I really fail to understand why some of our ministers and legislators have of late been critical of our judiciary . According to reports, the other day Finance Minister Arun Jetley said : “Courts cannot substitute the executive and say, ‘I (judiciary) will exercise the executive power’. Judicial review is (a) legitimate domain of judiciary but then the Lakshman rekha has to be drawn by all the institutions themselves… Executive decisions are to be taken by the executive and not the judiciary… Just as independence of the judiciary is part of basic structure, the primacy of the legislature in policymaking is also part of basic structure…. In the name of independence of judiciary, we cannot compromise the other two basic structures.”
Earlier, Minister Jetley said in Parliament , “Step by step, brick by brick, the edifice of India’s legislature is being destroyed… With the manner in which encroachment of legislative and executive authority by India’s judiciary is taking place, probably financial power and budget making is the last power that you have left. …This House (Parliament ) has the primacy in law-making and budget-making. Lawmaking and budget-making cannot be decided by any third party. ”
Echoing a somewhat similar feeling , Samajvadi Party Member of Parliament Ram Gopal Yadav said , "If the judiciary does it, what is our relevance ? …. ." Bahujan Samajwadi Party supremo and former Chief Minister of India’s most populous province ( Uttar Pradesh ) Mayawati suggested , "We should act unitedly … and rise above political affiliations . We should look within on why judiciary is taking advantage. We should sort out our differences."
There is absolutely no evidence that our judiciary has ever crossed over any constitutional redlines (lakshman rekha ) and sought to take away powers of our Executive or Legislature . Looking at it objectively, I find the Court has consistently adhered to the redlines well defined in our doctrine of separation of powers between itself and the other two organs of the government, executive and legislative .If the Court has ever pulled up our political leaderships, it has done so only when the political leaderships themselves have overlooked the doctrine of power separation and not performed their own fundamental function of governance in tune with the letter and spirit of our Constitution .
It may be recalled that recently, a High Court has reproached the Centre for not honouring the spirit of the Constitution in the case of imposition of President Rule in a state . Impartial observers say the Court’s intervention in the matter was justified . Architect of our Constitution B.R. Ambedkar had warned the Central government against the imposition of President rule in a state and suggested the related constitutional provision to be treated as “ a dead letter.” But the Centre has invoked this provision for 112 times so far.
In another recent case the Supreme Court has reproached the Centre for its “unconscionable delay” in releasing funds for the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) scheme. The Court has directed the Centre to set up monitoring committees to ensure the implementation of all social welfare legislation, including the food security law. A bench of Justices Madan B Lokur and N V Ramana pulled up the Centre for not giving compensation to workers for delayed payment for work under MGNREGA in a drought-like situation.
The Court said it “does not behove a welfare state” and that “social justice has been thrown out of the window”. It ordered the Centre to release all outstanding funds for MGNREGA to the states and directed it to pay compensation for delayed wages to farmers in drought-hit areas. It said, “The state cannot… create a smokescreen of a lack of finances or some other cover-up. ”
Those who criticize the judiciary must appreciate its dignified pattern of functioning . They would do well to appreciate that the Court has no option but to intervene and instruct when any matter of public interest that ought to be taken care of by our political class but is ignored comes before it. This is precisely what the Court has done in the recent past . The Court has delivered its judgments on drought and related problems on a Public Interest Litigation filed by NGO Swaraj Abhiyan. The court has only directed the governments . It has refused to appoint its own commissioners for implementation of its directions and asked the Centre to submit a status report by July 25 .
Impartial observers say that today over 54 crore farmers and rural populations across 13 States in India are in the grip of drought today. People are battling for drinking water, food has become scarce, domestic cattle are dying a nomadic death and farms have turned fallow. But the government has been unwilling to release adequate funds. There has been a “sheer lack of political will on the part of democratically elected governments to extend elementary entitlements to their own citizens.”I would suggest our political executives and parliamentarians must take to self-introspection and remain ever vigilant to address the problems of those whom they represent. They must commend, not criticize, the Court for reminding them of their moral and constitutional obligations in the present context . And until and wherever our politicians don’t function to serve citizens, the Court must do what the very spirit of our Constitution commands it to in our Republic.