In India, the opening up of access to courts to the poor, indigent and disadvantaged sections of the nation through Public Interest Litigation (PIL), is unexceptionable judicial activism. From 1979, the judiciary led by the Supreme Court in India became relevant to the nation in a manner not contemplated by the makers of the Constitution and became an active participant in the dispense of social justice. But it has now been diluted to interfere with the power of the government to take decisions on a range of policy matters. With PIL, the common man, the disadvantaged and marginalised sections of society had also easy access to the Court with the help of social activists.
Recently, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders banning the pasting of black film on automobile windows. The Court has ordered the exclusion of tourists in the core area of tiger reserves. All these managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.
In its most activist and controversial interpretation of the Constitution, the Supreme Court took away the constitutionally conferred power of the President of India to appoint judges after consultation with the Chief Justice, and appropriated this power in the Chief Justice of India and a collegium of four judges. In no Constitution in the world is the power to select and appoint judges conferred on the judges themselves.
Even proceedings of Legislatures are controlled by the Court. In the Jharkhand Legislative Assembly case, the Supreme Court ordered the Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct proceedings according to a prescribed agenda and not to entertain any other business. Its proceedings were ordered to be recorded for reporting to the Court. These orders were made in spite of Article 212 of the Constitution which states that Courts are not to inquire into any proceedings of the legislature.
The Court has for all practical purposes disregarded the separation of powers under the Constitution, and assumed a general supervisory function over other branches of governments. The temptation to rush to the Supreme Court and High Courts for any grievance against a public authority has also deflected the primary responsibility of citizens themselves in a representative self government of making legislators and the executive responsible for their actions. The answer often given by the judiciary to this type of overreach is that it is compelled to take upon this task as the other branches of government have failed in their obligations. On this specious justification, the political branches of government may, by the same logic, take over the functions of the judiciary when it has failed, and there can be no doubt that there are many areas where the judiciary has failed to meet the expectations of the public by its inefficiency and areas of cases.
Justice Jackson of the U.S. has aptly said: “The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching.” Unless the parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL which is so necessary in India, is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use.
The three branches of government viz. Executive, Legislature and Judiciary should learn to respect each other and confine themselves to their jurisdiction, democracy might very well end up in peril.
‘injustice anywhere threatens justice everywhere'.
to say what the law is, [not what the law ought to be].
This is the very essence of judicial duty ... John Marshall