Introduction
Democracy can be understood as a system where people elect their government, a small elite body, for being ruled by them. As per the Constitution of India, the main aim of this body is to frame laws and work for the betterment of society as a whole. The issues of validity of laws framed by the government and methods of control on government have been debatable since decades as the representatives of people (elected body), once elected, remain in power till the end of the term even if people are not content with the policies of government. Not only does the government enjoys immunity because of the constitutional provision, but also its members tend to engage in wrongdoing as the Constitution does not provide ‘call back’ power to the people. The lack of transparency and popular participation in the system created a vacuum in governance, that is, who shall monitor the validity of law.
The judiciary, as per the principle, cannot take suo moto action till victim files a petition, resulting in substantiating vacuum. To bridge the gap between the principle of democracy and the essence of democracy, ‘Power vacuum filling’ theory states that it is important for judiciary to extend its influence in its sphere. Many argue that it is against the principle of democracy. May be it is true. Concerned with the view that vast hegemonic growth of the form and procedure of democracy may pose a grave threat to the ideals of democracy, it is of utmost importance to decide what is more important: the procedure and principles of democracy like the legislative supremacy or the spirit of democracy, i.e. welfare of people. They may be a means to an end, but the end is always the spirit of democracy. So if means are abridged to attain the ends, then democracy will be more successful than anything else. So judicial activism is important for this basic spirit of democracy.
Judicial Activism
Although judicial activism can be defined in a number of ways, it cannot be discarded as an intellectual void as the main aim of the same is survival of law. It is also important to understand the difference between judicial activism and judicial review and other process of jurisdiction. On the one hand, judicial review can influence the executive and the legislative, the two pillars of democracy. On the other hand, judicial activism is a form of judiciary which not only limits itself to the interpretation of law, but also monitors the situations where law has an adverse effects on people. Considered as a safety valve, judicial activism has contributed a lot in making the judiciary more competent.
Our Constitution and Judiciary
India’s founding fathers created three arms during writing the constitution: Parliament, Executive and the Judiciary. These three were the keepers of the ideals inculcated in the constitution. In the present scenario, the Parliament is not functioning properly, the Executive has refused to perform its duties and even the Judiciary is using their authority to make everyone work very hard. Many realised that it is cracking the whip a lot. But according to me it is not the same. The role of active judiciary is to defend the fundamental rights of the people and their liberties against the evil acts of the state. According to a judge, the policy formulation is the job of the Executive and Judiciary does not need to interfere but another could believe that even in policy formulation, there is also a requirement of Judiciary to guard fundamental rights. When the Executive fails to discharge its statutory, constitutional obligations, this type of situation often arises, and as a result, the fundamental rights of people are violated.
To make sure that system is functioning properly within constitutional boundaries, the Constitution has given the power to Indian Judiciary to motivate and direct the Executive and Legislature to work for the betterment of people. If any law turns out to be beyond Parliament’s competence or violates the norms of the Constitution, the Judiciary has the power to strike down the same. The same applies to any illegal Executive action. As Article 142 vests an extraordinary power to our Supreme Court (SC) to do ‘complete justice’ in any matter presented before it, the apex Court’s judgement becomes the law of the land. However, this power has often been wielded unpredictably. For example, the Court 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.
There are two theories that best explain the nitty-gritty of judicial activism. The first theory, ‘Power vacuum filling’, states that if lack of any organ or its inaction creates a vacuum, then the others are ready to fill that vacuum by raising their concern about the issue. Nature does not allow the vacuum to remain as such. In some spheres in the government, lack of interest in executive or legislative or owing to the inaction and indifference in their part creates a vacuum that is filled by a dynamic judiciary called as the judicial activism. As the theory of ‘social want’ states that something that is provided by neither the executive nor the legislative is wanted by people, judiciary took the responsibility to satisfy the wants of the people. Hence, this proactiveness is called as judicial activism.
Montesquieu, while explaining the necessity for separation of powers, given in our constitutional scheme, wrote: “There is no liberty where judicial power is not separated from both legislative and executive power. If judicial and legislative powers are not separated, power over the life and liberty of citizens would be arbitrary, because the judge would also be a legislator. If it were not separated from executive power, the judge would have the strength of an oppressor”
History
On 13 November 1608, Stuart King James I, Ruler of England, after entering the royal courts, claimed that he has the power to take and remove any case from the courts and decide it in his royal person. However, Chief Justice Coke, referring to the law of England, confronted him that this cannot be done as the cases have to be determined and adjudged in a court of justice. Offended by the answer, the King replied: “This means that I shall be under law which is treason to affirm”. Following which Coke stated: “The King should not be under man but should be under God and law”. This can be seen as a perfect example of judicial activism as Justice Coke’s reply was an affirmation of the judicial power while upholding the rule of law against arbitrary decisions of the sovereign.
In the another example of 1801, in the case of Marbury v. Madison, the judicial review power of the American Supreme Court was highlighted and reaffirmed by Chief Justice John Marshall in invalidating Congressional statutes. The decisions by US Chief Justice Earl Warren, regarded as one of the great activist judges who have profoundly influenced the Indian Supreme Court, played a pivotal role in the following: legitimising affirmative action by the courts, removing racial discrimination in schools by desegregation, reapportioning obsolete electoral districts and enhancing the rights of poor accused and defendants.
Indian Context
The following cases stake their claims when considering the judicial activism in India.
1. Golaknath vs. The State of Punjab: Retracing from its own judgement in the Shankari Prasad case and Sajjan Singh vs. the state of Rajasthan case that the fundamental rights can be amended, the Supreme Court in Golaknath vs. the State of Punjab clarified that no constitutional amendments can be made on the part III of the Constitution, thereby fundamental rights cannot be abridged by the legislature. For empowering the legislature with the power to amend the constitution, Article 368 was amended by the government in the 24th amendment.
2. Keshavananda Bharti vs. the State of Kerala: Stating that the legislature by virtue of the amending power cannot change the basic structure of the constitution, the Supreme Court overruled the case and parliament regained the power of amending. However, the court did not explain what constitutes the basic structure. Hence, to make the process of amendment hassle free, Clauses 4 and 5 were inserted in Article 368 by the government which mentions that limited power of amendment is a basic structure of constitution.
3. Minnerva Mills vs. The Union of India: The Apex court in this case stated amending power to be a basic structure of constitution. By this time, the legislative and the judiciary in India were at loggerheads.
4. Sunil Batra vs. Delhi Government: In this case, the writ of Habeas corpus was reinterpreted by the Supreme Court as not only producing a person in the court but also preventing a prisoner from the inhuman treatment with the bars.
5. M. C. Mehta vs. The State of Tamil Nadu: In this case, the Supreme Court ruled child labour in hazardous factories is unlawful and provided various guidelines for the welfare and betterment of children.
Recently, a recent review petition was filed by the Centre after the recent order of creating a Special Investigation Team (SIT) to probe the black money in the Supreme Court. In a first, appointment of a former judge of the Supreme Court as a chairman of the SIT and another former judge of the same court as the vice-chairman was done to start the investigation. A high-level committee including revenue secretary; Deputy Governor, RBI; Directors, IB, CBI, (financial intelligence unit) and ED; Chairman, CBDT and DGs, Narcotics Control Bureau and Revenue Intelligence was appointed by the Union government. Later, three more members, including two former judges and Director, RAW, were inducted in SIT. Even as police will investigate the case, what is unprecedented is that the SIT will report to a former judge. According to the Cr.Pc., the court cannot take over investigation, although someone can be appointed to impartially investigate the case.
In the another case, Nandini Sundar vs Chhattisgarh, under the policy of arming of a civilian vigilante group, the Salwa Judum, the appointment of special police officers (SPO) was declared by the apex. The court while lambasting the neoliberal economic policy of the government, held the government responsible for black money growth and invidious inequality which has led to the menace of Naxalism. Both judgements are replete with condemnation of the state’s ‘amoral’ economic policies in florid language. The question is whether judges are competent to do it? While speaking at the Motilal Setalvad Memorial Lecture, Chief Justice of India S. H. Kapadia cautioned his colleagues against breaching the doctrine of separation of powers: “We do not have the competence to make policy choices and run the administration…Under the doctrine of separation of powers, each of the above organs must stay within the powers allocated by the constitution”. The issue of accountability was rightly raised by Justice Kapadia
It is clear from the above cases that judicial activism seem to be against the legislative hegemony. However, the question remains whether it is against democracy? Legislative gains its authority from people as it is a democratic body. Because the judiciary is not backed by popular mandate, it is an independent authority. As per the principle, judiciary ratifying the legislature is against the principle of democracy, although arriving at any such conclusion is easy. There are many loopholes in such straightforward criticism. For example, if the law formulated by the legislature affects the liberty of people which is a gross violation of human rights, should the judiciary remain silent and follow the rule of law principle even if the law is inhumane? One needs to reinterpret the word democracy to understand its far-reaching significance.
In America, the process of appointing judges is different. The presidents choose the judges on ideological grounds after being grilled by the Senate live on television. Thus, people are already aware of the ideological commitments of future judge of the Supreme Court. Still, they tenaciously stick to the constitution. While in India, because of being apolitical, judges have to interpret laws strictly within the mandate of the constitution. In the black money order, the court has clearly overstepped on the ground of protecting the fundamental right to equality (Article 14) and the right to life and personal liberty (Article 21). It is important for justifying judicial intervention that some kind of amorphous connection can always be established with these rights.
In India, liberalising access to justice and giving relief to disadvantaged groups and the have-nots under the leadership of Justices V.R. Krishna Iyer and P.N. Bhagwati helped judicial activism to become a significant force. The courts on several occasions in the past have issued directions in public interest litigation (PIL) covering a wide spectrum such as road safety, pollution, illegal structures in VIP zones, monkey menace, dog menace, unpaid dues by former and serving legislators, nursery admissions, and admissions in institutions of higher learning. There is no doubt that sometimes righteous indignation and emotional responses trigger these orders. Due to the widespread corruption and non-performing administration, the common citizens have now a useful tool in the form PIL to seek justice. Is it the duty of the court to intervene if a child is bitten by street canine or cattle, etc.?
Is Democracy under Threat? No, given the above scenario, if the judicial activism is practiced within the boundaries, it may not be a derailing force. In fact, it will be important to keep democratic functioning on track. Independence is not over interference. It should be understood that judicial activism can only be effective, if the same is sparsely used. Media need to be more responsible and mature as overhyping judicial activism will only have negative effect on the society. Even political parties need to show maturity and rather than branding the verdict as conspiracy against democracy, should avoid the collision course. If all the sections show restraint and maturity, judicial development’s rise can potentially lead to stable democracy.
Acting as a safety valve in a democracy, judicial activism in India has given hope that justice is not beyond reach. As long as the Judiciary maintains its respectable image in the hearts of people, judicial activism will prosper and help people in getting justice without negative perceptions, which have overtaken the executive and the legislature. Last few years have seen people being concerned about the lack of transparency in judicial appointments and a sense of increasing unease due to lack of a credible mechanism to deal with serious complaints against the higher judiciary. For example, even if laws to prevent children from working in hazardous occupations exist, due to economic necessities, parents themselves are willingly sending their children to work. The condition worsens further with the inspectors being bribed by factory owners to escape any wrongdoing that is punishable in the eyes of law. While hearing such cases filed by NGO, a court has the authority to direct the state to enforce the laws because failing to implement it is akin to violate the children’s fundamental right to a healthy life. That is activism in the right sense.
Criticism Many critics opine that proactiveness of judges is for gaining the limelight as they are devoid of the same in comparison to the legislature and executive. As anyone can file PIL for any reason, the chances of PILs being misused are very high, resulting in huge volumes of litigations lying pending on the floor of court.
Because judges have always enjoyed a respectable position in the society, the idea concerning judges’ craving for limelight does not seems to be apt. This issue need not be hyped as being a human being, judges might sometimes crave for popularity, and it cannot be seen as a sin. Concerned with the increasing cases coming to fore regarding the abuse of PILs, some guidelines for the PILs and their usages have been mentioned by the apex court.
Conclusion
Judges should be aware of thin line between judicial activism and judicial adventurism, and hence should avoid interfering in issues out of their ambit, for example, the court has the power to direct the government to frame a scheme, but not the power of framing it itself. Judiciary being the only ray of hope for common people against the arbitrary actions of the Executive, India cannot let this pillar to fall prey to corrupt practices and media headlines for popularity. Our constitutional scheme has the doctrine of separation of powers, and the soul of our constitution should be kept intact.