Mr Jaitley, Drawing Judicial Lakshman Rekha is Fraught With Risks

The metamorphosis of India’s constitutional courts over time into one of the most powerful judicial institutions in the world, has thrown up one question: where must the courts draw the lakshman rekha? What started as a self-preservation reaction against a powerful government in the 1970s evolved into the judiciary taking on an activist role thereafter, often giving rise to friction between the pillars of democracy.From Self-Preservation to ActivismThe 1960s and 70s saw a number of social reforms initiated by the government: nationalisation of banks, abolition of privy purses and land acquisition measures, some of which were struck down by the courts as being violative of the fundamental rights. The government’s reaction was to use the overwhelming majority it enjoyed to amend the Constitution to abrogate some of the fundamental rights. The controversy reached a crescendo in Kesavananda Bharati’s case where the issue was whether there was any limit on Parliament’s powers to amend the Constitution.Faced with a situation where the Parliament, on a textual reading of the law, appeared to have uncontrolled power to alter or even abolish any fundamental right, the Supreme Court invented the basic structure doctrine and held that Parliament could amend any part of the Constitution so long as it did not alter its basic structure.What began as a measure to preserve democracy developed into an era of activism.A Proactive JudiciaryJudicial activism was necessary to ensure that constitutional changes were not used as tools to aid an authoritarian government. Starting from widening the scope of the right to life and liberty by reading into it the non-justiciable directive principles of state policy, such as the duty to promote education and the duty to preserve the environment, to inventing the concept of a public interest litigation, the 1970s-80s saw the judiciary play a highly proactive role in ensuring that India developed into a thriving democracy.The decisions in Maneka Gandhi v. Union of India, where it was held that a person could be deprived of his right to life only by a law which was just, fair and reasonable; and in Bandhua Mukti Morcha v. Union of India, where the concept of public interest litigation (PIL) was introduced and the locus standi requirement was diluted, were landmark developments in the march of Indian constitutional law. Activism in India grew by leaps and bounds and there is criticism from parliamentarians that today it is excessive. The issue then is where there is no institution reviewing acts of judicial activism, is there any objective basis to draw the lakshman rekha?Drawing the ‘Lakshman Rekha’Since preservation of democracy was the cause for the birth of judicial activism, furtherance of democracy must be the objective factor which guides its growth. The most common argument against excessive judicial intervention is by Professor Jeremy Waldron who argues that empowering judges to decide on policy issues amounts to disrespecting the democratically elected representatives of the majority.However, such an argument, firstly, assumes that the legislature and the executive are performing their functions efficiently, with effective participation from the citizens, and, secondly, that the judiciary is incapable of intervening in a manner which helps further the ideals of democracy. Professor Waldron’s argument ignores the role that the judiciary can play in setting a level playing field for interaction with citizens and assumes that judicial intervention means that judges have the final say on the policy issue, which need not necessarily be so.In Protection of DemocracyOngoing debate regarding judicial overreach goes way back to the 70s when the government of the day took upon itself to initiate social reforms.Slew of definitive measures in public interest was followed by the 1973 Kesavananda Bharati judgement that restricted the role of Parliament.Judicial activism was needed to fulfil governance gap due to government’s inefficiency.Judicial activism also ensured that the Constitution was not tinkered with by a majoritarian government.In a democratic set-up, with overlapping functions, there is no objective basis to segregate the functions of the judiciary and executive. Taking a Step BackFor a practical implementation of this principle, the best example available is the South African case of Rand Properties, which involved a challenge to the state’s eviction of inmates from dilapidated buildings in central Johannesburg. Since right to housing was a fundamental right which the state had failed to provide, the judiciary directed the state and the inmates to “engage with each other meaningfully” to resolve the dispute. The judiciary, by its interventions, ensured that these deliberations were carried out on a level playing field as the final result of the deliberations was susceptible to scrutiny by the court. In this manner, while it ensured that executive inaction was not pardoned, the final decision itself was left to the executive but subject to judicial superintendence.What this case illustrates is that it is possible for courts to monitor actions of the other limbs of democracy without actually stepping into their shoes. This viewpoint gains support from Professor Kent Roach who argues that the judiciary should not create policies to enforce rights but must require the government to draft its own policy and submit it along with a timetable for execution. The finalisation of this plan must be only after the judiciary has heard objections from stakeholders. A court’s review is restricted to analysing the reasonability of the executive’s decision.With criticism mounting over judicial activism in India, it is important that the baby is not thrown away with the bathwater. Instead of re-ploughing the well-worked terrain which ranges justiciability against non-justiciability, the real challenge is to formulate a democratically justifiable role for the courts. Professor Sandra Fredman(The writer is an advocate with the Madras High Court and was a consultant to an expert panel constituted by the Law Commission of India on reforming the arbitration law)Also read:CJI Thakur Wept Over a Problem of the Judiciary and Govt’s Making Don’t Blame Judicial Overreach for Ill-Governance: Manish Tewari

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Mr Jaitley, Drawing Judicial Lakshman Rekha is Fraught With Risks

The judiciary may monitor executive and legislative actions for furthering democracy, writes Anirudh Krishnan.

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Topics: Arun Jaitley Indian Judiciary judicial independence