Do we need judicial activism?

In recent times, the Indian public has often seen the judiciary taking the Executive to task, even taking over some of its functions. But are judges overstepping the limits of their power? When the nation’s founding fathers distributed powers between the three arms — Executive, Legislature and the Judiciary — they had, in foresight, built in checks and balances to maintain a power equilibrium. Is that equilibrium threatened? Two legal luminaries debate

The hallmark of a great nation is its institutions. The stronger the ability of these institutions to uphold and preserve fundamental values, the greater the nation would be.

When India’s founding fathers wrote the Constitution, they created three arms — Parliament, Executive and the Judiciary — of the state that together were to be the keepers of the ideals of the nation as enshrined in the Constitution. Over the past several months, however, the Parliament has become dysfunctional, the Executive has abdicated its duties and the Judiciary is cracking the whip. Many think that it is cracking the whip a bit too much. I don’t think so.

An active judiciary is one that takes its task of defending the fundamental rights of the people and their liberties against the onslaught of the state, earnestly. As far as judges are concerned, it is a matter of mindset. One judge could say that policy formulation is the job of the Executive and Judiciary does not need to intervene while another could believe that even in policy formulation, the Judiciary would need to step in to guard fundamental rights.

The occasion for this often arises when the Executive fails to discharge its statutory, constitutional obligations. As a result of this failure, the fundamental rights of the people are violated. For instance, there are laws to prevent children from working in hazardous occupations. Now there are parents who willingly let their children work because of economic necessities. The factory owners fix the inspectors and the laws that are supposed to protect the children are not implemented. In such cases, a court hearing a complaint from a bonafide NGO can order the state to enforce the laws because by not implementing them it is violating the children’s fundamental right to a healthy life. That is activism in the right sense.

To give another example, a case came up before the Supreme Court regarding a care home for women in Patna. The home had very poor sanitation, leaky roofs and the living conditions of the inmates were horrible. The court immediately asked the government to look into it. Then the court went further. It asked the government to appoint a manager and fixed his salary. That, to my mind, is overstepping. Such orders have fiscal implications and are really in the realm of the Executive.

The government recently accused the Supreme Court of trespassing into its territory when it ordered it to set up a special investigation team headed by a retired Supreme Court judge to probe black money cases. The government said it was judicial overreach into Executive functions and was against the principle of ‘separation of powers’. What the court has done is to merely ensure that the investigation was done properly and everything was in order.

The power of the Judiciary to review what the state does flows from the Constitution itself. In the Constitutional scheme Parliament is not supreme. It is subject to a major limitation — that legislation does not violate any fundamental rights or constitutional values.  Who is to be the arbiter of that? It has to be an impartial umpire. And that is the task entrusted to the Judiciary; to ensure that fundamental rights are not breached and basic constitutional values are preserved. In other words, the chapter on fundamental rights acts as a limitation on Parliament’s powers. And the court has the power to interpret whether Parliament has transgressed that limitation or not. The Indian Constitution anyway does not have any rigid separation of powers.

Every fundamental right is not spelt out comprehensively in the Constitution. For instance, the right to shelter, right to privacy, right to go abroad and right to education have all been deduced through creative interpretation by judges over the years of Article 21 which merely guarantees “protection of life and personal liberty”. Similarly, though not mentioned expressly in the Constitution, the Supreme Court has deduced the freedom of the press from the guarantee of free speech and thus press freedom has been given a constitutional status by creative judicial interpretation. That is certainly not overreach.

Judicial interpretations are based on the realities of the situation. Every country has to work out its Constitution according to its problems, needs and demands. As Justice Krishna Iyer once said: “Every new decision, on every new situation, is a development of the law. Law does not stand still. It moves continually. Once this is recognised, then the task of the judge is put on a higher plane.”

The courts cannot remain mute spectators when laws are not enforced and consequently, fundamentally rights are violated. If the Judiciary does not intervene, it would be an inactive Judiciary. I would call it judicial abstention and not judicial restraint. Of course, the courts should not get into road-building and beautification of government buildings, but they should actively intervene whenever rights are violated and currently, the Executive’s inertia is so pervasive that rights are routinely breached.

It is as fundamental to be able to breathe good air and live in a pollution free environment as the right to live. In fact, it is the right to live with dignity. That is why the court was right in ordering Delhi buses to ply only on CNG. If that is considered judicial overreach, so be it. It is necessary and salutary.

Judges should, however, be careful about one thing. Judicial activism should not become judicial adventurism. They should not get into areas in which they do not have any expertise. The court, for instance, can order the government to prepare a welfare scheme, but not undertake the task of framing it itself. And in PILs, the Judiciary should refrain from the temptation of getting media headlines.