For judiciary, the red lines are bright and clear

Source– The post is based on the article “For judiciary, the red lines are bright and clear” published in “The Indian Express” on 1st April 2023.

Syllabus: GS2- Functioning of judiciary

Relevance– Issues related to judicial review and judicial activism

News–  Over the last few years, issues relating to tradition, culture and society have come before the constitutional courts of the country in the form of public interest litigation.

What are some facts about doctrine of basic structure and judicial review?

One of the most fundamental principles of constitutional morality is that every organ should look at its jurisdiction to discharge a particular role. It is to preserve the sanctity of the doctrine of separation of powers.

The doctrine is part of the basic structure of the Constitution. It is meant to preserve the respective power of the legislature, executive and judiciary.

The judiciary has the power of review over the other two organs. But, such power has limitations which must respect the institutional independence and competence of such organs.

The power of judicial review is not judicial supervision or superintendence over the legislature or executive. This position is especially applicable in matters of policy where domain expertise is required. This is also the case with societal experimentation, where there is a need for a process of consultation between the electorate and the elected.

The doctrine of separation of power facilitates participative democracy in letter and spirit. It facilitates the right of the public to give effect to its will through the legislature.

Even if the decision of the majority is flawed, it cannot be reviewed by the judiciary except on the grounds of constitutionality.

What should be the way forward for the judiciary?

Judicial wisdom should not replace the will of the majority. The Constitution does not envisage replacing democracy with judicial paternalism.

The Constitution recognises that sometimes a good policy decision may be unconstitutional, and a bad policy decision may be constitutional. Only unconstitutionality is the ground for the intervention of the judiciary.

The judiciary should dissuade public interest litigants and civil society groups from seeking its intervention by crossing constitutional limits. In a democracy, those who wish to convince the legislature of their position must engage with societal and legislative stakeholders to put across their point of view.

There do exist areas where both the legislature and executive are not taking decisions because of their vested interests. It forces the affected parties to seek judicial remedy. In such instances, the Supreme Court may invoke its extraordinary powers under Article 142 to address an exigency until the legislature brings in a law on the subject. An example of this is the Vishakha guidelines.

The judiciary cannot go for judicial review merely because the judiciary or some members of the judiciary disagree with the social premise underlying the law. State interest can not be questioned based on judicial disagreement with the legislative or executive position.

Judicial disagreement with legislative policy is not proof of unconstitutionality. Only the constitution is the measure to assess constitutionality.

Judiciary should not express its opinion on matters of policy where it has no jurisdiction, with the intention of shaping public opinion or to put pressure on the other organs. It can have an impact on the public discourse.

The Constitution permits the judiciary to perform an advisory role in very limited circumstances and that too only when sought for. These red lines drawn by the Constitution cannot be breached by any constitutional Court.