Union Finance Minister Arun Jaitley, who addressed a session at an event to mark National Law Day, 2017, said, “I have often heard the argument that judicial activism is born out of a phenomenon that when other institutions are not doing their job, somebody has to fill the gap. It’s a flawed argument. It is flawed because if any organ of the state is not doing its duty, it can be directed to do its duty. Usurpation of power by any other organ would never be the correct constitutional approach.
What if the same argument was used the other way round against the judiciary? Arrears are pending, judges are not doing the job. So must somebody step in and now exercise that power? The answer is no. And therefore, it’s extremely important that the dividing line on separation of powers is maintained. And therefore, by creating arguments, the thin dividing line itself cannot be lost.”
Calling for caution while exercising judicial review, Jaitley said, “While exercising that power of judicial review, one has to bear in mind that separation of powers is maintained in its entirety. The executive is not trained to exercise either legislative or judicial power.
Parliament is not trained or is not really an institution to exercise judicial power. Judiciary is similarly not trained nor does it have that administrative maturity of exercising legislative power. In fact, if judiciary gets into the process of exercising executive or legislative power, directly or implicitly, the very institution of judicial review itself will suffer.”
He went on to talk of the “latest trend” – of courts appointing “retired judges” to various committees to discharge executive functions. “Also this new trend that alright, I don’t exercise the power myself but I will appoint my nominee to exercise the executive power. The nominees may be equally unsuitable to exercise executive power because they have not been trained. Retired judges have been trained to write judgments not to run sports organizations. Therefore, this temptation of taking over executive power. and exercising it yourself or through your nominees clearly violates the Lakshman Rekha .”
Warning that there would be no limits if the Lakshman Rekha is crossed, he said, “You probably will have a court saying where security forces are to be deployed is something which I will decide.”
He added that “if every High Court in the country starts deciding on the position of security forces, as to where it should be stationed, it’s an invitation to anarchy.”