National Law Day: Judicial activism based on flawed premise, says Arun Jaitley

Can’t say will step in if you don’t do your job, what if we say the same: Jaitley; need to protect fundamental rights: CJI

Written by ANANTHAKRISHNAN G | New Delhi | Updated: November 26, 2017 7:16 am
Speaker Sumitra Mahajan, President Ram Nath Kovind, CJI Dipak Misra at the National Law Day function. Express Photo by Tashi Tobgyal

Crossing swords with the judiciary, the government on Saturday questioned judicial activism, criticised the “trend” of courts appointing retired judges to head committees and wondered how judges would feel if other organs stepped in to do their job. Leading the charge was Union Finance Minister Arun Jaitley, who, addressing a session at an event to mark National Law Day, 2017, said, “I have often heard (the) argument that judicial activism is born out of a phenomenon that when other institutions are not doing their job, somebody has to fill the gap. It’s a flawed argument. It is flawed because if any organ of the state is not doing its duty, it can be directed to do its duty. Usurpation of power… by any other organ would never be the correct constitutional approach. What if the same argument was used the other way round against the judiciary? Arrears are pending, judges are not doing the job. So must somebody step in and now exercise that power? The answer is no… And therefore, it’s extremely important that the dividing line on separation of powers is maintained. And therefore, by creating arguments, the thin dividing line itself cannot be lost.”

Calling for caution while exercising judicial review, Jaitley said, “While exercising that power of judicial review, one has to bear in mind that separation of powers is maintained in its entirety. The executive is not trained to exercise either legislative or judicial power. Parliament is not trained or (is not) really an institution to exercise judicial power. Judiciary is similarly not trained nor does it have that administrative maturity of exercising legislative power. In fact, if judiciary gets into the process of exercising executive or legislative power, directly or implicitly, the very institution of judicial review itself will suffer.”

He went on to talk of the “latest trend” – of courts appointing “retired judges” to various committees to discharge executive functions. “Also this… new trend – that alright, I don’t exercise the power myself (but) I will appoint my nominee to exercise the executive power. The nominees may be equally unsuitable to exercise executive power because they have not been trained. Retired judges have been trained to write judgments… not to run sports organisations… Therefore, this temptation of taking over executive power. and exercising it yourself or through your nominees clearly violates the Lakshman Rekha (of separation of powers).”

Warning that there would be no limits if the Lakshman Rekha is crossed, he said, “You probably (will) have a court saying where security forces are to be deployed is something which I will decide…” He added that “if every High Court in the country starts deciding on the position of security forces, as to where it should be stationed, it’s an invitation to anarchy.”

The Kolkata HC had in October stayed the Centre’s move to withdraw Central forces from Darjeeling and Kalimpong districts, where they had been deployed during the recent Gorkhaland protests. This was subsequently lifted by the Supreme Court.

Union Minister of State for Law and Justice P P Chaudhary, who introduced the session, too spoke about judicial activism when he said, “Some people today ask whether the judiciary is in fact beginning to play a double role, substituting parliamentary judgement with its own… Judicial activism, by itself, is a necessary outcome of judicial independence and may be lauded, especially when it is undertaken to protect those who may not otherwise have ready access to justice. But quite apart from this, is another species of judicial activism where the judiciary is also stepping into areas which are strictly speaking in the realm of policy… When judicial activism and review wades into policy making, sometimes its consequences can be disruptive. This needs to be avoided.”

In his inaugural address, President Ram Nath Kovind too touched upon the need for separation of powers between the judiciary, legislature and executive, saying, “They need to be careful not to cross into each other’s… defined spaces or give the opportunity to read transgressions where none is intended. This can occur in many circumstances. For instance, when extraneous comments and obiter dicta come to dominate public debates, crowding out of substantive understanding and deliberation of a well thought-out judgment.”

Earlier, addressing the inaugural session, Chief Justice of India Dipak Misra asserted that the judiciary was duty bound to stand with citizens if other organs of state encroached on their fundamental rights. “The fulcrum of governance – let it be legislature, let it be judiciary, let it be executive – is that the citizens have been guaranteed fundamental rights and the governing entities are not expected to encroach upon it. The moment they encroach upon it or there is an apprehension there shall be encroachment, the judiciary is obliged to stand by them.”

The CJI sought to allay fears of judicial activism but stressed that it was the job of the courts to interpret government policies. “There is a perception that there is judicial activism. I must clarify. Protection of fundamental rights of each and every citizen is the sacrosanct duty of the judiciary which has been conferred on it by the Constitution. Fundamental rights have been expanded from the date the Constitution came into existence. Expansion of fundamental rights is done by the process of interpretation… Nobody intends, nobody has the desire to enter (into) policy-making areas. We don’t make policies, we interpret policies and that’s our job.”

The session, titled ‘Judicial Review and Parliamentary Democracy – Balancing the Separation of Powers’, was organised by the Law Commission of India and NITI Aayog.

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