Arun ends his post with the following lines;
Now at the brink of superpowerdom, India faces a herculean task in promoting and ensuring all-round development sans boundaries. A goal that simply cannot attain fruition if its citizens don’t trust each other.
Does this in anyway signify that the Supreme Court should step in and take action? I asked this in light of a recent Public Interest Litigation filed stating that the actions of Mr. Raj Thackerey violate a persons right to travel guaranteed under Article 19 of the Constitution. If this PIL actually gets admitted, its consequences on Constitutional law would be grave in nature; because traditionally the fundamental rights are challenged only against state action and Mr. Thackerey is in no way a ‘State’ as defined under Article 12. To go further, while any action in this area can be addressed by ordinary criminal law by lower Courts, it would charter a new dimension to Court activism which cannot be justified by any legal means.
In a follow up, the Court has now asked that the petition be amended and a reasoning based on Article 355 (Action by the government to prevent external attack and internal disturbances) be added. This would further complicate constitutional jurisprudence because under precedent (a long list starting from ADM Jabalpur’s case), the Court cannot direct the Government to impose an emergency or take action under Article 355.
While the situation in Mumbai represents a ‘sad story’ in Indian democracy, it surely cannot justify any action by the Supreme Court to transcend the Constitution and take action of its own accord. There are times when judicial activism creates a legal and moral dilemma and if the Court interferes, this would be one of them.