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In this Idea Exchange, the new Minister of Law and Justice, Ashwani Kumar, speaks about judicial activism, and the right to privacy vis-a-vis the right to information. This session was moderated by Senior Assistant Editor Maneesh Chhibber
Maneesh Chhibber: There is a feeling that the Indian higher judiciary is going into areas that don't concern judges. How do you intend to check that?
It is absolutely true that over the last couple of years, there is a widely-held perception that there is a treading into other domains by organs of the state whose remit is not that particular sector. It is equally true that what the judges do or say, they believe they say or do so by the command of the Constitution. Now who will determine the outer parameters and the constitutional laxman rekhas? The Constitution confers that right on the judiciary, yet I believe that recent judgments of the Supreme Court, including the one in the 2G spectrum case, have clearly spelt out the Supreme Court's perspective with regard to interference in policy decisions. The highest court of the land has categorically reaffirmed the proposition that judiciary cannot concern itself with policy making nor can it go into the questions relating to the political domain. But the judiciary has said that it can intervene in the implementation or the manner of implementation of the policy. I don't think the government has any quarrel with that proposition.
Maneesh Chhibber: It is said that judges get swayed and play to the gallery.
Judges are prone to be concerned with the prevailing environment of the day, yet the constitutional and judicial discipline demands that judges decide as objectively as the brief in front of them permits. In a large majority of the cases, judges do decide fairly. There have been cases where the general feeling has been that the judges have said a little more than what justice demanded but that was a more a function of the style of writing a judgment and style varies from judge to judge.