THE GIST of Editorial for UPSC Exams : 14 December 2018 (The fear of executive courts)

The fear of executive courts

Mains Paper 2: Polity
Prelims level: Judicial Independence
Mains level: Statutory, regulatory and various quasi-judicial bodies Government policies and interventions for development in various sectors and issues arising out of their design and implementation

Context

•  Justice S.R. Sen of the Meghalaya High Court observed in a judgment that “anybody opposing... Indian laws and the Constitution cannot be considered... citizens of the country.”
•  The case involved the denial of a domicile certificate. Justice Sen, however, thought it fit to further note that in 1947 India “should ... have been declared... a Hindu country”, and that “our beloved Prime Minister” ought to legislate to grant automatic citizenship to (non-Muslim) religious minorities “who have come from Pakistan, Bangladesh and Afghanistan”.
•  He also noted that “our political leaders” in 1947 “were too much in a hurry to get the independence... thus, creating all the problems today”, and that “nobody should try to make India as another Islamic country”.
• The meaning of judicial independence
•  Independence, however, means something more. It also requires that judges perform their constitutional role independent of personal biases, political and moral beliefs, and partisan ideologies.
•  An adjudication is a political task, and there is no doubt that a judge’s political vision will inform her work.
•  That, however, does not authorise the judge to turn into a politician.
•  At all times this is bound to maintain primary fidelity to the law and the Constitution: to the text of legal instruments, to the canons of legal interpretation, and to the body of judicial precedent that holds the field.
•  These are crucial checks upon judicial power.
•  Judicial independence, therefore, depends on judges recognising that law, while being influenced by politics, is not reducible to it.
•  Law and adjudication must remain autonomous from partisan politics in important ways. And the more we strengthen judicial independence in its first sense independence from the government the more attention we must pay to independence in this second sense.
•  Judges who are insulated from any external control are accountable only to themselves, and their own sense of the limits of their constitutional role.

The roots of the crisis

•  In the 1980s, there was a rapid expansion of judicial power.
•  This expansion was motivated by a sense that the judiciary had long been a conservative institution, taking the side of landed interests against “the people”.
•  This needed to change. In order to accomplish this, the Supreme Court began to dispense with procedural checks upon its power.
•  Some of these steps were important and necessary, such as allowing “public interest” cases to be filed on behalf of those who were unable to access the courts.
•  Others, however, were double-edged swords, such as diluting the evidentiary standards required to prove disputed facts, and vastly expanding the courts’ discretion to shape and fashion remedies.
•  A combination of viewing the judiciary as an infallible solution to all social problems, and viewing procedure that would otherwise constrain judicial power as an irritant that stands in the way of a truer, purer justice has created the perfect storm that we see today.
•  The first allows a judge to project her own social and political views as universally valid and beneficial;
•  The second allows her to ignore the barriers that stand between her and the implementation of those views.

Way forward

•  The record of the courts in protecting civil rights has been a mixed one. In far too many cases, courts have tended to defer to the executive and the government.
   However, judgments like the national anthem order, the Tirukkural order, the NRC process, and Justice Sen’s recent foray raise an altogether more frightening prospect: that of an “executive court”.
•  By an executive court whose moral and political compass finds itself in alignment with the government of the day, and one that has no compunctions in navigating only according to that compass.
•  Instead of checking and limiting government power, an executive court finds itself marching in lockstep with the government, and being used to set the seal of its prestige upon more controversial parts of the government’s agenda.

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General Studies Pre. Cum Mains Study Materials

Prelims Questions:

Q.1) With reference to the National Commission for Protection of Child Rights (NCPCR), consider the following statements :
1. It was set up under Juvenile Justice Act, 2000.
2. Its ensures that all laws and policies are in consonance with the Child Rights.
3. It can take up cases on violation of child rights suomoto.

Which of the statements given above is/are correct?
(a) 1 only
(b) 2 and 3 only
(c) 2 only
(d) 1, 2 and 3

Answer: B

Mains Questions:
Q.1) India urgently needs the return of a thriving legal culture that uncompromisingly calls out political posturing. Critically examine the statement