Constancy in the midst of national crisis: why is the Judiciary silent?
Anamika Mishra, Faculty of Law, Delhi University
In remembrance of nationwide protest and contemporaneous ferocities, the Court commented
"How can we stop the violence? First, the violence must stop and then only we will hear the case."
This pattern is observed not long ago where A Supreme Court judge commented while repudiating a plea to succour migrant workers to go towards home in an august manner that
"How can we stop them from walking? It is impossible for the Court to monitor who is walking, and who is not?"
Where Judiciary is deemed to be an arm of the state in which judicial power is vested, that Judiciary itself is crumbling down with its constant adjudications and fails to feature in that chores of the judicial system which is to shield the civil and human rights of the people against the state.
In the words of Austin
"Judiciary must be kept out of politics."
But as we see with the day to day judgments of the Hon'ble Supreme Court, it subtly buttresses the ruling party. The Constitution of India makes a judge independent so that certain motives shall not govern his official conduct. However, the 'BUTS' with the Judiciary has elevated with time. When the people of this country realize that their rights are not shielded because of the state's inactions, they go to the courts for dispute resolution, and when the courts does not lend their ears to them, that is when the democracy fails. The whole idea of the courts of India not controlled by the government and do not represent any political authority are now being mocked.
Judicial activism v. Judicial restraint: Discourse of judicial decision making
One of the main powers of the judicial branch is to keep a check on the executive and legislative branch, that it can exercise judicial review over them. The term 'Judicial activism' was first introduced by Arthur Schlesinger, who meant to imply a judiciary that is not strictly just ruling based or maybe what Constitution says but also their own personal ideas. It is also necessary for the judicial to do this because they are interpreting the Constitution in the world as it is and the world we are in changes over time. Therefore, it is really a form of positive activism, especially in the social context we are faced with. On the other hand, the opposite of activism is 'Judicial restraint' which is a supposition of judicial interpretation that invigorate judges to restraint the exercise of their own power. The Courts are resorting more to judicial restraint rather than judicial activism, which is more knotty.
Are courts setting a new normal?
The Judges do not proceed on the supervision of the government or as per the wishes of the ruling party. That is why all modern democracies have courts that are independent of legislature and executive.
However, in recent times, this 'independency' is being questioned persistently. Earlier, the Court preferred to be silent on brutality in the garb of protests and yet again to provide migrants to go back home with dignity. Is Supreme Court, the pillar of our Constitution over effusive over the ruling party? Well, the questions are copious than the rightful answers of the courts.
Liability, transparency, and institutional rectitude of the Judiciary are requisite to clinch that judges and courts execute their duties to the people to secure their liberty and rights.