Is Judicial Activism Dangerous? | Social Issue Essay, Article, Paragraph for Class 12, Graduation and Competitive Examination.

Is Judicial Activism Dangerous?

Scheme of the essay

Exposition: Judicial activism has been liked as well as feared. Rising Action: In a corruption-ridden society it is necessary.

Climax:

(i) Corruption exposed in high places

(ii) Penal action initiated against top politicians and public servants

(iii) Strict enforcement of environmental laws

(iv) Telephone regulated

(v) Serious charges against UCIL quashed

(vi) Verdict on Hindutva misunderstood

(vii) Prohibition of child labour

(viii) Police made accountable for arrests.

Ending: If judges are to be entrusted with so much power the procedure of their appointments must be revamped.

In a country hit by rampant corruption and constant erosion of democratic norms the orders and judgments of the Indian Supreme Court in recent years came like a breath of fresh air. The courts, in fact, have exercised jurisdiction with courage, creativity, and circumspection giving proof of vision, vigilance, and practical wisdom. But some apprehend that by making inroads into the executive and legislative domain without restraint judicial activism has upset the political system of checks and balances others welcomed the manner in which the judiciary is redefining its role in the corruption-ridden system. There is actually no activity of the government not tainted by corruption in some measure. Muscle and money power corrupt elections. In parliament, legislators have been bought and sold. What has been revealed exposes much that is rotten in our society. The trustees of the people have forfeited their trust. The Jharkhand MP’s case confirms the worst doubts. The Vohra report talks frighteningly of extra-constitutional authorities ruling India.

The Hawala case shows that an organised network attempted to buy off politicians of all types. The fodder scam reveals that no government program is safe. The ‘fodder’ scam leaves trails to the Chief Minister, and, there is some reason to believe that the investigation by the CBI was being interfered with. Sinecure posts were being sold in the TB program in Bihar to an extent that defies imagination.

Our treasury is empty. We live on the false sparkle of consumerism. There is nothing sacral about what we do. The environment has been divested. Delhi is polluted to the point that the lungs of its affected citizens are silver grey rather than healthy pink. Mining takes place in forest areas. The forests are depleting at an alarming level of bio-diversity hotspots are being irretrievably lost. The cities are dirty. The crime rate is increasing. In particular, women are being pushed into dowry deaths and sati. Police who are supposed to be the custodians of law have killed in fake encounters, caused people to disappear, and tortured – not necessarily for the cause (whatever that might be), but often out of a pathological sense of cruelty. We cannot turn to our Ministers – for, they too have been found wanting, who will protect us from the custodians?

It is in this state of affairs that the judiciary was invited to move in to save democratic governance from its own excesses. The judiciary rarely moved on its own, but was asked to do so by activists and journalists. The Government is not doing its job Public power has been converted into a private field. If Mr. Justice Kuldip Singh’s name stands out, it is because he would not take a ‘no’ for an answer. He shifted industries out of Delhi, manufacturers from the Taj trapezium, and shopkeepers from Fatehpur Sikri countered the depletion of India’s otherwise fantastic coastline, got Delhi’s ridge,’ and dealt with tanneries in Tamil Nadu and development in Suraj Kund. Errant Ministers were fined enormous sums. Civil servants who had got out-of-turn allotments of flats were turned out.

To this can be added judgments on handcuffing, his retreat on the uniform civil code, and innumerable exercises of equity for which many deserving litigants are immeasurably grateful. The important message was: that schematic relief was here to stay. The court would not just give orders, it would structure them and make sure that they were obeyed. But, Mr. Justice Kuldip Singh’s cyclonic tour de force should not make us overlook the work of the other judges in the Hawala case, the orders in the Hawala case, the disciplining of the Election Commission in various matters, the handling of the property scam in the case of Skipper Construction and others. The latest in the long line of schematic relief is the Messrs Justice Verma-Kripal interim orders to stop the devastation of forests all over India. Meanwhile, the steady stream of legal prudence has continued. The right to life liberty and due process has expanded especially in relation to police, with Mr. Justice Anand establishing a new arrest and interrogation code in a far-reaching judgment. Judges have not rushed in everywhere where angels feared to tread. In matters of communalism, the judges have been forbearing, often resulting in judgments which have equated electoral “Hindutva” with a refined Indianness-refusing opportunities to review its stance and generally being less than sensitive on matters of religious freedom.

Did the judges go over the top? Perhaps, yes. But, only perhaps. The schematic relief in many cases was too wide. Individuals felt that they did not get the due process. The environment was protected. But, at whose cost? In an effort to get at the irresponsible rich, the poor have suffered. It has become a case of environment versus poor. The order to give wages to dislocated workers seemed to come as an afterthought and was not a substitute for real work and disrupted lives. People living off the timber industry in the Northeast will suffer much more than those in Calcutta and other merchants to whom they supply. Ordering the administration in material particulars may well seem like taking over the administration. The short, sharp decisions on damages for Ministers had a chilling effect and could have been better constructed. But, they were not totally outside the judicial discipline of principled decision-making.

Threatened politicians and exposed public persons have mounted a counterattack – no less in Parliament (during the debate on judges’ salaries), and in the parliamentary annex (at a meeting called by the Speaker). Protest is in the air. Some of it is justified. The judges had been hasty. But the circumstances may have demanded it. It was not just content with checking atrocities or sending civil servants and Chief Ministers to jail. The near-complete assault on constitutional governance led to a near-complete counter-offensive by the judges.

The explanation that the rise of judicial review was a response to the failure of other democratic institutions enters the caveat of apology when it is not necessary. The judicial power is not inherently undemocratic, as long as the judiciary is renewed by a careful process of responsible democratic selection and we can oversee the integrity of our judges so that those who dispense justice are themselves just. The judicial enterprise enhances and redeems democracy rather than undermines it. In its present incarnation, raising public interest issues in courts is not the privilege of the rich but the prerogative of the disadvantaged.

The discipline of the law permits the luxury of a second look to ensure that a majoritarian democracy is true to justice. As we get drawn into the globalization of trade and opportunity, it is important to recall Ambedkar’s warning to his colleagues in the Constituent Assembly that political democracy without social and economic equality would lead India into a dangerous life of contradiction. Nor we are wrong in asking judges to resolve contradictions that are inherent in democratic governance itself. The year of the law does not just represent a transition. It is the shape of things to come. That is why it is so exciting and invites apprehension.

Jawaharlal Nehru’s view that a good judge was one who had proved his legal ability in the High Court had not anticipated that judges would be called upon to save Indian democracy to this extent. If judges are to have this kind of power, they have to be carefully selected. It is a question of renewal. Parliament renews itself by-elections; the IAS, and by examinations. In 1981, the Supreme Court blessed a system of higher judicial appointments by political patronage as moderated by senior judges (Or, was it, in fact, the other way round?) After 1993, a narrower system was inaugurated. We need a thoroughly, revamped system of individual appointments by a broad-based commission. We also need a more inspiring system of disciplining errant judges after the Ramaswami impeachment fell flat on its face. The judicial power is not to be trifled with. It must be entrusted to those appointed by a process and in whom the nation has total faith.