There are 3 organs of the State, the judiciary is only one of them. There is well laid down separation of powers and each organ has to ensure the line is not breached by it. The principle of checks and balances ensures that the balance is maintained and checks are in place to deter encroachments. But if one violates the line and acts arbitrary, is there any remedy? Yes, the remedies are there. But applying those checks to maintain balance and lawful exercise of power assigned separately to each organ may be painful and thus needs to be avoided.
The parliament is supreme. The judiciary can subject laws passed by the parliament to judicial scrutiny to ensure that the constitutional provisions are not violated. This is how one organ exercises check on the other. Who checks the judiciary if it violates the doctrine of separation of powers and the principle of checks & balances? The parliament has that responsibility to check the judiciary when it acts unconstitutional or arbitrary; violates the constitution relating to separation of powers and the principle of checks & balances. The executive is accountable to the parliament and comes under its authority for separation as well as checks & balances purposes. The judiciary is entitled to scrutinise government decisions when challenged before it and in exceptional cases own its own also. But it can’t behave like the supreme council of ministers.
I draw authority for this conclusion from Sir Alladi Krishnaswamy Iyer: “The doctrine of independence is not to be raised to the level of a dogma so as to enable the judiciary to function as a kind of super-legislature or super-executive”.
Many more legal luminaries have held the same opinion. Even Jawaharlal Nehru, first prime minister of India, held similar views. Quoting them all here would make it a long article, but interested readers ought to study the subject without getting carried away by shallow, superficial, inane and paid opinions in the print and electronic media.The constitution of India has not made any one organ “SUPREME”; they are all EQUAL and are obliged to respect that constitutional mandate.
It is disturbing to note that the supreme court of India has been indulging in repeated violations of these principles, ordering the government of India left and right in a highly peremptory tone (complete inquiry in 10 days; file affidavit in 10 days).
If the court shows same urgency in cases before it, there would be no pending court cases and the figure of 3.5 crore pending cases will come down drastically, may be, even zero.
Judges are wise because they are learned and this has to be reflected in their language, honest, fair and unbiased orders, opinions, views, remarks, observations.
Democracy in India will suffer if the judges act as judicial officers of the state and lawyers and journalists at the same time.
Let them show restraint in the Rafale deal between France & India.
Also, judicial reforms must start right away and completed in the next 3 months.
This business of affidavit, notary etc. has stymied even a healthy legislation like the Consumer Protection Act, which was envisaged to be a system free from lawyers, but has turned into a legal complexity dominated by all the ills of a decadent and corrupt justice dispensation system.