Is Judicial Activism rising in India?

The term “Judicial Activism” was coined by Arthur Schlesinger Jr. in 1947 when he used it in Fortune Magazine in his article “The Supreme Court: 1947.”[1] There are different versions and perspectives to look at Judicial Activism. Wharton’s Concise Law Dictionary defines ‘Judicial Activism’ as a situation when judges allow their personal views about policies to interfere with their decisions[2]. With time the term has evolved into the Supreme Court encroaching outside the purview of its own jurisdiction and often taking up the task of legislating which is the function of the legislative and the executive like rising numbers of suo moto cases and issuing directives[3]. Directives like making the political parties publish the details of their candidates a mandatory makes the judiciary step into the administrative zone of Election Commission. Upendra Baxi hits the nail on its head when he says that the power to interpret laws combined with “the power to manipulate the interpretation process is in a sense the power to make laws themselves.”[4] This can be seen in the way Article 21 has been interpreted with a very wide sense where right to a healthy environment, right to dignity and right to reputation. S.P. Sathe states “Constitutional interpretation therefore is not limited to merely literal interpretation of the words in the text. Rather, the court attempts to apply its spirit. This leads to judicial activism.”[5] One tends to argue that all the three pillars of the Indian democracy have a system of checks and balances however the judiciary has an upper hand in real life and has been exercising that in recent times. P. Parameshwar Rao argues that with the evolution of the basic structure doctrine the Supreme Court has given restricted the parliamentary powers and slowly transformed into the strongest half of the state.[6] He even sheds light on how the Supreme Court in absence of laws for sexual harassment in workplace laid basic guidelines and norms itself.[7] This clearly shows the brazenness of the Supreme Court with respect to liberal interpretation of its powers. T.R.S Allen advocates that the three wings should be delineated, and one should not trespass on the purview of the other.[8] Manish Tiwari and Rekha Saxena has also accounted for the contemporary reasons for the rise of Judicial Activism. They portray how the weakening of the parliament by coalitions government due to cultural and social disparities of the country have led the courts to become a counter-majoritarian institution against the legislature[9]. Even though Judiciary has a fixed set of functions, I am going to argue that Judicial Activism is rising.

The Constitution of India has given enough scope for judicial activism to take place in India. The Federal court became the Supreme Court with the enactment of the Constitution of India, 1950. Article 142 allows the Supreme Court to “pass decree or order to do complete Justice”. There are no checks and balances for this absolute power of the Supreme Court. The article’s use can be seen in M Siddiq(D) Thr Lrs v. Mahant Suresh Das & Ors. Another article which puts the Supreme Court on a higher pedestal than the others is article 147 which makes it the ultimate authority to interpret any considerable question of the Law prevalent and the constitution of India. Once an interpretation has been drawn only the Supreme Court can change that. One can witness how the judiciary has repeatedly misused or overused its interpretational powers. In the case of article 124A the NJAC was turned down by the judiciary which was seen as a very transparent and democratic methodology over the existing controversial collegium system for the appointment of the judges. The participation of the Judiciary at the state or at the central level in India is very high as compared to different countries throughout the world[10]. “The Indian Supreme Court is probably the only court in the history of humankind to have asserted the power of judicial review over amendments to the constitution.”[11] Upendra Baxi rightly points out how the Indian Supreme Court has unparalleled powers in the matters of Judicial Review which often take the shape of judicial activism[12].

Mere grant of powers cannot enforce the functioning of the Supreme Court, it needs populism to survive and carry out its functions in the practical life as well. In the naccesant stage the Judiciary was quite “conventional” and professed a narrower and literal scope of the laws and constitution. The Emergency era witnessed a lot of brawls between the judiciary and the government. It is time and again introduced as the first phase of Judicial Activism in India. The emergency is referred to as the darkest period of the Judiciary. The Habeas Corpus Case or the ADM Jabalpur vs Shivakant Shukla in 1976 that is during the emergency harmed the judiciary’s reputation severely. The Supreme Court allowed the suppression of all the fundamental rights in the case of the national emergency. This was seen as a black stain on the image of the judiciary as the judiciary blatantly validated all the tyrannical acts of the government. The Only dissenting opinion was given by Justice Khanna and that to a very strongly worded one. The Constitutional amendment of the article 71 made the election of the Iron lady of India, Indira Gandhi legitimate due to the amendment being retrospective in nature. To regain the lost public image the court had three alternatives to follow upon: “annul the constitutional amendment and convict Indira Gandhi in Indira Gandhi v Raj Narain; Uphold the Constitutional amendment and also let Indira Gandhi go free from the case or they could do both annul the constitutional amendment a well as convict Indira Gandhi”[13]. If the Supreme Court would have chosen, the first route it would have been a direct cause of upfront confrontation between the Central government and the Supreme court. This would have been detrimental to the judiciary and the country as the opposition didn’t have many numbers in the parliament. If the court had gone with the third route the masses would have stopped seeing judiciary as an instrument of justice but rathe merely another arm of the government to justify and validate its actions. To avoid either of the situations the court took the middle ground and went with the second route. Appointing Justice Beg as the chief justice over Justice Khanna who dissented in ADM Jabalpur Case was set as an example for dissenting Judges. Post emergency the Judiciary became more active taking advantage of the weaker government. Sathe illustrates how Supreme Court tried to gain populism and the image of post emergency using its judgements to focus more on Fundamental Rights which were directly connected with the common man and in doing so it consequently resulted in practicing Judicial Activism frequently.

Sathe understands Judicial Activism as the “liberal interpretation of the provisions of the constitution” like article 21 which has been interpreted in a wider scope by the Judiciary to incorporate numerous additional inherent rights. The Puttaswamy Judgement famously known as the Privacy Case (2017) in which the Supreme Court held that Article 21 of the Indian Constitution comprised Right to Privacy in itself whereas no such terms were used in the original Constitution or even in the discussions of the constituent assembly. Article 21 has been interpreted very liberally to include protection of cultural heritage, right to go abroad and right against delayed execution. One may argue that changes are necessary, and rights should evolve with time, but I am of the opinion that they should evolve through a legislative process through the Legislature and not by the judiciary. In the Unni Krishnan vs State of Andhra Pradesh, the Supreme Court of India held that article 21 covered 16 rights in itself. This may come under the purview of interpretational rights of the Supreme Court of India, but one must understand that rights set up a positive action against the government. To put 16 fundamental rights through a judicial case seems inappropriate and disturbs the very balance of the separation of the powers given through the constitution. This also falls bad on the concept of democracy as the rights are not expanded by the people who have been chosen by the people but by the Judges. The people now aware of the liberal and active judiciary “seek extraordinary remedies” transcending the inscribed difference between legislation and adjudication.[14]

A crucial illustration of the Supreme Court of India using its interpretive powers to use them as a legislation power is the Basic Doctrine Case or the Keshvanada Bharti Case (1973) and hence framing another doctrine to imbalance the scales of separation of power. The Supreme Court interpreted the Legislature’s amendment powers in a very restricting way confining those powers and also formulating a theory itself as the “Basic Structure Doctrine”. The amending powers of the parliament under article 368 of the Constitution of India were challenged. In Keshvananda Bharti the Supreme Court held that the parliament could not amend the “Basic Structure of the Constitution.” This was well within the interpretation rights entitled to the Supreme Court given by the Constitution of India however this methodology of interpretation raises eyebrows as this not only rules the amendment at hand to be null and void which is well within the judicial review’s purview but also legislates the restrictions on the amending powers of the Parliament. Even though the Courts are responsible for reviewing and invalidating executive actions and laws passed by the legislative, in this scenario the court not only did so but came up with a new doctrine which was equivalent to a new legislation in practice. The very fact that Upendra Baxi uses the political condition to justify the Basic Structure Doctrine shows that it was a political decision rather than a judicial one.

The very concept of Public Interest Litigation (1976) is the pinnacle of Judicial Activism. PIL was the brainchild of Justice Iyer and Justice P.N. Bhagwati. It was a moderation on the doctrine of Locus Standi for the needy. Even though PIL has made it easier for a person to approach the courts, the way the concept of PIL came into the Indian justice system is a matter of debate. The Judges can also take a matter suo moto or through letters addressed to them. Several factors connect Judicial Activism and Public Interest Litigations like how one interprets the role of Judges, separation of powers and courts in a democracy especially the Indian democracy. However, the validity of the facts is also very important. Varun Gauri points out that most social and economic matters do not have matters of contention of genuine rights but of positive actions which entail significant expenditures which in-turn affects other branches of the government[15]. It would have been the role of the legislature to introduce that but the judiciary. It is a classic example of Judicial Activism as they overstepped their jurisdiction to legislate. Justice Iyer says “Activism is essential for participative public justice”[16] which shows how the judge that proposed it knew it himself yet chose to stick with the ‘necessary evil’. It is believed that the social and economic matters are the prerogatives of the legislative or the executive and giving positive guidelines are just inappropriate judicial activism[17]. Varun Gauri argues that “policy, environmental and social must emerge from a socio-political process and must be considered in a legitimate forum, not a judicial one.”[18] This brings a very key factor into the limelight that in the case of Judicial Activism one should not focus on the empirical advantage of a judicial move but focus on the methodology of bringing that action in. A.K. Thiruvengadam documents the criticism of the judiciary’s invasion in the legislation on the topic of Public Interest Litigations.[19] These include the comments of Justice Hidayutullah, Justice Srikrishna and Justice Katju who stated that the Public Interest Litigation “has developed into an uncontrollable Frankenstein.” Roy even goes to the length to say that we live in a “judicial dictatorship” and we don’t even know that yet.[20] I firmly agree with this view as when we see other democratic countries, we see that Britain is dominated by the parliament, USA is dominated by the President however in India the Judiciary has slowly taken the role of the ultimate authority. The alarming point is that the Judiciary is not chosen by the people and hence results only into the illusion of a democracy. It is important for us to look beyond the empirical profits of a concept like the PIL and understand the legitimacy of the process behind it and their consequences.S.P. Sathe argues that Judicial Activism is often seen as a necessary evil[21]. However, one cannot correct one wrong by committing another. It just appears like a justification as they acknowledge the fact that Judicial Activism is on the rise and it is not a good thing. It may seem like a solution for many problems in the short run however every coin has two sides and Judicial Activism can also take shape into domination by the judiciary.

Bibliography

1. S. P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J.L. &POL’y 29 (2001).

2. Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, 4,Third World Legal Studies 107–132(1985)

3. Upendra Baxi “A pilgrim’s progress: The Basic Structure Revisited”, Indian Bar Review Vol 24, 1997,53.

4. Khilnani, S., Raghavan, V., &Thiruvengadam, A. K. (2016). Comparative constitutionalism in South Asia. New Delhi (IN): Oxford University Press.

5. Varun Gauri,”Public Interest Litigation in India Overreaching or Underachieving?”, World Bank Policy Research Paper, 5109, 2009

6. Rao, P. Parameshwar. “SEPARATION OF POWERS IN A DEMOCRACY: THE INDIAN EXPERIENCE.” Peace Research, vol. 37, no. 1, 2005, pp. 113–122. JSTOR,

7. T.R.S Allen,”Law Liberty and Justice, 1995, Vol. 3.

8. TEWARI, MANISH, and REKHA SAXENA. “The Supreme Court of India: The Rise of Judicial Power and the Protection of Federalism.” Courts in Federal Countries: Federalists or Unitarists?, edited by NICHOLAS ARONEY and JOHN KINCAID, University of Toronto Press, Toronto; Buffalo; London, 2017, pp. 223–255.

9. Upendra Baxi,”Law,Struggle and Change :An agendum for activists”, Social Action 1985, Vol. 35.

10. Jha K.,”Judicial Activism in India,(02 December 2020)

11. Nitu Mittal &Tarang Aggarwal, Judicial Activism in India, 1 INDIAN J.L. & PUB. POL’y 86 (2014).

[1]Nitu Mittal &Tarang Aggarwal, Judicial Activism in India, 1 INDIAN J.L. & PUB. POL’y 86 (2014).

[2]Jha K.,”Judicial Activism in India,(02 December 2020)

[3]S. P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J.L. & POL’y 29 (2001).

[4]Upendra Baxi,”Law,Struggle and Change :An agendum for activists”, Social Action 1985, Vol. 35.

[5]S. P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J.L. & POL’y 29 (2001).

[6]Rao, P. Parameshwar. “SEPARATION OF POWERS IN A DEMOCRACY: THE INDIAN EXPERIENCE.” Peace Research, vol. 37, no. 1, 2005, pp. 113–122.

[7]Rao, P. Parameshwar. “SEPARATION OF POWERS IN A DEMOCRACY: THE INDIAN EXPERIENCE.” Peace Research, vol. 37, no. 1, 2005, pp. 113–122.

[8]T.R.S Allen,”Law Liberty and Justice, 1995, Vol. 3.

[9]TEWARI, MANISH, and REKHA SAXENA. “The Supreme Court of India: The Rise of Judicial Power and the Protection of Federalism.” Courts in Federal Countries: Federalists or Unitarists?, edited by NICHOLAS ARONEY and JOHN KINCAID, University of Toronto Press, Toronto; Buffalo; London, 2017, pp. 223–255. JSTOR

[10]Khilnani, S., Raghavan, V., &Thiruvengadam, A. K. (2016). Comparative constitutionalism in South Asia. New Delhi (IN): Oxford University Press.

[11]Upendra Baxi “A pilgrim’s progress: The Basic Structure Revisited”, Indian Bar Review Vol 24, 1997,53.

[12]Upendra Baxi “A pilgrim’s progress: The Basic Structure Revisited”, Indian Bar Review Vol 24, 1997,53.

[13]S. P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J.L. &POL’y 29 (2001).

[14]Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, 4,Third World Legal Studies 107–132(1985)

[15] Varun Gauri,”Public Interest Litigation in India Overreaching or Underachieving?”, World Bank Policy Research Paper, 5109, 2009

[16]S. P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J.L. &POL’y 29 (2001).

[17]Rao, P. Parameshwar. “SEPARATION OF POWERS IN A DEMOCRACY: THE INDIAN EXPERIENCE.” Peace Research, vol. 37, no. 1, 2005, pp. 113–122. JSTOR,

[18]Varun Gauri,”Public Interest Litigation in India Overreaching or Underachieving?”, World Bank Policy Research Paper, 5109, 2009

[19]Varun Gauri,”Public Interest Litigation in India Overreaching or Underachieving?”, World Bank Policy Research Paper, 5109, 2009

[20]Varun Gauri,”Public Interest Litigation in India Overreaching or Underachieving?”, World Bank Policy Research Paper, 5109, 2009

[21]S. P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J.L. &POL’y 29 (2001).