To cure a largely defective system, positive interventions by way of bitter pills are necessary

The Constitution of India accepts the doctrine of ‘separation of powers’. The basic grammar of this doctrine suggests that one organ of Government should not control or interfere with the exercise of its functions by another organ. ‘Separation of powers’ ensures that the three independent branches (judiciary, legislature and executive) follow a constitutional culture founded on norms of mutual respect.

Unfortunately, immediately after the advent of independent India, institutional conflicts arose between the three organs and gradually mutual disregard amongst branches increased. Due to the failure of successive Governments, both at the Centre and in States, and in the conflict on custodianship of the Constitution, the Supreme Court was forced to eventually stretch its ambit to works assigned to other branches.  Three concepts emerged here: Judicial activism, judicial overreach and judicial self-restraint.

The Supreme Court initially adopted an activist approach in the field of property laws in view of a ‘social revolution’. During and around Emergency (1975-77), two major events happened. First, two dramatic supersessions happened in view of forming a ‘committed judiciary’. Second, the 42nd Constitution Amendment was passed with a clear agenda of eroding judicial power. To save its independence and to perform it’s duties to constitutional satisfaction, the Supreme Court had to strengthen the activist approach.

It was realised that dependency on the Government was not healthy for its existence and the Supreme Court decided to allow a citizen to knock its doors directly in form of Public Interest litigation (PIl). A sense of security developed and independence of judiciary was given in the hands of ‘primacy’ of Chief Justice of India at the very threshold of appointing a judge to constitutional courts.

After the initial applaud, the apex court has, for quite some time, been heavily criticised for judicial overreach for stepping into fields wherein its expertise did not lay. TR Andhyarujina called it a ‘disturbing trend’ and Soli Sorabjee termed it ‘judicial authoritarianism’. To balance judicial activism and judicial overreach, judicial self-restraint was suggested as to where and upto what extent should the apex court extend its powers.

Judicial activism can be divided into positive and negative. Positive activism is progressive in nature and uses principled interference while negative activism is reactionary and unwarranted. While I agree that

judicial activism must be exercised delicately, I strongly assert that to cure defects in the largely defective system, positive judicial activism must be saved and respected.

Positive judicial activism is necessary since it reinforces the strength of democracy and reaffirms the faith of the people in the rule of law. The judiciary has played a pro-active role in ensuring that India develops as a strong democratic republic. Timely interventions in various matters, ranging from corporate frauds running into crores to undertrials languishing in jails, the judiciary has stepped out of the robe to protect the rights of citizens.

The argument that judiciary is subordinate to legislative wisdom as an act is passed after extensive debates by parliamentarians who represent the ‘direct will’ of the subjects and judiciary being the ‘indirect will’ has a limited role, is incorrect. As a matter of fact, the Supreme Court has multiple times declined to participate in purely political questions and policy matters not involving decision of a core legal issue.

The Supreme Court did not come out of its comfort zone to massage its ego. It had to boldly take the step of assuming wide reviewing powers to assist the state in effective governance. This remarkable shift in the working pattern has been a cautionary exercise and judges at the highest level worked meticulously to make sure justice is seem to be done. In its adopted wider role, the apex court propounded the environmental law, labour law and human rights jurisprudence as we know today.

Judicial activism is a system of checks and balances. Had the Supreme Court not intervened legitimately and even supplanted the Constitution vide various doctrinal supplements, justice would have become a distant dream by now, wealth would have concentrated in few hands and feudal set up would have prevailed. Judiciary must be given its due credit. Judicial activism, the positive one must be, and I repeat — must besavedl.