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Harish Salve, while speaking on the issue ‘Insulting the Judiciary from Social Media tribes’ in a webinar commented, “Unelected People Think They Can Impose Will on Government through Courts”. He said that when people do not get a relief they get disappointed and release this agony by blaming the judges and their judgment. People have the right to criticize judiciary but when they say that the judiciary is scared of the politicians and was biased in its judgment it is wrong.
The Indian democracy rests on the honored four pillars namely the Legislature, the Executive, the Judiciary, and the Media. The media works as a watch dog of the government as it helps in sculpting the public opinion. By keeping a healthy check on the government it acts as a backbone of the democracy. It is said, a democracy without media is like a vehicle without wheels. Social networking platforms like you tube, twitter, Facebook etc. are the electronic mode of Media, which is being used a mouth piece by the unelected people. If the present trend of media trial and social diatribe goes unchecked there would be no courts to practice in.
Significance of this development
In a democratic state when government is unable to manage what it has been elected for, judiciary being one of the pillars has to lay its foundation deep and strong to prevent the principle of justice, equity and freedom from collapsing. It may be said that Judiciary has become the arbiter of rights which determines quality of living.
The theory of Separation of Powers as propounded by Montesquieu also in earlier times was that each of the body will do its function without interfering in the decision-making and working of the other. But many times due to the over reach of Judiciary the separation of powers is kept aside and undermines the exclusiveness of the other two bodies by entering in their fields. Hence, it is not wrong to say that judicial activism is a slippery term and to prevent judiciary from slipping Judicial Restraint comes in.
Any limitations on the act of judiciary expressed or implied either by Constitution or any statue is judicial restraint. The restraint are in areas relating to
1. Political questions
2. Legislative powers
3. Administrative discretionary power.
J. Markandey Katju, former SC Judge, gained significant media attention when they commented on the over reach of judiciary. He said that the Judiciary should place reliance on the positivist jurisprudence rather than sociological school. Law should be differentiated from morality and religion. The central force of positivist school is the law of the land. The court potrays a positivist trend when it denied to strike down parliament made acts like MISA, POTA dealing with internal security and terrorism which hampered people’s freedom. In ADM Jabalpur v. Shivkant Shukla, the court held that fundamental rights remain suspended during Emergency and thus the writ of Habeas Corpus is not maintainable. In State of U.P. v. Jeet Singh Bisht, J. Katju commented that Judiciary must show self-restraint and refrain from entering into the domains of legislature and executive. Judicial Restraint protects the independence of Judiciary.
Judicial activism can become an unguided missile if not aimed correctly. Article 142 provides that “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it…”
Judiciary has in many cases constructively applied the principle of an activist such as the Taj Trapezium case, where proper measures were taken to prevent the deterioration of Makrana white marble of Taj mahal by removal of Mathura refinery, brick kilns and other industries from the vicinity. Similarly, the application of Art. 142 in Union Carbide case. The court awarded a compensation of 470 million to the victims, saying that to do justice it can override laws made by parliament. This statement was toned down in Supreme Court Bar Association v. Union of India.
In a no. of cases such as State of Tamil Nadu v. K. Balu – banning of liquor shops within the vicinity of 500 meters of National highways- resulting in lack of employment for many, coal block allocation case – coal blocks granted from year 1993 were cancelled in 2014 with a penalty of Rs, 295 per ton of coal mined without granting the right of audi alteram partem, banning of bursting of crackers, Subhash Kashinath Mahajan – amendment of SC/ST Act, K. Puttaswamy v. UOI – including Right to privacy under Article 21, prescribing regulations for BCCI etc Supreme Court has misused its power under Art. 142. We see that such activism has failed to accord co-respect to other branches of government and led judiciary to take arbitrary decisions.
Supreme Court asks court to curb judicial activism as it disturbs the balance between the organs. Since the constitution did not provide that for the failure of other organs the judiciary will bear the crown and act for them all it is important that the organ which is failing to carry out its duties should be managed. Judicial Restraint has been introduced to prevent the formation of government of judges. However judicial restraint does not mean abdication of duty. Powers have been granted to the Judicial mechanism to ensure that legislature and executive act within the bounds of the power specified in the constitution. It is to prevent the tyranny of one over others.
- Kihota Holohan v. Zachillu and Others – The Supreme Court was asked to examine the constitutional validity of 52nd amendment Act, 1985. The court did not express any views on the validity of provisions curbing the freedom of members of legislature. The court did not find the objections strong enough to make amendment invalid.
- State of Rajasthan v. Union of India – The court rejected the petition on the ground that it involved a political question.
- S.R.Bommai v. Union of India – The exercise of power under Art. 356 which included a political element was in question. Being involved would mean entering into the political dominion and the court must avoid it.
- Almitra H. Patel v. Union of India – the court on the issue whether directions should be issued to the municipal corporations on how to make Delhi clean said that it could only direct the municipal authorities to carry out the functions prescribed under law.
“I am a great supporter of social media and freedom. I know it is empowering. But (there) is a dangerous trend. Judges must be left completely independent to give judgment as what they think is the correct mode in accordance of the rule of law.”- Ravi Shankar Prasad (Law and Justice Minister)
Article 142 is a progressive measure in the legal frame-work. Its exercise is however in contradiction to the statutory law cannot be justified in the name of judicial intervention. There is a need for proper checks and balances. I do agree that judicial activism and judicial restraint are two sides of a same coin. It is hence an important requisite that while discharging its judicial obligations judiciary has to equally remember to exercise proper and cautioned restraint.
On one side where judiciary is being stopped from interfering into the domain of legislature and executive it is also important to note that media should also be stopped from exercising the function of Judiciary. A popular trend, where media assumes the role of the judge is media trial undermines the real trial. Just like the judiciary, media should also maintain restraints and not cross its limit.
Author: Aarcha Gupta from Symbiosis International (Deemed University).
Editor: Silky Mittal, Junior Editor, Lexlife India.