The news channel
between 8:00 PM and 9:00 PM seems to be the few watch-worthy channels surpassed only by National Geographic and The
Discovery families. During this time all channels seem to have debates between
various panellists most of whom are familiar faces akin to the Page 3 mugshots one sees in the daily rags.
The low quality of debate never ceases to appal me. After all most of the panellists are supposed
to be “experts” in some fields and I
guess the low quality come from low
quality of thought process and not one of communication, . One subject which seems to hog the limelight
nowdays is that of “Judicial Activism”. This is a subject which has interested
me since some time and hence maybe debates around this subject are all the more
engaging to me.
What stands out in these discussions is the poor or rather
lack of knowledge of elementary civics by participants and panellists. I have never validated this, but I feel that
in a reasonable sample size, 50% of the sample would not know the difference
between the roles and responsibilities of the different organs of the
government.
What I find surprising is the universal accolade by common
citizens to the judicial system in trying to “clean up” administration. In the
short term it is no doubt true that the quality of life has increased because
of this activism, however if one sees this in the larger perspective it is a complete break down of constitutional
institutes and fraught with danger for the republic.
Let us start by getting a clearer view of the law and the
organs. However complex the constitution and the language in it, one must keep
in mind that law is basically common sense based around a few principles
and there has hardly been any
radical innovations in the last many decades.
To give a dummys views,
the laws are based on the constitution which Has created three organs.
One to create new laws (Legislate) one to implement the laws (Govern) and one
to interpret the laws,safeguard the
constitution and ensure that justice
prevails(Judiciary). The roles of each organ is cleary defined and if any of
these organs over step their roles, it is imperative to rectify this
immediately. At the end of the day, the people are the ultimate rules and have
the power to change anything by their power to vote. This brings a system of
checks and balances.
Let us now get into the phenomenon of judicial activism which seems to be more
pronounced in India.
Wikipedia is the first choice of research and though it can be hardly called an
authority has this to say about Judicial Activism . "Judicial activism
describes judicial rulings suspected of being based on personal or political
considerations rather than on existing law. It is sometimes used as an antonym
of judicial
restraint"
I would not subscribe to the above view and would define
Judicial Activism as a state where the judiciary takes a much broader view of
their powers and tries to reach out justice to the people.
Let us try and understand a bit deeper on what is the role
of the judiciary as a prelude to the
rest of the article. To put it very simply the judiciary has to:
- Ensure justice (both in criminal and civil matters) is done according to law
- Interpret the existing laws when there is a doubt therof
- Safeguard the structure of the constitution and ensure that the citizens’ rights are protected.
What the judiciary is not supposed to do and would be
overstepping their role if they do is:
- Create laws or judgements that are perceived as laws
- Make decisions outside laws
- Get into policy and administration
- Be the prosecutor, investigator and judge
A democracy as we were taught in school had 3 pillars as mentioned
in the opening paragraph of this article. There is of course the 4th pillar which is the press. An
objective assessment of these pillars would
undoubtedly indicate that all pillars are tottering if not already
fallen.
The fact that the legislature has stopped legislating and
the government has stopped governing is
well known. We could argue that the
press has played an important role in exposing many institutional misdeeds to
the citizens and I will defer my perceptions on breakdown on this front. What
is not well known is the breakdown in the judiciary which will be explained in more detail in the next
part of this post.
