Looking inward

Judicial activism has been the mantra of the past decade and more and has been seen as a saving grace by many who feel that the legislature and the bureaucracy need courts to keep them in check. Certainly, over the years we have seen a number of decisions which have been aimed at the general good and should have been taken up by the government.

As general respect for politicians waned, the courts emerged as the knight. There were murmurs of dissent that the judiciary was taking over the role of the legislature and the executive. Now the Supreme Court itself is doing some introspection and is wondering whether it is extending its brief.

The case in point is a directive given a couple of years ago for an expert committee, headed by former election commissioner JM Lyngdoh and former CBI director RK Raghavan, to look into ragging and students’ union elections. Now the apex court has set up another committee of five judges to study whether judges can enact law by directive and whether this impinges on the separation of powers.

This is an intriguing legal argument and deals with the very essence of one of the main principles of democracy — the balance of power between the three arms of the state. In a parliamentary democracy like ours, the legislature makes the laws, the executive implements them and the judiciary interprets them. If the judiciary starts to make laws, does it contravene the very principle which it is sworn to uphold?

However important as this point is, it could also be asked if the SC is putting too fine a point on it and getting technical about what is a larger issue. If indeed the courts were making laws, the legislature would categorically not allow it. What the apex court especially has done in recent times is present the incumbent government with directions that it could take rather than undercut the importance of the legislature.

In the Gujarat riots cases, in saving the environment, the budgetary allocations made by the Mayawati government in its statue-building spree, in paying attention to public interest litigations, the apex court has stepped in at crucial times to provide much needed direction.

There have been enough instances where courts have refused to intervene in matters which were the prerogative of the law makers. But as long as the other branches do not honour their obligations, the courts may be the last refuge of the citizen.