Courts cannot sit with folded hands when executive fails to perform its duties: Supreme Court Justice BR Gavai

Indian judiciary has often demonstrated that it cannot sit with folded hands when the executive fails to perform its duties, Supreme Court judge Justice BR Gavai said on Thursday .Justice Gavai said that the country's constitutional courts have evolved new constitutional mechanisms and legal principles in this regard and the demand for judicial intervention has often arisen due to incoherence in policy-making."Time and again, the demand for judicial interventions has been triggered by the constant incoherence in the realm of policy-making, as well as the need for developing and strengthening skills amongst the executive instrumentalities ... The judiciary in India has repeatedly demonstrated that our constitutional courts cannot sit with folded hands when the executive fails to perform its duties," he stated.Justice Gavai was delivering a lecture at Harvard Kennedy School on the topic 'How Judicial Review Shapes Policy'. The lecture and subsequent discussion was organised by the school's CARR Center for Human Rights Policy, to mark 75 years of the Universal Declaration of Human Rights.The apex court judge explained how the power of judicial review allows the judiciary to interfere and strike down laws as unconstitutional. "In India, where the rule of law is paramount, judicial review remains a roadblock to any abuse of power by the legislature. The doctrine of judicial review acts as a strong fence between all the organs of the State. The concept of judicial review has played a vital role in shaping policy through legal jurisprudence. Over the years, the Court, through its interpretations, has acted as a bridge between the legislature’s power and the interests of the citizens," he said..Expansion of right to free speech to include right to information crucial for elections: Justice BR Gavai.In his address, he made it clear that courts in India, under the exercise of judicial review, do not routinely go on to make policy decisions."However, to keep the way for the Constitution to remain a living document, judicial review acts as a primary means to meet the needs of society through the Court’s interpretational function," he added. The Supreme Court judge also discussed numerous cases where courts laid down policy guidelines or issued administrative directives to the government and its instrumentalities to act in public interest. "Increasingly, countries across the globe see judicial review as not only a mechanism for checks and balances but also a tool to ensure that the institutions work in the interest of its citizens. Judicial review not only defines constitutional limits and protects individual rights, but it also reflects changing social dynamics and thus adopts new and emerging rights, such as privacy rights, etc," he said. In this regard, he specifically highlighted how courts in India engaged in 'dialogic judicial review' with the government during the COVID pandemic, giving the examples of court orders on ensuring oxygen supply and hospital fee caps.