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Reclaiming the Judicial Ground

The "judiciary versus executive" debate in the media has created more heat than light. Are the higher courts venturing into the domain of the legislature and increasingly entering the realm of policy? Or are they only appearing to do so even as they legitimately continue to have an activist approach in matters that need urgent judicial intervention? The challenge for the judiciary is to keep the popular faith in it going to provide the legitimacy to judicial activism.

COMMENTARYEconomic & Political Weekly EPW august 16, 200813Reclaiming the Judicial GroundVideh UpadhyayThe “judiciary versus executive” debate in the media has created more heat than light. Are the higher courts venturing into the domain of the legislature and increasingly entering the realm of policy? Or are they only appearing to do so even as they legitimately continue to have an activist approach in matters that need urgent judicial intervention? The challenge for the judiciary is to keep the popular faith in it going to provide the legitimacy to judicial activism.Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors.–Justice Markanday Katju, Supreme Court of India, 2007Although drafting of legislation and its im-plementation by and large are functions of the legislature and the executive respec-tively, it is too late in the day to say that Constitutional Court’s role in that behalf is non-existent.–Justice S B Sinha, Supreme Court of India, 2007The fact that justice Markanday Katju of the Supreme Court of India has been relentlessly saying in the recent past that “Judges cannot cross their limits and try to take over functions which belong to another organ of the State” is by now well known. However, as the quote and the “counter quote” above from the judgments of two sitting justices of the apex court show, there is no one voice to-day even in the Supreme Court of India on where, why and how to draw the line be-tween legitimate and improper judicial activism on the touchstone of the principle of separation of powers.1 One, however, feels that on this critical concern of our times there has been more heat than light in the media mainly through headline grabbing “judiciary versus executive” stories. The following paragraphs represent one small attempt in the direction of revers-ing the heat-light equation on thesubject. Are the higher courts venturing into the domains of the legislature and increasing-ly entering the realms of policy matters? Or are they only appearing to do so even as they legitimately continue to have an activist approach in matters that need ur-gent judicial intervention? This big ques-tion has raged through most of the last few months both inside the Supreme Court and outside it. In what follows, an attempt is made to show that the judges them-selves are best placed to restore sanity and order on this debate through a close ap-preciation of the principles and points be-low while deciding on cases before them. (i) Appreciating Different Kinds of Ju-dicial Activism:This is the first thing that commands a close appreciation. Growing perception of “judicial over-reach” and judicial activism bordering on absolutism needs to be qualified by the understanding that there is not just one kind of judicial activism that exists today. The late S P Sathe saw two kinds – nega-tive judicial activism and positive judicial activism and for him any interpretation that tends to perpetuate the existing class domination isnegative ju-dicial activism and any interpretation that expands the rights of the disadvantaged sec-tions as against the dominant sections or of the individual against the State is positive judicial activism.2 On similar lines justice V R Krishna Iyer also distinguishes between “progressive judicial activism”, as against “regressive judicial passivism”.3 An appreciation of the varying nature of judicial intervention with its varying impact on the people can bring in a sobering influence on the on-going stringent debate on judicial acti-vism. This realisation must also have pro-voked the present chief justice of India to give a call – as he did earlier this year – to investigate the various differing results in various kinds of public interest litigation (PIL). This is imperative as any critical evaluation of PIL in India can easily show that there is no single “monolithic” lineage of this form of litigation in India. There is a need to understand the various distinct traditions within the PIL jurisprudence resulting from the different categories of public interest issues brought in the higher courts. There has been little research done in India on appreciating these nuances of judicial activism (in contrast to countries liketheUnited States, for example) and it is safe to say that without more under-standing both the popular appeal of the courts and exercises in “court-bashing” will be a function of perceptions, not facts, and the debate will continue to generate more heat than light.(ii) Eschewing Emotional Appeal and Avoiding ‘Judicial Adventurism’: The Supreme Court had itself suggested in one of the early landmark PILs in India thatthere is great merit in the Court proceed-ing to decide an issue on the basis of strict Videh Upadhyay ( is a lawyer based in New Delhi.

legal principle and avoiding carefully the influence of purely emotional appeal. For that alone gives the decision of the Court a direction which is certain, and unfaltering, and that especial permanence in legal jurisprudence which makes it a base for the next step forward in the further progress of the law…4

The point of the Court above is put in slightly different words by former chief justice, A S Anand, in his advice of caution against what he termed “judicial adventurism”:

With a view to see that judicial activism does not become ‘judicial adventurism’ and lead a Judge going in pursuit of his own notions of justice and beauty, ignoring the limits of law…The Courts must be careful to see that by their overzealousness they do not cause any uncertainty or confusion either through their observations during the hearing of a case or through their written verdicts...

All it means is that judges are expected to be circumspect and self-disciplined in the discharge of their judicial functions.5 To be sure, human suffering and a capacity to relate with it is critical for a judge writing a judgment on human rights and in this sense his emotions do provide him the spur to intervene. However, the point is that he cannot decide based on what Supreme Court refereed to in the case above as “purely emotional

appeal”. Perhaps justice Anand wanted to say precisely this – that when emotions cannot be tempered by legal reasoning and “strict legal principle”, judicial adventurism ignoring the limits of law is the most likely result.

(iii) Ensuring against Loss of Credibility: In the era of “judicial co-governance” the judiciary also runs the risk of losing credibility especially if its orders are not implemented. Some years ago j ustice S P Bharucha had expressed this concern as follows:

This Court must refrain from passing orders that cannot be enforced, whatever the fundamental right may be and however good the cause. It serves no purpose to issue some high profile mandamus declaration that can remain only on paper. It is counterproductive to have people say, “The Supreme Court has not been able to do anything” or worse. It is of cardinal importance to the confidence that people have in the Court that its orders are implicitly and promptly obeyed and it is, therefore, of cardinal importance that orders that are incapable of obedience and enforcement are not made. 6

Justice Krishna Iyer recently

echoed justice Bharucha’s words saying, “without the active protective cooperation of the executive, judges will be helpless. We hold the court as deserving sublime status and I will be the saddest to see this grand stature diminish.”7 The Supreme Court in one of its recent orders last year also expressed concern on these aspects saying

the tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary.8

It is worth noting that the justification of the courts for interventions has been that they have been forced to do so because of executive or legislative failures. However, there are clear limits to judicial substitution for failed institutions and it also serves to keep in mind S P Sathe’s point that judicial activism does not have its legitimacy because the other organs of the government have failed.

(iv) Guarding against Excessive J udicial Restraint without ‘Taking-Over’: A concern for issuing only “implementable” judicial orders does not per se translate into courts restraining themselves from intervening where they ought to. However, justice Katju has been emphasising the significance and virtues of what he refers to as “judicial restraint” in both (a) ensuing judicial independence and (b) maintaining the principle of separation of powers. Thus in one of his recent verdicts justice Katju observes:

Judicial restraint not only recognises the equality of the other two branches with the judiciary, it also fosters that equality by minimising interbranch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches. In contrast, judicial activism’s unpredictable result make the judiciary a moving target and thus decreases the ability to maintain equality with the co-branches. Restraint stabilises the judiciary so that it may better function in a system of interbranch equality.9

The “judicial respect” as pronounced by justice Katju can be a tricky concept as a concern only with “respect by the judiciary for the other coequal branches” can quickly lead to excessive judicial restraint and this in turn leads to compromising

august 16, 2008 EPW Economic & Political Weekly

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