Supreme Court bench comprising Justice A.K. Mathur and Justice Markandey Katju have revived a healthy national debate on judicial activism by their controversial observations on judicial overreach. The bench is right only to a point. They had valid reasons to advise the judiciary to stick to its constitutional domain and to refrain from disturbing the delicate distribution of powers between various arms of the State for the simple reason that there is no dearth of instances of courts making inroads into areas clearly earmarked for executive or legislative wing. A classic example of the judicial overreach is the Supreme Court orders delivered about a decade ago directing the Parliament on the contents of the law to create Central Vigilance Commission as an autonomous authority. Although court'smotive was unexceptionable, it was a grave intrusion into Parliament'sdomain. If the courts were to enact laws, who would ensure that these didn'tviolate the Constitution or Fundamental Rights of the citizens? Equally flawed is the judiciary'spropensity to take upon itself the task of controlling price rise or maintaining law and order in one state or the other. ?If there is a law, the courts have the right to ensure its enforcement but they can'tcreate a law and then proceed to enforce it. Judges must know their limits and must not try to run the Government. They must have modesty and humility and must not behave like Emperors? was an apt observation by Mathur and Katju.
Having said that, one most humbly point out that the bench over-stepped its authority by declaring ?illegal? several orders passed by the Delhi High Court over the years without having any opportunity to hear arguments on these cases.
The two-judge bench'sobservation on Public Interest Litigation is indeed controversial. PILs have emerged as an effective tool to prod the executive into action. To say that instead of resorting to PILs, people should exercise their franchise more intelligently to elect the right type of executive is to over simplify the political process. There are countless issues of failures of the executive to perform its duty that play a minimal role in deciding whom to vote for in elections. In countless cases, the courts have come to the rescue of the citizens and forced the authorities to act. PILs are an effective mechanism in cases of human rights violations and to compel municipal authorities to perform a public duty. However, There is also another side of the story. PILs have been converted into an industry by certain self-serving elements. Not all PILs are filed with noble objectives. The instrument has been exploited to make easy money and get cheap publicity. Sheer volume of such litigation makes it obvious that these are being misused. There is a need to curb the tendency to exploit the instrumentality of PILs for personal gains. Clear ground rules need to be laid down to regulate the public interest litigation so that it truly serves public interest.
String Operations are yet another instrumentality that needs to be regulated. Some of these operations have served the interests of the society by exposing the murky deals. One such sting served public interest by exposing the nexus between a famous criminal lawyer and a prominent Public Prosecutor to manipulate a key witness in an infamous criminal case in which a rich and influential person was involved. On the other hand, the fake sting on a Delhi schoolteacher Uma Khurana that destroyed her life has exposed self-serving stringers and undermined the credibility of this instrumentality. Delhi High Court'srecent order in this case is significant in the sense that it says entrapment as impermissible. ?Inducing a person to commit an offence that he is not known or likely to commit and shoot it on camera as a sting operation?, the order said, ?is henceforth banned?. The court cautioned television channels and media houses to ?prohibit? their reporters from producing and airing any programme that was based on entrapment of an individual or that were ?fabricated, intrusive and insensitive?. The court went on to caution the media that it was not for it ?to test individuals by putting them through what one might call the inducement test and portray it as a scoop that (it) has uncovered a hidden or concealed truth?. This part of the order is in conformity with a long forgotten Supreme Court order against entrapment. But the High Court has gone far beyond this unexceptionable order by a slew of advisories like setting up a committee headed by a former High Court judge to clear strings. Some of these suggestions are unacceptable as these tend to restrict freedom of the media while others are controversial that are likely to be resisted by the media houses.
Not to be forgotten in this context is the crying need for judicial reform. Appointment of judges to the superior judiciary, their accountability, court'sover-assertiveness in contempt cases and appointment of retired judges to coveted posts and positions leave much to be desired. Various commissions, including the Constitution Review Committee appointed by NDA Government, went into these issues in depth and came up with reasonably good solutions. But there has been no action.
Let the political leadership hammer out a broad national consensus on the issue and translate it into action.
Parameters of Judicial activism, role and regulation of public interest litigation and sting operations are issues that need to be discussed in depth by constitutional experts, parliamentarians, social activists and media. The final word, of course, will have to come from the apex court to which these issues will come up for adjudication. It needs to set the parameters of judicial activism and lay down the law on some of the controversial instrumentalities that have gained currency in recent years.