Democracy is about balance in the branches of government and their working. In the ideal form of democracy, every branch does its allotted work and desists to trespass and do the work of other branches. In case a branch tries to enter into the jurisdiction of the other branches, an imbalance is created which is harmful to the entire edifice of the government. Overall, this imbalance indicates the weakness of the government and not the strength of that one branch though the branch may be called as engaged in some form of activism but it actually is a compulsion.
Compulsions should never become rules in a democratic, or any other of, government; sooner or later they have to be replaced by real rules of this form of government. In case, compulsions keep on running the affairs of the government, it sounds an alarm bell which could signal the end of democratic government in a state or country. Under such circumstances, institutions and the democratic apparatus might seem firmly in place but the operational and functional characteristics of this government would actually be going on as per the rules which can be called anything save democratic.
Judicial activism in India is mostly hailed. When the other two, or three including media, branches of the government are not performing their duties and responsibilities well, it becomes obligatory upon the judiciary to come in and fill the gap and make those branches to do their rightful duties and keep them strictly as per democratic principles. Indeed, judiciary should try to run the government as per the constitutionally laid down principles and guidelines. This should be hailed and it is hailed by many.
Nevertheless, the real lovers of democracy, and concerned with the real interests of the country, might hail it for a while, or for the all times, but they will feel insecure and unsafe under the conditions where judiciary is compelled to resort to activism. This is for the simple reason that this activism indicates underperformance of the other branches of the government, and or their callous and irresponsible attitude. When other branches fail to perform their roles as per the constitutional provisions, judiciary cannot deal will all the cases of underperformance. The judicial activism can correct only those ills which are reported to it but there are many more ills and issues which never come to the notice of the judiciary.
The best cure, and the panacea, to these ills are to improve the working of the other two branches and make them efficient and accountable. If that is not done the government would always fall short of the democratic norms and requirements. Instead of remaining dependent on judiciary to correct the ills better is to take all those steps which are necessary to make the other two or three branches responsible.
Judiciary has a constitutionally defined role and so is true about the rest of the branches of the government. As per that role, the judiciary has to come in when other branches somehow fail to address issues of the people or injustice is committed against anybody due to whatever reasons. But, the other branches of the government should try their utmost to leave very little for judiciary to decide.
Most of the administrative and other issues end up in the Supreme Court. The issues and disputes which can be settled at the administrative level with quite ease are referred to the judiciary and eventually land in the Supreme Court. For the political parties, some government heads, it has become a fashion to refer everything to the Supreme Court. As an example is the case of Delhi Government against the Lieutenant Governor.
In this case, though the verdict was delivered on time and on the sides of democracy and democratically elected government but the question that one can ask is was judicial intervention necessary in the matter. The responsible and constitutional authorities should have reconciled their differences by themselves without referring the matter to the judiciary. Even after the Supreme Court verdict they still have to reconcile their differences themselves.
The government in Delhi is democratically elected and should have been given full hand in the areas of its operation by the Lieutenant Governor without making any undue interventions and interferences. He should have consulted the Council of Ministers Headed by the Chief Minister before taking any decision.
The over reliance on judiciary and its unnecessary involvement in many cases is the reason why 55259 total cases were pending before the Supreme Court on 01 November, 2017 and this number in all probability might have gone up and not down by now. The number of pending cases in the entire judiciary runs into crores. The courts are so much overburdened that the dictum justice delayed is justice denied has become a norm in India inasmuch as no timely delivery of justice is possible under such circumstances.
Another issue and a grave issue associated with the judiciary is that when, on the one hand, it is showing activism but on the other its own house is not in order. The working of the judiciary has come in question in the recent past including the highest temple of the justice delivery, the Supreme Court. Impliedly the judges of this court have themselves made admission of this when four senior most judges called a press conference against the Chief Justice of India.
Judicial activism although hailed , has not produced great results India. No doubt under this activism many historic verdicts have been delivered but there are many areas where the judiciary failed to take cognizance or couldn’t do much even after taking cognizance. The legislative process through the ordinance route fails to satisfy the democratic rules but the government in power and those which were in power previously, resort to this mechanism of legislation often times and frequently.
The temples of the government in the form of the Parliament at the Centre and the State Legislatives at the State level have been rendered unimportant by this governmental tactic. The judiciary should have out rightly rejected this way of legislation, or at least limited its frequent use. If this form of legislation was at all necessary adequate mechanisms should have been devised to take the opposition in confidence.
So , the challenges before the judiciary of India are many and multiple. There is nothing wrong in its activism but while doing that the cases of same kind and importance should not end up in receiving different treatment from judiciary.
At the same time , the other two branches should realize their roles and leave very less scope for the judiciary to decide. The judiciary should try to set its house in order and reduce the scope of any malpractices in justice delivery. The other branches should also work as per the constitutionally allotted functions and perform their duties well. The government then would be run in the best interests of the people.
The author can be reached at: fayaz.greatstep@gmail.