Why the judiciary must step back

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Why the judiciary must step back

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• Judiciary overstepping or not: There is debate about whether the Indian judiciary is overstepping into the executive's domain, crossing some constitutional limits. Due to pandemic, there is suo motu congnizance of many issues as well. In suo motu, it becomes both the petitioner and the judge.
• SC anger on EC: The Supreme Court lost its cool and admonished the Election Commission, and the government. Judges ought to be more circumspect, as what they say has a deep impact. Many High Courts too have been admonishing the state governments that are democratically elected.
• Written constitution: India's written constitution, unlike that of UK, has clearly separated the three organs of the state - the executive, legislature and the judiciary. Their domains are well-defined, and relationship with each other too. None is superior to the other, except when mentioned in the Constitution.
• Judicial review: The power of judicial review of legislation and administrative actions is provided for, but it is limited, and not unlimited like in the US. India rejected the "due process of law" and instead chose "in accordance with law" method. The S.C. has tried bringing the "due process" concept back, as it gives courts more powers in matters of deciding the vires of legislations, or executive actions.
• Supremacy: No institution is above the Constitution and the people. The council of ministers is answerable only to the Lok Sabha. Hence, no institution can make itself the conscience-keeper of India, questioning the government. Courts must remain away from either supporting the govt., or the opposition.
• Independence issue: The independence of courts is crucial, just as it is for the Parliament, and the Election Commission. All citizens must respect the government of India.
• The pandemic case: The SC has asked for data, facts, plans, strategies from the government, as if it is superior to the government. It is true that the pandemic is a terrible situation in India, but it is time for all organs of state to work together. There is no point in interfering in each others' work.
• What judiciary should do: It should first clear the pendency of millions of cases, and reduce delays. Let justice be available to citizens in an affordable manner.
• Article 124: The earlier Supreme Court had a Chief Justice and 7 more judges. The Article 124 stipulated it, and said that "unless Parliament by law prescribes a larger number". That number went to 34 eventually, by law. SC could not have done it itself.

1. But in the judges' appointment case, the SC struck down 124A and 124B, that created the NJAC (National Judicial Appointments Commission)
2. That judgment was a wrong, and unconstitutional one, as the SC assumed constituent powers (which it does not have)
3. Under Art. 368, constituent power is vested in the Parliament, and any amendment is only through a Bill
4. Just like the power to amend the constitution is a limited one, the court's power to interpret is a limited power.

• Summary: The courts must not interfere in the working of governments to manage the pandemic at all.

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