We get to hear that our courts are overreaching; that enabling un-elected judges to thwart the wishes of the elected representatives is undemocratic. Well, aren’t we too late to complain? Even after 14 general elections, and all the publicity given to proceedings in parliament, ordinary voters remain dissatisfied. In countries with a written constitution, the reach of judicial power is almost unlimited, and hence the so-called judicial overreach is but a direct result of legislative and executive underreach.
It has been said that where there are no judicially manageable standards, our courts should not interfere; instead, they should leave it to the elected representatives of the people. That notion is correct in theory, but naive in practice. In the past several years, almost every session of parliament has been marred by some dispute or contention of the moment, but those issues have not been of any grave national importance. For successive years now, an important decision like the annual finance bill has been passed in the Lok Sabha without debate or discussion. Instead of voting in, we have been voting out governments. Something is surely going wrong somewhere. In case of a breakdown, some authority would have to be the final arbiter. Under our constitution, that arbiter is the country’s highest court.
It must be understood that there is no disharmony between parliament and the judiciary. Disharmony between the government and the courts is a different matter. In fact, if there was complete harmony between them, this country would not be worth living in. It is the duty of the judges to interpret the constitution and the laws, and if this creates clamor and controversy, that is the price we have to pay for living in a participatory democracy. Under these circumstances, when we have a slowdown in legislature and executive, and when judiciary has proven its worthiness – the next big step ahead should be making courts more available to the common man. But that’s another story.