The Case of Judicial Activism

So-called judicial overreach is the direct result of legislative and executive underreach

The Indian constitution, which allocates authority to both the states and the Union, requires the Supreme Court serve as a final arbiter. B MATHUR / REUTERS
01 May, 2011

IN COUNTRIES WITH A WRITTEN CONSTITUTION, the reach of judicial power is almost unlimited—it is only in the wisdom of its exercise that the balance of a written constitution is maintained.

Judge Thijmen Koopmans from the Netherlands—a judge reared in the civil law—was once asked how it was that in its interpretative role, that great transnational court on which he sat (the European Court of Justice) had gone much further than the text of the Treaty of Rome, which established that court. The answer he gave was disarmingly frank. He said:

What the Luxembourg Court has done is a common phenomenon of all courts, national and international. There is a natural tendency for judges to write a larger role for themselves.

In the common law world, too, this form of "judicial activism" is evident—prompting one of England's leading lawyers, Lord Anthony Lester, to suggest that the hackneyed phrase, "power corrupts and absolute power corrupts absolutely", should be adapted by today's judges as: "Judicial power is wonderful, and absolute judicial power is absolutely wonderful." However, only some English judges, not all, actually subscribe to this exaggerated concept of judicial supremacy.

On the other side of the Atlantic, in the United States, another great common law country, there is a more marked separation of powers. The modern democratic world's oldest court, the US Supreme Court, has a record of longevity (of over 200 years) but its reach is constitutionally limited: not all matters can come before it. Injustices persist because finality is given to the decisions of state and federal courts, and the writ of the Supreme Court is not all-encompassing. As one of the judges of that court once said, "the important thing we do in this place is—not doing".

In India, high court chief justices gathered in January 2001 for a conference headed by the country's chief justice. There, chief guest Prime Minister Manmohan Singh voiced his concerns about what he described as "judicial overreach". Obviously, what he meant was a lack of restraint on the part of some justices in not respecting the "territory" or domain of other organs of governance. If his comments were restricted to public interest litigation (PILs), he may have been right, as many PILs are giving the higher judiciary a bad name. But the prime minister also said that "judges are going too far". I beg to disagree.

Many believe that written constitutions that give power to the courts to strike down legislation made by a country's parliament are undemocratic: enabling unelected judges, they say, to thwart the wishes of the elected representatives. There may be something to be said for this point of view. But it is too late in the game to complain. For more than 60 years, we have been working with a constitution, which is federal in nature, with allocated subjects of legislation separately and exclusively given to the states and to the Union. In addition, there is the Chapter on Fundamental Rights, in which all laws and all executive action inconsistent with these important features are expressly declared to be "void". In a controversy then, some authority would have to be the final arbiter. Under our constitution, that arbiter is the country's highest court.

It has been said that where there are no judicially manageable standards our courts should not interfere; instead, they should leave it to the elected representatives of the people. That notion is correct in theory, but exasperatingly naive in practice. Even after 60 years since Independence, after 14 general elections to the Lok Sabha, and all the publicity that is given to proceedings in Parliament, ordinary voters remain dissatisfied with how the legislative body functions—that is, if and when it functions at all. In the past several years, almost every session of Parliament has been marred by some dispute or contention of the moment, but those issues have not been of any grave national importance. For successive years now, an important measure like the annual finance bill has been passed in the Lok Sabha in a matter of minutes, without debate or discussion, yet amidst din and shouting. There is surely something going wrong somewhere. What is also unfortunate, but inevitable, is that power grows by what it feeds on. Judicial power also grows by accretion—by the mere circumstance that other constitutional bodies and authorities set up to legislate and pass administrative orders have failed, when called upon to fulfil their allocated functions.

I suggest that the "judicial overreach" that the prime minister spoke about is the direct result of legislative and executive neglect or "underreach". That entails poor performance, not so much in the making of laws, but in their implementation. If judges need to introspect (and I submit that they frequently do), politicians also need to ask themselves whether they have fulfilled the aspirations of the people who put them in the driver's seat of governance. If judges are to get off the backs of parliamentarians, politicians and bureaucrats, then those who claim the right to govern must come up with a much better record of performance. It is only when they do so, will the people of this great country once again deliver majority governments, both in the Centre and in the states. And, what appears to be undue interference with legislative or executive functions will hopefully cease, simply as a result of legitimate legislative and executive action becoming effective.

The question: "Which is supreme under our constitution—Parliament or the Supreme Court?" is a mischievous one. The answer is "neither". It is the constitution and the laws that are supreme. And it is the constitution that declares that the final interpreter of the law is the Supreme Court. Ministers of government—and some members of Parliament, too—labour under the fallacy of moral populism. That is the inability to distinguish between the unexceptionable principle that political power is best entrusted to the majority, and the unacceptable claim that what the majority does with that power is beyond scrutiny or criticism. There is no disharmony between Parliament and the judiciary, and no individual member of government should claim to speak for that great institution.  Disharmony between the government and the courts is a different matter—if there were complete harmony between them, this country would not be worth living in. It is the duty of the judges to interpret the constitution and the laws, and if this creates clamour and controversy, well then, that is the price we have to pay for living in a participatory democracy. As that great democrat, Edmund Burke, used to say: "The fire-alarm at midnight may disturb your sleep, but it keeps you from being burned at night."

Before he became chief justice of Australia in 1991, Gerard Brennan stressed the need not only for independent judges, but also the importance of an active judiciary. He said: "As the wind of political expediency now chills Parliament's willingness to impose checks on the executive, and the executive now has a large measure of control over legislation, the courts alone retain their original function of standing between the government and the governed."

This is truly "judicial activism" at its best—with the courts standing between the government and the governed.