The growing tension between the judiciary and the legislature came to the fore on Sunday with Prime Minister Manmohan Singh and Chief Justice of India K G Balakrishnan trying to shield their respective domains from being encroached on by the other.
While the prime minister suggested the judiciary should not breach the thin line dividing the two wings, the Chief Justice asserted that the perceived tension between courts, legislature and the executive was a natural and inevitable corollary of a healthy democracy.
The two constitutional heads gave vent to their feelings on a common platform -- a conference of chief ministers and chief justices of High Courts at the Vigyan Bhavan -- in the presence of several legal luminaries.
While Dr Singh spoke at length, virtually advising the judiciary from over-reaching itself, Balakrishnan, whose speech preceded the prime minister's inaugural address, left no stone unturned in asserting the judiciary's independence and particularly its power to review the actions of Parliament and legislatures.
"The application to judicial review to determine constitutionality of the legislation and to review the executive decision sometimes creates tension between the judge and the legislative and the executive branch. Such tension is natural and to some extent desirable," Balakrishnan observed.
Noting that the judiciary's independence was essential to the rule of law, Balakrishnan said judicial review was an 'extraordinary legal invention' that seems 'deceptively simple, but it is one of the most baffling of legal devices. Sometimes it is described mistakenly as a veto power over legislation.'
He said the principles of separation of powers are kept in the forefront and the judge should make sure that each of the other branches operates within the boundaries of the law and the judicial review.
Dr Singh, who spoke later, cautioned the judiciary against substituting its power of mandamus with the take-over of the functions of other organs.
"The dividing line between the judicial activism and judicial overreach is a thin one. A takeover of the functions of another organ may, at times, become a case of over-reach," Dr Singh said.
The prime minister's remarks came in the backdrop of a plethora of legislations being struck down by the apex court, the latest being the constitutional validity of Schedule Nine and the stay granted on implementing the 27 per cent quota for OBCs in elite educational institutions.
Maintaining that the judiciary's primary obligation was to enforce the rule of law, uphold the Constitution and enforce the discharge of obligations by any authority of the state, Dr Singh said this conferred enormous power on the judiciary.
However, at the same time, Dr Singh said that the judiciary cannot substitute its power of mandamus to take-over the functions of another organ, meaning the legislature and executive.
Admitting that there was a huge pendency of cases in various courts, Balakrishnan blamed lack of adequate judges and infrastrucure for the problem.
"The courts do not possess a magic wand which they can wave to wipe out the huge pendency of cases, nor can they afford to ignore the instances of injustices and illegalities because of the huge arrears of cases already pending with them. If the courts start doing that, it would be endangering the credibility of the courts and the tremendous confidence they still enjoy from the common man," he said.
Noting that there are volumes of recommendations from the law commission, reports of experts committees and opinions of jurists highlighting the problem and suggesting ways and means to overcome it, he said, "The need of the hour is to act upon those suggestions swiftly and decisively."
Besides increasing the number of judges at all levels in a phased manner, as a first step, it is absolutely imperative to fill vacancies at all levels in the shortest possible period, Balakrishnan said.
"We have to develop zero vacancy or near zero vacancy culture," he observed.
Law Minister H R Bharadwaj said as part of the strategy to computerise the subordinate judiciary, it had been decided to provide laptops to all judicial officers with broadband connectivity to enable them to access judgements from archives and save considerable time.
He said the government has approved a scheme for computerisation of courts across the country with an outlay of Rs 450 crore.
The Indian judiciary, by and large, has maintained the highest standards of efficiency and integrity, Bharadwaj said.
"However, more than once, aspersions have been cast on the integrity of certain sections of the judiciary. For gaining the confidence of the litigant public, there has to be a confident belief that judgements are rendered without any extraneous considerations," he said.
He suggested that an effective mechanism be created to ensure judicial accountability while at the same time maintaining the judiciary's independence.
Bharadwaj urged chief ministers to come forward and help the Central government establish gram nyayalayas at the intermediate panchayat level as recommended by the Law Commission.
Such panchayati-level legal systems will bring affordable justice to the doorsteps of millions of people, he said.
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