Late delivery system of justice in India
Judicial activism:
Word ‘judicial activism’ was first used by Thomas Jefferson, the third president of U.S.A. on the absolute and dictatorial judicial behavior of the contemporary federal judge, John Marshall. Subsequently, the British Parliament enacted a judicial act in 1875 which uses ‘judicial activism’ for the first time and, thus, the two words came into use and found a place in the dictionary. The Australian Constitution does not provide for a charter like the British Constitution or a preamble like the Indian constitution or rights of their citizens as in the constitution of both countries.
The British colonialists and expansionists had deprived the inhabitant Australians of their rights to land properties for over a century. The Australian High Court, the Apex Court of Australia in a land-mark ruling in the recent past has passed a judgment rendering the Privy-council supported law ultra vires. In India, the examination of legality of legislative and executive decisions and judicial review of the existing systems and application by the Supreme Court of India is now come to be discussed as ‘judicial activism’.
Public Interest Litigation:
Through provision of judicial review system has been provided for in both the Constitution of India and America, it is very actively and fully in use in the USA and not so in India earlier. But in 1978, the Supreme Court of India, in its landmark judgment on the ‘Public Interest Litigation’ (PIL) filed by Madam Maneka Gandhi, had made it clear that any infringement on fundamental rights of Indian citizens by the executive and the legislative through enactment of law or order could be declared ultra vires. The Honorable Supreme Court of India can take sue motto cognizance of any such order or law passed by the legislative or executive through PIL filed by the Judiciary.
The scope of judicial review or judicial activism is primarily of three categories, viz, executive impartiality, protection of fundamental rights and examining the validity and legality of legislations passed by the center and the states. What we have seen judicial activism is just the opposite of judicial restraint. Supporters of ‘judicial activism’ and ‘judicial review’ feel that both the systems are constitutional and legal because, according to them, with the passage of time, new sets of problems to deal with them or inadequacies in the existing law.
Judicial activism acts as a boon to the government at times:
The judges rely more on conscience in such cases and more a human factor and a social responsibility haunt their minds while dealing with such cases. Many judges and legal experts opine that the existing laws are only skeleton structure and those need interpretation with an eye on the contemporary social milieu and demands. Judicial activism acts as a boon to the government at times in a situation the government is in trouble against the upsurge of tremendous pressure by some political parties or self-seekers. The High Courts and the Supreme Courts come to the government rescue in a bid to save the country from a possible chaos.
The Centre and the state governments have been able to take some important measures during the last three decades due to judicial activism the PILs filed by citizens of the country. Judicial activism has been widely acclaimed and accepted by the vast majority of population. A few political analysts have strong apprehensions that too much of judicial activism will not be viewed with favor by elected representatives who feel that their powers are widely curtailed by judicial review and judicial activism. During 2007 winter sessions of the Indian Parliament, a few MPs had made a scathing attack on judicial activism. Mr. S.H. Kapadia, the then Chief Justice of India had made a very balanced and astute statement that the government control over judiciary and the judiciary transgressing its limits are both detrimental to the balance available among the executive, the judiciary and the legislative which will ultimately destroy their functional effectively. It is high time that all the three pillars of the constitution should operate within their constitutional limits without, of course, protecting corruption by any pillar.
Chit Fund or Cheat Fund:
In the recent years the country has seen mushrooming growth of Chit Funds and private financing units and corporations alluring the public with their schemes and offers and the investors falling prey to their pranks and losing their hard earned money. The whole of the country is now agog with clamor for exercising curbs on such non-banking financial institutions and a refund of money by them to the investing public. The small and medium investors have already been invested in a number of bogus financial institutions allured by their lofty promises of return. They have invested their hard-earned money and life’s savings without now with a semblance of a chance to get the money back. People are not getting returns as per promise and what of interest; even the capital or the principal amount saved is not being returned.
The government is in a fix because of the impending election. In a bid to quell down the anger and agony of the suffering public, the government has promulgated an ordinance giving more powers to Security and Exchange Board of India (SEBI). The ordinance proves the sensitivity and concern of the government people. This definitely is a welcome step. It is worthwhile to note here that the Share Market Capital Issues (Control) Act 1947 was in force till 1988 when SEBI came into being with its headquarters at Mumbai with a few provincial branches country-wide. SEBI made laws and regulated the insider trading in the capital market. SEBI is modeled upon the Security and Exchange Commission of USA and Security and Investment Board of Britain.
The role of SEBI:
Now SEBI has been given more powers during the silver jubilee year of its existence. SEBI can now take direct possession of property and detain and arrest those who violate its institutions and do illegal trading. It can issue a directive to attach bank accounts of illicit traders. SEBI has been empowered with free access to the houses and offices of the suspicious elements and can search their boxes, cupboards, cubicles, lockers. It can cease up to 100 cores of money collected from chit funds, para-banking institutions. Earlier, SEBI had the power to debar the fictitious companies from notifying collection of funding and fixing them. It was toothless and even the fines in exposed were hardly collected. But by dint of the ordinance, SEBI can cease property and money of errant companies and return these to the investors.
Nonetheless, due to the late delivery system of justice in India, apprehensions have been expressed by experts of the new law going the old way. Now, let us analyze as to why the cheatings are being allowed and tolerated so far, notwithstanding such incidents being few and far between? Lack of farsightedness by the government has resulted in the use of the investing public. A huge gap always is visible between planning and the performance of the government be it in the matter of house, road or bridge construction or any other matter.
Consequently, the country suffers from huge losses:
SEBI can be termed as a failure so far and as a watchman who watches with close eyes, ‘hera pheri’ is being committed without SEBI having any tooth or sting. The government brings Amendment to SEBI guidelines only after investors cry and money is lost and a big fraud is perpetrated. The government was never seriously on the matter. Harshad Mehta during the last decade of the last century and Ketan Parikh during the first decade of the current century perpetrated frauds of very high magnitude forcing the government to come out with some serious measures with a number of loopholes; but this time the measures seems to be having some sting and teeth.
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