Political Science and IR Optional 2017 Paper I

Judiciary has acquired the role of both, a legislature and an executive in recent years. Examine with suitable examples.

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In recent years, the Indian judiciary has increasingly expanded its role beyond its traditional function of interpreting laws, often stepping into domains traditionally reserved for the legislature (law-making) and the executive (policy implementation and administration). This phenomenon, often termed 'judicial activism' or, in some cases, 'judicial overreach,' has been driven by various factors, including legislative inaction, executive apathy, and the judiciary's commitment to protecting fundamental rights and ensuring justice.

Judiciary as a Legislature (Judicial Law-making): While the primary role of the legislature is to make laws, the judiciary has, on several occasions, issued guidelines or pronouncements that effectively create new legal frameworks or fill legislative vacuums. This occurs when Parliament fails to legislate on certain matters, or when existing laws are deemed inadequate to address contemporary challenges.

  • Vishaka Guidelines (1997): In the absence of specific legislation to prevent sexual harassment at the workplace, the Supreme Court laid down a comprehensive set of guidelines (Vishaka v. State of Rajasthan) that were to be treated as law until Parliament enacted a suitable statute. These guidelines mandated employers to provide a safe working environment and establish complaint mechanisms. This was a clear instance of the judiciary legislating to protect fundamental rights.
  • Environmental Protection (M.C. Mehta cases): Through a series of landmark judgments, the Supreme Court has issued detailed directions on environmental protection, pollution control, and sustainable development. For instance, it ordered the closure of polluting industries, mandated the use of CNG in public transport in Delhi, and directed the cleaning of the Ganga river. These directives often went beyond existing environmental laws, effectively creating new legal obligations and standards.
  • Right to Education (Unni Krishnan case, 1993): The Supreme Court interpreted Article 21 (Right to Life) to include the right to education, making it a fundamental right. This judicial pronouncement paved the way for the 86th Constitutional Amendment Act, 2002, which inserted Article 21A, making elementary education a fundamental right. The judiciary's interpretation effectively expanded the scope of constitutional rights, compelling legislative action.
  • Decriminalization of Section 377 (Navtej Singh Johar v. Union of India, 2018): The Supreme Court decriminalized consensual homosexual acts, effectively striking down a colonial-era law. While this was an interpretation of existing law, its impact was akin to legislative reform, altering social norms and legal recognition of LGBTQ+ rights.

Judiciary as an Executive (Judicial Governance/Administration): The judiciary has also taken on executive functions by issuing detailed directions to government agencies, monitoring the implementation of its own orders, and even overseeing administrative processes. This often happens when the executive is perceived as inefficient, corrupt, or unresponsive.

  • Monitoring CBI Investigations: In several high-profile corruption cases (e.g., Hawala case, 2G spectrum scam, Coal allocation scam), the Supreme Court has directly monitored the investigations conducted by the Central Bureau of Investigation (CBI), issuing specific directions on how the investigations should proceed. This oversight function directly impinges on the executive's domain of law enforcement.
  • Prison Reforms: The Supreme Court has frequently intervened to improve conditions in prisons, issuing detailed directives to state governments regarding sanitation, medical facilities, legal aid, and the rights of prisoners. These directives often involve micro-management of administrative aspects of prison management.
  • Food Security and Public Distribution System (PDS): In cases related to the right to food, the Supreme Court has issued directions to state governments to ensure effective implementation of the PDS, identify beneficiaries, and prevent starvation deaths. This involves overseeing the delivery of welfare schemes, a core executive function.
  • Appointment of Judges (Collegium System): Through a series of judgments (the 'Judges Cases'), the Supreme Court established the Collegium system for the appointment and transfer of judges to the higher judiciary. This effectively transferred the power of judicial appointments from the executive to the judiciary itself, a significant shift in the balance of power.
  • Sports Administration (BCCI): The Supreme Court intervened in the administration of the Board of Control for Cricket in India (BCCI) following allegations of corruption and mismanagement, appointing an administrative committee to oversee its functioning and recommend reforms. This was a direct intervention in the governance of a private body with public implications.

Conclusion: While judicial activism has been instrumental in upholding fundamental rights, ensuring accountability, and filling governance gaps, it also raises concerns about the separation of powers, democratic accountability, and the judiciary's institutional competence in policy-making and administration. The balance between judicial oversight and judicial overreach remains a subject of ongoing debate, but the judiciary's expanded role as a quasi-legislative and quasi-executive body is an undeniable feature of contemporary Indian governance.