Judicial Activism In India

Political aspects of judicial activism

Those who daily read the tea-leaves of the obiter dicta of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry to predict the impending ouster of the PPP government, were biting their nails on Saturday listening to retiring judge of the Supreme Court, Justice Javed Iqbal in Lahore. He said: 'The federal government has not defied any Supreme Court order; but there was an element of delay in implementing some court decisions'.

He did not stop at that. He went on to say: 'The parliament as the creator of the Constitution is supreme, but the Supreme Court is exercising its powers under the same Constitution'. Whenever the Supreme Court has become activist, as in India in the latest case, the people have welcomed it in a kind of indirect substantiation of the adage that democracy is not the best system but the best available. But it is also always the 'activist' judiciary which corrects itself under 'judicial pragmatism'. It did so in India before suo motu could become a fat lady joke in Punjabi. Whether the Supreme Court realises it or not, national politics in Pakistan is performing its ritual death-dance around judicial activism. There are signs that some judges are aware of the negative institutional fallout of this danse macabre, and there are chances that the parties involved in institutional head-butting may relent, with the Supreme Court relying on ihsan - the Islamic word for pragmatic wisdom.

The Supreme Court is the last judicial resort and it can speak with a finality that no other court can. The Constitution says all must obey its edicts but in reality that doesn't always happen. The elected government represents the people who in turn are sovereign and the Supreme Court recognises that too only on occasions to remind the 'imperfect' and 'fallible' rulers through its own public interest litigation of which suo motu has become the latest emblem. There was a time when the Supreme Court was a handmaiden of the party in power. The power wobbled around between the president, the prime minister and the army, the last one being primus inter pares. Today the army is inscrutable in its signalling after just one signal that restored the Supreme Court judges, which may have inspired tangential thoughts in minds intent upon overthrowing the PPP government.

After being castigated by illiterate TV anchors for being friendly in opposition, the PML-N is experiencing an arousal of its old toppling reflexes.

The New Face of Judicial Activism - Mainstream Weekly

In writing the history of judicial activism in India at the beginning of the 21st century, Prof S.P Sathe noted that the political establishment has used the Court to legitimise its own decisions. He noted in this context that the Gujarat Government moved a contempt petition against the Narmada Bachao Andolon (NBA) for its members’ threat to die with the villagers whose villages were going to be submerged because of the rise in the height of the Sardar Sarovar Dam. Actually, the decision of the Supreme Court which came after seven years “poured cold water on the hopes of the NBA activists”. The Court trusted all the affidavits filed by the governments regarding rehabilitation and permitted them to raise the height of the dam. The NBA activists criticised the decision of the Supreme Court. They made public demonstrations and held dharnas in front of the Court to express their protests. Criticism by eminent NBA activists, Medha Patkar and Arundhati Roy, was also cited as an instance of contempt of Court.1 In her communication to the Supreme Court, Medha made the following insightful statement:

The NBA always wanted the judges to visit the valley and see the condition of the oustees themselves, but that did not happen. So the people of the valley decided to come to the Court to meet the judges and explain to them what was happening in the valley. If such an attempt to influence the judges in this way is considered contempt by this Court, then I plead guilty.2

In his discourse on judicial activism, Sathe raised a fundamental question of judicial accountability and gave his own answer from a moral standpoint: The answer, according to me, is that a constitutional Court has to continuously strive to sustain its own social legitimacy. Through impartial and principled decisions, it sustains people’s faith in it. The accountability is also sustained through the Court’s concern for the poor, the disadvantaged and powerless minorities.3

•

SOME of the very recent judgments of the Supreme Court reported in the media testify that popular movements and human right activism have had an impact on our judicial system. On July 5, the Supreme Court restrained the Chhattisgarh Government and the Centre from arming Special Police Officers (SPOs), calling the force as “unconstitutional”. A Bench of the Court gave this order on a petition filed by sociologist Nandini Sundar, historian Ramchandra Guha and others. The petition sought a direction to the State Government to refrain from allegedly supporting Salwa Judum comprising about 5000 tribal youths, who helped the police and security forces in the Bastar region in the fight against Maoists. The Court asked the Chhattisgarh Government and the Centre to desist from appointing the tribals as SPOs and from arming them for countering the Maoists. It may be stated in this connection that on January 14, the Supreme Court sought answers from the Union and Andhra Pradesh governments to a petition filed by Swami Agnivesh and the widow of Hemchandra Pandey, a journalist killed along with the Maoist leader, Azad. The petitioners wanted a judicial probe to the incident citing post-mortem reports of Azad and Pandey, which contradicted the ‘encounter’ claim of the Andhra Pradesh Police and showed that they were shot from close range.

Judicial activism in India

Judicial activism in India

Judicial activism in India

Reservation policy and judicial activism

Pratiyogita Darpan