Judicial Activism

Judicial activism thus may mean the process of Judiciary taking sides on some controversial issue or social-economic policy through the exercising of discretion of individual judges which the concept entails. In layman understanding, Activism denotes the circumstances where a body or authority engages in purposeful and determined activity to achieve desired objects. In this process, that body or authority may take the side of a policy or objective. But the Judiciary is supposed to be an independent, impartial arbitrator, which essentially involves remaining unbiased while giving decisions. With this central dilemma in place let's peep into history of judicial activism in India and how it has been able to foray in its Indian avatar.

Box 1 (Concept of Judicial activism)

Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions." The word judicial activism was coined in US jurisprudence in 1940's and largely had negative connotations attached to it. But, still there is no congruence on this definition and there has been divergence of meaning attached to the term and it continues to convey different senses to different people. Opponents of judicial activism charge that it takes away the power of the elected branches of government and wrestles it in the domain of unelected judges, thus damaging the rule of law and democracy. Some may see it in better light and take the concept as meaning dynamism of the Judges and creativity for the sake of justice, few others may say it symbolizes judicial legislations for public good. Protagonist of judicial activism says that in many cases it is a legitimate form of judicial intervention, and that the interpretation of the law must change with changing times and the jurisprudence if static would loose the touch with reality. A third view is that the so-called "objective" interpretation of the law can't possibly exist at all as the judges don't work in vacuum and are bound to be affected by prevailing social beliefs, values, customs etc. According to law professor Brian Z. Tamanaha, "Throughout the so-called formalist age, it turns out, many prominent judges and jurists acknowledged that there were gaps and uncertainties in the law and that judges must sometimes make choices."

Moral under-pinning of judicial activism

The conditions obtaining favorability and much needed moral legitimacy for practicing Judicial activism has its roots in the complex legal questions that arose during the emergency period and consequent tarnished image in which judiciary find it in post emergency. The Emergency and its aftermath constituted defining moments for judicial activism in India. In the infamous decision in ADM Jabalpur v. Shukla (1976) (popularly known as Habeas Corpus case) the Supreme Court permitted civil liberties to be suspended during the Emergency. The very Constitution of India permitted the suspension of civil liberties in Part III, such as the right to personal liberty. The Constitution was also amended extensively to permit the excesses of the Emergency. In 1975, therefore, permitting civil liberties to be suspended during the Emergency would arguably have constituted deference both to the intent of the framers of the Constitution and to legislative wisdom, in other words “judicial restraint.” The Supreme Court’s decision in that case, however, despite being judicially restrained, struck a devastating blow to civil liberties in India, and was widely condemned thereafter. Justice H.R. Khanna’s eloquent dissent in the Habeas Corpus case was activism if analyzed in detached way, but was much celebrated. In the stated case during the Indian Emergency, four other judges went with the government view that even right to life stood abrogated during Emergency. Khanna's dissenting opinion, claiming that the Constitution did not permit right to life and liberty to be subject to executive decree, is widely regarded as a landmark in Indian democracy. Judicial activism during the emergency according to many was clearly the need of the hour. Thus, “judicial activism” had a strong moral basis after the Emergency in the populist reflection that after all the Emergency judges ought to have been activist and shouldn't have been silent spectators to the untoward happenings around them.

 PIL as an instrument of judicial activism

 In this background a plea by innocuous poor Indian citizen transcribed on a 25p postcard in 1977, received by the Registrar of the Supreme Court among its thousands of daily correspondences, was accepted as a writ petition by retired honorable Chief Justice P.N. Bhagwati which changed the entire course of seeking justice in India. This single radical step turned the table and throw the yoke of judicial niceties and technicalities apart, which may forbid the real task and duty of apex court of granting justice at any cost. Public Interest Litigation popularly known as PIL has its grounding in this incident in 1970's after which it became the cornerstone of Judicial Activism.

PIL can be broadly defined as litigation in the interest of that nebulous entity, the public in general. Prior to this only the aggrieved party could personally knock the doors of justice and seek remedy for his grievance and any other socially conscious person can't as a proxy for the aggrieved party knock the doors of justice. As a result, there was hardly any link between the rights guaranteed by the Constitution of India and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other.

However, this entire scenario gradually changed when the post emergency Supreme Court tackled the problem of access to justice by people through radical changes and alterations made in the requirements of locus standi and of party aggrieved. The splendid efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this juristic revolution of eighties to convert the apex court of India into a Supreme Court for all Indians.

As a result any citizen of India or any consumer groups or social action groups can approach the apex court of the country seeking legal remedies in all cases where the interests of general public or a section of public are at stake. Further, public interest cases could be filed without investment of heavy court fees as required in private civil litigation. It has thus opened the floodgates of the judicial intervention into many day to day affairs of ordinary citizens where they perceive injustice due to executive or legislative omission or commission. 

Effect on relationship with Executive and Legislature

Judicial Activism though can't just be simply put into the four walls of PIL and as a reach beyond that. Judicial activism it is generally accepted as its roots in the failings or misgivings of the two other branches of the Indian state namely Executive and Legislature. Other than PIL the judicial activism forays into many other dimension of the delicate relationship between the three wings of the state. It happens mainly when the court feels that the other two wings of the state have failed to fulfill there constitutionally enshrined duties and responsibilities which have resulted in injustice or delay in justice. In this excitement to render justice at any cost, it is feared that apex court may transcend the delicate constitutional balance between the three wings of the state. Many eminent jurists feel that there is a very thin line between Judicial Activism and Judicial Overreach.

Judicial activism may very easily turn into the case of Judicial Overreach if the court jumps the 'Laxman Rekha' of delicate balance between all the wings of state propounded by constitutional makers in the scheme of things adopted by our constitution. Pratap Bhanu Mehta also argues on the same lines that the evidence of judicial overreach is now too overwhelming to be ignored. He concludes: “It has to be admitted that the line between appropriate judicial intervention and judicial overreach is often tricky... courts are doing things because they can, not because they are right, legal or just.”  It was precisely this Laxman Rekha and how and where it should be drawn, that was the basic contention of the Centre's plea in which it challenged the appointment of Special Investigation Team (SIT) by Supreme Court in its July, 2011 order to look into the matter of black money. Appointment of such committee whose investigation has to be monitored by the Supreme Court itself, it has been contended is a case of judicial overreach and thus the plea to recall the order especially when other committee appointed by Executive headed by Chairman of Central Board of Directors is looking into the matter.

The matter is still sub-judice but has revived the debate of Judicial Activism vs. Judicial Overreach. In past it has been alleged that the court had many times cross the constitution ordained limits of judicial authority by peeping into the matter which falls into the domain of legislature or executive. Some may argue that how can judiciary past strictures when Mayawati led U.P government invests money to the tune of crores on building statues when allocating and sanctioning funds for the same fall into legislative domain. Similarly, when apex court asks Centre what it is doing about attacks on Indian origin students in Australia, is court peeping into the domain of executive as traditional convention has been that foreign policy is the preserve of executive.

Box 2 (Delicate balance between three wings of the government)

In Divisional Manager, Arrawali Golf Club vs Chandrahass, honorable Justice M. Katju declared that," though judicial activism is useful adjunct to democracy, it should be resorted to only in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker society. Where judges are unjustifiably trying to perform executive and legislative functions in the name of judicial activism, the delicate balance in the Constitution gets upset and in such situations there is bound to be reactions from other quarters. Therefore judges must know their limits and exercise restraint and must not try to run the government." On “Public Interest Litigation”, Justice M. Katju said, “which was initially created as useful judicial tool to help the poor and weaker sections of society who could not afford to come to Court has in course of time, largely developed into an uncontrollable Frankenstein and a nuisance which is threatening to choke the dockets the superior court obstructing the hearing of the genuine and regular cases which have been waiting to be taken up for years together.” (Source: AIR 2008 SCW 406)

Justice A.S. Anand former Chief Justice of India also cautioned in a public lecture, "that with a view to see that judicial activism does not become “judicial adventurism”, judges need to be circumspect and self- disciplined in the discharge of their judicial functions. The worst result of the judicial activism is unpredictability unless judges exercise self- restraint; each judge can become law unto him and issue directions according to his personal fancies, which will create chaos." (Source: http://airwebworld.com/articles/index.php?article=1062)

Concerns on selective application

Judicial activism application though has been selective in India and has not been generally able to touch all the spheres of the state in an equitable way. Generally it's the higher judiciary which has resorted to judicial activism in name of serving public interest even when crores of pending cases has been piling in lower judiciary along with lakhs in High courts and Supreme Court, which has also arguably denied justice too many millions of Indian citizens. One may argue that this institutionalized failure of judiciary must also be addressed to through activism and the nature of activism would only be selective if its lack introspection on part of judiciary. Higher judiciary may be accused of setting the deficiency of executive and legislature right through activism but still at the same time ignoring the compounding deficiency of judiciary itself by being apathetic to persistent state of affairs prevailing in court themselves which lack much needed transparency in disposal of cases.

Public Interest Litigation too has been misused many times to serve private interests by litigants by posing as champions of social justice. Courts have many times failed to expose such vexatious litigations till apex court had to intervene owing to persistent pressure of allegations that PIL are misused in the country. Apex court has now set guidelines that exemplary penalties should be levied in case it has been found that litigation is vexatious at admission stage. Though well intentioned in themselves there should be proper system of checks and balances inbuilt in court working to ensure that surreptitious elements are not using PIL to serve private interests or to settle political scores, for them to be effective and serve the purpose for which they have originally been visualized of providing cheap and effective justice. 

Populist appeal

As pointed out the legitimacy for judicial activism got strength from failings or misgivings of other branches of the state. Nevertheless it is obvious that unless the Executive and the Legislature begin to respond to the needs of the citizens and discharge their responsibilities, public interest litigation and judicial activism are bound to remain centre stage as long as courts continue to respond the way they do now. Judicial activism has no doubt done some good by filling the vacant space. Apex court intervention on CNG issue in New Delhi and Ganga Action plan has become popular folklore in India. The action against tanneries in Agra for protection of historical Taj Mahal has also been widely acclaimed. Supreme Court was also forced to issue guidelines for police reforms when state government were not taking any action on same due to political expediency in status-quo despite wide consensus that police reforms are needed. SC also intervened to protect rights of citizens to privacy when it formed detailed guidelines that should be followed for tapping phones by Intelligence agencies when they feel that it is needed in the interest of national security.

Constitutional questions involved

These interventions of the court have been generally been welcomed rather than being tested on critical faculties due to their populist appeal. But still the danger of Judicial overreach in certain matters still persists and as not been sufficiently addressed.  The debate hovers basically around several pertinent constitutional questions-

1. Has not apex court in the famous Supreme Court Advocate-on-Record Association case, by appropriating the appointment of judges of higher judiciary in the name of independence of Judiciary, compromised with delicate separation of power between executive and legislature enshrined in the constitution?

2. Did Judiciary by issuing notices to legislature for providing video-tapped recording of their proceedings or in cash for question scam has not intrigued into the sovereign domain of parliament and state legislature?

3. Did courts transgressed their limits when they pronounce judgment on what is essentially an policy decision as it's a preserve reserved for executive discretion?

Analysis of Constitutional implication

As pointed out above the constitutional questions involved need a deeper reflection to analyze the effects of judicial activism in long run as compared to popular expediency which may bring some benefit in short run? On the question of appointment of judges in 1993 case the Supreme Court created a peculiar situation for the country by which it landed itself only among the few country where judges appoint judges. The situations which now persist go against the constitutional principle of balance of power and checks and balances. It has in a way tilted the balance towards judiciary against executive as it is generally been accepted practice that appointment of judges is executive prerogative. The apex court can't in the pretext of protecting independence of Judiciary go to the extent of doing away with the scheme of things enshrined in the constitution. Paradoxically, the apex court itself has held in another judgment that the principle of checks and balances is the part of basic structure of constitution and hence can't be amended. Thus logically what can't be done by legislative action because it is against the basic structure of constitution also can't be done by judicial diktat.  

In the famous cash for question scam the than speaker Somnath Chatterjee famously refused to answer the notice issued by  the Supreme court as the matter fall in sovereign jurisdiction of parliament being related to internal proceedings of it. The Courts pronouncements directing video-graphing of proceedings of state legislature (for example during trust vote in Jharkand assembly in 2005) mainly during the trust vote as generally been not welcomed by speakers of concerned assembly as they have found them intruding into the sovereign domain of assembly. The court resorted to such extreme essentially in order to make sure that the proceedings are carried out fairy during trust vote as speaker being from ruling party may show favoritism during trust vote. Even considering this petty politiking as distorting the way in assembly should run, the Court still can't on the such pretext abrogate to itself the power which essentially belong to some one else according to the constitution. As observed by Somnath Chatterjee, "....the judiciary's intrusion has blurred the contours of areas of supremacy of different constitutional institutions. Articles 122 and 212 of the Constitution symbolize the supremacy of the legislatures within their own sphere, and these provisions are equally binding on the Speaker as well as the Supreme Court. In short, the delicate constitutional balance - between the executive, the judiciary and Parliament - , which is extremely crucial for the maintenance and sustenance of parliamentary democracy, has been upset by the court order..."Later the parliament itself take the action and expelled member of the house   

Courts in the country have in their excitement of activism as sometimes peeped into the domain of policy making which essentially is the preserve of executive. As it is the executive which is in touch with ground level realties and administrative implication of any policy decision, it is in better position to formulate what would be appropriate policy in particular circumstances. Moreover atleast theoretically executive being formed by the political party which is enjoying majority can claim that since they have the mandate of the people with them they are in better position to understand the needs and aspirations of them and court shouldn't intrude into it. In similar vein, the Indian Supreme Court has enforced socio-economic rights, though they are not considered enforceable by the Constitution for e.g. the right against malnutrition and the right to shelter. The traditional rule that courts will not issue injunctions requiring periodic supervision does not typically apply in socio-economic rights cases, where Indian courts periodically review the implementation of their orders almost in an administrative capacity.

Judicial activism in India has now taken on an interesting face. The courts in India pursue a form of review which can be described at best as ‘dialogic’, a term used famously by Peter Hogg and Allison Bushell in the context of the Canadian Supreme Court’s decisions. The Indian Supreme Court’s gaze has now even entered into the realm of public administration. However, its opinions often resemble aspirations rather than binding pronouncements. For example, the Supreme Court issued guidelines in 2006 to reform the police administration – which is a State subject on which only the State Assemblies can legislate. Similar guidelines have been issued increasingly in legislative spheres too. Because of these opinions, at least in theory, employers must now act against sexual harassment at the workplace, banks must be prudent in their use of recovery agents, and police officers must follow procedures prior to an arrest. These opinions bear a strong resemblance to unenforceable, advisory opinions since it will be difficult to comprehensively enforce them as law. If these sought of generic judgments in form of general guidelines persists for too long the legitimacy of courts issuing such orders may itself fall. This may happen as such order, however well intentioned they may be, can't be enforced on the ground in absence of required administrative machinery in place.

Conclusion

In conclusion, it can be said that gap-filling exercise by judicial activism can't be the solution to the requisite capacity-building in all the three traditional wings of the government. Conscious citizenry is the best check of arbitrary usurping of power in a democratic set-up like India by any wing of the state. It can also be a check against the failure of elected representative failings to stand up to their constitutionally prescribed duties and responsibilities which builds the need for judicial intervention. At the same time institutional reforms in form of Judicial Accountability bill would assist in bringing balance of power between three wings of government in matter of appointment of judges of higher judiciary and ensuring their accountability. The need is to build vital relationship among Legislature, Executive and Judiciary in a way that the principle of checks and balance to ensure delicate balance enshrined in the constitution is adhered to in letter as well as spirit.  

By Saurabh Naruka