On Judicial Activism

I have recently had the chance to collect some thoughts on activism by the Supreme Court in this recent article in the Times of India.

In this article, I argue that there are three key areas in which our SC differs significantly from its counterparts in other constitutional democracies. One of these differences with regard to justiceability of a subject matter clearly points towards greater activism. The second difference, pertaining to the volume of cases, suggests that our SC may appear to be more activist than it really is. Finally, in terms of intensity of review, I argue that our Supreme Court may actually be more deferential than activist.

I also note the special duty that academics have in holding judges to account:
“We must demand [of judges] that their judgments are based on sound reasons, and are unaffected by fear, favour or public opinion. Their accountability, however, is policed not by politicians but by the academy. Barring a few exceptions, our academia in general and legal academia in particular, has not always performed this scrutinizing duty diligently. However, the sheer volume of decisions makes it difficult for judges to write sound judgments and for academics to criticize them.”

Three important issues that I did not discuss in this short newspaper piece: first, the important judicial appointments debate and its impact on judicial diversity and activism. Do women, dalit and minority judges decide differently? Do they tend to decide differently? Is the current appointments system less conducive to diversity?

Secondly, it will be interesting to see how many ‘remedies’ that appear in judicial orders, especially in socio-economic rights cases, were in fact just a judicial insistence that governmental policy (either already in place before the litigation, or crafted during the litigation and in response to it) be implemented. There may be an under-theorised dialogic model of adjudication already taking place in our courts.

Finally, we seem to have a majoritarian rather than a counter-majoritarian court. What else explains its relative success with socio-economic rights but a relatively poor record on civil liberties?

I will be grateful for comments.

Written by
Tarunabh Khaitan
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  • An enjoyable and informative read. On your first point, I think what's important to note here is that the Supreme Court does not claim that it has the power to frame policy (indeed, in the recent CVC decision, Kapadia CJ begins his judgment with the words to the effect that this Court will not sit in judgment over legislative policy). What it does do is couch what me commonly perceive to be policy decisions *in the language of fundamental rights violations*. So the decision on CNG will be stated to turn upon the fundamental right to life which, by extension, includes the right to a clean environment. Whether this is justified is debatable – indeed, Professor Dworkin in Chapter 4 of "Taking Rights Seriously" argues that the same "aim" may be either a matter of principle or a matter of policy in different constitutional schemes.

  • I appraise the views of the author of the article, but the main point missed out by him is that though the court has mentioned that it will decide on the legality of the matter and not the policy question, but still it has gone beyond the statute for appointment and has stated that the dignity of the office should be maintained, which is not covered by the statute as the procedure was followed, but the court has gone into laying the law.

    This is explained in the blog named "http://thelawyersextravision.blogspot.com/"

    The other important matter is that it was a constitutionally important matter and should have been decided according to Article 145 read with supreme Court rules which states that such matter is to be decided a constitutional bench which is not followed as as in the recent judgement of euthenesia.

  • thanks all for very helpful comments. just a few broad responses:

    – the hypotheses/hunches that i present are based on (untested) broad generalisations. there will be plenty of cases that are exceptional, my attempt is only to identify what i believe are broad trends.

    – i think there is a difference between 'jurisdiction' and 'justiceability'. a matter may be within the jurisdiction of a court, but may yet be non-justiceable (or justiceable only in a particular manner).

    – i think, under certain circumstances, constitutional courts are entitled to do go beyond express statutory language. the main concern is to identify when and how they should be entitled to do so. statutory interpretation is a concern for any account of separation of powers, but we need to say much more, especially in the context of constitutional courts.

    – madhav, the abstract of your paper suggests that it does indeed throw greater light of some of the issues i have identified, and i will try to read it shortly.

  • Mr Tarunabh khaitan, I agree with yur kind concern, but still I want to suggest that your statement " i think, under certain circumstances, constitutional courts are entitled to do go beyond express statutory language. the main concern is to identify when and how they should be entitled to do so." it seems to be improper as the court has to first identify whether the procedure is just fair and reasonable and if it is as accepted by the court in the present case, then the procedure has to be followed, no court can do anything when procedure has been followed moreover the Supreme Court has always been in a pratice of getting into policy grounds in the name of legality of matter.

    Even assuming Mr. Khaitan statement to be true then there is a old doctrine that "A person is innocent till found guilty, and in the present case he is accused of a offence and is not proved guilty." So how can the appointment be quashed.

    I agree with your point if I was a philospher and wrote on natural justice principles but I am a lawyer and has to take legal grounds and in this case there is no legal ground.

  • dear 'A Student', i repeat what i said earlier, i am not commenting on any particular case (not even the CVC appointment case – although i do realise that my article was published by the newspaper in that context, and *they* gave it a title that may be misleading). i have read the case only cursorily, need to look at it more carefully to express an opinion on that case itself.

    the statement that you highlight was said with this in mind: constitutional courts don't just implement statutes, they also interpret and apply the constitution (its rules as well as its principles – i think dworkin got this right). sometimes the task of enforcing the constitution may require them to go beyond the express demands of the statutory language (i have a case like pragati varghese in mind). that is all i intend to say, at a broad level. i have not paid close attention to the merits of the CVC case, you may well be right there are problems with the judgment. on the other hand, it may be possible to justify the judgment. you may have to hold on to your comments until one of our bloggers decide to post on that case specifically.

  • Dear Tarunabh,

    Is it even a case of going beyond the "express language" of the provision? Is it not reasonable to assume that if the framers of the Constitution used words as broad as "equality" or "life", they themselves intended to lay down only broad "concepts", the specific "conceptions" of which would be fleshed out by judges in later days, based on prevailing institutional practice, precedent and the morality of the constitution?

  • dear gautam

    absolutely. i used 'express language' in the statutory context, in my example, the indian divorce act. so, in pragati varghese the judges went beyond what the express language of the divorce act permitted, but that was justified because of their constitutional obligations. same with the 'reading down' in naz foundation.

    when it comes to the language of constitutional provisions, i am certainly not an originalist (at least in its narrow sense), and whole-heartedly agree with the important point that you make.

  • Tarunabh, very interesting questions! The first one, especially. I've been trying to think through whether women judges do decide differently, but have been coming up with a bunch of obstacles in studying it empirically. For instance, is it only that they judge 'differently' or would we risk essentialising a 'woman judge's voice'? That said, there is anecdotal evidence to show that women judges have been less vocal on women's issues for fear of being branded 'radical' or 'feminist' and therefore, being dismissed as a serious judge.

  • Tarunabh:

    Your three distinguishing factors, are perhaps, conspicuous statistically as well.

    My own observation is that barring only a few judges, who follow the "rule of law", rest are merely adjudicating as courts of equity.

    On mischellenous days, Monday and Friday, several petitions whihch involve a substantial question of law (as the law mandates for grant of leave) are dismissed and vice versa.

    I have been unable to ascertain a consistent pattern in a single courtroom in the Supreme Court, which in my view, is attributable to the increasing number of cases allocated to each judge.

    To use a candid expression, there are court rooms where the judges conduct themselves as "demi gods" and have no regard for the "rule of law".