Arun Jaitley has attacked judicial activism. He has contended that judiciary doing something which is the function of the Executive is wrong and has gone to the extent of asking what if the other organs of the State start doing the same with the judiciary where it fails. It is true that the judiciary should not assume the function of the Executive as a rule, but in exceptional cases it becomes necessary in the interest of the nation. The necesity arises from the changed character of the politicians ruling the country.
The framers of the constitution had not envisaged that murders, rapists, rioters, thieves and crooks would be ruling the country. They had framed the constitution under a mistaken belief that their successors in politics would be like them and framed a constitution to be worked by honest men committed to the well-being of the nation and the people.
The judicial activism is a case of crisis management.
The crisis is a product of the conflict between a constitution meant to be run by men of honour and commitment to the welfare of the people being run by a set of self seeking scoundrels.
Two cases out of many may be mentioned as an example. During the 1990s Narsingha Rao government did not enjoy a majority in the Lok Sabha and faced a no confidence motion. They bribed several M.Ps. to vote for the Congress government ( 1993 ).
The bribed M.Ps. voted for the government and saved it, but a few of them ( of Jharkhand Mukti Marcha ) were found to have received a bribe and were to be prosecuted for corruption. They moved the Supreme Court, which held that the M.Ps. who had taken a bribe and voted for the government could not be prosecuted, while those who took the bribe but did not go to vote could be prosecuted. This judgment outraged the people. Many thought that the apex court was influenced and denounced it. But the truth is that the court had only followed the constitution. Art.105 of the constitution
lays down that a member of Parliament cannot be proceeded against in any court for saying anything in the house or voting in any way in it. But the people would have fully supported the S.C. if it had punished the bribe takers disregarding Art.105 and chosen the path of judicial activism.
The protection under Art.105 is given to save the M.Ps. from vindictive action by adversely affected persons for fearlessly doing their duty as the people's representative and not to protect them from punishment for corruption.
The constitution has given the power to Parliament to punish erring M.Ps. by expelling them from the house and terminating their membership and even sending them to the jail. But Parliament, instead, has been protecting the M.Ps. guilty of crimes deserving termination of their membership.
If the judiciary takes to punishing such M.Ps., it would be guilty of judicial activism, which is morally justified and needed in the national interest. Though Arun Jaitley would attack the judiciary for transgressing its limit the people would approve and applaud it. It is the misuse of the power by the Legislature and the Executive, which creates the compelling situation in which the judiciary takes a step which the politicians decry. Their aim is not to protect the domain of the Executive and Legislature from encroachment but to protect the misuse of the constitutional power to protect their guilt and misconduct.
Similarly, the constitution lays down that a Money Bill need not be passed by the Rajya Sabha for becoming a law. The provision is meant to save the budget or other monetary requirement of a government which is in minority in the upper house ( as is the case of the Modi government ).Without this provision a government without a majority in the Rajya Sabha cannot survive. Though a Money Bill has been defined the constitution provides that the Speaker's certificate that a bill is a money bill would be final. It has been provided to ensure smooth functioning of a government which is in a minority in the Rajya Sabha. Taking advantage of this provision and shamelessly misusing it, Modi government had got the ADHAAR Bill declared a money bill so that even if it was not passed by the Rajya Sabha it would become a law.
The ADHAR BILL cannot be a money bill under the constitution, but since the Speaker's certificate is final, it has to be accepted as such. Modi government has played this fraud with other bills also.
Rape of the constitution by the Modi government
The Congress leader Jairam Ramesh has approached the Supreme Court against the Speaker's certifying the ADHAAR BILL as a money bill. The Supreme Court now is forced to either quash the fraudulent certificate of the Speaker and be abused and threatened by Arun Jailey and his ilk for judicial activism or shut its eyes to the rape of the constitution by the Modi government.
Authoritarian and Fascist rulers consider an independent judiciary a thorn in their flesh and adopt various devices to control it. Indira Gandhi gave a call for a 'committed judiciary' and Narendra Modi after failing to control it through the National Judicial Appointment Commission, which was declared unconstitutional by the apex court, has been obstructing the appointment of the judges of the higher judiciary and publicly attacking the judiciary in various dubious ways.
The need is to protect the judiciary from motivated attacks and help it by making constructive criticism of its functioning.
* The power to expel an M.P.from the house has been occasionally used. Indira Gandhi was expelled in November, 1977 for breach of privilege etc. after she was elected from Chikmanglur.11 M.Ps. were expelled in 2005 following a sting operation exposing their taking money for asking questions in Parliament. The UPA was in power at the time. The BJP. staged a walk out in protest against the expulsion , but these are exceptions rather than the rule.