The Legislative, Executive and Judiciary are the three pillars of a stable democracy. If one pillar becomes large or oversized, the stability of democracy is in danger. The Constitution of India embraces the idea of separation of powers of the legislature, executive and judiciary, in an implied manner. Unfortunately, the ongoing adjudication of issues related to Covid management by courts across India has set a worrying precedent of judicial adventurism.

In the checks and balances provided by the Constitution, the executive is answerable to the Council of Ministers, which is answerable to the legislature, and elected legislative members are answerable to the public and voters. However, there is no direct answerability of the Judiciary, on the premise that it will exercise self-discipline while imparting justice.

In the recent past, it has been observed with concern that an overzealous judiciary is usurping the role of the legislature and the executive. The courts are directing the government and the bureaucracy on how to frame laws and govern the country. Nobody can question or criticise them for fear of being in “Contempt of Court”, which hangs like a ‘Sword of Damocles’.

Judicial Adventurism

Judicial review refers to the power of the judiciary to interpret the Constitution and to declare any such law or order of the legislature and executive void if it finds it in conflict with the Constitution. Judicial activism is one step ahead of judicial review. Since the early 1990s, the Indian courts have stepped in with greater frequency on legislative, political and policy matters, leading to constant friction between the three organs of democracy. There is a thin line dividing judicial activism and judicial overreach. Judicial overreach is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government. Judicial adventurism is a dangerous trend, as exhibited by the courts during the ongoing fight against the Covid pandemic.

Examples of Overreach

Judicial overreach has been on the rise at a trajectory higher than Covid cases. Some of the glaring cases of judicial adventurism are flagged as under:

• Recent disparaging remarks made by the Madras High Court against the Election Commission of India, calling the institution, “Murderers”, saying that it was solely responsible for the spike in Covid cases.  
• A Lower Court in Telangana sentencing a serving Major General of the Army to one month imprisonment, for acts done in official capacity.
• Ban on Firecrackers during Diwali festival.
• Punjab and Haryana High Court refused safety and security to live-in adult partners because this relationship is “morally and socially unacceptable”, though permitted by law. Courts are now into moral and social policing also.
• Courts asking rape accused to marry or tying a raakhi on the victim, rather than punishing the culprit.
• The Allahabad High Court passed an order stating that children of public functionaries/ bureaucrats in Uttar Pradesh should be enrolled only in government schools.
• Proactive censorship on the Bollywood film Jolly LLB 2 cleared by the Central Board of Film Certification (CBFC) because it shows the reality of the present day judicial system.

Covid and Judiciary

The judicial intervention and ‘off the cuff’ remarks fired by the ‘Milords’ during the Covid crisis has hit the ceiling. Just a few noteworthy examples of our learned judges passing orders / remarks during Covid fight are listed as under:

• Remarks like “The health care system is Ram Bharose” and calling state governments “Murderers” for lack of oxygen supply.
• Allahabad High Court suo moto declared that five cities of Uttar Pradesh must go into a lockdown, due to Covid. The Supreme Court mercifully stayed the order.
• Allahabad High Court directed the UP Government to provide two ambulances with ICU facilities to every village in the State.
• Delhi High Court ordered to ensure 600 Mt/day of oxygen supply to Delhi during the Covid crisis.
• Delhi High Court said that officials responsible for delay in manufacturing of vaccines should be charged for ‘Manslaughter”.
• Delhi High Court passed an order that no advocates will be stopped or checked by any officer or police during lockdown, signifying that advocates are immune to Covid. Doesn’t this smack of a bias towards its brethren?
• The Supreme Court declared Delhi as a “representative of the entire nation” and asked the Centre to supply oxygen to it by whatever means. It gives an impression of favouritism towards the elites living in the capital.

Competence of Judges

It’s prudent to take a look at the competence of the persons making such remarks or judgments. Some of the key issues are flagged as under:

Qualification of Judges: Judges mostly hold a graduation or master’s degree in law and are only qualified in the legal domain. The experience that qualifies them to become a judge in the High Court or Supreme Court is also in legal matters. They live in a bubble of the judicial world with no exposure to leadership, administration or management. An All-India Judicial Service like the IAS/IPS is the need of the hour.

Selection of Judges: The judges of lower courts are selected by state-level competitive exams. Only a few make it to the High Court on promotion. Judges of High Courts and the Supreme Court are selected from practicing advocates having requisite experience. They are selected by a Collegium of serving judges. Nowhere in the world do judges select and appoint judges as they do in India. The Collegium System has no constitutional basis and it has been reduced to an ecosystem of networking, promoting each other’s candidates, personal likes and dislikes — rather than selections on merit. Now imagine these people sans merit, who have reached the high pedestals of judiciary through backdoor entry, are passing comments on legislatives, elected by the public or Government servants who have come through competitive exams, promoted on merit and having loads of experience in administration and management.

Judicial Competence: Judges of different courts have the same evidence and the same provisions of law, yet their judgments are totally opposite. It’s a question of somebody’s life, liberty and reputation that is at stake. They take years to examine a case and give a verdict, which is turned upside down by the higher court again after many years of re-examination. Either of them is obviously wrong. Like any other profession, there has to be some accountability of the wisdom and competence of the judiciary too.

Functionality: India currently has over four crore pending cases across various courts. I am surprised how the courts can have summer vacations or ‘Work From Home’ with millions of cases pending. Surprisingly, where serious cases of murder and rape are not even listed for months, the courts are opened at midnight for anti-nationals and influential people. The archaic and whimsical functioning of the courts is laced with favouritism, corruption and arbitrariness. Ordinary litigants really get disgusted at the state of affairs and rue the day they had to come to a court. The awful delays in dispensing justice are also responsible for the rising crime rates in the country. It may not be out of place to say that it’s not the Government, but the Judiciary that is running ‘Ram Bharose’.

Post-Retirement Carrots

In the earlier days, judicial positions were considered so honourable and coveted that no judge felt the need for a second inning. The increasing life expectancy and aspirations in a highly competitive world are driving judges to seek post-retirement rehabilitation. Acceptance of offices of profit like judicial commissions, tribunals and arbitration courts is gaining traction. Retired Supreme Court judges have also been appointed Governors. Post-retirement appointments are a deterrent to an independent judiciary. The first Law Commission had also recommended no post-retirement favours for judges.

Playing To Gallery

The common citizen often perceives a judge as supreme and one who gets to have the last word, especially on issues of public importance. Words uttered by a judge are considered pearls of wisdom and often oral exchanges between the bar and the bench become national headlines. Judges are today passing off-the-cuff and often sarcastic remarks from their cushy, insulated environs. Armed with PIL and ‘Suo moto Cognizance’ as weapons, they are asking questions on any subject under the sun. Grandstanding by judges inflicts real damage with their ill-considered oral remarks and immature decisions, beyond the scope of their jurisdiction.

MiLords! Let Us Work

An overzealous judiciary is conveying to the nation that they are the only ones managing the country and even a health crisis like Covid. Government officials are busy preparing documents to reply to court or wasting time appearing in courts rather than doing their legitimate job in this hour of crisis. Government officials are being forced to brief the bench about the prevailing circumstances for hours instead of acting on policy matters in real-time. It would be earnestly desirable that judges confine themselves to legal matters and leave the experts to figure out their own affairs, without judicial intervention.

Conclusion

Judicial adventurism is intruding more and more into the exclusive domain of the legislature and the executive, thereby creating an unhealthy asymmetry in the delicate balance among various institutions of this democratic country. While judicial review is the legitimate domain of the judiciary, a limit or boundary has to be drawn. It should not become a super Parliament that frames laws and a super Executive that seeks to implement them.

The Government of India for the first time, in a diplomatic language, has told the Supreme Court not to interfere in executive functions where judges do not have competence. I would like to submit: “Milord! Let us work and you please manage your own house, which is crying for your attention.” I am also cautious of the fact that some court might take suo moto cognizance of this article and charge me for Contempt of Court. Therefore, “I sincerely apologise and seek your pardon, Milord!”

-The writer is a veteran of Indian Army. Views expressed are personal and do not necessarily reflect the views of Raksha Anirveda. He can be contacted at www.majgencpsingh.com