Judicial activism and democracy

By Anil Divan ,The Hindu April 2,2007

The great contribution of judicial activism in India has been to provide a safety valve and a hope that justice is not beyond reach.

LIVELY CRITICISM of judicial activism encroaching on the powers of the legislature and the executive has been voiced by many including Lok Sabha Speaker Somnath Chatterjee. Such controversies are the lifeblood of democracy and must be welcomed. On March 12, 2007, marshals were summoned in the Lok Sabha as Communist Party of India (Marxist) members stormed the well, menacingly advancing towards Shipping Minister T.R. Baalu. Dravida Munnetra Kazhagam members formed a human wall to protect him. On March 19, 2007, another scuffle took place in the Rajya Sabha when Bharatiya Janata Party member S.S. Ahluwalia and other Opposition members rushed threateningly towards Finance Minister P. Chidambaram who was protected by a cordon of Congressmen.
The Indian citizen's perception of the political class is overwhelmingly coloured by the above images. It is in this context that judicial activism has flourished in India and has acquired enormous legitimacy with the Indian public. Some glimpses from the past and a peep into the future may be rewarding.
In 1608, England was ruled by the Stuart King James I who claimed absolute power. On November 13, 1608, James entered the royal courts and claimed that he could take any case he chose, remove it from the courts, and decide it in his royal person. Chief Justice Coke answered that he could not do so but the case ought to be determined and adjudged in a court of justice according to the law and custom of England. The King was greatly offended and replied: "This means that I shall be under law which is treason to affirm." Coke replied: "Bracton says that the King should not be under man but should be under God and law." At that time the judges were removable by the King and had no security of tenure. Chief Justice Coke's reply was an affirmation of the judicial power while upholding the rule of law against arbitrary decisions of the sovereign. This was judicial activism at its finest.
In 1801, Chief Justice John Marshall highlighted and reaffirmed the power of the American Supreme Court to invalidate Congressional statutes in the celebrated case of Marbury v. Madison. John Marshall was Secretary of State in the administration of President John Adams who in the last days of his Presidency appointed as judges and magistrates more than 50 people belonging to his party. Meanwhile, Marshall was appointed Chief Justice and overlooked delivering some commissions. The incoming President Thomas Jefferson ordered his Secretary of State James Madison not to deliver these commissions. Marbury, an appointee, moved the Supreme Court for a direction against Secretary of State Madison praying that the commission be delivered to him. Chief Justice Marshall knew that if a direction was given it was unlikely to be obeyed by President Jefferson. By an act of judicial statesmanship Marshall ruled that Section 13 of the Judiciary Act under which Marbury had petitioned the court was unconstitutional and invalid and therefore the court had no original jurisdiction to grant relief. He avoided a direct conflict with the administration while highlighting and reaffirming the judicial review power to invalidate an Act of Congress.
Chief Justice Earl Warren of the U.S. was one of the great activist judges who has profoundly influenced the Indian Supreme Court. By his decisions he legitimised affirmative action by the courts and removed racial discrimination in schools by desegregation, reapportioned obsolete electoral districts, and enhanced the rights of poor accused and defendants. Warren and the judges supporting him came in conflict with their colleagues who championed judicial restraint. Bernard Schwartz recounts a public display of acrimony between Warren and Frankfurter, the latter a champion of judicial restraint. In Stewart v United States, a bare majority reversed a murder conviction because of improper questioning by the prosecution. After the majority opinion was read, Frankfurter in open court characterised it as "an indefensible example of judicial nit-picking" and "excessively finicky appellate review." Chief Justice Warren, visibly angered, said: "As I understand it the purpose of reporting an opinion in the courtroom is to inform the public and is not for the purpose of degrading this Court." This exchange was front-page copy for the national press.
President Eisenhower a conservative Republican, was distressed by the liberal views of his appointee Chief Justice Warren. When Eisenhower was asked what his biggest mistake was, he angrily replied "the appointment of ... Earl Warren."
High-water mark
What was the one case that was the high-water mark of judicial activism in India? No doubt it was the judgment of the majority in the Keshavananda Bharati case (the fundamental rights case). For the first time a court held that a constitutional amendment duly passed by the legislature was invalid as damaging or destroying its basic structure. This was a gigantic innovative judicial leap unknown to any legal system. The masterstroke was that the judgment could not be annulled by any amendment to be made by Parliament because the basic structure doctrine was vague and amorphous. The judgment was severely and passionately criticised by the executive and many eminent lawyers. The immediate response of the executive was the supercession of three senior-most judges (Justices Shelat, Hegde, and Grover) while the fourth Judge Justice A.N. Ray who had decided all major cases in favour of the Government was appointed Chief Justice. However, the critics were soon silenced. The excesses of the Internal Emergency of 1975 completely legitimised this judgment and one of its severest critics the great jurist H.M. Seervai changed his views.
Judicial activism earned a human face in India by liberalising access to justice and giving relief to disadvantaged groups and the have-nots under the leadership of Justices V.R. Krishna Iyer and P.N. Bhagwati. The Supreme Court gained in stature and legitimacy. Later, when the independence of the judiciary was threatened by punitive transfers, the court entered the arena of judicial appointments and transfers. With the increasing criminalisation and misgovernance and the complete apathy of the executive, the court (under the leadership of Chief Justice Verma and Justices Bharucha and Sen) took up the case of terrorist funding linked to political corruption through the `hawala' route in the Vineet Narain Case (Jain hawala Case). A cover-up by the Central Bureau of Investigation to protect its political masters was exposed and the court monitored the investigation upholding the principle "Be you ever so high the law is above you."
During the hearing there were reports that Prime Minister P.V. Narasimha Rao was interfering with the investigation and the court passed an interim order on March 1, 1996. It directed "that the CBI would not take any instructions from, report to or furnish any particulars thereof to any authority personally interested in or likely to be affected by the outcome of the investigation into any accusation. This direction applied even in relation to any authority which exercises administrative control over the CBI by virtue of the office he holds, without any exception." In substance Prime Minister Rao was forbidden from exercising control over the CBI in relation to that case. It was a bold and courageous order and carried judicial activism to hitherto unscaled heights. The fallout of the case was resignations following initiation of prosecutions against high profile political personalities including three Cabinet Ministers, two Governors, and the Leader of the Opposition. In the next general election the ruling Congress lost power.
The courts on several occasions have issued directions in public interest litigation (PIL) covering a wide spectrum such as road safety, pollution, illegal structures in VIP zones, monkey menace, dog menace, unpaid dues by former and serving legislators, nursery admissions, and admissions in institutions of higher learning. There is no doubt that sometimes these orders are triggered by righteous indignation and emotional responses.
The common citizens have discovered that the administration has become so apathetic and non-performing and corruption and criminality so widespread that they have no recourse except to move the courts through PIL, enlarging the field for judicial intervention. If a citizen's child is attacked by a stray dog or cattle roam the streets or hospitals suffer from monkey menace and nothing is done, should not the court intervene?
The great contribution of judicial activism in India has been to provide a safety valve in a democracy and a hope that justice is not beyond reach. Judicial activism has come to stay in India and will prosper as long as the judiciary is respected and is not undermined by negative perceptions, which have overtaken the executive and the legislature. There is concern among the public about lack of transparency in judicial appointments and a sense of increasing unease because of a lack of a credible mechanism to deal with serious complaints against the higher judiciary.
The plants slowly nurtured by judicial craftsmanship have grown into sturdy trees and have blossomed with colourful and fragrant flowers. Judicial activism has added much needed oxygen to a gigantic democratic experiment in India by the alchemy of judico-photosynthesis.
(The writer is a Senior Advocate, Supreme Court .)