Comment

Whenever fundamental rights are redefined in order to tailor them to suit the basic rights to life and liberty, they’re naturally brought within the ambit of judicial scrutiny. Once judicial scrutiny sets in, the executive wisdom and legislative intent come under the scanner of judicial review.

Fundamental rights have undertaken a long journey and set new goals in the form of public interest litigation, which is lauded by common man but vehemently criticised by the delinquent governance accused of violating sacred rights.

In the recent months, while a minority section of the supreme court expressed its displeasure at the manner in which the judiciary sought to overreach its powers in the anxiety to uphold fundamental rights through PILs, the court’s rulings were a set back for a large number of people who have benefited due to court’s advocacy for their protection against the executive inertia.

Chief justice of India KG Balakrishnan immediately allayed the apprehensions that the PIL era was over or that the judiciary’s doors were closed for those who wanted the apex court to undo the injustice that had been committed on them by the government and its instruments such as the police.

The CJI says the doctrine of separation of powers has been widely misunderstood to mean a staunch separation between administrative, legislative and judicial functions.

“These functions cannot operate independent of each other, and, like the spokes in a wheel, play their own independent, yet indispensable role in the governance process,” he notes.

In other words, the judiciary enjoys the ultimate power to examine the omission and commission by the executive. “Effective governance requires that all organs function towards the constitutional goal of ensuring that each citizen enjoys the fundamental rights available to him.

Whenever this constitutional goal is not espoused, partly espoused or infringed with arbitrariness, it is the inherent duty of the supreme court to take cognisance of its function as the upholder and protector of the Constitution, and eschew the act which curtails fundamental rights,” asserts the CJI.

Ironically however, the government’s liberalisation policy that entails new financial measures that might defy the ‘socialistic’ feature enunciated in the Constitution have been consciously spared by the judiciary. The CJI says this job squarely falls in the domain of Parliament.
b_rakesh@dnaindia.net