Several inter-connected processes with regard to the democratic aspiration of building the rule of law and enhancing citizenship have been initiated in developing societies and more so in India.
More than ever before, regime legitimacy is linked to the credibility and success of law construction. At the same time, judicial institutions and legal processes have acquired an unprecedented public and political centrality, as judges are called upon political disputes and engage in the judicial and legal review of governmental processes. Moreover civil society in varying degrees is increasingly resorting to legal mechanisms as a means to reclaiming and advancing citizenship rights. However, this process of judicialization of politics in young democracies does not necessarily imply improvement in regard to the rule of law. And a failure to live up to the expectations concerning the rule of law is placing an additional burden on the embattled democracies.
Blackstone memorably defined a judge as “a living oracle of the law”. What he referred to was the onerous and sacred charge given to every judge – to ensure the timelessness of the law; to make sure that the law is able to adapt and meet the varied requirements of a changing society. Under our constitutional scheme, a High Court or Supreme Court judge is the Constitution’s voice against any arbitrary, illegal and hasty action of the legislature or the executive. Come to think of it, a judge is that rare employee whose duty is to circumscribe their employer’s powers, duties and rights. That charge cannot be fulfilled by obedience or subservience, but by them being true to themselves and the document to which they are oath bound to protect. To them, the government and citizen are alike – parties with dispute to be resolved with the even and equal hand of dispassionate justice. In our over 60 years of history as a republic, there are many who have served the office of a judge with distinction and fearlessness.
Judicialization of politics can be defined as overreach of the judiciary by having a check on every action of the executive and legislature performance and its prerogatives. It is like having a check and “framing legislation” of its own accord, which ideally, should be performed by the two aforementioned arms. This is cited as encroaching on the separation of powers and it is interlinked with judicial activism, which accounts intrusion of powers and stepping into the shoes of the legislature and executive and forms law making instead of law interpretation.
The effect of the above can be balanced, as in some cases judicial legislation is important, for instance guidelines on sexual harassment, child labour and environmental issues. Adding to the fact that legitimacy of politics in India is waning, courts prove to be the conscience keeper of the legislators and satisfies the people with their rights.
Though detractors say that judicialization of politics and the resultant judicial activism is undemocratic, and it has no grounds for framing policy or refuting policy (being the work of the legislature), a pertinent question that arises is – who will take care of the people’s rights if the organizations of the government overstep their mandate? The judiciary then provides an institutionalized arrangement for the aggrieved.
Politicization of the judiciary that swings the other way and refers to influence of politics in judiciary, say judicial appointments, influencing the decisions of the court for political interest.
The recent tussle in the appointment of the highest judges through NJAC which has the law minister in it is an example of politicians trying to find a way to interfere in the appointment of judges, resulting in the strike down and culminating in the delay in appointment of judges as government is enshrined with drafting MOP. Event the collegial system is so closed that the super-ceding of judges is a common happening, with perfect example of politicizing judiciary.
Adding to this, the political influence over judiciary has been subtly seen in cases of the late Jayalalithaa’s disproportionate assets case in which Justice Kumaraswamy had acquitted her following which Justice Cunha sentence her saying she has disproportionate assets . Both times there was a hint of political influence.
It is important for the judiciary to be independent and discharge its functions in an unbiased manner. Judicial intervention in cases where active interpretation is needed can be carried and provided in accordance with the doctrine of separation of powers. An active cooperation between the three arms without trying to influence each other can reap socio-economic benefit.