Discussion in 'Politics & Society' started by Ancient Indian, Jan 30, 2017.
The mosque is b/w the damn runways. They expect Yindoos to accept whatever is thrown at them.
National Law Day: Judicial activism based on flawed premise, says Arun Jaitley
Can’t say will step in if you don’t do your job, what if we say the same: Jaitley; need to protect fundamental rights: CJI
Speaker Sumitra Mahajan, President Ram Nath Kovind, CJI Dipak Misra at the National Law Day function. Express Photo by Tashi Tobgyal
Crossing swords with the judiciary, the government on Saturday questioned judicial activism, criticised the “trend” of courts appointing retired judges to head committees and wondered how judges would feel if other organs stepped in to do their job. Leading the charge was Union Finance Minister Arun Jaitley, who, addressing a session at an event to mark National Law Day, 2017, said, “I have often heard (the) argument that judicial activism is born out of a phenomenon that when other institutions are not doing their job, somebody has to fill the gap. It’s a flawed argument. It is flawed because if any organ of the state is not doing its duty, it can be directed to do its duty. Usurpation of power… by any other organ would never be the correct constitutional approach. What if the same argument was used the other way round against the judiciary? Arrears are pending, judges are not doing the job. So must somebody step in and now exercise that power? The answer is no… And therefore, it’s extremely important that the dividing line on separation of powers is maintained. And therefore, by creating arguments, the thin dividing line itself cannot be lost.”
Calling for caution while exercising judicial review, Jaitley said, “While exercising that power of judicial review, one has to bear in mind that separation of powers is maintained in its entirety. The executive is not trained to exercise either legislative or judicial power. Parliament is not trained or (is not) really an institution to exercise judicial power. Judiciary is similarly not trained nor does it have that administrative maturity of exercising legislative power. In fact, if judiciary gets into the process of exercising executive or legislative power, directly or implicitly, the very institution of judicial review itself will suffer.”
He went on to talk of the “latest trend” – of courts appointing “retired judges” to various committees to discharge executive functions. “Also this… new trend – that alright, I don’t exercise the power myself (but) I will appoint my nominee to exercise the executive power. The nominees may be equally unsuitable to exercise executive power because they have not been trained. Retired judges have been trained to write judgments… not to run sports organisations… Therefore, this temptation of taking over executive power. and exercising it yourself or through your nominees clearly violates the Lakshman Rekha (of separation of powers)."
Warning that there would be no limits if the Lakshman Rekha is crossed, he said, “You probably (will) have a court saying where security forces are to be deployed is something which I will decide…” He added that “if every High Court in the country starts deciding on the position of security forces, as to where it should be stationed, it’s an invitation to anarchy.”
The Kolkata HC had in October stayed the Centre’s move to withdraw Central forces from Darjeeling and Kalimpong districts, where they had been deployed during the recent Gorkhaland protests. This was subsequently lifted by the Supreme Court.
Union Minister of State for Law and Justice P P Chaudhary, who introduced the session, too spoke about judicial activism when he said, “Some people today ask whether the judiciary is in fact beginning to play a double role, substituting parliamentary judgement with its own… Judicial activism, by itself, is a necessary outcome of judicial independence and may be lauded, especially when it is undertaken to protect those who may not otherwise have ready access to justice. But quite apart from this, is another species of judicial activism where the judiciary is also stepping into areas which are strictly speaking in the realm of policy… When judicial activism and review wades into policy making, sometimes its consequences can be disruptive. This needs to be avoided.”
In his inaugural address, President Ram Nath Kovind too touched upon the need for separation of powers between the judiciary, legislature and executive, saying, “They need to be careful not to cross into each other’s… defined spaces or give the opportunity to read transgressions where none is intended. This can occur in many circumstances. For instance, when extraneous comments and obiter dicta come to dominate public debates, crowding out of substantive understanding and deliberation of a well thought-out judgment.”
Earlier, addressing the inaugural session, Chief Justice of India Dipak Misra asserted that the judiciary was duty bound to stand with citizens if other organs of state encroached on their fundamental rights. “The fulcrum of governance – let it be legislature, let it be judiciary, let it be executive – is that the citizens have been guaranteed fundamental rights and the governing entities are not expected to encroach upon it. The moment they encroach upon it or there is an apprehension there shall be encroachment, the judiciary is obliged to stand by them.”
The CJI sought to allay fears of judicial activism but stressed that it was the job of the courts to interpret government policies. “There is a perception that there is judicial activism. I must clarify. Protection of fundamental rights of each and every citizen is the sacrosanct duty of the judiciary which has been conferred on it by the Constitution. Fundamental rights have been expanded from the date the Constitution came into existence. Expansion of fundamental rights is done by the process of interpretation… Nobody intends, nobody has the desire to enter (into) policy-making areas. We don’t make policies, we interpret policies and that’s our job.”
The session, titled ‘Judicial Review and Parliamentary Democracy – Balancing the Separation of Powers’, was organised by the Law Commission of India and NITI Aayog.
Sharia Court strikes again,
No "Padmavati" Ban, Says Supreme Court, Rebukes Chief Ministers
the Supreme Court turned down a request to ban "Padmavati" and said, in a rebuke to Chief Ministers and others who have spoken out against the film, "those holding public offices should not comment on such issues."
The judges reiterated that it is the prerogative of the national censor board to review the film and make a decision on whether it is suitable for screening.
"When the matter is pending the consideration of the CBFC (Central Board of Film Certification), how can persons holding public offices comment on whether CBFC should issue certificate or not? That will prejudice the decision of the CBFC," the judges said.
"Padmavati" has been opposed by several top politicians who say that the film cannot be allowed to "distort history" and offend the sentiments of Hindu groups.
Objectively speaking the SC is not wrong. CBFC has denied it a certificate, as such it cannot be released until CBFC cleared it. If CBFC cleared it, the decision can only be challenged on merit in the court as the CBFC is a constitutional body. Therefore, if the movie has not been seen anyone who are objecting, how can SC put a ban on it. Wouldn't that be judicial overreach and encroaching on executive power of the CBFC?
Albeit, SC is selective on its role of being an impartial body. Yet, we cannot demean it when it is not at wrong.
There are many cases pending there. SC somehow find time for cases like this.
CMs took notice of agitations done by the offended parties. They are only giving promises to those parties, didn't pass any bill in assembly. SC should revisit their own statements before rebuking those CMs.
True. That is why I adjoined the last para.
However, the judgement in itself is not flawed. Also, the CMs of the states have a very important role to play and that is not placating one or the other community. They should abide by the rules and reservations of the duty of a constitutionally elected constitutional executive which means taking actions as per constitutional restrictions. Yes, their words are as good as their action.
You cannot judge, rightly so, Mamata to be breaching the constitunal boundary, when giving free pass to others as that suits your POV.
Democracy is a delicate game where respect for the intangible code of conduct and ethics is the only thread that binds a nation together. Recent actions of politicians like Mamata banerjee, Siddharamaiah, Muftis as well as one after another puzzling judgements of the courts, coupled with circus that is our Parliament, making the bond of democracy strain. Therefore, when one body functions as it should, we should not denounce it.
Further, if the SC hadn't taken up the case, you'd say the same argument only on the otherway around. You would have said that 'they have time for all those bullshit cases, but they wouldn't hear this plea??!!!"
While I agree with what you say, we should also stop putting SC on high pedestal. Remember when Indira declared emergency, SC didn't do anything.
Sure. I have stopped revering SC long back when it put brakes on NJAC and Judicial Accountability Bill.
However, a logical argument by SC cannot be ignored and denounced.
Anyhow, the release of Padmavati in India is blocked as of date. I heard that it would release in UK and I hope it does so. The ultimate hurt felt by the bollywood-chhap people is when they hemorrhage money. The moment, if, it releases in UK much before India, its producers would die.
Btw, taking the discussion a bit off course, I would like to point out that this kind of action of Bollywood indeed exposes them more and more.
SC in full swing again when it comes to Santana Dharma.
SC issues notice to Centre, asks if prayers in Kendriya Vidyalaya schools propagate Hinduism
Hadiya Adult, Can't Question Her Marriage, Says Supreme Court
The Investigating Agency can when the marriage is a threat or is a symptom of a threat to the National Security.
To hell with milaaards.
I don't know why SC making anti-Hindu judgements is in news nowadays. Is it Modi playing 4D chess to build up public anger to squash pro-Congi judges in future or just ecosystem shills using judiciary against government to further democracy khatare me hai narrative?
Wish it is the former, but the rational part of me says this is the ecosystem going all out against Hindu culture and heritage.
The NJAC does have a flaw by including two eminent people in its 6 member committees. And also putting a condition that one eminent person should be either from OBC, SC ST woman or a minority community.
And if any 2 of that 6 member committee over the person proposed for next CJI or judge the person is automatically deemed unsuitable.
Now with the Law minister and 2 eminent people the balance is very much skewed against say deserving judges. Might b a repeat of Indira Gandhis SC. As such most of the times "eminent people " in democracies are commies/lefties/ libtards.
Plus the eminent people being selected by PM , Leader or opposition and CJI , again the political executive has more power. In short the 3 out of 6 NJAC members are in political pockets .
This is milaards who are very busy with banning dahi danda, bursting crackers and getting read to rule how many buckets of water one should take bath with.
But what about the old investigations, we're they halted.
Did SC mentioned any reason for dismissing the current PIL!?
Inheritance of advocates’ chambers in SC premises questioned
New Delhi, February 18, 2018 19:54 IST
Updated: February 18, 2018 19:54 IST
File photo: Supreme Court, New Delhi. | Photo Credit: V.Sudershan
A Supreme Court Bench sought a response from the apex court on a petition asking whether advocates' chambers situated in prime spots within the Supreme Court complex and at vantage positions across the road from the court building are the "heritable property" of the children of practising lawyers, senior advocates and judges.
A Bench led by Justice A.K. Sikri on February 16 issued notice to the top court in a writ petition filed by the Supreme Court advocate-on-record Vishnu Shankar Jain, represented by advocate K. Parameshwar, challenging the constitutional vires of Rule 7B of the Supreme Court Lawyers’ Chambers (Allotment and Occupancy) Rules, as amended in 2017.
As per the provision, in case an allottee advocate of a prized chamber dies, his or her child or spouse, if an advocate, inherits one half of the chamber.
The only criterion is for the Allotment Committee to check whether the child or spouse is indeed a lawyer or not.
This practice continues despite the fact that the Supreme Court had issued a notice on October 30, last year, that chamber allotments would be based on the minimum number of appearances of a prospective allottee, which would be a reflection of his or her volume of work. The court had also prescribed seniority.
"Rule 7B overrides both these criterion and enables a spouse or daughter/son of an allottee to be entitled to allotment of a chamber (in fact, retain the same chamber), irrespective of their seniority at the bar or number of appearances," the writ petition said.
The location of such chambers is a natural professional boost for lawyers, who occupy them, and their clientele.
The petition contended that Rule 7B "creates a personal heritable right in a public property/good, which leads to the concentration of material resources to the common detriment".
It submitted that Rule 7B was unconstitutional primarily because it was "patently discriminatory and violative of Article 14 (fundamental right to equality) of the Constitution as it is violative of the rule of seniority and minimum number of appearances that is prescribed for other advocates".
Perhaps, they are right in this case of asking the centre to disqualify the MPs who have disproportionate assets, but their questions are ridiculous. What would be their reaction if the centre asks "why can't we pass judgements"
"Arguing that policy matters should not be the sole prerogative of Centre, the Supreme Court today said that court should also be an instrument in deciding issues related to the formulation of government policies.
"Why Centre always take the stand that policy matters should be left for Parliament and be not decided by court?” SC asked."
MiLords want to decide policy matters too.
because Supreme Court is not elected representatives of the people in this Democracy. Now, it is a wonder if Justices J Chelameswar and S Abdul Nazeer cannot comprehend this basic tenet of democracy, how are they fit to interpret the Constitution? However seemingly legitimate this question might seem regarding the disproportionate asset of elected representatives, this cannot be allowed as this will open floodgate of judicial activism and overreach. Given that our judiciary, just like any other judiciary, is one of the most powergrabbing corrupt institution, there cannot be any reason that such legislative power may even partially be handed over to them. It is a wonder that the same Supreme Court judges, most of whom don't submit their own asset details despite rule being so and who blatantly operate through an opaque system without any sort of accountability, can even be brazen enough to suggest such a step! The constitution has clear definition with regard to the division of power and limitation of power among Executive, Legislative and Judiciary. Judiciary has been breaching its limit for quite sometime - the latest being intrusion in law and administrative matter relating to foreign illegal infiltrators -viz. Rohingya where SC brazenly supported criminal acts and gave stay to the law enforcement from preventing act of crime. It should be shown its place and if needed, whole bunch of them should be impeached.
When will this Judicial Accountability Bill be introduced again?
Separate names with a comma.