In a democracy, the remedy for a malfunctioning legislature and executive must come from the people, not the judiciary
It is evident that the Pakistan Supreme Court has embarked on a perilous path of confrontation with the political authorities, which can only have disastrous consequences for the country. Recently its Chief Justice said that the Constitution, not Parliament, is supreme. This is undoubtedly settled law since the historical decision of the U.S. Supreme Court in Marbury vs. Madison (1803).
The grave problem, however, that courts are often faced with is this: on the one hand, the Constitution is the supreme law of the land and, on the other hand, in the garb of interpreting the Constitution, the court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people.
The solution was provided in the classical essay “The Origin and Scope of the American Doctrine of Constitutional Law” published in 1893 in the Harvard Law Review by James Bradley Thayer, Professor of Law at Harvard University. It elaborately discusses the doctrine of judicial restraint. Justices Holmes, Brandeis, and Frankfurter of the U.S. Supreme Court were followers of Prof. Thayer’s philosophy of judicial restraint. Justice Frankfurter referred to Thayer as “the great master of Constitutional Law,” and in a lecture at the Harvard Law School said: “If I were to name one piece of writing on American Constitutional Law, I would pick Thayer's once famous essay, because it is a great guide for judges, and therefore the great guide for understanding by non-judges of what the place of the judiciary is in relation to constitutional questions.”
The court certainly has power to decide constitutional issues. However, as pointed out by Justice Frankfurter in West Virginia State Board of Education vs. Barnette 319 U.S. 624 (1943), since this great power can prevent the full play of the democratic process, it is vital that it should be exercised with rigorous self restraint.
Separation of powers
The philosophy behind the doctrine of judicial restraint is that there is broad separation of powers under the Constitution, and the three organs of the State, the legislature, the executive, and the judiciary, must respect each other, and must not ordinarily encroach into each other's domain, otherwise the system cannot function properly. Also, the judiciary must realise that the legislature is a democratically elected body, which expresses the will of the people (however imperfectly) and in a democracy this will is not to be lightly frustrated or thwarted.
Apart from the above, as pointed out by Prof. Thayer, judicial over-activism deprives the people of “the political experience and the moral education and stimulus that comes from fighting the problems in the ordinary way, and correcting their own errors”.
In Asif Hameed vs. The State of J&K, AIR 1989 S.C. 1899 (paragraphs 17 to 19), the Indian Supreme Court observed: “Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, executive, and judiciary have to function within their own spheres demarcated in the Constitution. No organ can usurp the function of another. -- While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.”
Judicial restraint is particularly important for the Supreme Court for two reasons:
(1) Of the three organs of the state, only one, the judiciary, is empowered to declare the limits of jurisdiction of all three organs. This great power must therefore be exercised by the judiciary with the utmost humility and self restraint.
(2) The errors of the lower courts can be corrected by the higher courts, but there is none above the Supreme Court to correct its errors.
Some people justify judicial activism by saying that the legislature and executive are not properly performing their functions. The reply to this argument is that the same charge is often levelled against the judiciary. Should the legislature or the executive then take over judicial functions? If the legislature and the executive do not perform their functions properly, it is for the people to correct them by exercising their franchise properly, or by peaceful and lawful public meetings and demonstrations, and/or by public criticism through the media and by other lawful means. The remedy is not in the judiciary taking over these functions, because the judiciary has neither the expertise nor the resources to perform these functions.
In this connection I may quote from an article by Wallace Mendelson published in 31 Vanderbilt Law Review 71 (1978): “If, then, the Thayer tradition of judicial modesty is outmoded, if judicial aggression is to be the rule, as in the 1930s, some basic issues remain:
“First, how legitimate is government by Judges? Is anything beyond their reach? Will anything be left for ultimate resolution by the democratic process, for, what Thayer called ‘that wide margin of considerations which address themselves only to the practical judgment of a legislative body representing (as Courts do not) a wide range of mundane needs and aspirations?’
“Second, if the Supreme Court is to be the ultimate policy making body without accountability, how is it to avoid the corrupting effects of raw power? Also, can the Court satisfy the expectations it has aroused?
“Third, can nine men [the Supreme Court Judges] master the complexities of every phase of American life? Are any nine men wise enough and good enough to wield such power over the lives of millions? Are Courts institutionally equipped for such burdens? Unlike legislatures, they are not representative bodies reflecting a wide range of social interest. Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them. Inadequate or misleading information invites unsound decisions.
“Finally, what kind of citizens will such a system of judicial activism produce, a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites: nine Judges governing our lives without political or judicial accountability? Surely this is neither democracy nor the rule of law.”
In Marbury vs. Madison (1803), Chief Justice Marshal, while avoiding confrontation with the government of President Jefferson, upheld the supremacy of the Constitution. Another example is the very recent judgment of U.S. Chief Justice John Roberts in the Affordable Healthcare Act case, in which he basically followed the doctrine of judicial restraint.
In Divisional Manager, Aravali Golf Course vs. Chander Haas (2006) the Indian Supreme Court observed: “Judges must know their limits and not try to run the government. They must have modesty and humility and not behave like Emperors. There is broad separation of powers under the Constitution, and each of the organs of the state must have respect for the others and must not encroach into each other’s domain.” A similar view was taken in Government of Andhra Pradesh vs. P. Laxmi Devi.
New Deal legislation
A reference may usefully be made to the well known episode in the history of the U.S. Supreme Court when it dealt with the New Deal legislation initiated by President Franklin Roosevelt soon after he assumed office in 1933. When the overactive court kept striking down this legislation, President Roosevelt proposed to pack the court with six of his nominees. The threat was enough, and it was not necessary to carry it out. In 1937, the court changed its confrontationist attitude and started upholding the legislation (see West Coast Hotel Vs. Parrish). “Economic due process” met with a sudden demise.
The moral of this story is that if the judiciary does not maintain restraint and crosses its limits there will be a reaction which may do great damage to the judiciary, its independence, and its respect in society.
It is not my opinion that a judge should never be activist, but such activism should be done only in exceptional and rare cases, and ordinarily judges should exercise self restraint.
In Dennis vs. U.S. (1950), Justice Frankfurter observed: “Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardised when Courts become embroiled in the passions of the day, and assume primary responsibility in choosing between competing political, economic, and social pressures”.
The Pakistan Supreme Court would be well advised to heed these words of wisdom, even at such a late stage.
(Justice Markandey Katju is chairman of the Press Council of India.)
M. Katju makes some important points about the need for balance between judicial restraint and activism. Unfortuantely, Pakistan's supreme court in the past has sanctioned miliatry rule and all kinds of nefariuos ploicies by the generals. Now it seems to be headed in the opposite direction. Consistency has not been its hallmark.
However, close to home, the question is what is Indian Supreme Court's role in ensuring rule of law (and hopefully justice) in the country? We all know that a basic issue in our countries is the lack of rule of law. Since the supreme court supervises (at least nominally)the lower courts , should it take some responsibility in ensuring that the lower courts function in a "judicious" manner or would that be too activist?
If the lower courts were efficient and effective in carrying out their assigned role, the country will be much better off.
We keep on stressing the fact that the legislature represents the will of the people. But today
the Indian parliament cannot do anything which the Congress party does not like even
though that party doesn't have a majority of its own. Moreover the Congress MPs cannot do
anything in parliament unless it passes muster with just one individual, the present Congress
president. Does the will of the people count in India today?
Thank you Justice Katju for articulating it so clearly. It's heartening to read a candid view on our SC from across the border. One hopes that this will lead to a more liberal interaction between lawyers, judges and academics of the two countries.
Excellent advice from Justice Katju. Chief Justice Iftikhar Muhammad
Chaudhury will be wise to heed the advice. In a somewhat similar
situation a petition by Subramanian Swami against Sonia Gandhi went
nowhere in the Indian Supreme Court. Constitutional loophole gives rise
to these crises. Crash in confidence in the Supreme Court can bring
disaster for the nation. P.S. US judiciary is no model for any
judiciary in the world -- that another story.
Separation of powers between Executive, Legislature and Judiciary is
essential. However if one branch is either overstepping or not doing
its duty, other branch must rise and poke its defects and not remained
silent in Ivory Towers and let people suffer as people, themselves,
can not take might of State. Justice must be dispensed by applying
principle of EQUITY rather than EQUALITY i.e. When crime is done by
rich & powerful and is of big magnitude, Bail Conditions ought to be
tough so that accused have an interest in early resolution instead of
current practice of dragging.
The author is highly educated and is well versed with all the aspects
of constitution in india and around the world. The quotes he has
referred are of an ideal situation, and theoratical in nature. As a
layman i think the changed situation, before the constitution is
written ,and put to practice should be taken into consideration,
before passing judgement. If i am right, PIL was not a product in our
constitution, but it was included later, as a panacea for judicial
outreach for a section , whose voice was not heard for the common
good.it is paying rich dividends now. When the wrongdoing of mighty is
known to the judiciary and it does not act in regard to constitutional
segregation, then it paves way for anarchy in democracy. Judicial
activism in the overall interest of the country is better than anarchy
in democracy.That is the difference between statesman and
politician.judges should not read the constitution they should study
it, else they fail their country.
Judicial Restraint as advocated by Justice Markandeya Katju will work in an ideal state
where the three organs of the state work responsibly.in certain cases the highest court
Of this land has taken upon itself the task of monitoring high profile cases where prima
facile the elected representatives and the executive officers colluded hand in hand
to swindle enormous wealth of this country.I shudder to think what would happened
if the Hon'ble Supreme Court has not wielded their stick in 2G case.Looking in this
context the author need not voice his concern over the actions of Pakistan Supeme Court.
If you go and do attitude survey of people, definitely people will
never say they rely on courts rather than politicians / executives. We
can derive benefits from politicians and conduct demonstrations to
make executives to submit to the public interest. No one knows how the
court will determine the meaning of a word best known to the society,
in legal parlance. We see incidence of amazing of wealth by judges,
through illegal means!! I agree to the core as mentioned in the
article that judicial activism is nothing but vesting of powers in few
hands to settle a policy; such of those who are trying to settle
policy are misguided by / misrepresented by / acting upon vested
interested supporters or followers. Humbly submitted that, in recent
times there are decisions from courts which give different meaning to
different persons for the same substance of law. We used to tell, 'do
not go to court to secure a property; rather leave it to your family
member and be a sacred person!'.
In India under the facade of interpretation the Court is threatening
the Legislature with basic structure theory.If we study the original
version of Art. 368, power to amend is vested with Parliament.This has
been snatched away now through the basic structure theory.So far the
Courts did not clearly define which of the portions in the
Constitution are basic structure. They say as and when the court feels
a provision is basic structure, it can do so to strike down any law
made by legislature as bad.On the contrary, the Art. 1 of the German
Constitution says that the Art.1 is inviolable;while other Fundamental
Rights are not given status similar to that.In India no such Article
is fixed as inviolable.Another example can be traced to Soulbury
Constitution of Ceylon in Art. 29.The article says it cannot be
scraped or its effect cannot be muted by subsequent changes.When
legislature can be thrown out term after term; who will throw out
erroneous Judges?Ever in India any Judge was impeached?
Judicial activism is due to malfunctioning of legislatures and
executive,theorically the elected members are supposed to function in
the welfare of the citizens.the Judicial activism is resulted due to
parliamentry inactivism.The legislatures are not properly functioning
in the welfare of state.mr. katju is advising the judiciary to work in
it's domain since it's not an elected body.but he is fargetting that
the moral and ethics of legislatures and executive have so declined
that people have more faith in judiciary.the politicians have lost
their credibility in common man,atleast Judiciary has more respect in
common men,s mind.if the Judiciary will stop to be active,the law of
land from india will be a things of past.
Some people point out that the political parties are run dynastically. Agreed. Do they notice that judgeship and lawyership also running in families is an equally common problem in India, and probably in Pakistan too.
In India many judges have the same family names. Father and son judges may even adorn the same court. Their relatives practise as lawyers in the same court. No wonder Mr Katju wants to regin in such a judicial system!
Justice Markandey Katju, respectfully, misses the point. Finding pointers from United States case law and citation from law reviews does not and cannot resolve issues confronted by Pakistan. Justice Katju must look into the culture and history of Pakistan. Let us not forget it is the same judiciary (Pakistan Supreme court) that had long sustained the fragile balance of power in Pakistan. If the court directives are not followed, clearly that contemnor, Zilani has undermined the functions of the Sovereign nation. Judiciary is just fulfilling its role as a guardian of law and mainly that no one is above the law. In India for instance, politicians are above the law and Judges too sometimes. We had a ridiculous and demeaning self-serving affidavit filed by Justice Kirpal in the New York State wherein he pooh-poohed Indian legal system.
When I was reading this article particularly roosevelt's proposal to pack.....,an action of Indira Gandhi came to my mind that the then Government appointed junior judge of supreme court to the post of chief justice of India over looking other senior judges who then resigned as a protest.
Our constitutional framers have brought a special responsibility on the shoulders of Judiciary
that is the safeguard and implementation of our Constitution both in words and spirit. If the
pillars of democracy both executive and legislature could not function properly then there
occurs breakdown of the very spirit of our constitutional machinery. Thus it becomes a
constitutional and moral boundation on the Judiciary to correct the aberrations and uphold
basic values enshrined in our constitution.
Thus Judicial activism can be a potent weapon in filling the loopholes and flaws in the
system and in the functioning of the system. Our parliamentary democracy is at evolving
phase and their is vital need to look into integrative role various organs of the state rather
then view them in watertight limits.Indian social, cultural, economic and political scenario is
way different frm the matured and developed system of U.S so it's least pragmatic to follow
U.S's judicial system blindly.
All the three organs have their own limitations as all these run around political set-up ruling the nation or state. The judiciary is comprising of Advocates who worked for profit get judges posts by hook or crook with political support. Thus they are loyal to those political bossed and as a result the cases pertaining to those political groups or politicians reach these judges for adjudication, mostly in their favour. In this justice is not carried out. Here most illegal way they use is "not before me", which is not legally valid yet practiced in high court as well supreme court. This is the way of life in democracy. Unless people with some ethics are chosen in the three areas of democracy there will be no justice to common an.
“The doctrine of judicial restraint”, and “If the legislature and the
executive do not perform their functions properly, it is for the
people [not the judiciary] to correct them by exercising their
franchise properly” – both unquestionably apply in a functioning
democracy.
How legitimate or accountable the Indian Govt is, and whether the
people in power get away with national plunder & rampant corruption
because of a nexus between “the legislature, the executive, and the
judiciary”, is for the citizens to determine for themselves.
But without doubt, today, half the voters are below poverty line and
easily politically exploited; the rest, equally disenfranchised,
either take advantage of the corrupt system, or helplessly grin and
bear it.
In these circumstances – the choice for Indian SC Judges, with a brain
and a heart, is to either be technically right and help the corrupt
people in power, or use judgement to do the best to safeguard the
nation for current and future generations.
Pieces like this are a great learning tool for youngsters like me in
their early teens. The Marbury vs Madison was not only a landmark case
for US law, but also for world. The delicate balance of power that
exists between the legislature, judiciary and the executive intrigues me
as an engineering student. As the situation in Pakistan, the entire
constitution needs to be re-written for effective administration of the
country.
Justice Katju is of the opinion that, there should be a line drawn between judiciary and legislature/executive which should not be crossed too often or else, it can shake the pillars of democracy.Though, it seems a very thought provoking idea but, it is difficult to envisage in countries like India and Pakistan where there is huge amount of corruption in legislative/executive domain and, there is always something(truth) hidden which is to be unveiled.In such cases judiciary ought to intrude in another domain in public/national interest.Like, the names of black money holders is not revealed hetherto, and the apex court should come out of judicial restraint to summon the late blooming legislative government.
i am very much agree with Mr. katju...people of india are supreme...so
next will be their representatives..if judiciary don't restrain itself
and confront with legislature,it will dent image and prestige of both
bodies..and finally they have to compromise bcoz there is no other
authority to look into..and certainly self restrain is better option
than compromise for the dignity of judiciary itself
As rightly said by the author , Judicial activism is a check of healthy Parliament by the Judiciary but anything with absolution will only prorogue the very foundation of Democracy. Parliament Supremacy is, as i see the reflection of our own facets. If anything goes wrong , we are bound change it , not a member of 9 or 10 judges. The above acts of Pakistan Supreme Court are good for a short run , but in long run the consequences are severe. Conflict of interest will arise between the parliament and the Judiciary which will only make the Constitution paralyzed.
I fully support PAK SC judge decision to dismiss PAK PM. Politician are looters and people choose good among worst politician, in that scenario judiciary has responsibility to make some hard decision. Democracy losses its value, dignity and importance when there is no honest politician. Let us take live example of our PM, yes!!!, he is honest man, but he leads most corrupt government in Indian democratic history in name of "Coalition Dharma". Our Indian SC cancelled 2G license, which was approved by democratically elected minister Mr. A. Raja from Tamil Nadu. Can we say SC decision was wrong? Really not!!!. I am sure that SC decision on 2G hurts Indian economy.
Tamil people selected JJ as CM this time instead of Karuna and it does not mean that JJ is good & corruption free. There are so many corruption cases pending against her past 15 years. Basically Tamil did choose good person among worst.
Also, the judiciary must realise that the legislature is a
democratically elected body, which expresses the will of the people
(however imperfectly) and in a democracy this will is not to be
lightly frustrated or thwarted.
How ironic that the same argument by Barack Obama got him in deep
trouble with the hon justices of the Court of Appeals, 5th Circuit.
Justice Katju would have been a hundred percent correct in his
assessment of the role if the judiciary in India had a.India been a
matured democracy with a legislature that truly reflects the will of
the people and the electorate themselves been acquainted with all the
practical issues of the election b.India been in danger of being
overthrown by elements hostile to the current form of the state (like
Pakistan). Since neither is true for India, I think that India needs
to be treated as a special case, whereby the judiciary must strike in
places it seems unseemly for it to.
I loved this article, very logical and articulate.
It raises very valid points, which could also be kept in mind by the SC
as it approaches the current Presidential Reference on natural resource
allocation.
A very informative article by Justice Markandey Katju on Judicial system of a state. As mentioned by him that the three organs of the state,i.e. Legislature, executive and judiciary should function in their respective domain, I feel that the Judiciary should have an extra role of vigilance over the legislature and the executive. There is a spurt in the number of scams and corrupt practices and the Indian citizens are wary of it. If the judiciary is given the role of facilitating the CBI, it would be easier to identify and prosecute the culprits.
This article glosses over the one semi-victory won by our judiciary in allowing PILs to be admitted. Some amount of judicial activism is necessary in a democracy, so the examples from the US judicial system are really of no value here.
Not many Western countries have the equivalent of a PIL. PIL empowers people against the excesses or negligence of the executive more than voting rights do. If people learned to use the PIL better, then it would make a huge difference to the quality of governance in our country.
I would therefore prefer to see more judicial activism rather than less.
Mr Katju, the next time you write an article of this kind, please spare us your examples from the US justice system! We are neither a colony of the US, nor a poodle nation to need any guidance from a country which only a generation ago sanctioned apartheid-liked laws, and which still incarcerates at a higher rate than any other country!
In India, the controlling POLITICAL PARTIES can nominate anyone to be
the PM (via RS), and choose the President & the VP.
The POLITICAL PARTIES are largely family run businesses with
associates & staff, with a MISSION to rule India in perpetuity for
private gain & power - by subverting the Constitution, Parliament, the
Electoral System, Democratic Institutions, Democratic Checks &
Balances, the Laws of the Land; by emasculating the investigating
agencies & muzzling the judiciary.
The GOVT consists of an unholy alliance of these dynastic parties.
The MEDIA mostly bought off, act as propaganda machines concentrating
on “personalities” not “policies” - rarely put the country first!
Significant numbers of VOTERS - poor and illiterate - are easily
factionalised along communal/caste lines & bought off. The Indian
VOTERS, effectively disenfranchised, apathetically acquiesce, or are
content to make the most of the “corrupt system they cannot escape
from”.
DEMOCRACY IN INDIA LOOKS A SHAM!
The author's advice to Pak. supreme court is unprincipled and unwarrented. The Pakistan supreme court is well within its limits,as none can allow anyone,especially the prime minister and the president to swallow Rs 8000 crores by illegal means. Our constitution has many defects and need to be rewriten.The president
has violated the law and convention,by not appointng an acting prime minister after Mrs.gandhi's death.The president is helpless
when the prime minister,as Mrs.Gandhi declared emergency rule for selfish ends,violates the law. Many chief ministers violate the law,as happened in the Babur Masjid demolition,Cauvery and Mullaiperiyar supreme court orders. There are no code of conducet
for MPs,as Lok Sabah and Rajya Sabah could not function for many days. Few chief ministers misuse the public money for lavish things,such as statues erection(1000 crores) and by free distribution of TVs etc.The learned judge could spend his time to educate our people and correct first ourselves.
To uphold the supremacy of the Constitution,the Supreme Court acts and it cannot be termed judicial activism,come what other organs - the legislature and the executive - feel.But what can be said of judicial inability when the legislations are included in the IX Schedule to the Costitution of India, illegitimately? when fundamental rights are violated blatantly by the executive,there, the judicial restraint is not called for. The executive and the legislature in these instances openly violate the Constitution forgetting that it is their responsibility also to uphold the Constitution and function within the same. Judicial activism is the only remedy in countries like India and Pakistan where the scheming politicians and the military take the gullible majority electorate/public for a ride and derail the Constitution. But the one thing that the judicial activism should avoid is the possibility of "packing the Court" which was once resorted to by our own Indira Gandhi!
The constitution is supreme! Parliament is elected by a merge number of people turning up
to vote, since the voting is not compulsory. The candidates are selected by the parties with
money and presented to people. People may not have much of a choice,ending up voting for
one even though they don't want to vote for that person. In a tainted and immature
democracy, the only protective power is the constitution and the judiciary who guard the
values of it.
The article is misleading,confusing,obfuscating,perilous.Legislature should function independently,but nowhere it is written, and it cannot be proposed that legislature should not function under the justice system.Just a simple argument:Let's say tomorrow legislature decides to split india into many provinces and Mp's acting like a King as in pre british era.Then also court should not interfere?
The article elaborately discusses the three pillars of democracy, the principle of self-restrain etc. However, one serious problem with India’s democracy seems to be ignored and neglected viz. the defects in the democratic process that makes the legislature a group which includes so many illegitimate and pseudo representatives of people. This happens because of the ‘first-past-the post’ competitive election process where four or more candidates compete and someone even with a vote share of 30 percent can win an election. Candidates with money and muscle power also win elections. Additionally, so many minority parties are allowed into the election process and get elected, thereby making the election process very defective and the democracy very inefficient and a mockery. Indian democracy needs serious reforms in order for it to become a real and efficient democracy.
Correctly pointed out by Mr. Katju that judiciary should not usurp the powers of legislature and executive. Administrative officials as well as legislatures are directly or indirectly accountable to the public but the same is not true for higher judiciary. Forget about accountability, their appointment process lacks transparency and removal through impeachment is a near impossibility. The logic of 'filling void' left by legislature is a malafide excuse to justify tendencies of judicial over-reach. If the judges want more powers, then the Jury System should be implemented, where the judges are elected by public. All power in a democracy must flow through the public and every public functionary must be accountable to the public.
I agree with Justice Katju that the ultimate power in a democracy rests with the people! However I believe that in a poor and developing country like India, the Judiciary being the custodian of the Constitution, has a vital role to play in protecting the rights of the citizens guaranteed by the Constitution.
As the Supreme Court has time and again held that that the Constitution of India is not "rigid" but an evolving and dynamic one.
In the present times when there is a disconnect between the will of the people and the Legislature and the Executive, the burden falls on the Judiciary to correct the imbalance.
The Supreme Court has been very cautious while transgressing into the domain of the Executive and the Legislature. It has been acting as a sentinel to protect Democracy,rule of law,fundamental rights,directive principles and the Constitutional " Dharma".
The PIL jurisdiction of the Supreme Court has given a new dimension to the old "Locus Standi' principle and has enabled any a
Doctrine of Judicial restraint can be followed by countries having
stable political environment and a fairly long tradition of democracy.
The example given by Honorable former Supreme court justice are of such
countries i.e India and USA which are regarded as ideal model of
democratic system. Pakistan's democracy is infant phase and they have to
take decisions which may not please some sections in short term but are
founding stones of a strong democracy in future.
Very interesting to read the article of Justice Katju. I fully susbcribe to the views. However, on how many occasions justice Katju has exceeded the self imposed restraint, which he is now prescribing for other judges off the bench, while sitting as Judge. It is easy to preach, but it is very onerous and difficult to practise and not succumb to these temptation while in power.
The notion that failures of legislatures and executive should be corrected by democratic processes alone as judiciary is not a representative body is misleading. Only in a truly democratic state with homogeneous citizenry, democratic process can correct the aberrences of legislature and executive. In a divided society like India, it will never happen as society as a whole would never unite to fight the misdeeds of these two organs. Under these circumstances the only recourse would be to have actions by enlightened sections od the citizenry and by judicial activism.
Judicial restraint is of utmost importance in mature democracies. In
a pseudo democracy like Pakistan, judicial activism makes more sense as
the executive and the legislature dont function as required and play to
the gallery as dictated by the rigid military establishment.
All three pillars of democracy viz. Legislature, Executive and Judiciary are equally corroded. The media is NOT the fourth pillar of democracy as some people thought or professed. Only ACTIVE CITIZENS can become the fourth pillar in a democracy and save the nation from total collapse. Be Aware, be informed, be active. Have Concern, Co-operate, Complain and Confront the administration wherever necessary. That is power to people or as they say in Greek, demos-kratos or democracy in short.
We are living in an era where political compulsions decide responses of political parties to an issue, resolution of which may create a conflict between the constitutional provisions and executive action. Some times such compulsions far override all norms of decency. Hence it would be very difficult for citizens to expect that the legislature and the bureaucracy would always take decisions which are in people’s interest. The Supreme Court may then have to intervene and decide in favour of the people. Why should such intervention be regarded as undesirable activism? It is also difficult to draw a clear line of distinction between the right intervention of the judiciary and undesirable activism.
I respect the entire repertoire of essays and judgements that you have cited to underpin the virtues of judicial restraint. However, with no reference of activism or aggression by Indian judiciary, you have chosen to look the other way. Similar issues of "turf-war" have been simmering in India with Supreme Court and High Courts trying to impart lessons to other organs of the state. At times, perhaps, such lessons are order of the day, but little is being done by Indian Courts to find a long-term solution to the problem of misrepresented democracy. Judicial activism has been at forefront with the Indian Courts coming very close to dictating policy matters to the executive and legislature. Lacunae in the structure and processes of legislative and executive organs may be one of the reasons for such activism. Indian judiciary should realize that it is not a "school-masterish" approach but a more co-operative approach that will cure the disease of organic imbalance.
The fact that we are still talking about judicial restraint demonstrates that people who ought to exercise it are not all that serious about practicing that virtue. I allude to a case the details of which I do not remember nor do I have wherewithal to access them sitting as I do in California. But I do remember that unfortunate episode though it was soon rectified by the self same Supreme Court of India. In that overruled judgement it was held that any person aggrieved by medical negligence cannot have his complaint taken on file unless he enclosed a copy of medical opinion to the effect that he was indeed a victim of Medical negligence prima facie though. This kind of clog on cognizance is not there in the relevant Act namely Consumer Protection Act. It was a clear case of lack of judicial restraint. Judicial Activism is not judicial indiscipline. A mechanism to leash fake judicial activism that encourages unwarranted 'judicial legislation' fraught with danger is long overdue.
Please remember "Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their essential quality is detachment, founded on independence." This is applicable for matured functioning Democracies...not to pseudo/fledgling Democracies like India where the constitutional values need to be reminded by the Courts. Courts and certain judgements have time and again reiterated how Politicians or Businessmen circumvent regulations to serve vested interests. If the people are blind, the Politicians should be a guiding light. If the politicians themselves act blind, then Courts set in. I think, the Pakistan Supreme Court did what their elected representatives failed to do.
The constitution makers have well demarcated the functions of the three pillars. As writer says usurping functions by one institution of any of other two is bound to give reaction that may prove detrimental to whole system. the job of judiciary is to decide whether laws of legislature or act of executor is correct or not but whether it is right or wrong is to be decided by the people. The democracy should function by its own process.
How subtle the is difference between Judicial activism & judicial restraint! Both are vital for healthy Judicial system.
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