2. What are your views on the frequent directions issued by the courts to the central and state governments with respect to governance and administration? Is it a good practice? Critically comment.
न्यायालयों द्वारा केंद्र और राज्य सरकारों को प्रशासन सम्बंधित में मुद्दों में जारी किए गए निर्देशों पर आपके क्या विचार हैं? क्या यह एक सही है? समालोचनात्मक टिप्पणी करें।
Demand of the question:
It expects students to write about views about frequent directions issued by the courts to the central and state governments with respect to the governance and administration along with critical analysis about whether such practice is good.
Supreme Court directed Delhi government based on suo motu cognisance about treatment meted out to COVID-19 patients and the bodies of those who lost the battle with the disease. In recent time Supreme Court issued various orders and direction to states and centre about the response to the pandemic of COVID-19, which remains turf of administration and governance.
In State of Tamilnadu v K. Balu, the Supreme Court banned liquor shops within 500 m of highways, which was a legislative order. In Subhash Kashinath Mahajan case it amended the SC/ST Act. Supreme Court earlier fixed timings for bursting crackers on Deepavali, directed interlinking rivers and laid down regulations for the Board of Control for Cricket in India.
Case of judicial activism:
- Supreme Court being apex court in the country under article 142 of Indian constitution allowed passing any order necessary for doing complete justice in any cause or matter pending before it.
- Judicial activism makes the top court the most powerful Supreme Court in the world in words of former CJI PN Bhagvati.
- Instrument of PIL- Public Interest Litigation has done tremendous amount of good. It has practically tried to wipe away every tear of the underprivileged, disadvantaged and illiterate sections of the society.
- Progressive societal change led by judicial activism like women entry into temple and rights of LGBTQ community were long ignored by state.
- Many times inadequacy of the law or regulation in concerned matter obliges court to issue guidelines regarding. E.g. Vishakha guidelines issued by Supreme Court because there was no Sexual harassment at workplace act put in place.
However, the court is resorting more to judicial activism rather than judicial restraint, which is problematic. Recently, The Supreme Court asked Uttar Pradesh government to file a response on the quarantine norms being followed in the State.
- In positivist jurisprudence, the centre of gravity of the legal system is statutory law, i.e., law made by the legislature. It holds that lawmaking is not the job of the judges, but of the legislature. Hence, judges should be restrained and not activist in their approach.
- In view of the well-established principle of separation of powers of the three organs of the state, judges should not perform legislative or executive functions, and each organ of the state should remain within its own domain, in order to avoid chaos.
- Incursion on other’s turf entails unpredictability in the law. In the process, some of the personal opinions of the judges metamorphose into legal principles and constitutional values.
- In a parliamentary democracy, citizens are represented by Members of Parliament. The Supreme Court was never envisaged to perform the role of an unelected, third legislative chamber.
- Of all the three organs of the state, it is only the judiciary that can define the limits of all the three organs.
The usage of judicial activism can be justified in very rare circumstances, such as in the Supreme Court’s decision to strike down Section 377 of the Indian Penal Code.
The Supreme Court should limit its usage of the sociological school of jurisprudence to only the most exceptional situations, and employ the positivist school as far as possible as three pillars of the state are equal and coordinate departments. They cannot encroach upon each other’s powers