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Friday, January 15, 2021

The red lines

Vice President Venkaiah Naidu cherry-picks a few verdicts to suggest judicial overreach when the larger pattern says quite the opposite

By: Editorial | Updated: November 27, 2020 2:47:27 pm
In the morning, when the Mahagathbandhan appeared toNaidu spoke of judicial “overreach” and disrespect of the “jurisdictional sanctity enshrined in the Constitution” and pointed to court interventions on matters ranging from fireworks on Diwali to denying the executive a role in the appointment of judges.

On the theme of “harmonious coordination between legislature, executive, and judiciary”, at the two-day 80th All India Presiding Officers Conference at Kevadia in Gujarat, the President, Vice President and Prime Minister sent out some high-minded and mostly unexceptionable messages. Speaking on the concluding day, also the 71st Constitution Day, Prime Minister Narendra Modi spoke of the “maryada” (adherence to boundaries), separation of powers, and checks and balances built into the constitutional design, which also offers the corrective if these are disturbed. He drew a link between efforts to harmonise the working of the three organs of the Constitution and the “people’s trust”. And of the need to find newer ways of connecting the people with the Constitution they gave themselves (“jan bhagidari”) and popularising the constitutional ethos and language, especially for the “yuva peedhi” or the young. President Ram Nath Kovind spoke of the importance of the role of the Opposition, the necessity for meaningful deliberation with the ruling party. And Vice President Venkaiah Naidu talked of the “excesses” of the executive and legislature — “violation of rights and liberties of citizens by the executive at times is too visible. At times, the legislature too has crossed the line …” Naidu also touched upon a mounting unease about the constitutional balance between institutions, or its unsettling.

Naidu spoke of judicial “overreach” and disrespect of the “jurisdictional sanctity enshrined in the Constitution” and pointed to court interventions on matters ranging from fireworks on Diwali to denying the executive a role in the appointment of judges. These, he said, have resulted in “avoidable blurring of contours demarcated by the Constitution”. While each of the specific instances cited by the VP may spark a separate debate on the scope and limits of judicial power, there is a problem with his broader formulation and the way he cherry picked a few verdicts. In fact, the disquieting pattern is an inversion of his real worry. In the last several years, the growing concern has been about the political executive weaponising its majority mandate and the judiciary not stepping up to its role to keep the balance. In other words, while there may well be instances of the judiciary’s overreach, the larger disquiet in recent times is caused by the judiciary’s reticence — its unwillingness or inability to talk back to the executive, to point out the limits of its powers vis a vis other institutions and to uphold the rights and freedoms of citizens against a transgressing state.

There is, indeed, as the vice president suggested, a need to pause and reflect on a disturbed constitutional balance, but not quite in the way he meant it. The executive must ask itself if the majority or majoritarian principle can be used in all domains and whether it is doing a disservice to its mandate by wielding it like a blunt instrument. And the judiciary must turn the gaze within in order to retrieve a sense of institutional self and purpose that sometimes appears to be lost or receding.

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