B.P. Jeevan Reddy
It is true that on some occasions, courts have overstepped their limits. But, by and large, judicial activism has done a great service to society.
To begin with, what does the concept of ‘judicial activism’ mean? Let me try to put it in proper perspective. The goal of the Constitution, enunciated by our worthy founding fathers in its Preamble, is to secure to the people of India “Justice — Social, Economic and Political; Liberty of Thought, Expression, Belief, Faith and Worship; (and) Equality of Status and [of] Opportunity.” For achieving this goal, the Constitution has created three state organs, the Legislature, the Executive and the Judiciary, besides autonomous institutions such as the Election Commission, and the Comptroller and Auditor-General. One must say Parliament and the State Legislatures have, by and large, performed their duty fairly satisfactorily; they have enacted many laws touching upon and regulating activities in the social, economic, educational and health spheres — indeed all activities touching the lives of the citizens, in particular the weak and vulnerable sections.
It is, however, common knowledge that the Executive has failed, in a large measure, to implement these laws in letter and in spirit — for reasons which need not be gone into here. This is a feature of the Indian state which has been pointed out repeatedly by several social philosophers and economists over the last four decades and more. Gunnar Myrdal, Scandinavian scholar, famously called (in the 1970s) it a ‘soft state,’ precisely because it does not have the will and the requisite discipline to implement the laws made by it. The result is that several laws and schemes in the social and economic sectors have remained mere declarations of good intentions. A visit to any government school, government hospital, a fair price shop or primary health centre is sufficient to bring home this truism.
In such a state of affairs, if a complaint is brought before court — mainly the High Courts and the Supreme Court — that a particular law or provision or scheme is not being implemented properly and a direction is asked for its implementation, what should it do? Should the court say the matter is none of its concern, that the administrators know their duty and are expected to do it, or call upon the authorities concerned to discharge the functions entrusted to them by the law? After all, the judiciary is also an organ of the state ordained by the Constitution to achieve the goals set out in the Preamble and Parts III and IV.
But when such directions are made, it is called an instance of ‘judicial activism’ in a pejorative sense. If such directions are made at the instance of a public spirited individual or organisation — on the basis of what is called public interest litigation (PIL), a technical objection is raised that the really aggrieved person is not the complainant. The problem is that very often the really aggrieved person does not have the wherewithal to approach the court and hence someone does so on his behalf. The issue in such a case is, and should be, the truth of the complaint rather than the identity of the complainant. Maybe, the court does not have the means or machinery of its own to enforce its orders and directions and has to depend upon the very same official machinery, which is found to be lax. Even so, orders made by the courts do carry certain sanction — the power to punish for contempt — and are thus more effective. No one suggests that court can correct all ills afflicting society but the effort should be to try to do the little good that one can do rather than inventing arguments for not doing anything.
It is true that on some occasions, PIL is abused by some to vent their private grouses, business rivalries or to seek publicity. But then is there a remedy under the law that cannot be, and is not, abused on certain occasions? What about the great constitutional remedy of writ petition? As lawyers and judges dealing with it will vouchsafe, this remedy too is invoked not infrequently for the wrong reasons and by wrong persons. Does a writ petition become bad on this account or should we look to the enormous good this remedy has done to the cause of liberty, equality and the freedoms of citizens? Similar is the case with PIL. There may have been some aberrations but to blame the very PIL jurisdiction on that account would be a mistake. One must look at the generality of the picture and not at individual aberrations.
The other type of ‘judicial activism’ is the field of interpretation of fundamental rights, in particular the right to equality (Articles 14 to 16), the several freedoms in Article 19 and the right to life and personal liberty in Article 21. While interpreting these Articles, there is scope for judges to read their personal philosophies into the provisions. This criticism is not peculiar to India; it has been a hotly debated subject in the United States for long. An example, indeed from the U.S., would better illustrate this aspect. By the 14th Amendment to the American Constitution (1868), equal protection of laws was guaranteed to its citizens. Indeed by the 13th Amendment (1865), slavery was abolished. That was a time when slavery was rampant and blacks were subjected to untold discrimination and segregation in every walk of life. There were separate schools for them. No black student could seek admission to a school meant for the whites. When these segregationist policies were challenged as violative of the equal protection clause, the Supreme Court (in 1898) held that such a treatment did not violate the clause; the court evolved a novel doctrine called ‘separate but equal’ to justify these practices. But come 1954, this very 14th Amendment was differently interpreted by that very court, which held that the doctrine of ‘separate but equal’ and the segregationist practices it sanctioned were all violative of the equal protection clause and hence unconstitutional. By this decision (Brown) and the others which followed in quick succession, the entire edifice of segregation and discrimination against the blacks was dismantled and outlawed. The consequences of this activist role of the court are there for all to see; in less than 55 years, a black American is likely to become the next President of the U.S. What an enormous contribution by the court — and how welcome, just, equitable, democratic and humane! Could this ever have happened but for the said decision? Maybe, it could have happened but we do not know when and how. It was the court which acted as the agent of change by interpreting the equality clause in its modern and equitable context, without the help of any law made by Congress.
Coming to the Indian scene, the activist phase of the Supreme Court became discernible clearly after the Emergency was revoked in 1977. Look at the substantial contribution on this score. Prisoners’ rights: it was held that a prisoner on conviction or awaiting trial does not lose all his fundamental and legal rights but loses only the right to free movement. Safeguards against arbitrary arrest: clarification of the rights of the accused on being arrested; prohibition of long incarceration pending trial; clarification of the concept and objectives behind bail; condemnation of routine handcuffing; prohibiting quarrying and mining activities endangering natural resources and releasing persons from bonded labour are some of the instances.
The restrictive interpretation placed on personal liberty, indeed the manner of interpretation of the fundamental rights adopted in 1950 (Gopalan) was overruled in 1979, reading Articles 14, 19 and 21 together and harmoniously (Maneka Gandhi). Article 21, to reiterate, has been the main spring from which innumerable rights have been inferred — the right to free elementary education, the right to speedy trial, the right to privacy, the right to medical aid to workers, the right to pollution-free water, elimination of water and air pollution and so on. The issue of air pollution reminds us of the Supreme Court orders mandating all public vehicles to shift to CNG with a view to protecting the health of Delhi citizens. True, there was no law providing for the same. But the question is: was it bad? Maybe, this measure did cause dislocation of and disturbance to the occupations and lives of certain members of the public but, overall, it is undeniable that the measure improved the quality of air over Delhi.
It is quite true that on some occasions, the courts might have overstepped their limits. For example, orders directing the construction of roads or bridges, orders seeking to lay a timetable for the running of trains, orders directing beautification of a railway station and so on. But these again are mere aberrations. To repeat, one must look at the generality of the picture and not draw conclusions from a few wrong examples. Judged from this angle, judicial activism has done a great service to society.
I am conscious that on this issue, differing opinions can be and are held by equally learned people with equal passion and conviction. But that is true of any social or legal issue. Even so, like any issue touching the public interest, this issue too needs to be debated in depth.
(Justice B. P. Jeevan Reddy is a former Judge of the Supreme Court of India and a former Chairman of the Law Commission of India.)