Crossing Swords With judiciary, Govt. Questioned Judicial Activism on National Law Day

President Ram Nath Kovind

President Ram Nath Kovind

The National Law Day 2017 is celebrated by the Law Commission of India and NITI Aayog for over two days at Vigyan Bhawan in New Delhi. It is celebrated to mark the occasion of 26 November 1949 when the draft of the constitution was first adopted by India. It was inaugurated by the President of India Ramnath Kovind on 25th November. The theme of the conference was ‘structural reforms for overcoming delays in justice delivery’ and ‘scope of judicial powers; judicial activism’.

The President stressed on speeding up the judicial delivery system and said that this is the age of communication and so we must use it to speed up justice delivery system. President also touched upon the need of separation of powers between three pillars of democracy – the judiciary, the legislature and the executive. “They need to be careful not to cross into each other’s… defined spaces or give the opportunity to read transgressions where none is intended. This can occur in many circumstances. For instance, when extraneous comments and obiter dicta come to dominate public debates, crowding out of substantive understanding and deliberation of a well-thought-out judgment,” the President said. However, later, it seems that union ministers and Chief Justice of India crossed swords over judicial activism at the conference.

Ram Nath Kovind and Sumitra Mahajan

Minister of State for Law and Justice PP Chaudhary, addressing the conference, said, “judicial activism is a necessary outcome of judicial independence, but quite apart from this, (there) is another species of judicial activism where the judiciary is also stepping into areas which are strictly speaking in the realm of policy”.

This charge was strongly rebutted by the Chief Justice of India Dipak Mishra who said that there is no desire to encroach upon the policy domain but judiciary will not hesitate if it finds that government has failed to protect the fundamental rights of its citizens. CJI Mishra stated that “These rights are considered sacrosanct and any real or apprehended encroachment can be challenged in a court of law which comes to the rescue of the affected citizen. The constitutional courts act as the ‘sentinel qui vive’ and the said responsibility cannot be abandoned.”

Finance Minister Arun Jaitley, addressing a session at the event, said, “I have often heard (the) argument that judicial activism is born out of a phenomenon that when other institutions are not doing their job, somebody has to fill the gap. It’s a flawed argument. It is flawed because if any organ of the state is not doing its duty, it can be directed to do its duty. Usurpation of power… by any other organ would never be the correct constitutional approach. What if the same argument was used the other way around against the judiciary? Arrears are pending, judges are not doing the job. So, must somebody step in and now exercise that power? The answer is no… And therefore, it’s extremely important that the dividing line on separation of powers is maintained. And therefore, by creating arguments, the thin dividing line itself cannot be lost.”

He also questioned the “latest trend” – of courts for appointing “retired judges” to various committees to discharge executive functions. Jaitly warned that there will be no limit if “Lakshmana Rekha” is crossed over the stay of Kolkata High Court on center’s move to withdraw Central forces from Darjeeling and Kalimpong districts during the recent Gorkhaland protest.

Prime Minister Narendra Modi also stressed on Sunday over the separation of power between the three arms of the government saying, “Legislature should have the independence of making laws, the executive should have independence in taking decisions and Supreme Court should have the independence of interpreting the constitution.”

“Three arms should strengthen each other and not interfere with each other’s functioning,” he further added.

Union Law Minister Ravishankar Prasad also expressed dismay over the annulment of the National Judicial Appointment Commission (NJAC) saying that, “If a PM and law minister cannot be trusted with the appointment of judges it’s a huge question and judiciary and polity of his country will have to look into it.” But his views were countered by the CJI Dipak Mishra who said that judiciary gave the absolute respect to the Law Ministry and also took its suggestions with mutual respect and that there should be no battle for the supremacy among the three wings, we are bound by the principle of constitutional sovereignty.


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