Judicial Activism or Judicial Appropriation: CJI vs FM



In an event yesterday at the Supreme Court compound to commemorate the National Law Day, the CJI, Dipak Misra and Finance Minster, Arun Jaitley aided by Minister of State for Finance and Commerce PP Chaudhary exchanged words regarding judicial activism and transgressions by the judiciary.

The Government has recently been fighting good cases spanning key aspects of a citizen’s life, like privacy, freedom to marry, and a few more. The trend of Judiciary coming in conflict with the mandate of the Parliament isn’t new. It has continued for over generations, and has seen many deadlocks and Constitutional trickery, that sought to bypass the Supreme Court’s diktat.

The jibes that the two ministers took in are in a broad context, whereby thy seemed to be cautioning the Court of holding its righteous activism. The activism taken up by the Courts is not always abrupt and active, most of the times, the Courts take a passive route to set the legislative and executive machinery into action. It is not a rare possibility that in a country like India, administrative and legislative efficacy is a 100%, there are loopholes, which are plugged in, and certainly there are times when executive or the legislature transgress upon the fundamental rights of the citizens, at those moments the Courts being the guardians of the Constitution play an active role in undoing the doing.

There is obviously a boundary given the fact that there exists a separation of powers between the organs of the State, thereby creating ample of space for al of them to co-exist for the purpose of aiding each other in administering the country as a whole. The argument that the judiciary tries to ‘usurp’ legislative powers, is not a valid one, because the judiciary interprets the laws, and makes it fitĀ  with the Constitutional mandate. Time and again the Supreme Court and the High Courts have held that they don’t wish to tread into the domain of policy making, yet when they give outlines for a change, they reflect the demands of the society, as law is as dynamic as a living organism.

The befitting reply given by the CJI is appreciated, yet the remarks by a man of the stature of Mr Arun Jaitley is totally uncalled for and when he says, how would the judges feel if someone presides over them to do their job, is obviously one reason why the MOP for appointment of judges to the High Courts and the Supreme Court has been stuck.

The Government, this or any other will always want to the Judiciary on its back to gain absolute control over the affairs of the State, yet the judiciary remains a closed-door system, which does not allow interference from either the executive or the legislative.

The activism by the more learned Judges, and the lawyers of the High Court and Supreme Court is far more qualitative and reliable than the mandate of the Parliamentarians who do not seem to have the perspective of a common man, as they often tend to consume themselves with the ends justifying the means. This is clearly reflected by the goalpost shifting that we saw during the Demonetisation exercise and the delay caused when it was the time for remonetisation.

The judiciary has been guarding the democracy time and again, while absolutely not interfering with the spheres of the other two organs of the state, thus a statement alleging the Judges of wrongdoing in the name of activism, is condemned.


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