The evolution of judicial activism in Indian legal system: a critique
The evolution of judicial activism in Indian legal system: a critique
The evolution of judicial activism in Indian legal system: a critique
The definition of "judicial activism" is an intense ongoing debate. Judicial activism is "the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent". Judicial activism is "a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent." Conservatives tend to argue that judicial activism is the process of ignoring, or at least selectively choosing precedent in order to hand down rulings which dramatically expand personal freedoms. To others, judicial activism implies going beyond the normal constraints applied to jurists and the Constitution gives jurists the right to strike down any legislation or rule against any precedent if it goes against the Constitution. Thus, ruling against majority opinion or judicial precedent is not necessarily judicial activism unless it is active specifically in terms of the Constitution. Many are critical of judicial activism as an exercise of judicial power, which displaces existing law or creates more legal uncertainty than is necessary, whether or not the ruling has some constitutional, historical or other basis. This, it is argued, violates the doctrine of separation of powers. Judicial activism can be considered as (and is often called) "legislating from the bench" (i.e., promulgation of new law). Some have even gone to the extent of calling it judicial tyranny. An accusation of judicial activism implies that the judge is not performing his or her duty as an interpreter of the law, but is instead ruling on the basis of personal political convictions or emotions.
In the 1940's, the engrafting of Directive Principles of State Policy was inspired from the Irish example. The common experience of colonial rule in both countries also makes it viable for us to draw comparative insights in the matter of analyzing legislations, the judicial process and of course precedents themselves. The phrase judicial activism' carries more than one connotation. The common law tradition conceives of courtroom litigation as an adversarial process where the onus is on the pleaders to shape the overall course of the proceedings through their submissions. In this conception, the role of the judge is cast in a passive mould and the objective is to dispassionately evaluate the arguments made by both sides. However the actual experience of a courtroom clearly bears witness to the tendency on part of some judges to pose incisive questions before the practitioners. This may have the consequence of proceedings being judicially-directed to a certain degree. While this literal understanding of activism from the bench may have its supporters as well as detractors, the focus of my talk will be on another understanding of judicial activism'. In the Indian context, there has been a raging debate on the proper scope and limits of the judicial role especially of that played by the higher judiciary which consists of the Supreme Court of India at the Centre and the High Courts in the various States that form the Union of India. The terms of that debate have been broadly framed with respect to the considerations of ensuring an effective separation of powers' between the executive, legislature and the judiciary as well as concerns about the efficacy and legitimacy of judicial interventions in the long-run. In the course of this talk, I will attempt to present some background information as well as the main themes of these debates.
The place of judicial review'
In post-independence India, the inclusion of explicit provisions for judicial review' were necessary in order to give effect to the individual and group rights guaranteed in the text of the Constitution. Dr. B.R. Ambedkar, who chaired the drafting committee of our Constituent Assembly, had described the provision related to the same as the heart of the Constitution'. Article 13(2) of the Constitution of India prescribes that the Union or the
States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void. While judicial review over administrative action has evolved on the lines of common law doctrines such as proportionality', legitimate expectation', reasonableness' and principles of natural justice, the Supreme Court of India and the various High Courts were given the power to rule on the constitutionality of legislative as well as administrative actions. In most cases, the power of judicial review is exercised to protect and enforce the fundamental rights guaranteed in Part III of the Constitution. The higher courts are also approached to rule on questions of legislative competence, mostly in the context of Centre-State relations since Article 246 of the Constitution read with the 7th schedule, contemplates a clear demarcation as well as a zone of intersection between the law-making powers of the Union Parliament and the various State Legislatures.
Hence the scope of judicial review before Indian courts has evolved in three dimensions firstly, to ensure fairness in administrative action, secondly to protect the constitutionally guaranteed fundamental rights of citizens and thirdly to rule on questions of legislative competence between the centre and the states. The power of the Supreme Court of India to enforce these fundamental rights is derived from Article 32 of the Constitution. It gives citizens the right to directly approach the Supreme Court for seeking remedies against the violation of these fundamental rights. This entitlement to constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in common law such as habeas corpus (to direct the release of a person detained unlawfully), mandamus (to direct a public authority to do its duty), quo warranto (to direct a person to vacate an office assumed wrongfully), prohibition (to prohibit a lower court from proceeding on a case) and certiorari (power of the higher court to remove a proceeding from a lower court and bring it before itself). Besides the Supreme Court, the High Courts located in the various States are also designated as constitutional courts and Article 226 permits citizens to file similar writs before the High Courts. With the advent of Public Interest Litigation (PIL) in recent decades, Article 32 has been creatively interpreted to shape innovative remedies such as a continuing mandamus' for ensuring that executive agencies comply with judicial directions. In this category of litigation, judges have also imported private law remedies such as injunctions' and stay orders' into what are essentially public law-related matters. Successful challenges against statutory provisions result in reliefs such as the striking down of statutes or even reading down of statutes, the latter implying that courts reject a particular approach to the interpretation of a statutory provision rather than rejecting the provision in its entirety. Beginning with the first few instances in the late-1970's, the category of Public Interest Litigation (PIL) has come to be associated with its own people-friendly' procedures. The foremost change came in the form of the dilution of the requirement of locus standi' for initiating proceedings. Since the intent was to improve access to justice for those who were otherwise too poor to move the courts or were unaware of their legal entitlements, the Court allowed actions to be brought on their behalf by social activists and lawyers.3 In numerous instances, the Court took suo moto cognizance of matters involving the abuse of prisoners, bonded labourers and inmates of mental institutions, through letters addressed to sitting judges. This practice of initiating proceedings on the basis of letters has now been streamlined and has come to be described as epistolary jurisdiction'. In Public Interest Litigation (PIL), the nature of proceedings itself does not exactly fit into the accepted common-law framework of adversarial litigation. The courtroom dynamics are substantially different from ordinary civil or criminal appeals. While an adversarial environment may prevail in cases where actions are brought to highlight administrative apathy or the government's condonation of abusive practices, in most public interest related litigation, the judges take on a far more active role in the literal sense as well by posing questions to the parties as well as exploring solutions. Especially in actions seeking directions for ensuring governmental accountability or environmental protection, the orientation of the proceedings is usually more akin to collective problem-solving rather than an acrimonious contest between the counsels. Since these matters are filed straightaway at the level of the Supreme Court or the High Court, the parties do not have a meaningful opportunity to present evidence on record before the start of the court proceeding. To overcome this problem, our Courts have developed the practice of appointing fact finding commissions' on a case-by-case basis which are deputed to inquire into the subject-matter of the case and report back to the Court. These commissions usually consist of experts in the concerned fields or practicing lawyers. In matters involving complex legal considerations, the Courts also seek the services of senior counsels by appointing them as amicus curiae on a case-by-case basis.
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