This article has been authored by Sanya Shukla, a fourth year student at Amity Law School, Delhi
Out of the three organs of the Government, Judiciary can be considered as the most vital institution which derives its powers from the Constitution of India to act as a watch dog for the efficient functioning of the democracy.
As an ever evolving and maturing democracy, India provides scope for the judiciary to adopt unorthodox ways to attain a status of just society or show its activism whenever needed in the absence of responsible functioning of other organs. Public Interest Litigation (PIL), innovative interpretation of Constitution and progressive verdicts are few such examples supported by judiciary to complement the democratic principles of our country.
However, it was commented that judiciary must draw its own 'Lakshman rekha’ (inviolable boundary) and not interfere in the domain of the executive in the garb of activism, highlighting the growing friction between the judiciary and executive over a descried overreach by the courts.
The proactive role played by the judiciary has been highly perceptible, right from A.K Gopalan v. State of Madrasjudgment of 1950s to the recent verdicts in the environmental sphere.
At the same time, it is also true that there are instances where judicial activism has trespassed into the domain of other organs and turned into judicial overreach.
Judicial activism: Understanding the Term
The term “judicial activism” was coined by Arthur Schlesinger and introduced in a fortune magazine article titled “The Supreme Court: 1947”.It refers to the process in which judiciary steps into the shoes of legislature and comes up with new rules and regulations, something which the legislature should have done earlier.
Black's Law Dictionary defines judicial activism as“a judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies”.
In today’s era, courts are not passive and not even restricting themselves to a negative attitude of merely striking down a law. The current approach is towards positive affirmative action, and issuing orders and decrees directing remedial actions. It is on the bass of this approach that the judiciary has taken an activist stand. Judicial activism has thrived in India and gained legitimacy with the Indian public.
Substantive due process and Article 21 of the Constitution
As per the facts of the case, Maneka Gandhi’s passport was impounded and she was served with a notice under the Indian Passports Act. She took the defense that the procedure regarded under the Act was violative of the constitution.
The Court held that, “it is not enough to merely prescribe a procedure for denying life and liberty; the procedure itself must be fair and reasonable”, thereby importing the concept of substantive due process into Article 21 of the Constitution. It became a trailblazer for future evolution of notions of reasonableness and fairness.
PIL Regime: Peak of Judicial Activism
It is often said that the genesis of judicial activism, lies in the evolution and development of public interest litigation and the subsequent liberalization of the locus standi rule. In 1979, in Hussainara Khatoon v. State of Bihar, the Apex Court took up a PIL action for the very first time on behalf of under-trial prisoners who had been languishing in jails for long time, longer even than the maximum punishment for the crimes they were imprisoned. The court gave an order in favor of the prisoners and directed appropriate relief to be provided to them. Thereafter, there was no looking back for PIL’s.
Early Cases of Judicial Activism
The rapidly increasing growth and burgeoning of judicial activism in independent India can be highlighted through the following cases.
In Keshvananda Bharti v. State of Kerala & Anr (popularly known as fundamental rights case), the Supreme Court, while dealing with the extent of amending power granted under Article 368 of the Constitution, evolved the theory of “basic structure.”
A 13 Judges Bench, the largest in the Indian legal history, held that the “Parliament had wide powers to amend the constitution extending to all articles of the constitution, but this power could not be used in an unlimited way to abridge, abrogate or destroy the “basic structure” or the “basic framework” of the constitution.”
Similarly, in Vishakha v. State of Rajasthan, the need for judicial activism was emphasized upon. The Court laid down guidelines for prevention of sexual harassment of women at workplace and criticized that the legislature had not brought in comprehensive legislation to deal with such a critical issue yet. In addition to this, the guidelines were to be considered as law under Article 141 of the Constitution until legislation to the same effect was not enacted.
Judicial Activism and Environmental Jurisprudence
The constant growth of principles and doctrines that have enhanced environmental jurisprudence is indebted to PIL cases and the supplementing activist approach of the judiciary.
According to this doctrine, if any person is engaged in an inherently dangerous or hazardous activity, and if any harm or damage is caused to any other person due to such activity, then the person who is carrying out such activity will be held absolutely liable without exceptions.
Thereafter, the court has been evolving progressive principles such as “sustainable development” which is the “idea that human societies must live and meet their needs without compromising the ability of future generations to meet their own needs” and the “polluter pays” principle which makes the party responsible for causing pollution for paying for damage done to the environment.
Transgressing the Boundaries: Activism to Overreach
As long as the Judiciary pulls upon the Executive to perform its functions, it is not a controversial issue. While this supervisory function of the judiciary is and will continue to be desirable; it will be contrary to the notions and theme of the Constitution if the judiciary was to overstep its mandate and carry the mantle of legislature and executive. Few glaring instances of judicial overreach include:-
Imposition of Patriotism in National Anthem Case
In the case of Shyam Narayan Chouksey v. Union of India, passed in December 2016, the Supreme Court made it mandatory for all cinema halls to play the National Anthem at the start of the film. Moreover, all persons present in the hall are to stand up while the Anthem is playing in order to show their respect. This can be regarded as an instance of judicial overreach due to the following broad reasons:
i. Pretermitted Bijoe Emmanuel v. State of Kerala Case- The decision fails to take into account the Courts’ own earlier decision where 3 students were expelled for not singing the National Anthem and were later taken back into the school on the court’s direction with the reasoning that there is no provision that obliges one to sing the national anthem.
The court has conveniently ignored scenarios wherein the people may not be able to stand up due to physical issues, intellectual or religious reasons because they may consciously believe that their religious belief, prevent them from doing so.
ii. Disregarded the verdict of Assn of victims of Uphaar Tragedy v. Union of India & Ors- The decision requires closing the doors of the hall before and while the National Anthem is being played; thereby ignoring its own earlier judgment which stated that under no circumastances should the doors be locked from outside.
Board of Control for Cricket in India (BCCI): Lodha Committee
Following the allegations of corruption, match-fixing and betting scandals in Indian cricket, the Supreme Court constituted the Lodha Panel with the aim of bringing back law and order into the game. This case can be regarded as an illustration of judicial overreach due to the following reasons:
i. No authority vested in the panel- The BCCI is registered and governed by the Tamil Nadu Societies Act. Further, it is not dependent upon the Government for its funding and functions in autonomy from the Central and State governments. All executives and members of the Board are elected on the basis of their internal laws. Therefore, the Lodha committee had no authority to make the recommendations. The court should have ideally instructed the BCCI in accordance with the provisions of the Societies Act.
ii. Court is responsible for running sport bodies- The independence of sporting institutions should be respected by the courts. If there has been a violation of the rules or a situation exists wherein they seem to be unfit for their roles, a proper procedure ought to have been prescribed for such removal.
Lack of accountability
The legislature and executive are accountable and answerable for their actions to the general public of the country. However, it is a well known fact that the judiciary is not liable in the same way as the other two organs.
When the judiciary overreaches and oversteps its authority, only a Bench larger than the previously constituted or a constitutional amendment can intervene. This lack of accountability makes it essential for the judiciary to exercise self-restraint and watch its own step.
“Courts have played a salutary and corrective role in innumerable instances. They are highly respected by our people for that. At the same time, the dividing line between judicial activism and judicial overreach is a thin one.”
-Dr. Manmohan Singh
There are several instances that indicate that the judiciary is overreaching and increasingly interfering in the exclusive domain of the legislature and the executive, thereby creating an undesirable asymmetry in the delicate balance among the organs of the Government.
The recognition of this difference between “judicial activism” and “judicial overreach” is of utmost importance for the efficient functioning of a constitutional democracy.
Judicial restraint is the need of the hour for the conservation of the delicate balance of power in a democracy. It is imperative for judiciary to keep itself in check and not to touch the border of overreach.