THE GIST of Editorial for UPSC Exams : 23 March 2020 (Judicious activism, not judicial activism: Time for judiciary to practice constitutional morality(Indian Express))



Judicious activism, not judicial activism: Time for judiciary to practice constitutional morality(Indian Express)



Mains Paper 2:Polity 
Prelims level:  Judicious activism
Mains level:Judicious activism and its major challenges 

Context:

  • The global and Indian economies reel under the Covid-19 pressure, so it is necessary to assess the overall economic slowdown.
  • The judiciary should practice the constitutional morality with respect to its own power of constitutional review of economic policies.

Government’s priority:

  • The Indian government wants to improve India’s profile in the World Bank’s Ease of Doing Business (EoDB) index.
  • It wants to do so to yield better external and internal investments, which are a shot in the arm that the Indian economy certainly needs.
  • In its efforts to improve investor confidence, it has introduced numerous legislations that provide boost to its rank on the EoDB index. 

In what parameter does India lag?

  • Under the parameter of “enforcing contracts”, India continues to lag behind even lesser economies. 
  • This parameter, while looking at dispute resolution capacities, reveals the challenges that a litigant faces in the Indian judicial system.
  • Delays and procedural breakdowns, lack of adequate remedy or proper enforceability of a judicial decree. 

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Remedy taken by the Parliament:

  • It enacted amendments to the Arbitration and Conciliation Act, 1996, and the Commercial Courts Act, 2015. 
  • Primarily, both these legislations aim at improving commercial litigation, especially those involving higher economic stakes. 
  • Yet, no mechanism or legislation comprehensively addresses resolution of disputes pertaining to vital infrastructure development projects.

What is the debate? 

  • A debate is on how far courts can intervene in developmental and economic policies of the state to balance divergent interests.
  • There is also a debate on whether contemporary jurisprudence is emblematic of more amped up and overzealous judicial activism. 
  • If there is any violation alleged against the governments undertaking such development exercises, they wind up in constitutional courts through the PIL route. 
  • Once there, these projects have the unfortunate tendency of beleaguering pendency.

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Should courts sit in review of these policies?

  • Judicial review and the oversight of courts are an inherent check and balance prescribed by the Indian Constitution. 
  • However, the apex court itself has upheld that when conducting a constitutional review, the courts must limit it to constitutionality.
  • It added that the courts should not delve into the intent of such policies, unless it is prima facie established to be born of mala fide intent. 
  • There are instances of excessive judicial activism that are viewed as stumbling blocks impeding a booming economy.
  • It is within this larger debate on the powers of judicial review and intervention that injunctions emerge as the central contention. 

What would be the effect of injunctive orders?

  • Injunctive orders have the capacity to offset developmental plans in motion, and their cost implications are significant. 
  • The Economic Survey of 2017-18 quantifies the costs of such delays. 
  • The cumulative value of multiple projects snagged by injunctions and interim orders was pegged at Rs 52,000 crore (in March 2017). 
  • On an average, such injunctions would remain in effect for over four years, thus causing severe delays.
  • In turn, it would add the overrun costs to the development projects. 

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General Studies Pre. Cum Mains Study Materials

Prelims Questions:

Q.1)With reference to the disposal of bodies, consider the following statements:

1. For infectious diseases, the World Health Organisation (WHO) prescribes various biosafety levels (BSL) with bodies, medical gear and disposables.
2. For bodies of dead COVID-19 patients, the WHO is mandating BSL-3.

Which of the statements given above is/are correct?

(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2

Answer........................

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Mains Questions:
Q.1) What is the government’s priority regarding Judicial Activism?What did the Parliament do to remedy these ills?


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