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Mainstream, Vol XLVI, No 13

Perils of Judicial Activism

Sunday 16 March 2008, by Ranbir Singh

The rise of judicial activism has been rightly described by the Editor-in-Chief of India Today as one of the sixty revolutions in independent India’s sixty-year history. But it could also be viewed as one of the most controversial, if not dangerous, developments in the evolution of the Indian political system. So much so that even the Supreme Court is, as is reflected in the conflicting judgments of various Benches, divided on this issue. Therefore, it is essential to understand the problem in the proper perspective of the process of constitutional development in India.

It is pertinent to bring to sharp focus the fact that the makers of the Indian Constitution had the foresight to foresee the rise of such a situation in which the Supreme Court could usurp the authority of the executive and Parliament and could become a super-executive and a super- legislature. They were wise enough to learn from the stand of the Supreme Court of the USA on the New Deal programme of President Roosevelt in 1945. That is why, instead of providing for the due process of law, being followed in the USA, they decided to make the procedure established by law, as had been present in the Japanese Constitution, as the basis of judicial review. And, the Supreme Court of India did recognise that constraint till its verdict in the Golaknath Case (1967). It also took that stance in the Keshavanand Bharati Case (1973) with the rider that Parliament cannot destroy the Basic Structure of the Constitution. So much so, that even the suspension of the right to live was considered by the Supreme Court during the era of Emergency (1975-77).

But the Court began to assert its supremacy in the 1980s by making use of Article 32, the right to constitutional remedies, and Article 139, the power of the Supreme Court to review the actions of the executive and the legislature. It could do so not only by making a liberal and broader interpretation of the Fundamental Rights but also by making extensive use of the Directive Principles of State Policy. What emboldened the Supreme Court to resort to judicial activism was the emergence on the centre-stage of the issues of human rights and ecological concerns by the press, civil society organisations and NGOs. Personalities like Justices Bhagwati and Krishna Iyer too contributed to the growth of this trend. Consequently the Supreme Court started entertaining public interest litigation cases and also began to take suo-moto cognisance of press reports. It even went to the extent of issuing motions even on the receipt of post cards by the aggrieved persons.

This trend got further momentum in the post-1989 period due to the decline of the executive after the emergence of unstable coalition governments and the decline of Parliament after the regionalisation, ruralisation and criminalisa-tion of Indian politics. The electronic media also played an important role in strengthening this phenomenon by building public opinion in its favour. The processes of liberalisation, privatisa-tion and globalisation have also helped the Supreme Court in gaining strength and in asserting its authority.

It has to be recognised that the Supreme Court of India did play a positive role in defending the Constitution, protecting fundamental rights, promoting the Directive Principles of State Policy, preserving the environment, checking corruption and misuse of powers and in coming to the rescue of the citizens in cases of failure of the executive, legislature and administration in performing their roles. In other words, the role of the Supreme Court has been functional for good governance.

BUT, on the other hand, the Court has not only usurped the authority of the executive and powers of Parliament but also disturbed the balance between the executive, legislature and judiciary established under the Constitution. It has violated the spirit of the Constitution in its zeal for defending its letter. It is also alleged that the Supreme Court has been having a conservative stance and acting as a barrier in the way of social justice. It has even denied the working class the right to strike by banning bandhs to save the citizen from inconvenience. It has further prevented all the attempts carted out so far to make the judiciary accountable. Last but not the least, the conflicting and divergent judgments of various Benches of the Supreme Court have created confusion and raised doubts about the desirability of its pro-active role and about the assumption of the role of the executive and legislature by the judiciary.

This leads to the question: what should be done? it has been argued, and rightly so, that the Supreme Court should get the issue examined by a Bench consisting of all the judges and presided over by the Chief Justice. It should maintain restraint and should not violate the legitimate limits in the exercise of its powers. There should be an open debate in Parliament, the media, the bars and the academia on this issue. All these are wise suggestions. But these miss the real issue of political reality. We must remember the apt views of late Prof Iqbal Narain of Rajasthan University in the context.

He has aptly remarked: “In the ultimate analysis, it is the political reality that determines the constitutional reality.” The Supreme Court will continue to transgress into the realm of the executive and Parliament till the health of the executive is not restored by the formation of stable single-party governments and till the health of Parliament is restored through the revival of the two-party system, deregionalisation and decriminalisation of Indian politics. Unless that happens, the Supreme Court will continue to fill up that political vacuum and shall continue to resort to judicial activism and overreach. It may appear as a healthy development. But it is not desirable in the long run. It will prove dangerous for democracy as it would mean the rule of the judges instead of rule of the people through its representatives in Parliament and through the Council of Ministers accountable to the representatives of people.

The author is a former Professor and Chairman, Political Science, Kurukshetra University; UGC Visiting Pofessor, HP University, Shimla and UGC Visiting Fellow, GND University, Amritsar. Presently he is a Consultant, HIRD, Nilokheri.

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