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For judiciary, the red lines are bright and clear

For judiciary, the red lines are bright and clear

  • Over the last few years, issues relating to tradition, culture and society have often landed before the constitutional courts of the country.
  • Mostly in the form of public interest litigation with the expectation that courts will perform the role of societal arbiters when society or the legislature or the executive fail to do so.
  • Notwithstanding such expectations from public interest litigants and “civil society groups”, constitutional courts must pause and ponder as to whether the role of societal arbiters falls within the ambit of their constitutional mandate or not.

Separation of Power among three organs of government

  • One of the most elementary and fundamental sequiturs of subscribing to constitutional morality is that every statist organ is expected to ask itself whether it has the authority/jurisdiction to discharge a particular role, no matter how noble the ostensible ends may be.
  • Such an expectation to preserve the sanctity of the doctrine of separation of powers and its sound democratic and republican undergirding.
  • Even if it upholds the basic structure of the Constitution according to the Supreme Court itself, it is meant to preserve the respective turfs of the legislature, executive and judiciary.

Judicial review not be interpreted as judicial supervision

  • Judiciary has the power of review other two organs, such power too has limitations which must respect the institutional independence and competence of such organs.
  • Power of judicial review must not be interpreted as judicial supervision or superintendence over the legislature or executive.
  • This position is especially applicable in matters of policy where domain expertise is called for, and in matters of societal experimentation.
  • As, the doctrine of separation of powers is not meant merely to massage the territoriality of institutional egos, but to truly facilitate participative democracy in letter and spirit by not usurping the right of the public, rather the majority, to give effect to its will through the legislature
  • After all, society has the constitutionally guaranteed right to go through the process of trial and error through the instrumentality of the legislature.
  • This is precisely why matters of reform are constitutionally reserved for the “State” as defined in Article 12, which includes only the legislature and the executive but not the judiciary.
  • Only the State has the mandate to determine the need for, the timing and extent of reform.

Role of Article 142 of Indian constitution

  • There do exist greys where both the legislature and executive may feign policy paralysis for want of interest or incentive or to protect vested interests, thereby forcing the affected parties to seek judicial succour.
  • If there is absolute legal vacuum on a given topic, the Supreme Court may sparingly and cautiously invoke its extraordinary powers under Article 142.
  • An example of this is the Vishakha guidelines issued by the Supreme Court on sexual harassment in 1997 until the enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013.
  • In certain cases, where the language of the law has enough latitude to enable courts to address contemporary realities, they can certainly resort to creative and logical interpretation to provide a remedy.
  • In all other instances where there exists a law based on a valid social premise, the judiciary cannot bring it within the ambit of judicial review at the instance of aggrieved parties merely because the judiciary or some members of the judiciary disagree with the premise underlying the law.
  • Therefore, State interest can be questioned on grounds of arbitrariness or unfairness or express constitutional violation, but not on grounds of judicial disagreement with the legislative or executive position.

Upholding the principle of constitutional Morality (Conclusion)

  • Constitution permits the judiciary to perform an advisory role in very limited circumstances and that too only when sought for.
  • These bright red lines drawn by the Constitution cannot be breached by any constitutional Court because it would interfere with the course of democracy.
  • It must be understood that courts do not exist to facilitate circumvention of the legislative process at the behest or instance of special interest groups.
  • In a democracy, those who wish to convince the legislature of their position must put faith in engaging with societal and legislative stakeholders to put across their point of view with the hope of securing greater support.
  • While this process is indeed time consuming, it is the essence of democracy and does justice to the oft-cited mantra of constitutional morality.

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