PARADIGM SHIFT IN THE JUDICIAL INTERVENTIONS

I. INTRODUCTION

The Judiciary is a co-equal branch of the Government, tasked with interpreting the law.
While the doctrine of separation of powers assumes that the courts’ decisions will be duly
obeyed and enforced by the other branches of government, this is sometimes not the case.
Scholars note instances of enforcement failures where the Executive fails to enforce judicial
decisions either because it does have the resources to do so or because it believes that the
political and economic costs of enforcement far outweigh the benefits. This is when the
concept of Judicial Intervention comes into play.

What is Judicial Intervention? Judicial Intervention can be defined as the judiciary taking
over, the role of the executive in some extraordinary circumstances when there is grave
injustice being committed.

II. PAST EXAMPLES OF INTERVENTION BY THE INDIAN JUDICIARY

Following the early 1990s, the Indian courts have stepped in with greater frequency on
matters ranging from malfeasance in governance to legislative matters to political and policy
matters, leading to constant friction between the three organs. The growth in power of the
apex court was in tune with the corresponding decline in the assertiveness of central
executive, which was mostly stitched together by hotchpotch alliances.

The courts of today are not passive, with the attitude of merely striking down a law or
preventing something from being done. Rather, this new attitude involves issuing orders,
positive affirmation cases and decrees directing remedial actions. Judicial activism refers to
the interference of the judiciary in the legislative and executive fields. In the past few years,
judicial activism has only flourished in India and acquired legitimacy with the Indian public.

Talking about two famous cases which were examples of judicial intervention :-

In Hussainara Khatoon (I) v. State of Bihar, the inhuman and barbaric conditions of the
undertrial prisoners reflected through the articles published in the newspaper. Many
prisoners who were under trial had already served the maximum persecution without being
charged for the offense. A writ petition was filed by an advocate under article 21 of the
Indian Constitution. The apex court accepted it and held that right to speedy trial is a
fundamental right and directed the state authorities to provide free legal facilities to the
under-trial inmates so that they could get justice, bail, or final release.

In, Sheela Barse v. State of Maharashtra, a letter written by a Journalist was addressed to
the Supreme Court avouching the custodial violence of women prisoners in Jail. The court
treated that letter as a writ petition and took cognizance of that matter and issued the
apposite guidelines to the concerned authorities of the state.

Now let us take the most common examples of the ‘Public Interest Litigation’ which
disregards the traditional rule of locus standi. Justice V.R. Krishna Iyer, , along with Justice
P.N. Bhagwati, in SP Gupta Vs Union of India, 1981 had thrown open the doors of Indian
courts to public interest litigations (PILs) and was instrumental in reinventing the Supreme
Court as an activist institution in the post-Emergency era.

Judicial activism has primarily arisen due to the failure of the executive and legislatures to
act. As a result of that, judicial activism is triggered when the courts become activists and
compel the relevant authority to act. This has led law-making in India to assume new
dimensions.

Taking another related example of Courts taking Suo Moto cognizance, a principle which
evolved in the 70’s and is now very popularly used. Generally, Suo moto actions are taken in
Court Contempt Cases or probe into new matter where grave injustice is being done to a
person or a Section. The ambit or scope of Suo Moto action of the courts has not been
defined in any Indian statue or in any act, therefore, the courts takes Suo Moto cognizance
where it deems fit. There are no prescribed rules or situations where the courts can take
Suo Moto cognizance.

III. IMPORTANT JUDICIAL INTERVENTIONS IN RECENT TIMES.

Since 2014, especially after the Parliament passed the constitutional amendment of NJAC,
the Supreme Court had again tended to become less activist, or rather selectively
interventionist but after the appointment of Mr Ramana as the CJI, the interventions
resumed at breakneck pace. In the Supreme Court Advocates-on-Record Association v.
Union of India, the National Judicial Appointments Commission (NJAC) Act, and the
constitutional amendment was declared unconstitutional by the Apex court and the
judgment was delivered with the majority of 4:1. The act was declared unconstitutional as it
was violating the judicial independence. And the existing collegium system pertaining to
transfer and appointment of judges again came in the operation.

Since 2014, especially after the Parliament passed the constitutional amendment of NJAC,
the Supreme Court had again tended to become less activist, or rather selectively
interventionist but after the appointment of Mr Ramana as the CJI, the interventions
resumed at breakneck pace.

Some recent cases wherein the Supreme Court has taken an interventionist stance are as
follows:-

1) Covid-19 :- intervention in response to the Union government’s flailing response to

the health crisis has reached its apotheosis with the Supreme Court order forming a
12-member national task force for the effective and transparent allocation of
medical oxygen to the States and Union Territories “on a scientific, rational and
equitable basis”. Making recommendations on augmenting the supply based on
present and projected demands and facilitating audits by sub-groups within each
State and UT is also part of its remit. The Court has also mandated it to review and
suggest measures for ensuring the availability of essential drugs and remedial
measures to meet future emergencies during the pandemic. In other words, the
 national task force has become a judicially empowered group that may significantly
guide the handling of the health crisis set off by the second pandemic wave. Faced
with proceedings in High Courts relating to the allocation and availability of oxygen,
the Centre submitted that an expert committee may be constituted, consisting of
persons drawn from public and private health-care institutions, to facilitate a fresh
assessment of the basis for the allocation.

It needs to be said that the Supreme Court had drew flak from various media outlets
and sections of society for not doing anything to alleviate the migrant workers and
the crisis that succeeded the nationwide lockdown.

Just to name a few cases of judicial intervention, which may be read as judicial overreach
are and include the ban on Deepavali firecrackers citing rising pollution and safeguarding
the environment; banning use of private vehicles after 10 or 15 years; monitoring police
investigations; denying the executive any role in the appointment of judges by instituting a
collegium which is said to be an extra-constitutional body; ban of liquor sale at retail outlets
that are within 500 meters of any National or State highway; cancellation of telecom
licenses in 2G case; judicial legislation in Vishakha’s case regarding the prevention of sexual
harassment of women in the workplace; the Supreme Court of India’s setting up of the
Lodha Panel to probe the allegations of corruption and match-fixing in cricket; and betting
scandals in Indian cricket seen as interference not warranting the involvement of the apex
court; interference in the educational policies of the government as per Islamic Academy of
Education and Ors Vs State of Karnataka.

It must be said though that, Judicial intervention shares a very thin border with Judicial
overreach and challenges the doctrine of separation of powers, which should be considered
a basic structure of our constitution. The task of the courts should be to act in a way that
compels the authorities to act and to pass executive orders rather than substitute judicial
orders for administrative ones.

After all, unlike the other two branches of the constitution, the judiciary as an institution is
not directly accountable to people. This very lack of accountability requires the judiciary to
practice self-restraint, act responsibly within the ambit of its constitutional powers.
Judiciary, like all other institutions in a democracy, should know and understand its limits.
Our country cannot be run on judicial decrees.

IV. CITATIONS

- https://timesofindia.indiatimes.com/india/centre-pushes-back-at-sc-warns-of-
overzealous-judicial-intervention/articleshow/82537296.cms

- https://www.livemint.com/Opinion/3C8wRD7rwYrZ3bGzrCDkLM/The-limits-of-
judicial-intervention.html
- https://thewire.in/law/supreme-court-modi-years

- https://www.thehindubusinessline.com/business-laws/judicial-adventurism-time-to-
introspect/article34465686.ece

- https://www.thehindu.com/opinion/editorial/outreach-and-overreach-the-hindu-
editorial-on-judicial-intervention-against-the-union-governments-flailing-response-
to-covid-19-crisis/article34522564.ece

- https://www.legalserviceindia.com/legal/article-2063-judicial-activism.html