Judicial Activism in India

A war of words has recently broken out between two branches of the Indian Government – the executive and the judiciary and looks like that the issues may not be resolved for a long time to come. Prime Minister Dr. Manmohan Singh and Chief Justice K.G. Balakrishnan defended their own turfs at a seminar in New Delhi recently.

My personal opinion is that the executive / legislature should decide the laws of the land and that the judiciary must interpret those in case of a conflict. If the judiciary finds the legislation as unconstitutional, it should simply strike it down and direct the executive to remedy the unconstitutionality. The judiciary however must not make policy decisions. All this is fair in academic terms, but in reality, in India, the executive branch has gotten used to taking decisions irrationally and purely for political gains without much regard for fairness.

The legislation allocating an arbitrary quota for the OBCs has been stayed by the Supreme Court and rightly so because a 76 year old census cannot be used as a basis for deciding any policy today. A previous judgment indicating that even the IX th schedule of the Constitution is not immune from judicial review is another example where in my view the so-called judicial activism is justified. It is also justified in cases that review purely political actions like dismissal of state governments under article 356 without regard for ground realities in state legislatures.

Unfortunately, such examples are not uncommon because successive administrations in the Centre over the years have shown little respects to laws of the land which they themselves enacted. In India, if you are privileged enough, you can almost break every statute in the book with impunity. The court system is so backlogged that everyone knows that it will take over a generation for any case to come to trial and if they have good influential lawyers, they would be able to get out with a minor slap on the wrist.

While in theory, judiciary overstepping its mandate may not be a good thing; but in India, unfortunately, that is the only branch of Government and even that mostly at High Court and Supreme Court level that citizens can somewhat trust to enforce their rights and receive justice. And until our political leaders mature enough to separate governance and politics, judicial activism is about the only hope for Indian people.