In other words, it is judicial activism that helps to advance the cause of law, and it has been a continuous process in India. Judicial activism is, in fact, an essential part of judicial review.
It may be pint out in this context that the doctrine of the basic structure of the constitution limits the scope of amending power of parliament in substantial ways some of the features of this basic structure, through no actually listed include rule of law, equality, federalism, secular polity, and most important judicial review.
The judgement enunciating the concept of the basic structure of the constitution may be describe as “judicial activism”, and it came more than twenty year ago.
A decade later came the public interest litigation (PIL) in favour of social action and the court’s accepting its validity and stepping into set things right ideologically, such litigation and judicial intervention born of it has transformed the “classical liberal right model enshrined in the constitution (Part III) into a paradigm of the people right’s”.
Such litigation has indeed democratised the access to the apex court. These cases have broadened the scope of fundamental rights to include right to dignity, shelter, health, environment; privacy they have given rice to fresh forms of judicial security of governmental institutions whether they are hospitals, prisons or juvenile homes.
How did public interest litigation (perhaps more aptly termed social action litigation) grow? Public spirited individual began to seek redress in matters affecting not them individually, but the rights of people in general.
Termed as public interest litigation, it was initially encouraged in the 1980’s by Justice P.N. Bhwati. Then Justice M.N. Venkatachalliah came on the scene, and he set the tone for a new activism.
As the chief justice he adopted a posture independent of the government, and was sympathetic to the filling of PIL cases. He took lead and judges began to get bolder.
A polity usually comprises three wings- Executive, Legislature and Judiciary. Each generally has its own role to perform. In this context, it may be worthwhile recalling the views of Prof. Jeffrey Jowell from England.
Outlining the guiding principles of judicial activism, he said that judges may intervene if the executive exceeds the terms of power conferred on them. So is judicial intervention to be seen that policy is not sacrificed for principle.
We live in an era where governments are weakened. Judges, in the circumstances, provide better guideposts to the State so that policy is not ignored. Elected representatives must fulfil the legitimate aspirations of the people, judges, executive, and legislature cannot operate in mutually exclusive closeted compartments.
True, utilitarian policies, socio-economics actions and rational implementation on is best tackled by the State, but abuse of power, unfair procedure, unconstitutional action, or even lack of required action may surely be checked by the judiciary.
As politicians are elected and judges are not the former do not like to be pulled up by the latter. However, if the elected representatives betray the mandate reposed in them, they surely should be brought to book.
And the process is only through recourse to courts. To bring back the role of law in a peaceful manner, and not though bloody revolution, judicial activism is the first step.
Judicial activism becomes necessary to put a check on tyranny born out of a temporary political majority in legislature which might otherwise seek to rewrite the constitution in order to be entrenched in power.
In the same way judicial intervention becomes inevitable when the executive and legislature abandon their duties and responsibilities.
There are fears in some quarters that the judiciary is overstepping its authority that it is trespassing into spheres reserved for parliament and the executive.
Policy-making and administration or carrying on the business of government is the executive’s job to legislate public interest involved.
In the present wave of judicial activism prompted by public interest suits ranging from cases of out-turn allotment of government houses without proper reason, discretionary allotment of petrol pumps and LPG connections to those having influence with highly-place bureaucrats/politicians.
The fraud involving animal husbandry scam in Bihar and of course the (in) famous ‘Hawala cases’, the Supreme Court has given firm decision.
True in some cases, the Court has assumed the role of issuing directions (telling him CBI to investigate thoroughly and not to close any case without the Court’s order) a job of the executive.
It may also be pointing out that as the law stands the CBI is a department under a particular minister and there is no provision in law agency should report to a court and not to the minister concerned.
And the CBI is also under law not empowered to investigate cases in a state without the state government’s permission.
The law as it stands may be productive of abuse but changing that law is the business of the legislature not the courts. So, here is the judicial actually legislating.
But, what are the citizens to do if the executive authority would not do anything about the spreading canker of corruption in public life and the legislature including the highest one is unable to do anything except to paralyse itself?
Having lost all hopes of any self-reform by the political system most Indians have started viewing politicians of all hues with cynicism even contempt. They look up to the higher judiciary as the only possible redeemer of the despairing situation.
The Chief Justice of India A.M. Ahmadi has opined. The present situation is not really a case of one democratic institution trying o exert itself over another rather it is a case of citizens finding new ways of expressing their concern for events occurring at the national level and exerting their involvement in the democratic process.
In recent year, as the incumbents of parliament have become less representative of the will of the people, there has-been a growing sense of frustration with the democratic process.
The ordinary citizen has reacted in either of two ways. One group- whose members constitute a large majority has chosen to look upon these developments as an unavoidable feature and has adapted itself to these uncertainties while continuing to beacon its destiny.
The other group- which constitutes a very small minority has chosen a more positive, innovative approach and has sought to achieve its objectives through the judiciary. This it does by approaching public spirited organisations and bodies, who in turn file public interest cases before the courts.
This would have been wholly unnecessary if the issues were fully discussed in parliament and people were kept informed of developments.
When such citizens raise grave constitutional issues and exercise their fundamental rights in invoking the jurisdiction the Supreme Court is left with little choice but to act.
Judicial activism may seem disturbing when seen to encroach upon executive and legislature spheres of action.
But what else is possible, if the executive is lax or the legislators lack initiative to mend outdated laws or remain impervious to public pressure to bring about a change when public interest clashes with the members collective self interest?
As Nikhil Chakravarty has observed “There are cases in which the intervention by the judicial may seem unusual but we are passing through abnormal times, and the judiciary is the organ of the Constitution which alone has the authority to interpret the Constitution”.
The lack of concern by the legislature for some pressing problems of the people and the near-disappearance of responsible and responsive governance by the executive have compelled the Court to enforce the rights of citizens through novel and innovative strategies to meet the needs of the times.
Whether it is environmental pollution, the scandal in allotment of government accommodation or the hawala case, the Court is upholding constitution right the right to life in the first example and the right to equality in the latter two.
The decline in the role played by the other two institutions of the state has inexorably changed the role of the Court from being a “sentinel on the quinine” to a saviour on call.
The Supreme Court, as the final court of appeal is known as “the court of last resort”, but the wide writ jurisdiction enjoyed by it has often made it the court of first and only resort Self-restraint, tolerance for dissent and respect for institutional autonomy do not come easily to the rich and powerful in India.
As the eminent jurist Mr. Nani Palkhivala once noted “let us not pretend that the rule of law is a concept which can be regarded as a part of the Indian psyche”. The judicially is thus enjoined to attend to the difficult task of seeing to it that institutions, groups and individuals do not cross the limis.
The Indian Constitution allows a person to move the Supreme Court directly for redress of violation of basic right (Article 32). In the circumstances the doctrine of separation of powers car only signifies a division of functions.
If the decisions of the coordinate branches of government are constitutionally correct, the judiciary has no right to interfere.
But if a decision violates a right of the Indian people it is not constitutionally correct; hence judicial monitoring of institutions likes jails and juvenile homes, it is wrong to say that the court is administering these institutions.
It is the executive which continues to administer them but with the added because of the indifference shown by the executive to the constitutional rights of citizens within these institutions.
Judicial activism is feared even by conscientious and highly knowledgable citizens of India on the ground that it may lead to a violation of basic principle of democracy- replacing an elected government by a nominated body.
Nani Palkhivala laments that we have achieved a degree of degradation and corruption that the only way of preserving order is seen to be governance of the country through the apex court.
“It portends the twilight of democracy we have lost all sense of propriety and are not only willing but eager to call upon the court to decide those questions which is the duty of the government to decide firmly and courageously.
We forgot the elementary proposition that judicial pronouncements can never be a cover for inadequacy of government.” In the circumstances there is a fear about the very survival of democracy.
If today the duty of governing the country can be shifted from the government to the Supreme Court, tomorrow it may be shifted from the elected representatives to nominated individuals.
For example, the people may accept the decision of the army or any other dictator as they are accepting the decisions of the Supreme Court today, without asking the question whether they are in the realm of the governance of the country.
What has happened before can happen again. If the government of the country can be carried on not by the elected representatives of the people but by individuals nominated by the government is there from the viewpoint of democracy much difference between a government by lawyers appointed by the government to be Supreme Court judges and government by military officers nominated to be in charge of the army?
A disheartening situation but in the present circumstances there appears to be no choice- the judiciary seems to be the hope of the people for restoring lost democratic rights.
After all, how can democracy are better served if along with the executive and legislature the judiciary too abandons the citizens? That could lead to a situation in which the citizens may be compelled to take the law into their own hands; there would then be a revolution.
However neither activism should not become populism; nor it lead the judiciary to assume the mantle of arrogant righteousness which can graduate to despotism.
Judges too are human and prone to errors and human aberrations. Furthermore, there can be no escape from an intense debate about the merits and defects of the Supreme Court’s judgements.
Public debate could even degenerate into irresponsible partisanship especially if the Supreme Court is to be called upon to decide such politically sensitive issues as what constitutes ‘Hindutva’ or such economically vital matters like who gets which telecom contract.
It is therefore absolutely necessary that the Court is allowed to decide these matters without someone imputing motives or malafide intentions to the judges.
Nonetheless, the very essence of democracy and its product the liberal order would demand that the judges do not object to a discussion of the wisdom or the correctness of their decisions.
Just as the ministers, bureaucrats and legislators are not above criticism, similarly, the judges of the High Court and the Supreme Court cannot be presumed to be beyond the pale of scrutiny. Judicial activism should not become judicial fundamentalism.
In the words of Justice J.S. Verma “Judicial activism and judicial restraint are two faces of the same coin. Self-discipline is to be practised strictly by the members of the judiciary and judges must refrain from commenting on policy matters”.
One worry concerning judicial activism is however real. What if the orders passed are not enforced? What if these PIL cases become unmanageable numerically? What is to be done in case of delay-so common in judicial matters?
The hope awakened in the public will die out. To obviate such a situation the courts must seek to enforce their orders-through the contempt power, for instance or by requiring senior members of bureaucracy to be present during hearings.
It is also necessary that the effort to “democratic” India is not left to judges alone. It is the duty of every thinking citizen of this country to help the judiciary in this effort. The media too has a role in educating the public and crusading for a clean and efficient administration.