The need for judicial activism

Mr Somnath Chatterjee, Speaker, Lok Sabha, has once again reverted to his favourite theme of criticising "judicial activism." At the Kolkata Press Club, on January 30, he went to the extent of accusing the judiciary of "taking away, undemocratically and unconstitutionally, the rights of the executive and the legislature." Earlier as well, on quite a few occasions, he had said that the judiciary should follow the doctrine of separation of powers, that it should not cross the Lakshmanrekha and that it should respect the "sovereign will" of the people as expressed through Parliament.

This criticism, on the face of it, seems to have some weight. But a closer examination shows that it hardly has any leg to stand on. In fact, it virtually amounts to an attempt to browbeat the judiciary and to undermine its morale and confidence. From the two Delhi cases that came under the scanner of the Supreme Court recently - one pertaining to the shifting of polluting industries and the other relating to Delhi Master Plan 2021 - it should be clear that for our executive and legislature nothing matters more than populism, short-term political gains and creation of vote-banks whose accounts are frequently swelled by patent illegalities.

They show no hesitation in turning "foul" into "fair," condoning acts of corruption and maladministration and passing new laws to cover infringements of earlier laws which were observed by honest and well-meaning citizens. They are increasingly politicising the police and making the other civil services a handmaid of their designs. In these circumstances, for the judiciary not to intervene decisively would virtually amount to a failure to discharge its Constitutional obligation of dispensing justice both in letter and spirit.

A judge is certainly not a "knight-errant" roaming at will in pursuit of his own ideal of beauty or of goodness. But he cannot also be a mute spectator to the destruction of rule of law behind the smoke-screen of "legislative supremacy" or "policy of the executive."

Leaving aside a negligible number of cases of over-reach, judicial activism has created a salutary impact and provided a safety-valve for the anger of right thinking people against arbitrary and mala fide acts of the executive and the legislature. It has also helped in creating a situation in which political caucuses are not able to establish "elected dictatorship." In fact, if the judiciary has defaulted, it has done so by not being assertive enough and taking to logical conclusions various cases of scams, scandals and swindling, especially those involving the "high and mighty."

The judiciary does require reform, but in areas other than judicial activism. In the background of the growing tendency of the executive and the legislative to rear up an exploitative pattern of democracy, it is absolutely necessary that the country must have judges who are vigorously independent, conscientious and constructive and who are accountable only to a judicial council comprising men and women of sterling integrity chosen from the higher echelons of the judiciary itself. The founding fathers enacted Articles 32, 226 and 141 to give powers to the higher judiciary to dispense justice in the widest sense, and not to limit itself to a narrow circle.

Even otherwise, conscientious and dynamic judges have never hesitated to perform, in the interest of justice, what may be termed as acts of judicial engineering. As early as 1615, Chief Justice Coke of England had ruled that the functions and powers of the courts were "not only to correct errors but all acts of misgovernance, so that no wrong or injury, neither private nor public, can be done."

It is unfortunate that both the legislature and the executive often tend to forget that all organs of the state are required to do justice and work towards bringing about a fair system of governance by fair means, and that it is not any one organ but the Constitution that is supreme. There is no validity in the claim that Parliament represents the "sovereign will" of the people. Apart from the fact that this "will" has to be exercised subject to the provisions of the Constitution, most of the Members of Parliament get elected with less than 50 per cent of the votes polled. This percentage would come down to about 25 if the total number of voters in the constituency is taken into account. In quite a few states, about 90 per cent of the legislators have won on minority votes. In the 11th, 12th and the 13th Lok Sabha, about 67 per cent of the members who entered the House got less than 50 per cent of the votes cast. In some cases, candidates have won with as small a percentage as 13.

The extent to which the claim of sovereignty can be stretched may be seen from a Tamil Nadu case. Here, even the high court order was sought to be nullified by the Speaker of the Tamil Nadu Assembly on the ground that he, being a presiding authority of the House representing the "sovereign will" of the people, enjoyed a higher position than that of the court. Fortunately, the House itself reversed the decision of the Speaker, P.H. Pandia.

It is true that judicial activism is no substitute for the morality and maturity of the executive and the legislature. But the fact remains that in the over politicised atmosphere prevailing in the country, the courts must act, and act effectively, to ensure that the Constitution and the laws are not mutilated. The higher judiciary has to assume a higher responsibility and keep in mind what Lord Sedley said in his Paul Seighart Memorial Lecture (1995): "Modern public law has carried forward a culture of assertiveness to compensate for, and in places repair dysfunctions in the democratic process." Unfortunately, in our case, the "dysfunctioning of the democratic process" is becoming more and more pronounced.

The Speaker is right when he says that it is the sole responsibility of the legislature to make laws of the land and of the executive to take day to day decisions to run the administration. But this responsibility has to be discharged with clean hands, clear conscience and within the framework of the Constitution. Neither the executive nor the legislature can take arbitrary or self-serving measures behind the smoke-screen of the "principle of separation of power." The judges would be within their right to examine all such measures insightfully and ensure that the structure and the soul of the Constitution are not undermined. For example, in both the Delhi cases mentioned earlier, Parliament passed "regularising laws" which had the effect of punishing those who had respected the laws prevailing earlier, and rewarding those who had violated them with impunity even by resorting to corrupt practices. Should not the judiciary look into such "regularising laws"?

The Speaker has himself been telling the MPs, "I am ashamed of your conduct." Does he expect such people to act always in a just manner and pass just laws? It is time that the bitter truth about the current functioning of our executive and legislature is acknowledged and remedial measures taken to inject new value and motivation in their working.

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