The ambit of Judicial Activism be expanded but on the line of our constitution - Essay, UPSC MAINS | Course for UPPSC Preparation - UPPSC (UP) PDF Download

The ambit of Judicial Activism be expanded but on the line of our constitution

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(1) Opening    —    Pronouncements of Supreme Court and Bar Association’s discussion.

(2) Body    —    Stock-taking of judicial activism by all concerned with an open mind and without any ideological blinkers.

    —    The function of the executive has been magnified and multiplied.

    —    Power of the executive has expanded at the cost of the legislature.

    —    Significance of judicial review.

    —    Judicial activism must be firmly rooted in the principle and ideology of the Constitution.

    —    Ad hocism in judicial approach.

(3) Closing    —    Any expansion of judicial review must, in the main, rest upon the sound and salutory principle of constitutionalism and fruition of the Directive Principles of the Constitution.

Some of the recent pronouncements and orders of the Supreme Court has brought to the fore intense debate on the role of judiciary in democratic governance. The Bar Association of India had also organised a discussion under the rubric: “Ever expanding horizon of judicial activism: desirability or otherwise.”

The phenomenon of judicial activism is a healthy development and it needs to be further expanded, provided it is firmly grounded in the ideology of our Constitution and particularly those enshrined in the Directive Principles. At the same time, it has to be acknowledged that some aberration has undoubtedly crept into judicial functioning and it is high time now for stock-taking of judicial activism by all concerned with an open mind and without any ideological blinkers.

Judicial activism in its formative years, as put by one of the most distinguished jurists of the country, Prof Upendra Baxi, was a response to the post-Emergency catharsis. One of the common criticisms of judicial activism these days is that the judiciary is increasingly trenching upon the domain exclusively assigned to other organs of the state, namely, the executive and the legislature. This, opponents of judicial supremacy say, goes against the grain of the principle of separation of power. This criticism of judicial review is not only specious but also outright baseless.

To begin with, the function of the executive has been magnified and multiplied to the extent never dreamt by the theorists of the separation of power. In this connection, the two World Wars clearly proved to be a god-send for the executive. But even after the cessation of war, the phenomenon of relentless expansion of the executive never ceased. This was so due to the pre-dominance of the concept of the ‘Welfare State’ which postulated and posited multifarious role of a State. Even other complexities of the modern times entailed that the State had to perform a myriad kind of functions. This has resulted in mind-boggling expansion of the executive’s function.

The striking feature of inexorable growth of the executive’s power is that it pervades the entire ideological spectrum. Both, totalitarian and socialist countries and democratic and capitalist countries are witness to this ever-expanding frontier of the executive’s power. Thus, the power of the executive has expanded vastly the world over. This vast expansion of the executive’s function has not been cost-free. No doubt, the complexity of modern governance makes it imperative, that the domain of the executive be expanded; but this has two serious consequences. First, the power of the executive has expanded at the cost of the legislature which is the only organ that reflects the genuine spirit of democracy as it is comprised of the people’s representatives. Thus, the ever-expanding horizon of the executive and that too, at the expense of the legislature is certainly an undemocratic phenomenon, notwithstanding the compulsions of modern-day governance. This phenomenon has further acquired a sharp edge in parliamentary system. One of the most crucial distinctions that lies at the core of parliamentary and presidential forms of government is that in the latter system there is roughly separation of power among all the three organs while in the former system there is institutional collaboration between the executive and the legislature at the highest level. If it is possible to argue that in a democracy Parliament controls the executive, it is equally plausible to argue that the executive which commands a comfortable majority also controls Parliament. The pertinent point to note here is that the legislature cannot ensure accountability of the executive—at least in respect of some of its functions.

The second consequence of unending expansion of the executive’s power and function is that no citizen can be immune from and impervious to the function of the agency and instrumentality of the executive. The activity and functions of a modern government concern and even affect all citizens. Thus, the public is encountering day in and day out a plethora of agencies and instrumentalities of government. This has clearly magnified the instances of public finding itself at the receiving end of the government’s high-handedness. And if the public’s right is invaded, where should in turn to? Here the significance of judicial review comes to occupy a central place in modern governance. Everyday, the columns of newspapers are replete with numerous instances of executive’s lapses and lawlessness. Every Public Interest Litigation tellingly bespeaks about increasing brutality and arrogance in the exercise of power by deviant authority. Viewed from this perspe-ctive, the phenomenon of judicial assertivism is welcome and unexceptionable.

Judicial activism, in order to be sustainable in the long run, must be firmly rooted in the principle and ideology of the Constitution. This clearly rules out resort to ad hocism. Here lies the real problem. One of the unintended and later-day operational excrescence of judicial activism is that ad hocism has unfortunately crept into judicial adjudication. This is essentially a negative development and a matter of grave concern and if not urgently arrested and interrogated by collective efforts of both the Bench and the Bar, it will rob the highest judiciary of its dignity and credibility—impairment of which will sound the death-knell of the Rule of Law. Besides, the pernicious practice of ad hocism will have an inevitable effect of seriously undermining the salutory principle of certainty and predictability of law will become the worst casualty. In certain spheres of judicial functioning, this is already happening. This must be addressed to and remedied if the higher judiciary is conscious of maintaining its majesty and sanctity that go with the Rule of Law. Indeed, it is possible to argue that certainty and predictability of law is one of the important facets of the Rule of Law.

Ad hocism in judicial approach has reduced the Justices of the Apex Court from expounder of law into mere problem-solver. No doubt, the tendency to solve the burning problems of the 

day is strong, almost irresistible, but then the Justices are not worth the exacting standard of their office if they cannot resist the temptation of becoming only problem-solver. Justice’s main task is to expound the constitutional principles and create fresh constitutional norms. Thus, the ad hocism of judicial adjudication which is clearly a result of the ever-expanding horizon of the judiciary, ought to be eschewed if the Supreme Court is serious to arrest the erosion of its legitimacy.

Thus, the phenomenon of the expanding domain of judiciary is a sound phenomenon atleast in theoretical paradigm because the scope of judicial review must correspond to the ever-widening expansion of the executive’s powers and function. But any expansion of judicial review must, in the main, rest upon the sound and salutory principle of constitutionalism and fruition of the Directive Principles of the Constitution rather than patch-work and case-to-case ad hocism because the Constitution and interpretation of it by the judges of the highest court is intended to be endured for ages.