXECUTIVE POWERS

Judiciary indubitably is responsible for doing complete justice. Facts and

evidences are the basic tenets of modern judicial system and judiciary cannot overstep
these needs in its entrainement of doing complete justice. Executive exercises the

power of transferring investigating officers and other police personnel selon les regles.

Jus naturale dictates that anybody encroaching upon the jurisdiction of the other for

whatever reasons amounts to usurping the powers of the other by postern means.

Judiciary as the ultimate machinery of providing justice, resorting to superrogatory means

to meet a cause amounts to irrevocable breakdown of the Constitution and the rule of law

and Executive en attendant finds itself nowhere to go for redressal against the injustice.

Being the ultimate dispenser of justice, weighs down the Judiciary with the need of being

moderate circumspect and scrupulous in its means. Supercilious radicalism by the

Judiciary prompted by procacity is like wild run of a bull in a chinashop.

People cannot approach anybody for redressal when they are wronged by the

Judiciary and the sword of contempt proceedings constantly hang over their heads lest

they open their mouths in public. Self restraint is the lex non scripta of a sound

Judiciary. There is nothing so fatal to the independence and democratic traditions of the

country as the delubrum of the rule of law and justice with all its special powers and

privileges growing to be a cimmerian monster. The sickly developmetn violates the very

raison d’etre of the Judiciary. When Judiciary fails to recognise its limitations ex mero

motu, none is there to do it for it. Uberrima fides is basic to Judiciary. When Judiciary

prevaricates from its rightful path, that rings the death-knell of the democracy and leads

the country to the ineluctable anarchy through constitutional breakdown.

LOSS OF CREDIBILITY

Intentions of the Judiciary may be good. But, intentions alone do not constitute

the right to act in anyway desired. Indian Constitution does not provide for that even “

for doing complete justice”. Supreme Court of India on its verdict on 13 August laid

guidelines to protect the interests of working women from sexual harassment and ruled

that the guidelines would be in force till due legislations replace them. Intentions of the

court in such a course of action is definitely very `noble. But means pursued to the end

may not be in the best interests of the country and its constitutional machinery. Judiciary

acting on Public Interest petitions is certainly a step forward towards better judicial

system. But, Judicial meddling in every state affair outside its jurisdiction may prove

costly to both the Judiciary and the country. Indian Judiciary is certainly losing sight of

the difference between pronouncing judgements and making Executive orders. The latter

part of the Article 142 (1) clearly dictates that the operation of the decree or order made

by the court is subject to the law made by Parliament or Presidential Order. The

Executive Orders, Indian Judiciary now ends to make are in violation of the spirit of the

above constitutional provision. The parturition of the Judiciary to shift polluting

industries from the heart of Delhi to the outskirts pro bono publico, led to stirrings

against the very well-meaning verdict. Paroxysms of the Judiciary in Patna in Bihar

Fodder Scam and later on the use of Article 356 in Bihar led to open protests in

Parliament and outside. The apostasy Indian Judiciary suffers by encroachment on the

domains of the Executive and the loss of restraint in Judicial proceedings lead judiciary

to the cul de sac of the loss of dignity and credibility.

 Unless those at the helm in Indian Judiciary wake up from their somnolency and

realise where indiscreetness in their part is leading the country to, the future of Indian

democracy is bound to be bleak and mired in incertitude and disaster.