Union Law Minister Raises Concerns About Judicial Activism; Says There's No Course Correction Mechanism For Judiciary

The Union Law Minister Kiren Rijiju on October 17 participated in the 'Sabarmati Samwad' program organized by Panchjanya, a weekly magazine by the Rashtriya Swayamsevak Sangh (RSS), wherein he spoke on various issues concerning the Supreme Court, Collegium system, working of Judiciary, etc.

Stressing the need for the three wings of the Government (Executive, Legislature, and Judiciary) to work within their pre-defined domain as per the Constitution, Union Law Minister Rijiju said that when the Judiciary deviates, there is no mechanism for course correction and it gives rise to concerns regarding Judicial Activism.

He suggested that the Judiciary must come up with its own in-house mechanism, as it exists for the Parliament (ethics committee), so as to deal with issues related to the behavior, and ruling of the Judges. He also said that the Government doesn't want to make rules/regulations controlling the behavior of the Judges.

"When there doesn't exist any mechanism to keep the Judiciary within its boundaries then questions concerning Judicial Activism are raised", he said.

Further, he said that in the last 8 years, the Executive has not interfered in the functioning of the Judiciary in anywhich way otherwise even the Executive could have been blamed of doing Executive Activism. Law Minister made this remark in reply to a question put up by the Editor of the Panchjanya, Hitesh Sonkar.

In this regard, he also said that during the tenure of Indira Gandhi as the Prime Minister of India, 3 judges were superseded to make someone the CJI, however, he added, his Government did not any such thing. 

"Under the leadership of Prime Minister of India Narendra Modi, in the last 8 years, we have not done a single thing which undermines the authority of the Judiciary. We have not challenged the Judiciary in the last 8 years. We came up with NJAC [The National Judicial Appointments Commission], which was challenged before the Supreme Court and it struck down the same as unconstitutional, we could have taken some steps...," he remarked.

Regarding the oral observations made by the Judges during court hearings, the Law Minister said that he was of the view that such observations shouldn't be made and if the Judges are to make such observations so as to illuminate their thinking, they must incorporate the same in their orders.

"Many judges make observations that the same don't form part of the order. Whenever I engage in a conversation with the Judges, I frankly tell them if they have to say anything, then they should say it by way of writing the same in their orders, as the same would be better, rather than making oral observations"

He also said that sometimes the Judges do not understand the practical difficulties in implementing an order of the Court, in this regard he remarked thus:

"I give you a small example, suppose a judge says that remove the trash from a specific place and move the same to another place, make certain appointments in 10 days...this is the job of the executive, being a judge you don't know about the practical difficulties, financial conditions. As a judge in Uttar Pradesh (Allahabad High Court) ordered the government of the State to provide COVID medicines, ambulances, oxygen, and facilities in all district hospitals within these many days...But the country has its own limitations/capabilities...It would be better if people/institutions focus on the responsibilities given to them."

Essentially, the Law Minister was referring to Allahabad High Court's order passed during the second wave of COVID for upgrading the medical facilities in the state of Uttar Pradesh on a war-scale footing.

Further, Law Minister Rijiju also told the audience that whenever he meets the Judges, he asks them to be alert as with the advent of live streaming of the Court proceedings, now they are being Judged by the people as they are constantly in the public eye. 

Regarding the appointment of Judges by way of the Collegium system, he termed the entire mechanism as 'opaque' as he opined that appointing judges is the work of the Government and not the Judiciary.

"Nowhere in the world, Judges appoint Judges. People can see the politics among the leaders but they do not know the politics going on inside the judiciary while appointing judges as the deliberations are intense. Half of the Judges' time is engaged in making deliberations as to who should be appointed as a Judge. If Judges are involved in the appointment of the Judges, they can't be immune to criticism. While selecting Judges, it is but natural that you would recommend people who are known to you. Judges write (to me) too...when they send comments about the recommendees, they say...I know him, he appears before me, his character is good, I am happy with his work, etc...Now, when you have come into the executive process, then it is natural that you would recommend only those who are known to you, who are related to your family, who are close to you."

He further said that such Allegations ['Uncle Judge Syndrome'] are raised when the judges are involved in the appointment of fellow judges. Before 1993, no Judges were criticized for Judicial appointments, because they were not part of the process, hinting towards the Second Judges case, wherein the Supreme Court defined 'consultation' as 'concurrence' of the CJI [as appearing in Article 124(2) of the Constitution of India]

Read more about his comments here: People Not Happy With Collegium System, Appointment Of Judges Is Govt's Job : Union Law Minister Kiren Rijiju

Regarding the use of Indian Languages in the Court, Law Minister was of the view that as Indians, we all should have the right to use Indian languages before the Courts. He said that in many High Courts, now people have the right to use Hindi Language and in other High Courts too, people should have the right to use Indian Language.

He also said that in the coming days, in Supreme Court too, there could be an option to speak in Indian languages. He also made a remark that in Supreme Court there are 40-50 such lawyers who monopolize the Court, use 'heavy-heavy' English words, and even threaten the presiding Judges.