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Blurring lines between Judiciary and Executive

  • Category
    Polity
  • Published
    4th Nov, 2019

Madras High Court is hearing a PIL which asks the court to declare the linking of Aadhaar with a government identity proof, as mandatory for registering email and social media accounts.

Issue

Context

Madras High Court is hearing a PIL which asks the court to declare the linking of Aadhaar with a government identity proof, as mandatory for registering email and social media accounts. A series of such hearings/judgements suggest a trend that courts have continually expanded the scope of issues considered in PILs. These trend warrant critical questioning.

Background:

  • Madras High Court’s recent Pubic Interest Litigation (PIL) hearing shows that courts are not only considering questions of law, but have started to deliberate on policy questions with wide-ranging impact ( like; Should Aadhaar be linked with social media accounts?)
  • This suggests a growing trend of populist impulses of judicial overreach by the courts.
  • Under the ‘doctrine of separation of powers’, the political system of a nation divides its power between legislature, executive and judiciary.
  • Article 50 under directive principles of state policy separates judiciary and executive.
  • In India, ‘separation of functions is followed, and not of powers’ and hence, the principle is not abided in its rigidity, as in the US. Instead, India’s separation of the three organs is based more on the principle of ‘checks and balance’.
  • While a balance of power check aims to avoid concentrating too much power in any one body of government. It also generates tension between the three arms of government.

Judicial Review

Judicial Activism

Judicial Adventurism/overreach

Judicial review is a type of court proceeding in which a judge reviews the legality of a decision or action taken by a public body. Judicial review challenges the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.

Judicial activism denotes an active role taken by the Judiciary to dispense social justice. Instruments like; Suo-moto cases, PIL, new doctrines etc., which have no constitutional backing, are actively used to fill in legislative gaps.

Judicial Overreach/ adventurism refer to an extreme form of judicial activism. It is when judiciary crosses the territory pertaining to Legislature or executive; thus disrupting the balance of powers between the three organs of the government.

  • In case of judicial overreach, court’s often follow a populist impulse and over indulgence in matters of popular interest. It leads to grandiose executive judgements dealing with aspects of the country’s governance.
  • For example, in the ‘N. Godavarman versus Union of India’ case, the Supreme Court defined a ‘forest’ in the absence of a definition in the Forest Act and, in doing so; it took over the governance of the forests in India."
  • Examples of judicial overreach in matters of popular interest:
    • Imposition of patriotism: Mandatory playing of National Anthem in cinema halls.
    • Proactive censorship: Directing CBFC to re-certify the movie Jolly LLB 2.
    • Cancellation of 2G telecom licences: Directing allocation of natural resources through auction only.
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