India has a written Constitution and countries with a written Constitution have a strong and independent judiciary in place. The Supreme Court of India has been hailed as the custodian of the Constitution. The onus is on the Supreme Court to interpret the Constitution. The Supreme Court has the final say in the conflicts which involve interpretation of the written law in different manners. As the custodian of the Constitution, it bears the ultimate responsibility of not letting any act or force, change the basic structure of the Constitution.
One can understand that the responsibility of the courts simply doesn’t end at presiding over cases, but it also pertains to creating laws as well. However, the problem arises when the judges indulge in something called the ‘judicial overreach’. It means that the judiciary oversteps its boundaries and acts in defiance to the separation of powers between the three wings of the country (legislature executive and judiciary). Judicial activism refers to judicial rulings that are suspected of being motivated by personal considerations, instead of legal grounds. It occurs when judges allow personal opinions among other factors to influence their evaluation of a public policy or legislative exercises. This also involves the creation of law and policy framework by the court itself, whose role is limited to the interpretation of law alone. Judicial activism and judicial review are considered synonymous. However, they are not interchangeable terms. The power of judicial review is the power vested in courts to strike down any law passed by the legislature as ‘void’, if it violates the ‘basic structure of the constitution’. The Supreme Court is expected to use this power only when all legislative processes and other deliberations become exhausted. This means that the judicial review cannot be used as a pre-emptive measure.
Judicial activism is often criticized as disrespecting the clear demarcation in powers of the three branches. Their core argument revolves around the idea that policymaking should be undertaken solely by them as they are the elected representatives of the country who represent the public. As judges hold unelected offices, they should not meddle in the affairs of the government. This sounds good from a theoretical standpoint, but to expect the government to function on such ideal lines is naive. In 70 years of self-governance, it is safe to say that the public has never been satisfied with the proceedings of the house. Given the failure of the other constitutionally instated bodies, it is now up to the judiciary to take this responsibility. In the words of Fali.S.Nariman, “Power grows by what it feeds on; judicial power also grows by accretion” of inefficacy.
It is true that people have reasons to thank the judicial activism. Judiciary steps in and fills the voids left by the legislative bodies. By their perceived ‘overreach’, they fill the legal vacuums, setting frameworks for future policies. The best example is the case of Vishakha vs. The State of Rajasthan. The judgment came at a time when there existed no laws for preventing sexual harassment. The Supreme Court in its judgment not only invoked Articles 14, 19 and 21 to state that gender equality was essential, but also went on to define sexual harassment and held employers accountable for creating safe workplaces. The Supreme Court hailed “Vishakha Guidelines” to serve as laws and these formed the basis of The Sexual Harassment of Women at Workplace Act, 2013. The court evidently moved beyond its normal functioning to make necessary amends. Another classic example is the Second Judges Case (1993), where a new meaning to the word ‘consultation’ and concurrence was given, removing executive primacy.
So, one can argue that since laws are not exhaustive and there are no binary answers available, the extent to which they can be function in a similar manner in all situations is limited by the creative faculties of the lawmaker. However, when a unique situation arrives, then the Judges need to interpret it a sense as to render it fit for public well being. Yes, it is true that judges are jurists and their primary role is not to champion social causes. However, the moment written law is unable to fulfil its objective (to deliver justice), it is an additional responsibility of the judge to adopt a forward-looking outlook.
One can concede that judges tend to write a larger role for themselves. In recent times, the court has ventured into unpleasant territory, doing things such as the double imposition of tax on trucks entering Delhi, the Lodha Committee recommendations for BCCI and so on. Justice P.N Bhagawathi in his tenure championed the cause of judicial activism. Some people say that his radical improvisations have served as a negative model for young judges to follow, to think of their roles as social activists and not jurists. It is viewed that activism has now created a climate of adhering to the ideological commitments. Therefore, scholars hold the opinion that the value of careful judicial prose is declining.
In the power struggle between the Judiciary and the other wings, the question that arises is this. Who is Supreme? Well, it is the law which is supreme, neither the Judiciary nor the Parliament. One can argue that it is ultimately the law that has made the Judiciary as the final arbitrator. It is the duty of the Court to interpret the law and if the fulfilment of this duty creates noise, then let it be so. As Falis Nariman has rightly said, “It is the price we must pay for living in a Participatory Democracy”. The Judiciary is the only entity that now stands between a large powerful government and the governed. When one sees the last resort to safeguard public interests, one finds judicial activism inevitable.
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