(Online Course) Pub Ad for IAS Mains: Chapter: 4 (Union Government and Administration) – Judiciary (Paper -2)

Paper – 2
Chapter: 4 (Union Government and Administration)

Judiciary

One of the Basic tenets of constitution is Separation of
power Administration is run according to constitution then

Why judiciary?

Because of a constructive scepticism that in formulating &
implementing policies, they might exploit the powers given to them. i.e to
protect rights of citizens against states and exploitation. Therefore 5 writs
are given.

The objective of these writs :

  • To ensure efficiency of administration.

  • To ensure accountability of administration.

  • Protection of Individual rights

Fundament rights

It ensure – political freedom These are necessary for healthy
functioning of democracy.
Directive Principles of state policy: Mostly emphases on Economic aspect
of Individuals life Collective welfare of society

Judiciary is therefore

  • To ensure rule of ‘law’

  • To ensure the objective of constitutionalism.

Executive, having direct control of administration, most
powerful organ. There is every possibility that executive may ensure upon others
domain and exploit people.

1950s: Decade of idealism

1st Amendment – Land Reforms. At that time right to
properly was a fundamental right government added IXth Schedule – (any law in
this schedule is beyond judicial review.)
Here, executive tried to take away judiciary power. Argument of government, they
cannot take ensure overall development, right of some citizens need to be
restricted therefore right to property had been taken out of FR.

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Relation between Judiciary V/S legislative [Executive]

More in favor of executive (Judiciary gave more freedom to
executive as it was age of socialism), Judiciary was a passive spectator

1960s: By mid 60, realized that executive failed to
meet expectations of people.

Late 60s: Era of executive altruism – Executive join
beyond known limits by implementing radical reform measures and then judiciary
became active.

Golaknath case and goplan case: A.K. Gopalan Vs GoI:
judiciary strongly supported Procedure established by law. In case of procedure
established law : judiciary see whether law has been implemented as per
constitution.

Activist Executive: Radical amendments to constitution
goraknath case: Judiciary ruled a landmarked judgment ; fundament right have
precedence over any part of constitution. Executive legislative do not have the
right to outran FR.

Relation between Judiciary and executive: For the 1st
time in independent India, Judiciary has come out.

Response of Executive: 24th Amendment & 25th
Amendment. It has extensive power to amend any part of constitution with
objective of maximum power welfare of people. Abolition of Privy purses :
government was providing monetary compensation to each princes and other royals.
24th & 25th passed after Judiciary’s rule favoring princely states.

1973 : Keshavananda Bharti case. Before this fight was
b/w FR Vs DPSP. Judiciary said that socialist pattern can be adopted by
government but executive cannot go against basic structure of constitution.

Basic structure of constitution

  1. Federal form of government.

  2. Independence of Judiciary

  3. Judicial review

  4. Constitutional supremacy

A case of Judicial Activism

Judicial Activism: 1967 – 1975: Due to executive
misusing their power

1975 : A landmark judgement by. Allahabad High Court
against Indira Gandhi’s election. Said – I.G. indulged in electoral
malpractices, used official machinery and her election was declared null and
void.
I.G imposed emergency, Amended constitution to imply judiciary cannot interfere
in electoral process.
During emergency, I.G. called for Judge to be committed

1975-77: Darkest phase of Indian judiciary. This Phase
: the scope of executive expanded (in terms of operation) Judiciary failed to
rescue ordinary citizen who were being exploited by authorities. Judiciary was
also highly politicised.
Exploitation of Judiciary by Executive legislature.

1977 : Emergency Repealed, election held, Independence
of judiciary was restored process of Judicial Activism started. Judiciary Tried
to rectify its mistakes during Emergency

Maneka Gandhi Vs GOI : A classic case of Judicial
Activism.
Judicial Activism : Till 77, legislature/Executive failed to realize
expectations of people due to corruption, lack of accountability,
criminilisation of politics – created vacuum at top. Judiciary tried to fill the
vacuum created by legislative and executive. People expected judiciary to be
active. Normally Judiciary should not interfere in working of Legislature &
Executive Judicial Activism: a process in which Judiciary is proactive in
ensuring the accountability of Legislature & Executive towards ordinary citizens
by expanding into scope of activities.
1947 – 67- (Reactive Judiciary)
1967 – 74- (Active Judiciary)
1975 – 77 – (Inactive Judiciary)
1977 – Pro- (Active Judiciary)
1978: Menaka Gandhi passport confiscated she Approached Judiciary,
Government said By rule, if anyone’s travelling out side may humus the interests
of the country government said : There was following procedise established by
law. Passport official did not have any specific reason.

Landmark Judgment – Due procces of law.

Liberal interpretation Art – 19 & art 21.

Art 21 – Right to life means right to dignified life
Art 19 – Right to freedom (of speech) right to criticize/express opinion

Due process of law: Judiciary can look into policy
formulation as a part of Judicial review and if these are coming in between
Fundamental Right they can be struck down for their constitutional impropriety.

Thus scope of fundamental rights were expanded in
unprecedented manner.

Minerva Mills case: Judiciary said : FR & DPSP can
co-exist in an harmonious manner. Both of them complement each other. Put an end
to Judiciary & Executive over supremacy.

1980s: Governing state had failed. People looked up to
Judiciary led to Judicial Activism. Whenever anyone approaches Judiciary, it
looks for Locus standi, ie. one can file a case only when one is impacted by any
law negatively.

However, there is poverty, literacy & ignorance, Judicial
process characterized by delay, high cost, complicated, Judicial process

PIL came into pictures.
Early 80s, PN Bhagwati and V.R. Krishna Iyes made PIL extremely popular

  • Public Interest

  • No ‘Locus Standi’

  • Anyone can file on behalf of any other individual/group

  • Mostly filed to secure Economic & social rights

  • Judge can make legislature and executive accountable
    through PILs

A post – card written by a school girl was converted into PIL.
Initially used for disadvantaged sections of the society.

Journey of PIL

PIL started as a movement to ensure justice to disadvange.
Initial objective : accountability to people from administration.

Later on : the scope widened to include various aspects of
life

  • Sustainable development

  • Equitable development

  • Protection of disadvantaged sections

  • Converting moral responsibility of state into legal
    accountability

However, there have been unwanted expansion of scope of P/L :
Instead of being a ‘Public’ Interests ligation it has transformed itself into
‘Private’ Interest Ligation. Also sometime called ‘Profit’ Interest ligation,
‘Publicity’ Interest ligation. Recently chief justice of India has cautioned the
finding in taking up PILs as it was not serving the original purpose, Judiciary
is also considering imposing penalty for false cases.

Response of common man to Judicial Activism : People
have accepted/welcomed Judicial Activism as executive & legislation have failed
to meet their expectation. They believe that Judiciary has impeccable in tying.

More than 30 million cases pending: Adjournment of cases :
major problem of Indian Judiciary. Over a period of time, Judiciary has expanded
its horizon to enter into domain of legislature and executive this was
oreteicsed by excutive & legislature as Judicial overreach.

Some people called it Judicial Advertise.

So People is the basis of constitutionalism and because of
perceived inefficient performance of legislature and executives Judiciary has
stepped into domain exclusively meant for legislature and executive but this
should not be a norm and should strictly be an exception to rule. Healthy
function of democracy demands independence of various organs healthy
relationship among them.

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