The Indian Supreme Court in the last two decade been activist and it has affected the role of the democratically elected branches: legislative and executive.

The Indian Supreme Court in the last two decade has been acting as an activist by examining it history and function of Supreme Court based on judicial ruling suspected on personal or political consideration rather than on existing law in Indian constitution; the supreme court of India is the highest judicial forum final court of appeals of India established under the constitution of India, which declare the highest constitutional court and guardian of the constitution. In 1861 the Indian High Court Act 1861 was enacted to create High Court for various provinces and abolished Supreme Court at Calcutta, Madras and Bombay and also the Sadar Aadalats in the President town which had acted as the highest courts for all the cases till it creation of the federal court of in India under the government Act of India 1935. The Supreme Court of India came into being on 28 January 1950. It replaced the both the federal court and the judicial committee of the Privy Council, which were at the apex of the Indian court system.

The constitution task assigned to the judiciary is in no way less than that of the other two functionaries- legislation and executive. The court has all practical purposes disregarded the separation of power under constitution of India, and assumed a general supervisory over other branches of government. It is the matter of concern that over time this original, beneficial and unexceptional character of the court’s activism in Public Interest Litigation has been largely converted into a general supervisory jurisdiction to correct action and policies of the government, public bodies and authorities. The Supreme Court as the guardian of the constitution of nation, it is the role of the judiciary to carry out the constitutional message, and it is responsibility to keep a vigilant watch over the functioning of the democracy in accordance with the constitution. However the Supreme Court should not be acting as activist to cross the boundary of role and function lied down in the constitution of India, Supreme Court is performing as activist and it should not override the separation of power given in the constitution of India. The various role and functions of the Supreme Court are discussed below;

  1. Original Jurisdiction (Arts 131); this refer to the cases that directly originate in the Supreme Court. It has original exclusive jurisdiction in any dispute between, the government of India and one or more state, and one state to another two or more state.
  2. Appellate Jurisdiction (Arts 132-136); this refer to the power of reviewing and revising the orders of lower court and tribunals.
  3. Advisory Jurisdiction (Arts 143); the Supreme Court has been vested with the power of advisory jurisdiction. Whenever the president consult the Supreme Court, on any matter of public importance, it give opinion to the president.
  4. Supreme court as a court of record (Arts 129); the Supreme court shall be the court of record and shall have all power of such a court, including the power to punish for contempt of itself.
  5. Appeal by special leave ( arts 136): this power has been conferred upon the Supreme Court, it may, in its discretion, grand special leave to appeal from any judgment, degree, determination, sentences or in any cases or matter passed or made by any court or tribunal in the territory of Indian.
  6. Writ Jurisdiction; the Supreme Court is the guardian of the individual liberties and fundamental rights. For the enforcement of the fundamental right, it can issue writ in the nature of Habeas Corpus, Mandamus, Certiorari, Prohibition and Qua-Warrantor.

The Supreme Court have a power of judicial review; it implies the power to review and determine validity of a law or an order. The court can challenge the constitutional validity of a law on the following grounds; 1) the subject matter of the legislation is not within competence of the legislature which has passed it; 2) it is repugnant to the provision of the constitution; 3) it infringes one of the fundamental rights. The above role and function of the Supreme Court have gained the trust of the citizen and by knowing the corruption of the executive and dysfunction of the legislative, the people pressure to the court. The court has right to indicate to the government; you are not doing your job, you better do it, but if the court went too far in trying to run government then legitimate criticism is the act of judicial activism which is actually Judicial tyranny.  However the temptation to rush to the Supreme Court and high court for any grievances against a public authority has also deflected the primary responsible of the citizen themselves in a representative self-government of making legislature and the executive responsible for their action. The answer is given by the judiciary to this type of overreach is that it is compelled to take upon this task as the other branches of government have failed in their obligation; like –wise when the judiciary is fail, can government takeover it function? Thereby, there is no doubt that there are many areas where judicial has fail to meet the expectation of the public.

Example-1:  India’s federal Judicial System has a backlog of almost twenty million cases, thousands of prisoners are awaiting trail and the average time it take to get judgment has been steadily increasing.

Mehta make a claim, “it is no accident that Indian constitutional Law has been relatively unstable, or that the same court which appear assertive in some areas seem weak in other. Strong enough to spark the passage of many constitutional amendment meant to confound judicial rulings, but so easy going that no major politician have ever been charged in any of the numerous corruption cases that the Supreme Court has been supervising for year” he further added, “ the legitimacy vision, but rather from its opposite. The Supreme Court in particular has giving enough player enough partial victories to leave them feeling as if they have a stake in keeping the game of political give and take going” This, more than any ringing defense of principle, is the Court’s signal contribution to Indian democracy.

Mr. Pratap Bhanu Mehta’s assessment of Supreme Court Politic in India can be examine in three point;

  1. First, even as the nation’s most senior judicial engages in high profiles PIL intervention.
  2. The Supreme Court has established itself as a forum for resolving public-policy problems, but the principal informing its action is less clear. To the extent that the rule of law means making available a forum for appeals, one can argue that the court has done a decent job; the rule of law means articulating a coherent public philosophy that produces predictable results, the court intervention look less impressive. And
  3. The court has helped itself to so much power, taking over the executive functions, marginalizing the representative process, without explaining from whence its own authority is supposed to come.

In theory, democracy and constitutionalism can be reinforce each other, but in practice their relationship is complex and even problematic. The individualized character of litigations and adjudicatory process makes the Court different from other political actors which can make policy decision in the abstract. I believe that Mehta’s analysis, while compelling as a general hypothesis, does not pay sufficient to this aspect of the Supreme Court’s functioning.

Example-2; Intervention of Supreme Court, the justice has gotten involved in Corruption, Caste judicial, Tax-Evasion, Malnutrition, Welfare, Security and Education.

Professor Baxi, present a penetrating and brilliant analysis of the judicial pronouncement during last two decade by mutual domain of socio-political developments to legal development. In post-emergency phase, according to him, the court is “people oriented” approach. Which he term as populist approach, seeking by militant activism, legitimacy from the people. He articulated the premises as “home truth” for analysis presented by him as under:

  1. The Supreme Court is a Centre of political power because it can influence the agenda of political action and can strike down not only a legislative enactment but also a constitutional amendment.
  2. As a Centre of political power it is vulnerable because it has no constituency in the sense political have, to support it, in time of crisis through it has multiple communication constituencies.
  3. It is sensitive to the claim of other major institution of national government and play politics of accommodation to extent possible by skillfully managing shift in the management of distribution of power. And
  4. The government as the largest litigant keep the court busy.

Mr. Baxi also emphasis that the court has constituent power mean that the court can exercising this power, put itself above the constitution as it did in Golaknath.  However, the Supreme Court has to interpret the constitution, and freedom from legislative and executive does not meant to trespass into territory.  The Indian founding father wrote the constitution, they created three arms – Parliament, Executive and the Judiciary. All together were to be the keeper of the ideals of the nation as enshrine in the constitution. Over the past two decade the parliament has become dysfunctional, the executive has abdicated its duties and the judiciary is cracking the whip. The judge should know that judicial activism should not become judicial adventurism, and in PILs, the judiciary should refrain from the temptation of getting media headline.

The recent Supreme Court decisions overturning the executive’s decision to appoint P.J. Thomas as the Central Vigilance Commissioner, and setting up a team monitor investigation in to black money stashed abroad, the judiciary has established supremacy over the Legislature and the Executive.

Example-3; Indian Prime Minister Narendra Modi and his government were directed by Supreme Court to hand over the names of 627 Indian citizens holding potentially illegal bank account at an HSBC branch in Geneva; for short term political gain, slowly erosion of executive authority in India by activist Supreme Court.

Law and Governance student from APU.

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