The Big Story: Judicial overreach

The separation of powers is widely held to be an excellent development in the way governments work. The legislature makes new laws, the executive carries them out and judiciary makes sure that everything that’s happening is within the ambit of the Constitution. India, in theory, also sticks by this principle.

In practice, though, India’s judiciary has expanded its role widely since Independence. From the basic role of protecting the Constitution, it has reached liberally into domains that one would consider to be under the ambit of the executive or the legislature. An extreme case of this is that the Supreme Court of India, the highest court in the land, is now organising Mumbai city’s Jamashtami festival, laying down rules such as age cut-offs in the Dahi Handis and even putting down a cap on the height of the human pyramids formed.

This isn’t the only instance of the judiciary actually getting down to governing or legislating. In December 2015, the Supreme Court banned the registration of luxury automobiles and sport utility vehicles with an engine capacity in excess of 2000 cc in the National Capital Region. Earlier, the judiciary had cancelled 2G licenses and coal block allocations, rejecting processes laid down by the Union government.

That matters such as Dahi Handi deaths, pollution or corruption are not important is no one’s point. But it is a logical fallacy to assume that the judiciary is somehow better equipped to deal with these than the democratically-elected executive. After all, there is a reason that the separation of powers exists and has served countries like the United States so well.

Even more crucial is the matter that the judiciary in India is not democratically accountable. Judges select themselves without even any input from either the executive or the legislature – a unusual arrangement followed in few other parts of the world. In any system of state, the ultimate power must lie with the people of India and it is troubling for the Republic if one undemocratic arm starts to appropriate the functions of the government, be they trivial ones such as the dahi handi or major ones such as natural resource distribution.

India’s judiciary suffers from debilitating issues such as delays – legal recourse is often not even an option for a vast majority of Indian given the cost and time required. Maybe the Indian judiciary should concentrate on fixing these issues so that it can carry out its primary duty before it thinks of stepping into the executive or legislative domains?

Political Picks

  1. Rejecting Pakistan’s offer for talks on Kashmir, New Delhi said that it’s willing to discuss terror instead.
  2. The Chief of Army Staff, Dalbir Singh, has spoken out strongly against Minister of State for External Affairs, General (retired) VK Singh, accusing him of trying to stall his promotion with mala fide intent. In a separate case, VK Singh’s wife has claimed that she was secretly taped and is now being blackmailed.
  3. In what might be the first instance of deaths after Bihar put in prohibition, 13 people have died in Gopalganj district after allegedly consuming countrymade liquor.  

Punditry

  1. In the Indian Express, Pratap Bhanu Mehta makes the point that by bringing up Balochistan, Modi has reaffirmed how India and Pakistan are deeply hyphenated.
  2. In the Telegraph, Ruchira Gupta criticises the recently passed, Child Labour (Prohibition and Regulation) Amendment Act, accusing it of legalising 90 per cent of the country's child labour.
  3. Harsh Mander writes in the Hindustan Times about how angry Dalits in Gujarat won’t take it lying down this time.

Don’t Miss

Anita Katyal explains how Modi's new position on Pakistan has thrown the Congress off-balance too

Today, the shoe is on the other foot. As a result, the Congress has been speaking in different voices and its spokespersons are doing a tightrope walk over the past few days. The party began by supporting the government on the Kashmir issue but gradually changed tack. It did not oppose the Modi government’s decision to highlight the human rights violations in Balochistan and PoK but it instead sought to corner the ruling alliance by charging that it had failed to follow these issues up with sufficient force in the international fora. It also charged that Modi’s references to Balochistan, PoK and Gilgit-Baltistan were nothing but an attempt to whip up patriotism and divert attention from pressing issues like price rise and the atrocities on Dalits and that the government was doing nothing to end the ongoing unrest in the Kashmir Valley.