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Since 1st March, 1999
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When the Supreme Court bench comprising A.K. Mathur and Markendey Katju observed recently that the judiciary sometimes crosses the thin yet important line separating it from the other two branches of governance — the executive and the legislature — it was a very important comment indeed. It was a reminder to the courts to refrain from indulging in “judicial over-reach”.

The effects of the observation were immediately felt, as a two-judge bench of the Supreme Court refused to hear a public interest litigation seeking relief for sex workers citing the remark on judicial activism.

Justices Mathur and Raju conceded that judicial activism has reached the fifth gear and needed to be pulled back. The observation shocked the legal fraternity and immediately set off a debate on judicial activism. Parameters for hearing a PIL will now need to be fixed by a higher authority, for instance, the chief justice.

A Delhi High Court bench also declined to hear a case seeking to ban begging in Delhi in view of the forthcoming Commonwealth Games until the Supreme Court made a clearer statement on the judiciary’s role.

It is true that in many cases, the courts have intervened when the executive failed to deliver on their promises to the citizens, be it on the ban on diesel-run buses in New Delhi or on the commercial sale of residential flats. However, the apex court came in for criticism for allegedly encroaching upon the functioning of the legislature, when it issued guidelines for votes of confidence in Uttar Pradesh and then in Jharkhand state assemblies.

Will the introspective comment by the two-judge bench push the judiciary into a shell and give the executive and legislature a free run?

In a constitutional set-up like India’s, it is not possible for the three branches of governance to be on the same footing or function independently of one another — though the Constitution asks for both. If a tilt in balance were to happen, it should be in favour of the judiciary, which ought to be on a higher pedestal among the three.

Judicial activism traces its roots back to the Eighties when the idea of PILs became popular under the guidance of justices P.N. Bhagwati and V.R. Krishna Iyer. According to a study by Hans Dembowski, a German scholar, the PIL in India has been successful in making the government authorities accountable to civil society. Given the sorry state of the executive in India, such a push is necessary to make the administration work efficiently.

The judiciary seems to be admitting that it has crossed the ‘lakshman rekha’ on certain occasions, but in retrospect, the transgression will only appear to be a lesser evil for a greater cause.

The court may have been forced into making these observations by the recent demands by the legislature for bringing a bill to make judges accountable to the legislature. It is quite possible that the independence of the judiciary has been threatened by the other two organs of the State.

If civil society faces a problem and the executive thinks that the problem does not warrant attention then is it right to ask the judiciary to toe the same line? Should the courts wait for a law to be enacted and then violated before they can act? If any one arm of the State is given even a subtle hint of free run, then chaos and anarchy will descend on the country. The executive needs to heed this message.

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