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Justice Alladi Kuppuswamy

In recent times there has been considerable talk of ‘Judicial Activism� I am afraid the expression ‘Judicial Activism� has been misunderstood by the media, the lawyers and even by some of the judges. It has been equated to judicial review or interference with the acts of the executive and the legislature.

In any democracy particularly in the case of a federal system of government, judicial review is not only necessary but desirable. In a federal system of government there are bound to be disputes not only between the citizens and the State, but also between a State or States and the Union and between States interse. Some independent and impartial body is necessary to resolve those disputes and the natural choice is the judiciary. The framers of the Constitution therefore vested in the judiciary the power to review the acts of the executive and the legislature. This power is found in Art. 226. and Art. 32 of the Constitution. Under Art 226 the states judiciary is given the power to issue what are called writs or directions in the nature of such writs. The High Court issues a writ of certiorari to quash any order of the government or public body which is contrary to law, a writ of mandamus to direct them to perform their duties or to prevent them from performing any act contrary to law, a writ of quo warranto to prevent a person from acting in a public office to which he is not entitled and so on. Under Art. 32 the Supreme Court can be directly approached for the issue of a writ if a citizen’s fundamental right is infringed. Apart from this the Supreme Court has an overall jurisdiction to prevent or correct illegal acts of the executive or the legislature. All these powers are collectively called the power of judicial review. It is this power which the Courts have mostly been excercising. Here no judicial activism is involved. The court merely sees whether the law has been infringed. Examples of the exercise of this power are in regard to illegal allotment of petrol pumps, out of turn allotment of flats, cases involving. corruption or payoffs, interference in case of bonded labour or child labour; environmental issues. Judicial activism is something entirely different. It means the interpretation of a law by a judge who is supposed only to interpret law and not make law. However, the language of statutes is sometimes vague and is capable of more than one interpretation. Again the framers of a statute cannot envisage conditions which may happen in future. A judge cannot therefore always give a strict interpretation of the statute according to the intention of the legislature. He has perforce to make law by giving his own interpretation of the statute. His views of right or wrong may be conservative or liberal. In the former case judicial activism will be conservative judicial activism, in the latter liberal judicial activism.

In the early years of the Supreme Court when the legislature sought to abolish the Zamindari system the Supreme Court took the view that the expression compensation meant just compensation though the word ‘just� was not used in the constitution and thus they thwarted to some extent progressive legislation seeking to abolish the Zamindari System. The Supreme Court was in such cases excercising conservative judicial activism.

In recent times however judicial activism has tended to be liberal. Judges are increasingly taking the view that while law must be stable it cannot stand still. Many are of the view that while interpreting the law judges must take into account the hopes and aspirations of the people and the needs and requirements of the society. A classic example of such liberal activisim is the Menaka Gandhi’s case, where the Supreme Court held that the right to go abroad though not a specifically enumerated right in the constitution was a fundamental right implicit in the concept of personal liberty laid down in Art. 21 since personal liberty was of the widest connotation and included every aspect of personal liberty. Under Art 21 a person cannot be deprived of his liberty except according to the procedure laid down by law. In A.K Gopalan’s case the Supreme Court placed a strict construction in this Article and held if the law had laid down some procedure the court cannot go into the question whether the procedure was just as in Menaka Gandhi’s case. The Court held that the procedure referred to in Art 21 is not any procedure but had to be fair, equitable and just thus taking a view differing from the view expressed in A. K. Gopalan’s case.

An instance of conservative judicial activism according to the protoganists of social justice is the Mandal Commission report case. The framers of the Constitution while enunciating the principle of equality before law in Art 14 rightly provided an exception in the case of ward classes and women. While dealing with the Mandal commission report the Supreme Court felt that if rightly applied it would result in inequality among ward classes themselves. They felt that if ward classes in high positions like judges, ministers, big businessmen, bureaucrats were treated on par with less fortunate ward classes it would result in great injustice to the latter. They therefore enunciated the doctrine of ‘creamy layer�, thus restricting to an extent the meaning of the expression ‘ward classes�.

In some cases judicial activism which is regarded as liberal by one section of society is treated as conservative by another section. The case of the judgement of nine judges regarding the appointment of judge of the Supreme Court has to be appointed by the President (the union executive) in consultation with the Chief Justice of India. The Supreme Court however in effect held that the appointment should be in concurrence with the Chief Justice of India though they did not say it in so many terms. This was not the intention of the framers of the Constitution who deliberately used the word consultation in preference to the word ‘concurrence�. By resorting to a twist to the expression ‘consultation� the Supreme Court established the supremacy of the judiciary over the executive in the matter of appointment of Judges. While this is considered liberal activism by those who advocate the exercise of power by the judiciary the executive considered it a retrograde step and constituted an ­encroachment on the power of the representatives of the people. Peeved at this decision the Union Government is endeavouring to come forward with an amendment to the articles regarding the appointment of Judges making it clear that the power of appointment should be with the President and though the Chief Justice of India is to be consulted the President is not bound to follow his advice. It always happens that one exercises his power too far and too frequently and the affected goes to the other extreme. In this case judicial activism had adverse consequences. The sensible course in the circumstances is to vest the power of appointment in a National Commission of eminent jurists and representatives of all organs of government. There have been many permutations and combinations regarding the members suggested but that is a matter of detail. It is however desirable to restrict the number so that a speedy decision will be arrived at.

Another area in which there has been judicial activism is in public interest litigation (referred to hereafter as PIL). For a long time it was felt that a person must be aggrieved before he could approach the Court for redress. A person should be hurt before he could cry. This, principle, known as the principle of ‘Locus standi� resulted in great hardship to poor people who could not have easy and direct access to courts. The Courts therefore began to permit any person or group of persons interested in the welfare of the public though not directly aggrieved to bring to the notice of the court matters of public interests and even matters of great harm to private persons. Thus evolved PIL due to judicial activism. Exercising this jurisdiction the Supreme Court and the High Courts have succeeded in preventing to a large extent bonded labour, child labour, pollution in rivers, destruction of forests, misuse of the powers, of preventive detention, torture by the police of persons especially of women in police custody and matters affecting human rights. The exercise of jurisdiction by the courts in PIL has resulted in immense benefit to the public and has been welcomed by almost every section of society. But at the same time there has been a few instances of excessive judicial activism. As the media frequently refers to any decision as a far reaching judgement or a ‘land mark judgement� if it considers it as a bold interference with the acts of the executive irrespective of its correctness, there is a tendency on some judges to play to the gallery and attract media attention. They interfere too much and too often with the result that there is a move on the part of the government to curb PIL by imposing a number of restrictions. The mere fact that in a few cases the judiciary has gone too far is no reason for imposing curbs. The greater the power that is vested in our institution the more carefully it must use it. The judiciary must be careful to weed out PIL which is intended to blackmail or to gain publicity. The judiciary cannot indulge in policy making. The citizens of India are becoming more and more aware of their rights and beginning to protest against their transgression. It is a welcome sign that they are not cursing their fate as before but are asserting and fighting for their rights. In this fight PIL is playing a useful role and the judiciary is coming to the aid of the people by entertaining PIL and doing justice.

Judicial activism on the whole has been liberal in recent times and the courts have rendered great service in curbing executive excesses and coming to the rescue of the public.