• SMITA AGGARWAL: The judiciary has been active and has earned praise from people too. Is that because the legislature and other institutions have failed the people?

I am very much for the judiciary ensuring that the rule of law prevails and that citizens get their due, with all institutions performing their duty. But I am not for judicial overreach — that is not permissible. I will give you an example from the hawala case.

There were repeated prayers to constitute a committee headed by a retired Supreme Court judge to oversee investigations by the CBI. We rejected that demand because investigation into an offence is a policeman’s job, for which judges are not trained. We can adjudicate and ensure that the policemen do their job, but we cannot take over their functions. Even in the commission of inquiry relating to Rajiv Gandhi’s assassination, there was an attempt to enlarge its scope and add the issue of “conspiracy”, but I refused, saying that was a policeman’s job.

You are right, institutional failure is what makes judicial activism necessary. Article 14 of the Constitution says there has to be equal application of the laws, but if that doesn’t happen and widespread corruption adversely affects the lives of citizens, and if fundamental rights under Articles 14 and 21 are violated, then Article 32 (which Dr B.R. Ambedkar called the soul of the Constitution) gets attracted. And it becomes incumbent on the Supreme Court to step in and enforce the fundamental rights of citizens.

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