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Book Review
Judicial review in a democracy
JUDICIAL ACTIVISM IN INDIA— Transgressing Borders and Enforcing Limits: S.P. Sathe; Oxford University Press, YMCA library building, First Floor, Jai Singh Road, Post Box No. 43, New Delhi-110001. Rs. 595.
NO BETTER book has been written on judicial activism in India than the one under review by an emeritus professor and lucubrious writer with the authority of an academic celebrity. The subject has polemical aspects with pundits and politicians taking sides. But a balanced presentation is a jurisprudential contribution and that is the distinction of Sathe's work. The book has a brilliant foreword by Prof. Upendra Baxi, that creative jurisprudent whose critique with an acid pen adds value to any work on law and justice. Sathe is nonpareil and it is good that he has examined in some detail the new phenomenon of the Indian judicial process — judicial activism. Baxi writes of Sathe: "He has shaped the theory and practice of public law in India. In the last two decades, he has also moved to the world of social activism in ways that have substantially enriched citizen understanding of strategic uses of law and the limits, self-imposed and structurally ordained, of judicial power and process."
Surely I agree that "in the world of the Indian legal scholarship, he is an inspiring exemplar." Judicial activism is only two Anglo-Saxon words but embraces many jural worlds, ensconces many social sources and invigilates many executive-legislative misuses. This vistaramic curial expansionism and vigilant functionalism has developed into a radical affirmative jurisprudence with its own parameters. But judges transgress legitimate borders and, when sharply challenged, hide behind contempt power and stultify, even trivialise, the pragmatic wonder of public interest litigation (PIL). The serendipity of PIL, midwifed by judicial activism, has fascinated other jurisdiction.
Our radical constitutional culture of judicial power has global validity and all instruments of international vintage may interpretatively be incorporated into municipal laws, given the luminous activism of the Bench. New dimensions of jurisprudence await exploration once UN instruments stimulate Indian judicial activism. Of course, judicial absolutism is destructive of the legitimacy of judicial power even as judicial megalomania tends of populism, excessivism and trivialism. In the early days of conservative judicialese, we came across the judicial proprietary, even as in the flashy novelty of later days we came across judicial ultra-interventionism.
What is the Golden Mean? Sathe strives to expose transgressions and expound the sound principles and guidelines, which should govern sober activism. Progressive judicial activism, as against regressive judicial passivism, found its finest hour when, during the post-Emergency era, the Court swung into action giving wider access to justice innovating more affirmative procedures, and moulding dynamic remedies so that ill-starred, alienated and disabled masses could move the court directly or by NGO proxy, seek relief for a whole group of affected people, aggrieved not as injured individuals but as persons with concern.
The introductory chapter has wide coverage and deals with judicial review as a creative instrument of social justice. Writes Sathe: "Post-Emergency judicial activism was inspired by a philosophy of constitutional interpretation that looked at the Constitution not as a mere catalogue of rules but as statements of principles of constitutional governance. The provisions of the Constitution had to be read in the light of the principles that were supposed to underlie and transcend the formally enacted legal rules. The rights given by the Bill of Rights were therefore given maximum expanse so as to make them real expressions of liberty, equality, and justice. The preamble of the Constitution no longer remained a mere decoration but became the source of the basic structure of the Constitution and State actions could be scrutinized not merely in terms of their compatibility with specific provisions but in terms of their compatibility with the broad principles of constitutionalism such as secularism. The basic structure of the Constitution being an inarticulate premise of the Indian Supreme Court, its articulation requires reference to the preamble and the principles that emanate from it."
Judicial activism has been examined by the author from a historical perspective, viewed as a necessary adjunct of the judicial function, the concern of the court being the paramountcy of public interest. The learned author has done a thorough job tracing the historical roots of activism. In later chapters, the book covers other fundamentals of good governance as justifying judge power in action. "Secularism and judicial activism" is a chapter, which deserves an impartial study, especially after the Hindutva judgment. However, "Public Interest Litigation and Democratisation of the Judicial Process" have claimed an excellent chapter from the author. To dwell at length on the subject is for me, a delectable exercise. But restraint holds me back. "Largess — Site for abuse of power and like ethically significant aspects of social justice" have illumined the later pages of the book.
Prof. Sathe examines the legitimacy of judicial activism and here is the jurist in him striking a cautionary note. Not a requiem nor obituary but a note of meliorative optimism and democratic sanctuary, is the verdict of Sathe of PIL process: "At times, there have been protests but only when judicial activism seemed to impinge on the discretionary area of the politicians or civil servants. Clandestine moves were made to clip the wings of the courts by imposing restrictions on the eligibility of persons to file PIL but were withdrawn when there was public protest. There has been talk of streamlining judicial activism but the political establishment has not had either moral courage or political strength to strip the courts of their newly acquired power. This is because the court has carved for itself a niche in the hearts of the people. Why have people gone to court for the redressal of grievances that they should have known was beyond the power and function of the judiciary? Although the system of justice continues to be inegalitarian and inaccessible to a large number of people and hence PIL seems to be nothing more than tokenism, the people have reposed greater faith in judges than in the politicians. There have been disappointments with the Court, for example with its authorship of the settlement between Union Carbide Corporation and the victims of the Bhopal gas tragedy, which included the quashing of all civil and criminal cases against Union Carbide Corporation or with its decision during the emergency in A.D.M. Jubbalpore v. Shiv Kant Shukla, which we have discussed in Chapter IV. Yet, neither the political establishment nor the lay people have raised any objections against judicial activism. Criticisms against individual decisions have been made but not against judicial activism."
But when the judges uphold the Establishment, in its Executive viciousness and human rights violations, what do the people do? Biblically speaking: "When the salt have lost his savour, wherewith shall it be salted?" Here Sathe treads on the jurisprudence of Contempt of Court and Independence of the Judiciary — a mismatch popular with the Bench by a distortion of values: "Why should contempt action be taken if somebody says that there is corruption in the judiciary? If the people have the right to have an independent judiciary, do they not have a right not to have a corrupt judiciary? Is it not a fact that there are black sheep in the judiciary also? The corruption of the politicians has already polluted our democracy. But corruption of the judiciary is like the salt losing saltiness. Integrity and character of the judges is the backbone of the judiciary."
Independence of judges does not relieve the Court of enforcing the politics of the Constitution, certainly not of party ideology: "A judge need not be apolitical but she must be independent and fearless. She must also be impartial. How does the Constitution ensure that judges will be independent and fearless? By independent we mean free from any influence, political, social or economic. By fearless we mean that a judge should not have to be afraid of the consequences of her decisions. She should be susceptible neither to temptation nor to intimidation." A wise Sathe observation to put in perspective PIL is worth excerption: "True, sometimes the courts have gone beyond the scope of their powers. They have entertained matters they ought not to have entertained, and they have been guilty of populism as well as adventurism in violation of the doctrine of separation of powers. Such excesses ought to be prevented or minimized through judicial self-restraint. But in the present Indian scenario, excessive restraint and doctrinaire regard for separation of powers could also be disastrous. Ultimately what a court should entertain and what it should not must be governed by proper exercise of judicial discretion. Chief Justice Anand has cautioned against the excessive use of PIL. The judge said: Care has to be taken to see that PIL essentially remains public interest litigation and does not become either political interest litigation or personal interest litigation or publicity interest litigation or used for persecution."
In a grand conclusion Prof. Sathe, with a touch of juristic statesmanship, concludes: "Judicial activism is not an aberration. It is an essential aspect of the dynamics of a constitutional court. It is a counter-majoritarian check on democracy. Judicial activism, however, does not mean governance by the judiciary. It also must function within the limits of the judicial process. Within those limits, it performs the function of legitimising or, more rarely, stigmatising the actions of the other organs of government... ... " The judiciary is the weakest organ of the State. It becomes strong only when people repose faith in it. Such faith of the people constitutes the legitimacy of the Court and of judicial activism. Courts have to continuously strive to sustain their legitimacy. They do not have to bow to public pressure, rather they have to stand firm against any pressure." These noble delineations apart, judges are fallible, proud, even vindictive, though rarely so. "If we have good judges we have bad judges too." The Republic's glory rests in easy access to and early finality from the great Court which judicial activism, in daring and caring measure, ensures. The quest for justice and the conquest of injustice are best served by the democracy of judicial activism. Prof. Sathe has placed the laity and the legal community in lasting debt through 311 weighty, but not heavy, pages.
V. R. KRISHNA IYER
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