Case for judicial activism

JUDICIAL ACTIVISM IN INDIA: G. B. Reddy; Gogia Law Agency, opposite to High Court, Hyderabad-500002. Rs. 250.

THE LAW, substantive and procedural, never stands still even as life, societal life, ever is in locomotion. India's tryst with destiny inaugurated a new dawn, with vibrant values wiping out colonial denial of human rights for the masses. Imperial injustice became obsolete with Indian Independence and "Swaraj justice'' became the birth right of the least, the lost and the lowly humans of Bharat. This transformation had to be reflected in the justice process.

To obliterate procedural anfractuosities, to broaden the idea of locus standi, to enable the penurious many to exercise their right of access to judicial justice, to abolish expensive nuances and pachydermic chaos of interpretation so popular in British Indian lawyering practices and to establish free legal aid and public interest litigation — these were forensic urgencies and jural necessities if the democracy of judicial remedies were to reach the indigent, illiterate and alienated Indians who would otherwise find the complicated court system "untouchable" and even not "approachable''.

This macro-challenge demanded radical, humanist changes in the exotic pre-Independence Bench-Bar theory and praxis, which were their professional staple diet. The precedent-oriented, elitist system could not but resist departure from the status quo. The constitutional revolution, which was the vision of the founding fathers, was entrusted to the judiciary, giving it vast powers to enforce, through "writ power", the socio-economic liberation implicit in the Fundamental Rights and other avant garde Highways and Bylaws of Law, has lectured against this progressive process.

The foreword to the book, by a former Chief Justice of Andhra Pradesh, has welcomed judicial activism and in 391 printed pages the author has researched and examined almost every aspect of this people-oriented judicial radicalism. He has rightly discussed the uses and abuses of public interest litigation (PIL) including instances of judicial over-activism. Abuse of PIL, misuse of this strategy, hijacking of this versatile process by enemies of the poor and even trivialisation of PIL bringing it into contempt are now on the cards, gambling with the court's mood and using this factotum facility as intimidatory tool — these trends justify a critical study of PIL as a panacea or placebo, as a magic drug or a free-for-all curial ploy.

The author has rightly indicated that the play of PIL must broadly fall within the raison d'etre set by him: "The constitutional mandate to the judiciary is that while exercising its functions and powers, it should keep in view the social and economic objectives which the Constitution seeks to protect, promote and provide as embodied in the law. When each of the three organs of the state respects and appreciates the role of the other organs and functions within its own sphere and parameters, the harmony which would be the resultant product would go a long way in bringing about socio-economic changes in the country. However, when the political organs of the state fail to discharge their constitutional obligations effectively or if their indifference to certain constitutional objects, especially the object of rendering social, economic and political justice to the people at large, the judiciary can legitimately assert its judicial power, to meet the constitutional ends. In the process, the judiciary may assume the role of a policy maker, legislator and even the role of a monitor to oversee the implementation of its directions. Then its behaviour or attitude can be rightly summarised as judicial activism''.

Judicial activism is not opium but a pervasive power and a "brooding omnipresence''. Some judges, rarely though, are indiscriminate and verge on forensic totalitarianism. So a set of paradigmatic guideline may serve to sustain juridical equity and sanity and resist the dictum of Oscar Wilde who said: "Moderation is a fatal thing. Nothing succeeds like excess''.

Reddy has toured the eighties and nineties and brought to the reader the feel of the expanding horizons of Article 21 in the liberal context of judicial activism. The new matrimony of Fundamental Rights and Directive Principles, with rich offspring, is silhouetted by the author. Even on environmental conservation and right to education, bonded labour, gender justice, paedo- justice and free legal aid while in state custody judicial activism has enlivened life and liberty and made the court a power at the service of the people. No longer is the Court the weakest instrument, sans purse or sword, while Government by the Judiciary is a travesty of the Montesquieuan balance. The judge is no "ineffectual angel" in the presence of rank injustice nor indeed is he a knight errant adventuring for pleasure into forbidden fields.

Dr. A. S. Anand, Chief Justice of India, quoted by the author, sets the sound note on the just functionalism of judicial activism: "26 January" 2000 marks the completion of fifty years of the Supreme Court of India. At this juncture, it is time to weigh what it has contributed and where it has lagged behind. This is all the more so when the Supreme Court is the custodian of the Indian Constitution and exercises judicial control over the acts of both the legislature and the executive... At the time of its inauguration on 28 January 1950, Justice Harilal Kania, the first Chief Justice of the Court, said that the Supreme Court would declare and interpret the law of the land, and with the tradition of the judiciary in the country, it would work in `no spirit of formal or barren legalism,' within the limits prescribed by the Constitution. The Court, as part of the federal system and as the defender of democracy, is responsive to the changes in Indian society''.

The book is good, the topic important and the role of judicial activism — neither jejune nor provocative judo game — has been expounded sensitively and sensibly.

A last pensive thought prompted by the author's chapter on Ethics for Judges. If judicial ethic plunges to a new low, judicial activism may become a new despotism and the forensic future of human rights of the people may prove a new mirage. Alas!

V. R. KRISHNA IYER

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