Judicial Activism a Problem? Why?

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Introduction The Role of the Judiciary The concept of Judicial Activism has long been the centre of a raging debate. The debate has revolved around the actual nature of judiciary, and what role it must play in bringing about social change.[1] For it has been noted that no matter how much the Judiciary may try to distance itself, it inevitably has to take stands which are political in nature, or has to make decisions that affect matters of policy directly. The first question which must be answered is what the role of the judiciary is. An answer to this question may be found in the case Indira Gandhi v. Raj Narain[2] where the judges discussed in detail what the nature of judicial power is and what role the judiciary must play in a democracy. The overall opinion of the 5 judge bench in the abovementioned case was that the main role of the judiciary is to: make sure that the legislature and the executive stay within the limits prescribed by the Constitution, interpret the Constitution, and apply the law as interpreted to fact situations which might arise. It was repeatedly pointed out that as

far as the judiciary is concerned, their involvement must rightly end with deciding whether the legislature has acted within its constitutional authority or not, and that questions of policy, its merits and demerits, should never be gone into. Hence, the role of the judiciary in India going by this decision is to interpret the Constitution and to apply the interpretations to the fact situations and nothing more. This brings us to judicial activism itself. This is so because the role of the judiciary as given in the above case can not be reconciled with the decisions of the Supreme Court in several cases where the judiciary has very clearly done more than what is opined as its role in the Indira Gandhi case.[3] In a broad sense, judicial activism can be defined as the courts acting outside the limitations placed on their involvement and adjudicating on matters that are not strictly within their jurisdiction and in ways that are considered unconventional. Some examples based on decisions of the Supreme Court may clarify this further. In the Bandhua Mukti Morcha[4] case, the court discussed in detail Article 32, and what the word appropriate in it meant. While doing so the court made it clear that what mattered was the spirit of the text and not just the literal interpretation of the text. A similar trend can be seen in another case[5] where the Supreme Court imposed a fine on a motel for polluting a

river basin and justified the imposition of the fine by stating that it was within the power of the Supreme Court under Article 32 to do the same as pollution of any element such as water which constituted life violated the fundamental right under Article 21. In another case,[6] while holding the state responsible for acts done by police officers outside the scope of their duty the Supreme Court once again gave a very liberal interpretation to the powers of the Court under Article 32. It is interesting to note however, that although in these case the judiciary was not acting strictly within the limits placed in earlier cases, they took care to make it clear that they were merely pursuing the realization of the constitutional objectives[7], which in my opinion clearly shows that to this day the courts are only too keen to uphold the myth of their non interference in matters political. In light of the above cases defining the role of the judiciary becomes slightly more problematic. As a normal trend, all the cases concur, or at least try to, with the role of the judiciary as opined by the judges in the Indira Gandhi case.[8] However, even if one may reconcile the judgments in the abovementioned cases with the role of the judiciary, one can simply not reconcile the decisions of the Supreme Court in cases such as the Lakshmi Kant Pandey[9] case where the court virtually legislates upon matters and lays down detailed guidelines to be followed, a job which

according to the opinion in the Indira Gandhi case[10], as well as the doctrine of separation of powers, should be left to the legislature. It is decisions such as these which are termed as judicial activism activism indulged by the judges in order to bring about social change. Arguments against Judicial Activism As explained earlier, judicial activism is the deviation of the courts and the judges from their supposed role, which considers of interpreting the Constitution impartially and without any bias affecting their interpretation and its application to facts. The range of judicial activism may extend from placing a wide interpretation on a certain article on the one end,[11] to virtually legislating on matters which should, according to the doctrine of separation of powers, be left to the legislature on the other.[12] After analyzing the role of the judiciary in India as it is believed to be, and having evolved a working understanding of what one may define as judicial activism, we can now move on to analyzing why judicial activism is considered a problem. For sake of clarity the researcher has given counters to the arguments here itself rather than in a later part of the paper. The chief argument against judicial activism is that

the legislation signifies the will of the majority, and any interference in the working of the legislature amounts to thwarting the will of the majority, which is the cornerstone of a democracy and the legitimacy of which is above the scope of judicial action.[13] In answer to this argument, one may point out that the tacit consent of the minorities must not be used to deprive them of the kind of welfare society that was envisioned by our forefathers. The judges conceded this much even in the Indira Gandhi case[14] in spite of overall attitude adopted being one of judicial restraint. Further, if we agree that the purpose of the doctrine of separation of powers is to strengthen freedom and prevent concentration of power in the hands of one governmental actor in a manner likely to harm the freedom of the individual[15], even then in order to argue that by these standards judicial activism is problematic, one has to take recourse to the extreme case of the judiciary assuming all power, and that judicial activism leads to compromising the freedom of the individual, which it is submitted is not very probable. The root of all arguments against judicial activism lies in the doctrine of separation of powers. Another argument raises the fear that since there is legislation on most matters in any country, if the court decides to start adjudicating on matters of policy and starts directing the administration to take certain specific actions, then this will

eventually lead to the judiciary completely usurping the roles of the legislation and the executive.[16] In my opinion this argument is also based on envisaging a situation which might at best be called far fetched and extreme. This is so because the court has in many cases also shown restraint where it is directly infringing in the field of another branch of government.[17] As long as the judiciary practices such restraint, the state of affairs envisioned in this argument will never be reached. Further, the doctrine of separation of powers seems in this case to take away the power to bring about social change from the judiciary, but at the same time does not transfer the responsibility to do so to another branch of the government.[18] Also, it can be argued that the very fact that the judiciary is faced with the task of trying to protect the rights of certain groups by deciding on matters which should ideally be the concern of the administration implies that somewhere the administration has failed in granting to the citizens a welfare state, and this justifies the judges to indulge in judicial activism to make sure that the failure on the part of the administration does not lead to permanently depriving the citizens of their rights. One other point must be discussed in order to complete the analysis of why judicial activism is seen as undesirable. And this argument stems from the role of the judiciary as it is conventionally understood. The researcher has already discussed

the Indira Gandhi case[19]. It is true that one can not reconcile the decisions of the court in matters of judicial activism with the role of the judiciary as given in the case. The problem is exemplified because of the fact that there are no statutes which lay down very clearly what the role of the judiciary is. This means that the role of the judiciary is itself based on interpretation of the Constitution and the conventions prevailing in the legal systems of the world. In order to deal with this hurdle, one may refer to the decision of the court in the Vishaka case,[20] where the court while discussing the function of the judiciary opines that on of them is, to promote, within the proper limits of the judicial function, the observance and the attainment of human rights.[21] The question now becomes who decides these limits. And how is one interpretation of what these limits are to be judged against another? For as we know there is no one true interpretation[22] and both of them may be right in their own context. Conclusion The paper has been structured to answer three questions. What is the role of the judiciary? What then is judicial activism? Why is judicial activism considered undesirable and as something to be avoided? Having answered these three question, we may now try and arrive at a conclusion as to whether judicial activism really is something

avoidable, and why or why not. The researcher has already attempted to present counters to the arguments which are made against judicial activism. As a final conclusion, I believe that in a democracy, judicial activism is not just desirable, but also unavoidable. It is known that democracies carry with them the risk of the imposition of the general will of the majority on those who are in minority. This situation has the potential of developing into a state of affairs where the minorities find themselves permanently deprived of their rights. If we were to accept the arguments against judicial activism then we would have to concede that the courts should merely look away even in cases of gross injustice as long as the same is being done in pursuance of the will of the majority. Needless to say this idea is not acceptable in a welfare state.[23] As a further argument in favor of judicial activism, one may ask why is it that while the impartiality, integrity and wisdom of the judges are trusted to formulate common law, when it comes to civil law, we lose faith in the judiciary and start claiming that the court is indulging in undesirable judicial activism as soon as it takes some initiative on its own?[24] As far as the unavoidability of judicial activism is concerned, one must realize that it is impossible to

draft a Constitution that takes care of each and every future possibility thereby negating the need to interpret the Constitution. This is where the interpretation of the Constitution by the judges and the different ways in which this might be done assumes significance. The question of interpretation of the Constitution inevitably arises in a democracy. When it does, the judges are faced with a choice. Either they can interpret the statute based solely on the literal meaning of the words, or they can try and identify what the intent of the framers was and then attempt to further the goal that they wanted to achieve. All interpretive systems must resolve the relationship between text and context; between the word (verba) of the text and its spirit (voluntas).[25] The interpretation of the Constitution based on its spirit taking into account the changing circumstances is termed as creative interpretation of the Constitution.[26] In my opinion the creative interpretation of the Constitution from time to time is necessary in a democracy. It is often this creative interpretation of the text by the judges which comes under criticism by those who advocate judicial restraint. Surely it is not reasonable to expect the judiciary to act as soulless machines without a mind of their own and to merely follow instructions to place a literal interpretation on statutes and the Constitution and to ignore all other matters.[27] And so, when they see an obvious injustice taking place, issues as to

the interference of the judiciary in matters of policy must become irrelevant, and secondary to ensuring that justice is done. However, it must be noted that, judicial activism can not be a substitute for the executives efficiency.[28] And hence, ultimately there is only so much that the judiciary can achieve in the nature of social change. The burden to bring about the welfare state that was imagined by our forefathers rests squarely on the shoulders of those who were supposed to do so, and the judiciary must at best be merely facilitators, interfering only where the powers that be have failed to deliver, lest the fear that the extreme stage of judicial activism will be reached with the judiciary usurping all the powers of the legislature and the executive comes true. Bibliography Books: 1. M. P. Jain, Indian Constitutional Law (Fifth Edition (Second Reprint), Nagpur: Wadhwa and Company, 2005) (1962). Articles: 1. 2. Alpheus Mason, Judicial Activism: Old and New 55(3) Virginia Law Review 385 (1969). Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting the Impossible? 37 (3) American Journal of

Comparative Law 495 (1989). 3. Robert M Cover, The Origins of Judicial Activism in the Protection of Minorities 91 (7) The Yale Law Journal 1287 (1982). 4. Gregory Caldeira, Dynamics of Public Confidence in the Supreme Court 80(4) The American Political Science Review 1209 (1986). 5. Aharon Barak, The Role of a Supreme Court in a Democracy 116 Harvard Law Review 16 (2002). Websites: 1. 2. 3. www.jstor.org www.repositories.cdlib.org www.westlaw.international.org

[1] Alpheus Mason, Judicial Activism: Old and New 55(3) Virginia Law Review 385 (1969). [2] Indira Gandhi v. Raj Narain, AIR 1975 SC 2299. [3] Id. [4] Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161. [5] M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213. [6] Khatri v. State of Bihar, (1981) 2 SCC 493. [7] Id. [8] Supra note 2. [9] L.K. Pandey v. Union of India, (1984) 2 SCC 244. [10] Supra note 2. [11] Supra note 4.

[12] Dr. Upendra Baxi v. State of Uttar Pradesh, (1986) 4 SCC 106. [13] Robert M Cover, The Origins of Judicial Activism in the Protection of Minorities 91 (7) The Yale Law Journal 1287 (1982). [14] Supra note 2. [15] Aharon Barak, The Role of a Supreme Court in a Democracy 116 Harvard Law Review 16 (2002). [16] Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting the Impossible? 37 (3) American Journal of Comparative Law 495 (1989). [17] State of Himachal Pradesh v. A parent of A Student of Medical College, Simla, (1985) 3 SCC 169. [18] Supra note 1. [19] Supra note 2. [20] Vishaka v. State of Rajasthan, (1997) 6 SCC 241. [21] Id. [22] Supra note 15. [23] Supra note 2. [24] Supra note 15. [25] Id. [26] Walter Murphy, Creative Interpretation of the Constitution sourced from <http://repositories.cdlib.org/csd/00-05 > (accessed on 11th November, 2006). [27] Supra note 2. [28] Supra note 16.

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