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| Vol. 4, Issue 5 May 2012 |
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Perspectives |
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Politics |
The Case of Judicial Activism
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| So-called judicial overreach is the direct result of legislative and executive underreach |
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B MATHUR / REUTERS |
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| The Indian constitution, which allocates authority to both the states and the Union, requires the Supreme Court serve as a final arbiter.
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N COUNTRIES WITH A WRITTEN CONSTITUTION, the
reach of judicial power is almost unlimited—it is only
in the wisdom of its exercise that the balance of a written
constitution is maintained. |
Judge Thijmen Koopmans from the Netherlands—a
judge reared in the civil law—was once asked how it was
that in its interpretative role, that great transnational court
on which he sat (the European Court of Justice) had gone
much further than the text of the Treaty of Rome, which
established that court. The answer he gave was disarmingly
frank. He said:
What the Luxembourg Court has done is a common
phenomenon of all courts, national and international.
There is a natural tendency for judges to write a larger
role for themselves.
In the common law world, too, this form of “judicial activism”
is evident—prompting one of England’s leading lawyers,
Lord Anthony Lester, to suggest that the hackneyed
phrase, “power corrupts and absolute power corrupts absolutely”,
should be adapted by today’s judges as: “Judicial
power is wonderful, and absolute judicial power is absolutely
wonderful.” However, only some English judges, not
all, actually subscribe to this exaggerated concept of judicial
supremacy.
On the other side of the Atlantic, in the United States, another
great common law country, there is a more marked
separation of powers. The modern democratic world’s oldest
court, the US Supreme Court, has a record of longevity
(of over 200 years) but its reach is constitutionally limited:
not all matters can come before it. Injustices persist because
finality is given to the decisions of state and federal courts,
and the writ of the Supreme Court is not all-encompassing.
As one of the judges of that court once said, “the important
thing we do in this place is—not doing”.
In India, high court chief justices gathered in January
2010 for a conference headed by the country’s chief justice.
There, chief guest Prime Minister Manmohan Singh voiced
his concerns about what he described as “judicial overreach”. Obviously, what he meant was a lack of restraint
on the part of some justices in not respecting the “territory”
or domain of other organs of governance. If his comments
were restricted to public interest litigation (PILs), he may
have been right, as many PILs are giving the higher judiciary
a bad name. But the prime minister also said that “judges
are going too far”. I beg to disagree.
Many believe that written constitutions that give power
to the courts to strike down legislation made by a country’s
parliament are undemocratic: enabling unelected judges,
they say, to thwart the wishes of the elected representatives.
There may be something to be said for this point of view. But
it is too late in the game to complain. For more than 60 years,
we have been working with a constitution, which is federal
in nature, with allocated subjects of legislation separately
and exclusively given to the states and to the Union. In addition,
there is the Chapter on Fundamental Rights, in which
all laws and all executive action inconsistent with these
important features are expressly declared to be “void”. In a
controversy then, some authority would have to be the final
arbiter. Under our constitution, that arbiter is the country’s
highest court.
It has been said that where there are no judicially manageable
standards our courts should not interfere; instead,
they should leave it to the elected representatives of the
people. That notion is correct in theory, but exasperatingly
naive in practice. Even after 60 years since Independence,
after 14 general elections to the Lok Sabha, and all the publicity
that is given to proceedings in Parliament, ordinary
voters remain dissatisfied with how the legislative body
functions—that is, if and when it functions at all. In the past
several years, almost every session of Parliament has been
marred by some dispute or contention of the moment, but
those issues have not been of any grave national importance.
For successive years now, an important measure like the
annual finance bill has been passed in the Lok Sabha in a
matter of minutes, without debate or discussion, yet amidst
din and shouting. There is surely something going wrong
somewhere. What is also unfortunate, but inevitable, is that
power grows by what it feeds on. Judicial power also grows
by accretion—by the mere circumstance that other constitutional
bodies and authorities set up to legislate and pass
administrative orders have failed, when called upon to fulfil
their allocated functions.
I suggest that the “judicial overreach” that the prime minister
spoke about is the direct result of legislative and executive
neglect or “underreach”. That entails poor performance,
not so much in the making of laws, but in their implementation.
If judges need to introspect (and I submit that they frequently do), politicians also need to ask themselves whether
they have fulfilled the aspirations of the people who put them
in the driver’s seat of governance. If judges are to get off the
backs of parliamentarians, politicians and bureaucrats, then
those who claim the right to govern must come up with a
much better record of performance. It is only when they do
so, will the people of this great country once again deliver
majority governments, both in the Centre and in the states.
And, what appears to be undue interference with legislative
or executive functions will hopefully cease, simply as a result
of legitimate legislative and executive action becoming
effective.
The question: “Which is supreme under our constitution—Parliament or the Supreme Court?” is a mischievous one.
The answer is “neither”. It is the constitution and the laws
that are supreme. And it is the constitution that declares
that the final interpreter of the law is the Supreme Court.
Ministers of government—and some members of Parliament,
too—labour under the fallacy of moral populism. That
is the inability to distinguish between the unexceptionable
principle that political power is best entrusted to the majority,
and the unacceptable claim that what the majority does with that power is beyond scrutiny or criticism. There is no
disharmony between Parliament and the judiciary, and no
individual member of government should claim to speak for
that great institution. Disharmony between the government
and the courts is a different matter—if there were complete
harmony between them, this country would not be worth
living in. It is the duty of the judges to interpret the constitution
and the laws, and if this creates clamour and controversy,
well then, that is the price we have to pay for living in
a participatory democracy. As that great democrat, Edmund
Burke, used to say: “The fire-alarm at midnight may disturb
your sleep, but it keeps you from being burned at night.”
Before he became chief justice of Australia in 1991, Gerard
Brennan stressed the need not only for independent judges,
but also the importance of an active judiciary. He said: “As
the wind of political expediency now chills Parliament’s
willingness to impose checks on the executive, and the executive
now has a large measure of control over legislation,
the courts alone retain their original function of standing
between the government and the governed.”
This is truly “judicial activism” at its best—with the courts
standing between the government and the governed.
Fali S Nariman is a constitutional jurist and senior advocate in the Supreme Court of India. He is also president emeritus of the Bar Association of India.
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Readers' Comments |
Total Comments
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Munna Chikna
29 April 2011
09:22 PM
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Dear Sir firstly please accept my compliments on writing an interesting piece. However, while your piece is correct on the symptoms, it does not identify the root cause , nor does it suggest a viable remedy.
Undoubtedly, the judicial overreach is due to administrative under reach. The moot question is however, what causes administrative under reach and what is the best cure for it??
In my humble opinion the root cause is that India's best do not wish to do public service. A concomitant of several factors like the rise of the private sector, the increase in reservation etc ensure they are driven away from public service.
Those who do make it face a stifling work environment, poor pay and a political class bent on subversion and a press insistent on sensationalism. So either they become India's 2nd best or they leave.
This is the principal cause of administrative under reach, not having the best people.
The solution is to make public service attractive so that India's best feel like working in it again. Only then will the situation improve.
Judicial overreach will cause further problems
-the judges will be asked to put their own house in order i.e. select judges more transparently, reduce the cases backlog, take smaller vacations, investigate frequent judge changes and court adjournments etc etc.
-the judicial need for justice (punishments) , speed and the need to show the people results (i.e. playing to the gallery) may result in speedy but unfair justice.
-the executive and legislature will hit back , and they can hit back very hard.
finally ulitmately in every democracy it is the vox populi that is supreme. And the vox populi a full half a billion of them select the politicians. Argued whichever way, the legislature has the numbers to back itself. They will simply tell the judges - want to improve politics - stand for elections- what will the judges do then.
So clearly the solution to our problems is adminstrative reform not judiclial overreach. Some islands of excellence such as IIT's , IIM's , the National Stock Exchange, the recent reforms in tax refunds serve as examples. Here corruption is low, results are high and there is no judicial intervention.
How would this work??? Simple don't go for a Lok Pal bill, go instead to improve the Essential Services Maintenance Act and expand the services and make measurable standards to improve it.
That is the right way
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