Judicial Reshuffling and Preservation of Judiciary Independence

In the complex landscape of governance, the role of the judiciary is a crucial yet delicate one. This article aims to explore the concepts of judicial activism and overreach, as well as the measures being taken to maintain a balance in the Indian judicial system.

Judicial activism, a philosophy championed by the courts, encourages them to go beyond the law to consider broader societal implications and ensure justice. One of the most significant examples of this philosophy is the Keshavnanda Bharti case (1973), where the Supreme Court established the Basic Structure Doctrine, protecting fundamental features of the Constitution. Another instance is the Vishaka case (1997), where the court recognized sexual harassment at the workplace as a violation of fundamental rights.

However, the line between activism and overreach can sometimes blur. Examples of judicial overreach include the SC's mandate for compulsory playing of the National Anthem in cinemas in the Shyam Narayan Chouksey case (2016) and the SC's blanket ban on firecrackers facing criticism for overriding legislative policies in the Supreme Court's Order on Firecrackers Ban (2018).

On the other hand, judicial evasion—avoiding ruling on critical issues—can lead to denial of justice, weakening of public trust, and encouragement of executive overreach. Examples of judicial evasion include the Sabarimala Review Petition (2018), the Electoral Bonds Case, the Article 370 Abrogation Case, and the Farm Laws Case (2021).

The Supreme Court has consistently asked subordinate courts to exercise judicial restraint and respect the doctrine of separation of powers, as highlighted in the Aravali Golf v. Chander Hass & Anr. (2007) case. This doctrine is essential in maintaining the balance between the judiciary, executive, and legislature.

Frequent intervention in the affairs of the first two organs can result in policy paralysis. The way forward for maintaining judicial balance includes upholding separation of powers, ensuring accountability, delivering timely judgments, and adopting clear and consistent principles.

Transfers of judges should not be used as punitive measures, as per rulings in P. Gupta v. Union of India (1981) and Supreme Court Advocates-on-Record Association (1993). Criticism of judicial transfers includes their use as tools for punishing judges for judgments against the ruling government, uncertainty about tenure of judges, potential impact on the quality and objectivity of judgments, and effects on the independence of the Judiciary. Enhancing transparency in the transfer process, distinguishing administrative necessity from punitive action, implementing a minimum tenure policy, and establishing a Judicial Appointments and Transfers Commission are suggested ways forward to address concerns about judicial transfers.

The Judiciary, being an unelected institution, does not represent the will of the people and is not directly responsible to the people. However, it is essential that the judiciary remains accountable and transparent to maintain public trust. The Union of India vs Association for Democratic Reforms (2002) case directed the Election Commission to enforce disclosure of criminal records of candidates.

In conclusion, navigating the line between judicial activism and overreach requires a balanced approach. The judiciary must uphold the rule of law, respect the separation of powers, and remain accountable to the people, all while ensuring justice is served.