Along with the Legislature and the Executive, the Judiciary is one of the three basic organs of the state. It has a vital role in the functioning of the state and, more so, in a democratic state based on rule of law. Legislature, Executive and Judiciary have to function within their own spheres demarcate under the constitution. No organ can usurp the assigned function of another. The constitution trusts to the judgement of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and Executive, the two facts of people’s will, have all the powers including that of finance. Judiciary has no power over sword or the purse, nonetheless, it has power to ensure that the aforesaid two organs of state, function within the constitutional limits. It is the sentinel of democracy.
As long as the three wings of the state operate within their demarcated fields and show due reverence to other organs, no difficulty would arise in the working of the constitution. The trouble arises when one wing tries to encroach upon the field of the other then it is bound to generate friction and result in constitutional imbalance.
When a state action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the Legislature or the Executive has acted within the powers and functions assigned under the constitution, and if not, the court must strike-down the action. While doing so, the court must remain within its self-imposed limits. While exercising power of judicial review of administrative action, the court is not on appelate authority. The constitution does not permit the court to direct or advise the Executive in matters of policy or to sermonize in any matter which, under the constitution, lies within the sphere of Legislature or Executive, provided these authorities do not transgress their constitutional limits or statutory powers.
Earlier, the judiciary, meticulously avoided walking into the exclusive decision making areas of the executive and the legislature. Things moved smoothly since the days, of A.K. Gopalan case in 1950. The conventional thinking was that the Judiciary was the weakest branch of the government. Much water has flown down the bridge since then.
Of late, our higher Judiciary has acquired a dominate profile. A series of judgements, from the days of Maneka Gandhi case in 1978, to the reflection upon
policy issues like reservation in government jobs, admission to private professional colleges, freedom of electronic media and the need for an uniform civil code, has sparked the debate upon the role of Judiciary vis-a-vis the other two organs of the state.
Now, it is not uncommon to see the speakers of the legislative houses being summoned to explain some of their decisions, taken in the course of their constitutional duties. The Judiciary, now, willingly and more frequently asserts that it has the authority to go into, not only the constitutionality but also the merit of the duty enacted laws. Even the provision like the Presidential prerogative of pardon is not immune to its review. In fact, the judiciary has often opined that if the constitution provides for an absolute power, it is its own authority of judicial review.
The S.R. Bommai case is the zenith of judicial activism. It invalidated three presidential proclamations dissolving state assemblies of Nagaland, Karnataka and Meghalaya. The apex court held:
(a) Presidential proclamation is judically reviewable;
(b) Union Government has to produce material on which such action was taken;
(c) State Assemblies can be dissolved only after procalamation is approved the by both the House of Parliament:
(d) Court can restore the Legislative Assembly if proclamations found to be unconstitutional.
The position today is that the Supreme Court has acquired the final say, in, practically, all matters related to the governance of the country. All amendments to the constitution can be previewed by it, if they, in any way, affect the basic character of the Constitution. What constitute the basic character of the Constitution is to be decided by the apex Court on a case-to-case basis.
Lately, the Judiciary has also not shown much hesitation in asking the Executive as to what laws should be enacted and when. The judgement regarding the creation of the All India Judicial Service and the Mina Mathur case, regarding the enactment of the uniform civil code can be recalled in this context.
The case of the Jharkhand Assembly is the recent example.
In nutshell, there is a subtle but definite shift in the approach of the Judiciary towards the prevailing governance in the country. This approach of the erstwhile, weakest wing of the state has generated a debate across the nation.
How has this change come about? Is all this a symbol of the strength of the Judiciary or the weakness of the other two limbs of the state?
Protagonists of the judicial activism say that in
any democratic country, the ideal of welfare state is substantially assisted by the process of law, and in that serve, law becomes a mighty weapon in the armoury of democracy by which socio-economic resolution is brought about. It is a social institution, democratically evolved for achieving the object of making social adjustments to meet the challenge, which incessantly flows from unsatisfied legitimate human desires and ambitions. The fact that the content of the rule of law cannot be determined for all times and all circumstances is a matter not to lament but for rejoicing. It would be tragic if the law were so petrified, all to be unable to respond to the unending challenge of evolutionary changes in society.
To some extent, the Judiciary is born great, some greatness has been acquired by it on the strength of the performance of some of its illustrious judgement, but some of it has also been thrust on it by the failure of the other two organs of the state to do their duty by the Constitution properly.
Thus, Judicial Activism mainly stems from the failure of the other two wings of the state. When democratic institutions are extinct or moribund, Court Activism is the only hope of justice for the citizen. Where the government fails to govern, the Civil Services is neither civil nor a service, the Police is more an oppressor than a guardian of law, Parliament is a costly debating society and hence, the Judiciary in India remains the last hope for the people. It is good to see the courts reprimanding politicians, warning the police and dispensing justice to people who could never afford the luxury of litigation, Judicial Activism is not only a boon for the citizen, it is also the only ray of hope in a sky filled with black clouds.
Cases of maladministration and misuse of public offices by politicians and bureaucrats is increasing during the last three decades. But, in deference to the principle of judicial restraint, the court had not so far gone beyond recording its disapproval or at the outset administering a mild rebuke to the Executive. This has not cut much ice with the wrong doers.At this backdrop the apex Court has said that ethics and law converge and interact, this is what judicial Activism is all about the restoration of rule of law in this country, depends on it.
On the other hand, opponents of the Judicial Activism maintain that it is illegitimate because (a) the court is not run on democratic lines; (b) the court becomes vulnerable when it takes a controversial stand on matters spartaining to public policy; (c) the court lacks the capacity to make effective policy choice; (d) the court is increasingly whiting down its prestige by passing unenforceable verdicts; (e) if such, Judicial Activism becomes a pattern, then the novelty will wear off sooner or later. Mercifully, there is a reason to believe that a section of Judiciary itself entertains doubts about assuming the mantle of a super-government.
Under no constitution, can the power of courts go far to save the people from their own failure. There are too many dangers to the judiciary itself from an omnipresent and rescuing, judicial review. In its own interest, the Indian Judiciary may sooner or later have to propound a policy of judicial nonintervention in defined areas. Such a policy is not a sign of weakness or abdication by the judiciary but only a recognition of the fact that the Constitution did not make the Judiciary a substitute for the failure of the other branches of government and that judicial power has its limitations.
However, the views of both the protagonists and the antagonists of the Judicial Activism, converge in the field of human and civil rights. In this context, the concept of “Public Interest Litigation (PIL)”, the Lok Adalat, the Legal Aid and Advice Board have put our Judiciary at a higher pedestal, the jurisprudence and the PIL seek to fill some of the gaps in our legal system. They have broadened the flow of information to the decision makers. Access to the courts by disadvantage and deprived section of the community has now become easy and routine. Then, we have moved a little closer to the ideal of equal justice for all Criminal justice system has been humanized. The court has become educative force in the field of human rights. It is in the field of human and civil rights that the court has found a safe and competent field for its activism.