Is Judicial Activism Overrated?

Posted on October 5, 2012 in Society

By Neeraj Ramchandran:

Dr.B.R Ambedkar had billed Article 32 (Right to constitutional remedies) as the “Soul of the Indian Constitution”. In saying so, he underscored the importance of the role of the Judiciary in acting as the constitutional watchdog.

Lately there has been a spurt in the number of cases in which the Supreme Court has taken suo moto cognizance of the matter. Symbolically, this means that the Supreme Court also acknowledges the incompetence or failure of the concerned Government bodies but reassures the public, just like Shahrukh Khan in the movie of the same name, “Main Hoon na!” Whether we should or shouldn’t regard this as a disturbing trend remains a moot point.

Without a shade of doubt, it can be said that the Indian public has been a beneficiary of judicial activism. But it wouldn’t be too prudent to go by the ends-justify-the-means approach in a sensitive issue like this. The reason why there is such a hue and cry over judicial activism is that, it is in principle, seen as something that seizes the power of an appointed agency of the government (thereby damaging democracy and constitutionalism) albeit for the larger benefit of the society. Whatever be the case, the spirit with which the Judiciary carries out activism can’t be called to question on the grounds of morality. In fact, the basic premise on which judicial activism is founded is to stand for those, who can’t stand for themselves. It seeks to eliminate the fog between the judiciary and the hordes of poor and needy, which the Executive quite adeptly uses to conceal its own incompetence.

Since mythological times, whoever has possessed special powers has also exercised it with careful restraint. Lord Shiva’s third eye and Arjuna’s Brahmastra which were used sparingly, only when specific situations arose, corroborate the point. It wouldn’t be too far-fetched to say that Judicial Activism is also a “Special power” as it seeks to give the Judiciary an upper hand in the developments that follow. Therefore the Supreme Court and the High court should take care to ensure that they don’t exceed their brief in Judicial Activism (even though it hasn’t been specified anywhere).

The good thing is, the masses have once again gained faith in the Judiciary and have, quite conveniently, chosen to forget the famous lines of Sunny Deol “Tareekh pe tareekh” from the movie Damini which had a bigger role in creating a negative impression about the Judiciary than people’s own experiences. By taking a proactive, progressive and pro-people stance, the Judiciary has emerged as ‘a messiah of the masses’ to such an extent that a common quip in social circles goes as “In God we trust, for the rest we have Judicial Activism”. Attached to this belief comes the caveat that, not all matters of concern can be taken up through a similar route. The executive and legislature on their part must stop passing the buck and take charge of the situation to ensure that the most important virtue in a democracy, ‘Faith’ doesn’t get eroded.