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Veerapan imbroglio 

Veerapan imbroglio -  Limits of Judicial Activism: Is liberty of a film star more important than that of an ordinary citizen? Are we governed by the rule of law or the sporadic inclinations of the people in power?

The Supreme Court order of 31st August 2000 staying the release of the associates of forest brigand Veerapan which the State Government had agreed to and a Special Court had allowed - for the purpose of securing the release of Kannada film star Rajkumar adds new dimensions to the controversy of separation of powers. The public opinion is vastly divided on the wisdom of the roles played by the executive and judiciary. Firstly should the executive have buckled down to the blackmail of an outlaw, who alongwith his associates has committed many serious crimes including murders, to secure the release of a popular film star. The main reason given by the government was to avert a law and order crisis which would have arisen due to his extreme popularity in the States of Karnataka and Tamil Nadu. Would the State do a similar thing if a common man is involved instead of a film star? Is liberty of a film star more important than that of an ordinary citizen? Are we governed by the rule of law or the sporadic inclinations of the people in power? The Supreme Court came down heavily upon the State Government on their surrender to a criminal on this issue. It said that if the State Government cannot deal with criminals and meet law and order situation it had no right to continue it must quit.

In recent times it is being widely argued that the Supreme Court is slowly encroaching upon the functioning of the executive despite separation of powers as provided for by the Constitution of India. Not surprisingly there is enough indication to lend support to this popular belief. In the last two decades or so the Supreme Court has passed many judgments questioning the action or inaction of the government in many areas of administration and governance. Most of this can be seen in the judgments passed in Public Interest Litigation. Presently environmental issues are topmost on the Supreme Court agenda as the common man can observe from newspaper reports. The concern for Taj Mahal, pollution in Delhi including Yamuna river, cleaning up of Ganges, shifting of factories from populated areas of Delhi, emission standards for vehicles plying in Delhi, prohibition of plying of non-conforming vehicles etc. are just a few examples of the role being played by the Supreme Court in determining policy in the field of environment alone.

Even as far back as 1893, Justice Mehmood of the Allahabad High Court delivered a dissenting judgment which could be considered as one of the first instances of judicial activism in India. In this case an undertrial could not afford to engage a lawyer. The issue was whether the court could decide his case by merely looking at his papers. Justice Mehmood held that the pre-condition of the case being "heard" (as opposed to merely being read) would be fulfilled only when somebody speaks.

In the above background, the issue is should the Supreme Court abandon its responsibility to uphold the political philosophy of our Constitution just to avoid participation in policy making.  Properly done, judicial review is essential to the implementation of a political philosophy. Improperly done, as it is sometimes done, it is a political act itself. People who believe in judicial restraint must understand the difference between judicial adherence to a political philosophy and judicial participation in politics. It is true that sometimes the Judges may actually participate in policy making which is the prerogative of the legislature and the executive, however, in most cases the Supreme Court just tries to uphold the policy ingrained in the Constitution. In our present example the Supreme Court has upheld the rule of law which includes the concept of equality. Both are a part of the basic structure of our Constitution.

The proponents of judicial restraint argue that judicial activism is said to be undemocratic. The Supreme Court is not a democratic institution inasmuch as it is not an elected body. Supreme Court must allow the legislature which is representative of the people to make its choices. The Supreme Court, in case after case, is freely imposing its own view of sound public policy - not constitutional law, but public policy. The other argument is that judicial activism is unconstitutional as it goes against the Constitutional principle of Separation of Powers. The Supreme Court must not encroach upon the functions of legislature and the executive. However, we must not forget that it is the Constitutional duty of the Supreme Court to save the people from the tyranny of the majority by applying the values and principles enshrined in the Constitution. Who is there to guard against such tyranny but the courts? If the Supreme Court adheres to a judicial philosophy the fundamental principle of which is deference to the democracy, the tyrannous democracy will go unchecked. By definition it will not be checked by the people. There is nowhere to turn but the courts, and they, inspired by a simplistic philosophy of judicial restraint, will have abandoned liberty for democracy and community. The correct approach should be that of balance. The Supreme Court should not review actions which are constitutionally undertaken by the other branches and levels of government. Indeed once the Court concludes that government has acted within its constitutional powers, there is no further role for the Court. This means there is no room for judicial policy making. But in deciding whether or not the government is acting within its constitutional powers, as defined by constitutional definitions and allocations of power and by constitutional guarantees of individual rights, the Supreme Court should be activist.

The people expect honesty, integrity and learning from the Judges. They also expect efficiency, timeliness and attention to case management. Prejudice and partiality have no place in the judicial function. The people have a right to expect the judge to be calm, objective and neutral. But there is no clear divide which marks off the limits of judicial creativity and activism. We should realise that some measure of "judicial activism" is not only permissible but is traditional in our system of law. However, it must be remembered that a society that leaves all or most of its hardest decisions to the courts is a weak society. The burdens which society casts on its judges are greater today than ever before.  

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