Judiciary must devise limits to its exercise of judicial reviews

Published: 11th September 2016 04:00 AM  |   Last Updated: 11th September 2016 10:50 AM   |  A+A-


The main reason for judicial activism in our country is the clear dereliction of duty by the executive, especially when that results in violation of the fundamental rights of citizens. Our courts do not shirk from providing relief to citizens. Consider the various orders passed by our judiciary, which to an academic lawyer would appear to be unjustified and an instance of judicial intrusion in the distinctive functioning of the three wings of the State. But remember that judicial review and orders passed in several public interest litigations make the fundamental rights a living reality and instil confidence in the principle of the Rule of Law, which is a basic feature of our Constitution.

Recently, the Supreme Court agreed to entertain a plea for stopping government funding of separatists.  When a lawyer sought urgent hearing of his plea and alleged that the separatists “enjoyed” the exchequers’ money and promoted anti-India activities in the Valley, the apex court said, “We also share the same feelings. Everybody sitting here feels the same.” The petitioner in the PIL has sought prosecution of people responsible for unauthorised and illegal funding under the Prevention of Corruption Act read with Section 409 (Criminal breach of trust by public servant) of the Indian Penal Code. If the reliefs claimed are granted, it would be an innovative and creative exercise of judicial review by our courts. But remember that extraordinary situations do warrant extraordinary remedies.

We need not be deterred by criticism of jurists and judges in other countries with regard to exercise of judicial review by our courts. Every country has to work out its constitutional salvation according to its own needs and requirements. There cannot be any inflexible universal prototype in the matter. It must be ensured that judicial orders passed in PILs do not run wild and do more credit to the heart than to the head. That would defeat the beneficial results of a genuine PIL, which would be disastrous. Judicial restraint is the need of the hour in passing orders and directions in PILs. Let us not throw the baby out with the bath water.  

State Minister in Uttar Pradesh, Azam Khan, has characteristically done it again. He has alleged that a political conspiracy is responsible for the incident he has complained of. Appearing for the CBI, additional solicitor-general Maninder Singh urged that continuation of stay of investigation by the CBI may result in disappearance of material evidence and may cause prejudice to the conduct of the case. On Maninder Singh’s request, the Bench headed by Justice Dipak Misra stayed all proceedings pending before the Allahabad High Court and observed that the Supreme Court would adjudicate all issues relating to the case.

One wonders if the judiciary is truly running the country and whether that is good for the country.

It is said that set a dog to save a tiger. With this mission in mind, the Bhopal Police Dog Training School is putting four Belgian Shepherds through boot camp to turn them into tiger and poacher trackers. Sniffer dogs have been used for crime detection or to check for explosives, guns or drugs in India. It is for the first time that they are being trained to protect wildlife. The Belgian Shepherds have been chosen for their aggression, intelligence and sensitivity.

The judiciary is apparently in favour of protection of tigers in the Madhya Pradesh. If humans deserve judicial protection, why should tigers be denied the same? Let us not forget that one of the fundamental duties prescribed in Part IV-A of the Constitution is to have compassion for living creatures, which surely includes tigers. Where are we heading? The judiciary must devise limits to its exercise of judicial reviews lest we are to witness the phenomenon of incredible India which will make us a laughing stock in other democracies whose judges exercise the power of judicial review.

The writer is former Attorney-General of India


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