Do We Need Judicial Activism?

In recent times, the Indian public has often seen the judiciary taking the Executive to task, even taking over some of its functions. But are judges overstepping the limits of their power?

Published: Aug 31, 2011 06:16:00 AM IST
Updated: Nov 15, 2011 07:26:59 PM IST
Do We Need Judicial Activism?
Image: Amit Verma
Soli Sorabjee is the former Attorney-General of India

An Active Judiciary Is A People’s Right

The hallmark of a great nation is its institutions. The stronger the ability of these institutions to uphold and preserve fundamental values, the greater the nation would be.

When India’s founding fathers wrote the Constitution, they created three arms — Parliament, Executive and the Judiciary — of the state that together were to be the keepers of the ideals of the nation as enshrined in the Constitution. Over the past several months, however, the Parliament has become dysfunctional, the Executive has abdicated its duties and the Judiciary is cracking the whip. Many think that it is cracking the whip a bit too much. I don’t think so.

An active judiciary is one that takes its task of defending the fundamental rights of the people and their liberties against the onslaught of the state, earnestly. As far as judges are concerned, it is a matter of mindset. One judge could say that policy formulation is the job of the Executive and Judiciary does not need to intervene while another could believe that even in policy formulation, the Judiciary would need to step in to guard fundamental rights.

The occasion for this often arises when the Executive fails to discharge its statutory, constitutional obligations. As a result of this failure, the fundamental rights of the people are violated. For instance, there are laws to prevent children from working in hazardous occupations. Now there are parents who willingly let their children work because of economic necessities. The factory owners fix the inspectors and the laws that are supposed to protect the children are not implemented. In such cases, a court hearing a complaint from a bonafide NGO can order the state to enforce the laws because by not implementing them it is violating the children’s fundamental right to a healthy life. That is activism in the right sense.

To give another example, a case came up before the Supreme Court regarding a care home for women in Patna. The home had very poor sanitation, leaky roofs and the living conditions of the inmates were horrible. The court immediately asked the government to look into it. Then the court went further. It asked the government to appoint a manager and fixed his salary. That, to my mind, is overstepping. Such orders have fiscal implications and are really in the realm of the Executive.

The government recently accused the Supreme Court of trespassing into its territory when it ordered it to set up a special investigation team headed by a retired Supreme Court judge to probe black money cases. The government said it was judicial overreach into Executive functions and was against the principle of ‘separation of powers’. What the court has done is to merely ensure that the investigation was done properly and everything was in order.

The power of the Judiciary to review what the state does flows from the Constitution itself. In the Constitutional scheme Parliament is not supreme. It is subject to a major limitation — that legislation does not violate any fundamental rights or constitutional values.  Who is to be the arbiter of that? It has to be an impartial umpire. And that is the task entrusted to the Judiciary; to ensure that fundamental rights are not breached and basic constitutional values are preserved. In other words, the chapter on fundamental rights acts as a limitation on Parliament’s powers. And the court has the power to interpret whether Parliament has transgressed that limitation or not. The Indian Constitution anyway does not have any rigid separation of powers.

Every fundamental right is not spelt out comprehensively in the Constitution. For instance, the right to shelter, right to privacy, right to go abroad and right to education have all been deduced through creative interpretation by judges over the years of Article 21 which merely guarantees “protection of life and personal liberty”. Similarly, though not mentioned expressly in the Constitution, the Supreme Court has deduced the freedom of the press from the guarantee of free speech and thus press freedom has been given a constitutional status by creative judicial interpretation. That is certainly not overreach.

Judicial interpretations are based on the realities of the situation. Every country has to work out its Constitution according to its problems, needs and demands. As Justice Krishna Iyer once said: “Every new decision, on every new situation, is a development of the law. Law does not stand still. It moves continually. Once this is recognised, then the task of the judge is put on a higher plane.”

The courts cannot remain mute spectators when laws are not enforced and consequently, fundamentally rights are violated. If the Judiciary does not intervene, it would be an inactive Judiciary. I would call it judicial abstention and not judicial restraint. Of course, the courts should not get into road-building and beautification of government buildings, but they should actively intervene whenever rights are violated and currently, the Executive’s inertia is so pervasive that rights are routinely breached.

It is as fundamental to be able to breathe good air and live in a pollution free environment as the right to live. In fact, it is the right to live with dignity. That is why the court was right in ordering Delhi buses to ply only on CNG. If that is considered judicial overreach, so be it. It is necessary and salutary.

Judges should, however, be careful about one thing. Judicial activism should not become judicial adventurism. They should not get into areas in which they do not have any expertise. The court, for instance, can order the government to prepare a welfare scheme, but not undertake the task of framing it itself. And in PILs, the Judiciary should refrain from the temptation of getting media headlines.
(As told to Dinesh Narayanan)__DEBATE__The Paradox of the Judiciary

Events in the past few months have made every thinking citizen wonder whether India is now governed by the Judiciary and whether it has established a complete supremacy over the Legislature and the Executive. With no financial autonomy, the Judiciary is perhaps the weakest organ of the State. Yet, the Judiciary has established a dominating position vis-à-vis the Executive in the ugly turf war between them. News headlines are dominated not by the Executive, but by hard-hitting pronouncements of High Courts and the Supreme Court, mostly against Executive action or inaction.

The ebb and flow of judicial powers have depended on the exigencies of the moment over the past 60 years since the Constitution was framed. During the Emergency, it was at its lowest. Thereafter, it seems to have surged. From the famous Keshavanand Bharati’s case (when the Supreme Court decided Parliament has no power to amend the ‘basic structure’ of our Constitution) to the recent Supreme Court decisions overturning the Executive’s decision to appoint P.J. Thomas as the Central Vigilance Commissioner (CVC), and setting up a team to monitor investigation into black money stashed abroad, the Judiciary has established supremacy over the Legislature and the Executive.

What led to this anomalous situation where the Judiciary decides on matters required to be decided by ministers and secretaries? Is ‘judicial overreach’ the consequence of under-performance of the other two State organs, particularly the Executive? Does this ‘governance by the Judiciary’ disturb our parliamentary democracy and nullify the doctrine of separation of powers enshrined in our Constitution?

The Constituent Assembly debates (1948-1949) and the overall Constitutional framework reveal that the founding fathers had, after careful deliberation, indeed given primacy to the Judiciary over the other two organs of the State.
Power of Judicial Review
The Indian judiciary has been constitutionally vested with the power of review to keep the Executive and Legislature within constitutional boundaries. The Judiciary can strike down any law that is beyond Parliament’s legislative competence or is violative of the Constitution. Similarly, it can strike down any Executive action, if there is any patent illegality or arbitrariness to it. A Supreme Court judgement becomes the law of the land.

While Articles 13, 21, 32, 226 and 227 encompass this power, Article 142 hands a unique, extraordinary power to our Supreme Court to do ‘complete justice’ in any matter before it. This power has often been wielded unpredictably. It granted a divorce to a Hindu couple on the ground of irretrievable breakdown of marriage, even though no such ground exists under the Hindu Marriage Act.

In the Bhopal gas tragedy case, when a review petition sought to re-open the settlement, the Supreme Court leaned on Article 142 to justify ignoring statutory provisions of the Civil and Criminal Procedure Code while transferring matters pending before the trial court to itself and quashing the civil and criminal proceedings to do ‘complete justice’. However, the subsequent trend of judicial decisions seems to suggest that the Supreme Court recognised the grave danger of ignoring the statutory provisions, which in a democracy reflects the will of the people.  

However, the Indian judiciary’s ‘activist’ image is largely dominated by the actions under the writ jurisdiction.  

The Mainstream System of Justice
An efficient mainstream system of civil and criminal justice provides remedies for the enforcement of rights and duties and is a condition precedent to the existence of the rule of law. Unfortunately, justice is prohibitively expensive, inordinately delayed and over-technical. A look at the numbers (see graphic) indicates the pathology of our judicial system, largely due to accumulated neglect.

Here lies the paradox: When it comes to the mainstream system of justice, the Judiciary gets into a very ‘passive mode’. But the higher Judiciary, functioning under the writ jurisdiction, performs a very ‘activist’ role that could be seen as ‘judicial overreach’.

Judicial review has led to a situation where there is an over-dependence on the higher Judiciary to address governance deficits of the Executive; the courts ordering even road repair and cleaning of drains. Consequently, the Executive has taken cover behind judicial orders for discharging its role.
While judicial review has led to several positive developments, it is imperative that the Judiciary does not cross the Lakshman-rekha as governance by the Judiciary can have serious long-term negative consequences for the economy.

In the Supreme Court’s decision in the CVC appointment case, the Chief Justice rightly observed that the government need not justify its policy decisions in court, but it is accountable for their legality.

A look at major High Court and Supreme Court decisions in recent years shows that they have clearly transcended the limits and undertaken functions that fall within the domain of either the Legislature or the Executive. A court is not equipped with the skills and competence to discharge the functions that essentially belong to the other organs of the State. Judges are neither trained to deal with macro-economic policy issues nor do they have the required skills or administrative infrastructure to handle them.  

In the long run, the Judiciary will be able to retain its pre-eminent position only if it exercises restraint in encroaching upon the turf of the Executive and the mainstream judicial system is reformed. The paradox of ‘hyper-active higher Judiciary’ in its writ jurisdiction, but chaotic mainstream system of justice at the grassroots level is unsustainable in the long term.  

The Way Forward…
The quality and speed of the mainstream judicial system can be improved by a comprehensive and integrative approach, focussed on improving judicial infrastructure and reducing indiscipline.

1. Improving judicial infrastructure: While the Judiciary enjoys supreme authority, it neither has a sword nor a purse of its own. While the fear of ‘contempt’ ensures enforcement of judicial decisions, the Judiciary remains dependent on the government for finances. The total allocation to the administration of justice in the Eleventh Five Year Plan was only Rs. 1,470 crore.  

 What is required is a quantum jump in the investment in judicial infrastructure. The increasing scale of trade and commerce will invariably give rise to commercial disputes and their quick, predictable settlement and resolution would be crucial. It certainly does not befit a country, which aspires to become an economic super power, to be ranked 182 in ‘enforcement of contracts’, among the 183 countries the World Bank examined in its recent ‘2010 Doing Business’ report.

2. Develop discipline in the judicial system: The delays and inefficiency in the mainstream judicial system could be attributed to the indiscipline that has crept in the way litigations and the adjudicatory process is managed. Cases linger on for years leading to an unhealthy practice of interim orders with parties and their lawyers looking for ways and means to obtain interim ‘stays’ so that the matter almost never reaches a final conclusion.

3. Improve strength of judges: The  Law Commission’s 120th Report on ‘Manpower Planning in Judiciary — A Blue Print’, inter-alia, observed that the strength of judicial officers in India was far less compared to their strength in other countries.

It recommended that this number be raised to 107 judges per million.

4. Develop judicial competence, effective case management and use of information technology: Setting up of a judicial service, reviewing compensation levels, setting up effective management of time and events in law suits from initiation to resolution and implementing information technology solutions to creating an accessible database and speeding up judicial work would result in greater efficiency in the judicial process.

5. Review media role: The ‘activist role’ of the judiciary has given the Fourth Estate a role, which the framers of our Constitution would have never imagined. The proliferation of 24x7 news channels and their insatiable hunger for ‘breaking news’, has sometimes resulted in a ‘trial by the media’ without understanding the seriousness of the issues involved.

Could the media reflect on its functioning, particularly in the context of enabling the functioning of an effective judicial system? A new privacy legislation scheduled to be introduced in the monsoon session of Parliament may address some of these concerns.

India cannot afford to let the Judiciary to fail as it is the only ray of hope and protection to the common man against arbitrary actions of the Executive. It is time for national introspection and a serious debate on this paradox facing our Judiciary.

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(This story appears in the 09 September, 2011 issue of Forbes India. To visit our Archives, click here.)

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  • S.kumar

    very-2 excellent article

    on Nov 14, 2011
  • Christopher Wingate

    If you are a powerful crook the first thing you do is make sure you have the police and judges paid off. History is loaded with examples and nothing will stop this unless the people complaining about injustice have the power to put evidence to a "constitutional jury". People in power ensure they control all aspects of investigation and that is the problem- they stand in judgement of themselves. India is well known for corruption. The annual arms budgets are a well known hunting ground for arms dealers ready to provide a UAE or Swiss secret bank account where bribes will be paid into. Everyone knows it yet nothing gets fully investigated. The Westminster belief good governance has separate hands on the power- 3 of them- the judiciary- the executive and the legislator is fiction. They pretend between them is separation to ensure "checks and balances". That is fiction. Reality is the lawyers control all the rules and all the inquiries and so the judges and the legal members form perhaps the most important part of a corruption racket. I have tried for years to obtain justice, justice that any jury would instantly recognise but those controlling the power just ignore you. If the Indian people want democracy and if they obtain what Anna Harare is seeking then they will be the first country in the world to brake the back on the monopoly of power all of our corrupt leaders so dearly guard.

    on Sep 11, 2011
  • Vijay

    Right is the ultimate law/constitution. All the three arms are supposed to work in that direction. There is nothing like overreach/under reach, if any arm fails other two to take care of the same. In democracy if you can not figure out absolute right then you have to go to the next lower level of relatively right(larger public interest). We boast of rule of law but what we have at present is rule of judges. Besides judges accoutability we also need Advocates accountability and credit rating system in place to get rid of the most problems presently bugging the judicial system.

    on Sep 1, 2011