Judicial activism fuels a fresh tussle

FPJ BureauUpdated: Thursday, May 30, 2019, 02:37 AM IST
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The judicial activism debate has a tendency to re-surface time and again with no solution to the conundrum. The latest salvo has been fired on behalf of the Centre by its new attorney-general, K.K. Venugopal, who said in a charged debate in the Supreme Court on Thursday that the top court has acquired vast powers and that it has become the  “world’s most powerful court.”

He said the apex court has added “at least 30 new rights” to the fundamental rights already enshrined in the Constitution. To that Chief Justice Dipak Misra responded that “this court has vast powers to do substantive justice . We have to strike a balance in every case. We understand that we can’t cross the lakshman rekha.” Justice D.Y. Chandrachud added to the chief justice’s defence when he said that the court “cannot shut its eyes in matters of “social welfare.”

The provocation for the contentious stand taken by the two sides was the issue whether parliamentary reports can be used in court proceedings. While the judicial seniors apparently defended intervention, the Attorney-General, himself a veteran of many a judicial battle, cited the example of the court’s ban on highway liquor vends to claim that it had cost the country 100,000 jobs. The court’s stand that it was only enforcing a transport ministry rule designed to reduce road fatalities did not seem to hold water. It is indeed difficult to contest Venugopal’s contention that it was ‘judicial overreach’ in evidence.

While in specific cases like the ban on firecrackers in Delhi during and in the immediate aftermath of Diwali proved to be a blessing for the hapless residents of the capital in the context of severe air pollution, it would have been in the fitness of things if the judiciary had put the onus on the executive to take the required action which fell in its sphere in the separation of powers. Likewise, it is not conducive to a smooth conduct of the constitutional principle for the judiciary to have banned the sale of liquor on and in the vicinity of highways. Propriety demanded that the court should have ‘advised’ the government to study the recommended ban in all its ramifications.

Whether it is right to use parliamentary reports in court proceedings or such reports form a privilege of members of Parliament is a moot issue that needs to be settled between the legislature and the judiciary in a holistic manner with due deliberation. While it is accepted on all hands that the judiciary has by and large played a constructive and useful role in the aftermath of independence, there is an increasing body of imponderables that needs to be sorted out by the Law Commission or by a joint forum of parliamentarians and judicial bigwigs.

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