“Never has there been a greater threat to the judiciary than now and what was worse is that the people are taking the daily assault on the dignity’ of the judiciary without a protest.”-Soli Sorabji, during 1980 The judiciary continues to command respect and credibility even after being involved in controversial judgments. The judges have the power, though not the right, to travel within the interstices of the bounds set to judicial innovation by precedent and custom. Our judiciary at times has been near crossing this limitation which has given rise to a proposal seeking amendment in the present Judges Enquiry Act, 1958 and attempts to include it within the purview of The Right to Information Act, 2005.
There is virtually no area of legislative or executive activity, which is beyond the highest court’s scrutiny. The nation expects from the superior Judicial officers, the wisdom of Solomon; the courage of David; the strength of Samson; the patience of Job; the leadership of Moses; the kindness of Good Samaritan; the strategic training of Alexander; the diplomacy of Lincoln; and the tolerance of Carpenter of Nazareth and the intimate knowledge of every branch of natural, biological and social sciences. Judiciary can perform the role of “auxiliary precaution” against the excesses of majoritarian democracy only when men of wisdom are there to work out in democratic institutions in harmony.
Have judges in this country have become tyrannical and irrational; despots in black robes? Whenever the Supreme Court has tried to flout the Constitutional mandate manifestly, demonstrably, consciously or in disregard of law creating a new edifice has never existed in any democracy ever; it has taken a position above the law.
The Constitution expects of the Supreme Court to be shorn of political compulsions and would thus, “declare law” by interpreting the constitutional, legal and surrounding circumstances bereft of any bias. The greatest threat to judicial independence occurs when the courts flout the basis for their independence by exceeding their constitutionally limited role and the bounds of their expertise by engaging in policymaking committed to the elected branches or the states. Judicial independence was not designed as, and should not be allowed to become, a shield for judicial misbehaviour or incompetence or a barrier to examination of complaints about injudicious conduct on a political criteria.
Chief Justice K.G.Balakrishnan has observed that it becomes an imminent necessity for the supreme Court to intervene in a timely manner and curtail the violation of fundamental rights and its duty to protect the rights of the people. Its role extends to preserving the supremacy of the Constitution and work to give relief to the people. Even when other organs fail to deliver , it must not get involved in judicial over-reach.
The Supreme Court will continue to transgress into the realm of the executive and Parliament till the health of the executive is not restored by the formation of stable single-party governments and till the health of Parliament is restored through the revival of the two-party system, deregionalisation and decriminalisation of Indian politics. Unless that happens, the Supreme Court will continue to fill up that political vacuum and shall continue to resort to judicial activism and overreach. It may appear as a healthy development.
The strength of any judicial institution must depend on the standards of accountability that it sets. Higher the standard, the more respect from the citizens. Beijing Principles state that judges are entitled to freedom of expression “to the extent consistent with their duties as members of the judiciary”. It is subject to critical appraisal by jurists, legislators, interested organizations and the public.
The Committee for Judicial Accountability, 2002 pointed out that only the setting up of a truly independent and autonomous National Judicial Commission will settle the issue of who will judge the judges and guarantee greater accountability and transparency within the higher judiciary. Judicial accountability if stretched too far can seriously harm judicial independence and thus it is essential that we strike the right balance between the two. The judges of higher echelons should be men of fighting faith with tough fibre not susceptible to any pressure of any sort. As every one else, it must welcome reasonable control from outside in the form of fair and rational criticism of its acts done in judicial capacity.
It is not permissible for the Court to take over the role of statutory bodies or other organs of State and perform their functions.