Q.24) Judicial Legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian Constitution. In this context justify the filing of large number of public interest petitions praying for issuing guidelines to executive authorities. (GS-II: POLITY AND GOVERNANCE, UPSC CSE 2020)(Answer in 250 words)

INTRODUCTION:Referring to the system of polity that we have adopted, role of judiciary is to adjudicate and work as the guardian of the Constitution. Role of the executive is to work for fulfilment of aspiration of people. However, PIL was initiated during 1980s as an instrument of social justice which resulted into judiciary entering into domain of executive and legislature.

According to doctrine of separation of powers, role of legislature is to make laws, role of judiciary is to scrutinize the legality of the law as per the provisions of the Constitution. Therefore, in normal circumstances, these organs of the State are supposed to work in this scheme.

However, India is a transitional society. Therefore, judiciary has not been given neutral role. It does have scope for its proactiveness as a guardian of the Constitution and protector of the fundamental rights of the people. Therefore, Public Interest Litigation (PIL) was initiated by Justice P.N. Bhagwati and V. Krishna Iyer. As a tool for making justice accessible to the poorest of the poor.

PIL has gone through three phases since then and many landmark judgments have been given by the judiciary concerning all walks of life such as S.R. Bommai case, Prakash Singh case, Puttaswami case, Sabarimala case.

However, there is also a trend of too much of activism by the judiciary while accepting PIL and giving guidelines to executive. E.g. GRAP in Delhi air pollution case, Fire crackers ban and specifications of manufacturing them, liquor ban, Police reforms, guidelines to police in prevention of atrocities to SC/ST cases, oxygen supply during COVID-19 pandemic second wave, migrant labour crisis and guidelines to states.

Justification for judiciary playing active role:

• • Executive and legislature have not been responding to the emerging situation in recent times e.g. during Delhi pollution, there is lack of cording among states of issue of stubble burning.
  • Also, during oxygen cylinder crisis in Delhi when life of the people was at stake , government did not take responsibility.
  • When people get frustrated and waited for long enough for action by executive i.e. government, then people feel compelled to go to judiciary as it is only forum left. Judiciary cannot refuse to take action and therefore, willingly or unwillingly it accepts PIL.
  • Also, there has been increased awareness among the people about their rights. There is participation of people in governance through Civil society organizations. But there are vested interest also in filing PIL. PIL is being filed for publicity, political vendetta.. e.g. recently, the Delhi High Court dismissed a lawsuit filed by actor Juhi Chawla against setting up of 5G wireless networks, calling the petition a ‘publicity stunt”, and imposed a fine of RS 20 lakhs ‘for abusing the process of law’.
  • On one hand the government make large claims during elections and make promises to the people for welfare and governance and thus people’s expectation increases. However, when their expectations fail, they seek intervention from judiciary.

Even through it is not good practice in long run, but judiciary take up PIL on very important matter of urgent public hearing or affects public at large or weaker sections of society in particular. E.g. Pegasus case before Supreme Court, it gave chance to government to prove its stand and when it failed to do so, it sought to form a committee.

CONCLUSION:

Separation of power works well in a country relatively stable e.g. U.S. but India is in transition both economy and society. Resources are skewed and concentrated in few hands. Although judiciary should avoid overreach but it has to play active role in ensuring Constitutional governance and functioning of democracy.