Points: 1. Concept of “basic structure” of the Constitution born out of judicial activism.
2. PIL and judicial activism
3. Judiciary as part of the three wings of polity; their roles & how judicial activism fits into.
4. Instances of judicial activism getting the desired results.
5. Judicial intervention inevitable when Executive & Legislative fail to perform their duties.
Judicial activism involves innovative interpretations of the nuances of law. According to Justice J. S. Verma of the Supreme Court, “The role of the judiciary in interpreting existing laws according the needs of the times and filling in the gaps appears to be the true meaning of judicial activism”.
It may be pointed 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 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 described as “judicial activism”, and it came decades ago.
Then came the public interest litigation (PIL) in favour of social action and the court’s accepting its validity and stepping in to set things right. The PILs are a big weapon to the social spirited people, the seekers of truth and the votaries of justice. The amount of support rendered to the social issues through the public interest litigations has come as a big shield against the government’s excesses as well as apathy. The PIL cases have broadened the scope of fundamental rights to include right to dignity, shelter, health, environment, privacy; they have given rise to fresh forms of judicial scrutiny of governmental institutions whether they are hospitals, prisons or juvenile homes.
A polity comprises three wings – Executive, Legislature and Judiciary. Each generally has its own role to perform. In this context, it is 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 invited if the State refuses to comply with the statutory provisions. It is also 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 and closed compartments. It is true that utilitarian policies, socio-economic actions and rational implementation 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.
To bring back the rule of law in a peaceful manner, and not through bloody revolution, judicial activism is the first step. Judicial intervention becomes inevitable when the executive and the 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 (or change the law) is the prerogative of the legislature, after due debate and discussion pf public interest involved.
When the executive and the legislature are not effective in their roles, the citizens are forced to approach the courts to ensure rule of law and good governance. It happened in the series of PILs regarding out-of-turn allotment of government houses without proper reason, discretionary allotment of petrol pumps and LPG connections to those having influence with highly-placed bureaucrats / politicians, the fraud involving animal husbandry scam in Bihar and “Hawala cases”. These PILs prompted a wave of judicial activism and the Supreme Court gave firm decisions in these cases.
The Supreme Court’s directive on the Jharkhand political imbroglio is another example of the need for judicial activism. But there are numerous other instances when either the apex court or the High Courts have addressed issues of importance that impact the people and the country. Among such initiatives are the orders given by the Supreme Court to the Delhi government to clean the polluted air in the city by phasing out diesel-run public transport in favour of vehicles run on CNG (compressed natural gas).
Judicial activism saw the judges wanting the politician Pappu Yadav with criminal antecedents to be lodged in New Delhi’s Tihar jail; because he was virtually making a mockery of his imprisonment in Bihar by ignoring every restriction. Judicial activism also saw the High Courts go into the act in various parts of the country by banning day-long general strikes because of their disruptive effect on daily life; or asking that political processions be restricted to certain localities and certain specified periods. It was judicial intervention that helped the Election Commission to insist on the publication of the assets of candidates before contesting; and even more important to declare if any criminal charges existed against them. These are citizen-friendly moves.
True, in some cases the court has assumed the role of issuing directions (telling the CBI to investigate thoroughly and not to close any case without the court’s orders) – a job of the executive. In this respect, it should be noted that as the law stands, the CBI is a department under a particular minister and there is no provision in law that the CBI should report to a court and not to the minister concerned. Further, under law, CBI is not empowered to investigate cases in a State without the State government’s permission. Thus, the law is open for abuse but changing the law is the job of the legislature. As the legislature failed to do its job, the judiciary actually had to legislate!
But, what are the citizens to do if the executive authority would not do anything about the spreading canker of corruption in public life? Similarly, if the legislature is unable to do anything except to paralyse itself? Due to the indifference shown by the executive to the constitutional rights of citizens and having lost all the hope of self-reform by the political system, public spirited citizens started to look up to the higher judiciary as the only possible redeemer of the despairing situation. The Indian Constitution allows a person to move the Supreme Court directly for redress of violation of basic rights (Article 32). Using this provision, when 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. Thus decline in the role played by the other two institutions of the State has changed the role of the court to a saviour on call.
After all, how can democracy be better served if, along with the executive and legislature, the judiciary too abandons the citizen? That could lead to a situation in which the citizen may be compelled to take the law into their own hands.
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 intervention is valid.
In the present circumstances, the judiciary seems to be the hope of the people for restoring lost democratic rights. Although all is not well with the judiciary too, it is still the best guard of national interests and the interests of the people. *ZZZ*