Context: Judiciary is increasingly being attacked by civil society for its new orientation towards the philosophy of political executive and becoming a part of partisan politics.
- It is a “judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies”.
- Judicial activism enjoins judges to use their powers to correct injustices, especially when the other branches of government do not act to do so.
- In short, the courts should play an active role in shaping social policy on such issues as civil rights, protection of individual rights, political unfairness, and public morality.
Judicial overreach:When judiciary assumes the roles and functions of the legislature and executive, thus diluting the concept of separation of powers, it becomes judicial overreach. Unrestrained activism on the part of judiciary often leads to its overreach.
Article 142 provides that “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justicein any cause or matter pending before it…”
Activism can be either conservative or liberal:
- Conservative activism tends to narrow the scope of interpretation to restrict government or individual rights.
- Liberal activism tends to broaden the scope of interpretation to expand individual rights in keeping with progressive social norms.
Evolution of Judicial Activism in India and its forms:
The Constitution ensures “independence of judiciary” from government influence through fixed salaries, security of tenure etc. but ‘independence’ is a much broader term that also includes independence from personal biases, political and moral beliefs, and partisan ideologies to save judges from turning into a politician. Independence of judiciary from executive and its relations with the executive has had a chequered history since 1947.
Passive phase of Indian Judiciary:
- In early years after independence, there was thus little dispute regarding the role of the Court between the political establishment and the Court due to:
- Nehruvian era judges were drawn from amongst the judges of the Federal Court and various High Courts of India appointed during the colonial government who firmly believed in the supremacy of the Imperial Parliament.
- Courts believed that what was declared by the Parliament was the ‘law’and it was the duty of the courts to interpret the law as it is and uphold it. It was based on the Anglo–Saxon tradition that a judge does not make law; he merely interprets.
- Nehruvian era parliamentarians were statesman and men of unity and integrity, who had participated in the national movement. They not only commanded respect from the people but also from the courts.
- The courts therefore supported the Parliament in their efforts as highlighted by:
- Gopalan Case1950: SC taking a narrow interpretation of Article 21, held that protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action i.e. State can deprive the right to life and personal liberty of a person based on a law.
- Shankari Prasad Case 1951:SC held that the power to amend the Constitution, including the fundamental rights, was contained in Article 368 and that Article 13(2) does not protect fundamental rights if infringed by amendment of the Constitution, as amendment is made in the exercise of constituent power of Parliament and not legislative power.
Activism phase of Judiciary (Judicial Activism):
- Overall the relations were cordial between judiciary and Parliament but some dents were evident since as early as 1950. SC’s activist decisions in RomeshThappar v. State of Madras, ChampakamDorairajan v. State of Madras invalidating the laws passed by the Parliament forced the Parliament to pass 1st Amendment Act, 1951 which added Ninth Schedule to the Constitution.
- Kharak Singh Case 1962: It was the first case of judicial activism on the right to liberty. SC held that ‘personal liberty’ was not only limited to bodily restraint or confinement to person only but something more than mere animal existence. It extends to all those limits and faculties by which life is enjoyed.
- Golak Nath case 1967: An example of judicial activism as SC for the first time, SC dissented from Shankari Prasad judgement and despite the earlier holding that Parliament can amend any provision of the Constitution, SC declared that the fundamental rights as enshrined in Part III of the Constitution are immutable and not amendable.
- Kesavananda Bharti Case 1973: SC upheld the sovereign right of Parliament to amend the Constitution but laid the concept of ‘basic structure’ i.e. some basic features of Constitution could not be amended by the Parliament.
- While the creative interpretations of the text of law had started earlier (Golaknath Case, Kesavananda Bharti), the post-Emergency phase marked a distinct turnaround in the Indian judiciary’s activism.
- After the ignominious failure to protect the fundamental rights of the citizens in ADM Jabalpur vs Shivakant Shukla (1976), the court believed aconstitutional correction would be insufficient. So, the pursuance of constitutional legitimacy was replaced“by a quest for popular legitimacy”.
- Menaka Case 1978: SC overruled its judgement in the Gopalan case by taking a wider interpretation of the Article 21. Right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just. In other words, it has introduced the American expression ‘due process of law’.
- A series of judgements, most notably S.P. Gupta vs President of India and others (1981), gave rise to a new legal instrument called public interest litigation, which diluted the rule of ‘locus standi’
- The word ‘due’ implies ‘just’, ‘proper’ or ‘reasonable’, accordingly to the judicial view. Therefore, the Courts can evaluate whether a law affecting a person’s life, liberty or property is reasonable or not. The Court may declare a law invalid if it does not accord with its notions of what is just and fair in the circumstances.
Procedure established by law:
- It means that a law that is duly enacted by the legislature is valid if it has followed the correct procedure.A strict literal interpretation of Procedure established by Law gives the legislature an upper hand which may enact laws which may not be fair from a liberal perspective.
- SC in India followed the ‘procedure established by law’ to evaluate the validity of a law in the initial decades after independenceeg.Shankari Prasad Case, but later at the onset of activist judiciary, courts started to evaluate law on the basis of ‘due process’ i.e. fairness and reasonableness, egMenaka Case.
Judicial Activism to Administrative Judiciary:
- Judiciary’s role got further evolved and it started turning into administrative judiciary while assuming the administrative functions of the executive i.e. ‘constitutional court turning into Supreme ’Administrative’ Court.
- Indian Council for Enviro-Legal Action Case 1999: SC adopted the‘polluter pays principle’ for environment conservation by mandating that financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution.
- BCCI Caseand Lodha report: SC removed office-bearers of BCCI and appointed Committee of Administrators to oversee and implement recommendations given by Lodha panel.
- Liquor shops on highways: SC not only asked removal of all liquor shops along highways but went on to demarcate the precise distance in meters within which the law had to be implemented. The verdict and its details lacked evidence and rendered many jobless.
- National Anthem Case: SC mandated all cinema halls to play National Anthem before the feature film starts, during which all people should stand and the doors should be closed prior to starting of the anthem.
Administrative Judiciary to Executive Judiciary:
- When judges or their judgments depict inclination topartisan politics of the executive and they start toeing in the line of executive by compromising their moral and philosophical independence, the institution becomes ‘executive judiciary’. The evolution of ‘executive judiciary’ is reflected in:
- Meghalaya High Court Case 2018: Recently Justice S. R. Sen of Meghalaya HC raised doubts about secular basis of Indian polity while stating that “anybody opposing… Indian laws and the Constitution cannot be considered… citizens of the country.”
- Master of Roster Issue: The Chief Justice of India assigns cases to different benches and judges and has sole discretion in this regard, but his/her decisions have often been charged with bias. Example,4 senior most judges earlier this year raised concerns that cases of “far reaching consequences for the nation” are “assigned selectively” to “benches of preference.”
- Though the judiciary has not completely turned into ‘executive judiciary’ but the damaging trend ought to be contained in its early phases.
Reasons/causes for judicial activism:
- The Constitution is a written document which elaborately mentions the powers of judicial review of courts under Articles 32, 136, 142, 226 etc. Articles 50 enjoins upon the state to ensure separation of judiciary from the executive.
- Gradual establishment of supremacy of human rights in India and around the world.
- Tyranny of the central executive and its trampling of the basic structure.
- Rise and growth of corruption followed by resentment of people towards ineffective governments.
- Public confidence in the judiciary.
- Rise of civil society activism by using law to promote social change through legal information, legal education, legal assistance, and law reform. Example:
- Campaign for Judicial Accountability and Judicial Reforms (CJAR)initiated a variety of activities to highlight and advocate for judicial accountability like advocating for asset declaration by judges and greater transparency in their appointments and transfers.
- Indian Association of People’s Lawyers: Raised the issue of allocation of various important and sensitive cases in a manner that is violative of court traditions, and formulating norms and decorum to junior or handpicked judges to maintain the integrity of the Supreme Court.
Judicial activism is needed as:
- Using judge’s wisdom when law fails: Many sensitive issues need a different perspective and care which laws don’t allow, hence judicial activism allows a judge to use his personal judgement in situations where the law fails. Example,triple talaqcase.
- Filling the legal vacuum:It gives judges a personal voice to fight unjust issues which though important but evade the eye of legislature, for example, countering harassment against women at workplace through Vishakha guidelines.
- Legislative and executive control:It provides a system of checks and balances to the other government branches, like SC laid conditions for imposition of Governor Rule in states in S.R. Bommai Case, to bring objectivity in the application of the rule.
- Reviewing its own judgements: Courts maintain checks and balances on themselves through judicial review mechanism. Any verdict can be reviewed and made better with an appeal to the court.
- Complete justice: Judicial review allows a court to do complete justice in any case by using its powers under Article 142 and taking suo-motu action based on its own appraisal of the situation.
Issues with judicial overreach:
- Dilutes ‘separation of powers’:It destroys the spirit of ‘separation of powers’ between Parliament, Executive and Judiciary, enshrined in the constitution.
- Limited experience:In many cases, courts are often ill-equipped and lack experience to weigh the economic, environmental and political costs involved like liquor ban case.
- No external regulation:The executive remains “accountable” to the people through 5 year election process but judges exercise self-regulationand are insulated from any external control and thus accountable only to themselves, and their own sense of their limits.
- Conflict of interest:Sometimes when judicial activism is exercised it is done for solely selfish, political or personal reasons.
- Undermines trust in Parliament:It reduces the trust people pose in the Parliament and elected representatives as frequent overreach signals executive inactivity and incompetency.
- Minority rule/ Undemocratic: Judicial overreach appears as an act of ‘tyranny of unelected’ in a democracy.
- Wastage of court’s time:It is wastage of court’s time, which can otherwise be used for adjudicating other important matters relating to public importance pending before the court.
Though Article 142 and judicial review has been put to many constructive uses but some actions, like declaring the National Judicial Appointments Commission unconstitutional as it tried to apply checks on judicial powers, highlight the need for more judicial restraints in using judicial review.
- Maintaining ‘independence’:Judiciary is expected to maintain its primary allegiance to the law and the Constitution i.e. to the text of legal instruments and legal interpretation, and to the body of judicial precedents. Though there exists a two-way interaction between judiciary and executive but the judiciary should keep its moral and philosophical independence intact.
- Limiting judicial discretion: All cases invoking Article 142 should be referred to a Constitution Bench of at least five judges so that this exercise of discretion may be the outcome of five independent judicial minds.
- Review and feedback mechanism:In all cases where the court invokes Article 142, the government must bring out a white paper to study the effects of the judgment after a period of six months or so from its date.
The time has come for the Supreme Court to introspect on whether the use of judicial review as an independent source of power should be regulated by strict guidelines so that, in the words of Justice Benjamin Cardozo, the judge does not become “a knight-errant roaming at will in pursuit of his own ideal…”