proactive judiciary
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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 latters 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 others domain for supremacy by claiming themselves as the true
arbitrators of the interests of the people, and each seeks to usurp the responsibilities of
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the othereo 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
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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
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these needs in its entrainement of doing complete justice. Executive exercises the
power of transferring investigating officers and other police personnelselon 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 detre 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.
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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.
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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.