Judicial activism, keeping in view the ideals of democracy, is necessary to ensure that unheard voices are not buried by more influential and vocal ones.

Instead of re-ploughing the well-worked terrain which ranges justiciability against non-justiciability, the real challenge is to formulate a democratically justifiable role for the courts.

While justifying this statement of hers, Professor Sandra Fredman elucidates the “remarkable way” in which the Indian judiciary has succeeded in the above endeavour. It is the same Indian judiciary which has come under the media scanner over the past few months — interventions/ decisions in the imprisoning of Subrata Roy in the SEBI-Sahara dispute; the IPL betting case; the challenge to Section 377 of the IPC; and the most recent dicta on the status of transgenders have evoked a mixed response. What the critics of judicial intervention have, however, missed is the fact that in each of these cases, judicial intervention would have been unnecessary but for legislative/ executive inaction and inefficiency — PRS Legislative Research’s data reveals that 51 per cent and 42 per cent of the available time in the Budget and Monsoon Sessions for the year 2013 was wasted due to disruptions. The object of this piece is not to go into the merits of each of the above decisions but to put forward an argument in favour of judicial activism and to analyse where the Court has to draw its Lakshman rekha keeping in view the main aim of judicial activism.

After playing a largely “interpretative” role in the 1950s and 1960s, the Supreme Court, starting from the 1970s has been the major force standing up against legislative and executive excesses and inactions. Judicial activism was necessary to ensure that constitutional and legislative changes were not used as tools to aid an authoritarian Government. Starting from inventing the ‘basic structure’ doctrine to bring constitutional amendments under the judicial scanner to widening the scope of the right to life and liberty by reading into it the non-justiciable directive principles of state policy such as the duty to promote education and the duty to preserve the environment, the 1970s and 1980s saw the judiciary play a highly proactive role in ensuring that India develops into a thriving democracy.

The decision in Maneka Gandhi v. Union of India, where it was held a person could be deprived of his right to life only by a law which was just, fair and reasonable; and in Bandhua Mukhti Morcha v. Union of India, where the concept of Public Interest Litigation (PIL) was introduced and the locus standi requirement was diluted, were landmark developments in the march of Indian constitutional law and more importantly were key game changers which ensured that India did not slide down the slippery slope towards dictatorship.

Intervention, not overreach

The most common argument against excessive judicial intervention is Professor Waldron’s who argues that empowering judges to decide on policy issues amounts to disrespecting the democratically elected representatives of the majority.

The logical extension of this argument is that judicial activism results in upsetting the balance of power between the executive, legislature and the judiciary.

However, such an argument firstly assumes that the legislature and executive are performing their functions efficiently and secondly that the judiciary is incapable of intervening in a manner which helps further the ideals of democracy.

The assumption that the Parliament and executive make policy decisions based on effective participation with the citizens a flawed one and the judiciary has a role in ensuring that there is effective participation from interest groups. Further, Professor Waldron’s argument assumes that judicial intervention means that judges have the final say on the policy issue. The judges can, however, promote decision making relating to policy issues without being the ultimate decision maker.

The Indian model of activism has formed the bedrock of South African jurisprudence. However, there are certain landmark South African decisions which can be used as a guide as to where Courts must draw the Lakshman rekha.

The best example is the Rand Properties case which involved a challenge to the state’s eviction of inmates of dilapidated buildings in central Johannesburg.

Since right to housing was a fundamental right which the state had failed to provide, the judiciary directed the state and the inmates to “engage with each other meaningfully … and in the light of the values of the Constitution, the constitutional and statutory duties of the municipality and the duties of citizens concerned” to resolve the dispute.

The judiciary, by its interventions, ensured that these deliberations were on a level playing field as the final result of the deliberations was susceptible to scrutiny by the Court.

In this manner, while it ensured that executive inaction was not pardoned, the final decision itself was left to the executive but subject to judicial superintendence.

Another example of an innovative pro-democratic intervention is the case of Minister of Health v. Treatment Action Campaign, where the government was given directions to review its policy regarding distribution of antiretroviral drugs and plan an effective and comprehensive national programme to prevent Mother To Child Transmission (MTCT) of HIV.

In order to ensure enforcement, the judiciary required that MTCT prevention policy should have timeframes for its implementation and that it must take into consideration the condition of those who cannot afford to pay for medical treatment. Most importantly, it required the state to continuously report to it about the implementation of the programme.

Restrictive interference

These cases clearly illustrate that it is possible for courts to monitor actions of the other limbs of democracy without actually stepping into their shoes. These precedents get theoretical support from the writings of Professor Roach who argues that the judiciary should not create policies to enforce rights but must require the government to draft its own policy and submit it along with a timetable for execution. The finalisation of this plan must be only after the judiciary has heard objections from other interested parties.

Once such a policy is framed by a legislature/ executive, it is to be interfered with by the judiciary in a very restrictive manner, using the principle of deference. According to this principle, the judiciary, while evaluating executive/ legislative action (or inaction), should modify the policy framed only when the reasons provided are not reasonable.

A court should merely see whether the reasons provided by the executive justify its decision, not whether the court would have reached the same decision. This standard should be applied not only when a policy is tested before the courts but also by courts to see if executive / legislative inaction is justified.

While there is the danger of judicial activism being misused by unscrupulous elements and the Supreme Court has come down heavily on such misuse, the solution is not to throw away the baby with the bathwater.

The mere risk of judicial over-activism cannot be an argument against judicial activism. Judicial activism, keeping in view the ideals of democracy, is, in fact, necessary to ensure that unheard voices are not buried by more influential and vocal voices. Indeed, on most occasions, timely interventions of the judiciary in India — the home of judicial activism — has helped democracy flourish in our country despite repeated failures of the other organs.

(Anirudh Krishnan is an advocate with the Madras High Court and a consultant with the Law Commission of India)

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