Minimal Democracy and Judiciary

Democracy that we have is minimalist democracy, a Jeffersonian democracy or a more latest word;Schumpeter's competitive democracy. Minimalist democracy need weak executive so "system of Veto" are introduced to check its power. Judiciary, legislature, constitution; are, in all check and balance concept,which is designed not to concentrate power in executive. why? because world have seen most charismatic leader turning into despot.

So Jeffersonian democracy was to keep executive less powerful ,but what if its executive is weak below par. This wasn't looked upon. So field is left to either Judiciary or legislature to fill gap as on when required. in 1800s US congress filled the gap. However when congress started to become inefficient infront of charismatic personality , Judiciary stepped in. In Britian it didn't happen , so their, Legislature is power ful. In India we basically designed Neither Jeffersonian nor Schumpeter democracy. our design to check execute had failed in some cases. Executive and Legislature is intertwined. We havent designed constitution to counter despotism. And Golden thumb rule for people like us is that, if executive is left without checked; despot will sure to appear in near future. And executive will always work towards getting more power.

In India, is a assumption that executive is weak. My view is that its getting far more power than what it needs to have. When legislature cant counter it, Judiciary need to move to fill gap.

In judicial philosophy Judicial activism is excepted in 2 cases

1. when executive is too strong and legislature is weak: 1970s

2. When executive is weak below par: 2009 onward. Most people dont see other side of story. Most know case 1 stories.

Various legal luminaries have different ways to see this.Legal Realist, Legal positivist, conventionalist, pragmatist etc have different way to approach this prb. Legal interpretation depends on which philosophy they believe upon  and not only on constitution . Legal intervention is necessary in common law, statutory and constitutional law.

Common law includes contract, however not the policy making.  in common law we have concept called "Destructive burden on Careless". Destructive burden means: fine. Careless is loose word. Careless can be govt and company. Company will  pay fine and what govt needs to pay?

Judiciary always check for and  wait for executive to correct itself(as it has given opportunity for NDA 2 on coal block allocation policy ), if not then it takes up the policy as "Destructive Burden" for government and use pragmatist method of approach and "What good for Society" and form the policy. There is no wrong in it.

Question come whether it is legitimate.?

Yes it is in most case ie in case of Common law, statutory law, constitutional laws. Most modern judge are inclined toward "Dualist Democracy"(ie democracy through legislature and judiciary), where Judiciary is active judiciary rather than passive. Dualist democracy revolves around "Right Fundamentalism". Basic structure of constitution is element of "Right Fundamentalism". This is judiciary's defence against legislature. It came up in Germany after Hitler's Reich. Hitler was democratically elected despot.
Executive and legislator , time and then try to make Judiciary , a commited judiciary. Passing JPC, and Tribunal mentioned are some attempts. Other countries have tried this, US tried this during "New Deal " era. Its not new to world judiciary as whole. Their is always pattern, legal luminaries know this will. and do have devices to stop it.

coming back to question whether its legitimate. While framing laws Judges use following in Judicial activism.

1. Convention

2. Pragmatism

3. coherency

4. Fairness

5.Justice

6. Due process

7. No arbitrary compromise(eg: cancelling all private and private partenered allocation except 4 which were govt) .

 All these summed up in one word called Judicial Integrity with respect to actvism. Laws are not perfect , their exist gaps and gaps has to be filled, how you fill depends on maturity of democracy.

Questions are...

1.Do we need specialized bench dedicated to deal with financial matters?

Yes we might need benches or tribunal but under frame work of basic structure. As complexity increases more distribution of justice structure need to happen(as US has 2 system of judiciary) but free from executive influence and par with High court or below it. its part of common law or statutory law and "Ideal of protected expectation" can be used to give justice.

2.Are social issues being sidelined or neglected by our higher courts, because of such lucrative financial cases?

Justice must not be seen as either lucrative or non; Courts are their to provide justice whether its related to money, power, rights etc. Efficacy of judiciary is measured by Judgement they pass,interpretation and ideology. Ideal judiciary must be in pyramid shape in handling and giving justice. But it doesnt happen so Art 32 is with Supreme court. Basic social issues could and are handled by lower however gap in justice exist hence higher court. Segregation of benches is settled solution. And in distributed and complex economy lower court cant handle financial cases in line with justice . so assumption is that higher court have greater jurisdiction and efficacy to handle power and financial cases.

3.Whether such demarcation would violate the constitution, as felt the SC in below case.

Justice is done according to constitution and also beyond that, where their is gap. Segregation of financial and non financial doesnt violates constitution as constitution doesnt explicitly gives the priority of cases (interpretation based on strict conventionalism)to which we have to deliver; it only give priority to rights; thats according to "Right Fundamentalism " philosophy. if in an hypothetical constitution where its written that quantum of financial injustice is less than that of social injustice than according to that constitution ,if only cases related to financial justice are taken neglecting social justice cases ,than its violation of constitution. More over justice is huge umbrella very hard to down size.