Context: With the decline of purity in politics and the onset of corruption and inefficiency in public services, the judiciary has been emboldened into assuming more and more power over the legislature and executive. 

What is the issue?

  • Ever since the Covid-19 outbreak reached India, the Supreme Court and High Courts have been flooded with public interest litigations (PILs) demanding various measures for tackling the crisis.
  • Appearing for the Centre in the Supreme Court in a PIL on migrant distress, the Solicitor General of India slammed critics, questioning their motives and credentials and criticised High Courts saying that some “are running a parallel government”.
  • “Running a parallel government” refers to a slew of directions from as many as 19 High Courts to governments - at the state and the Centre. 
    • These range from stopping coercive action during lockdown to addressing migrant distress to checking lacunae in testing strategies.

Constitutional background:

  • In a democracy, sovereign power of the state rests on three pillars — legislature, executive and judiciary. 
  • The judiciary is the trustee of democracy and fundamental rights of the people. It has the power of judicial review over the legislature and the executive.
  • The Constitution of India provides for judicial review under Article 13, Articles 32 (Supreme Court) and 226 (High Court). 
  • Article13(2) – The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void. 
  • Article 32 of the Indian Constitution enshrines this provision whereby individuals may seek redressal for the violation of their fundamental rights.
  • The Article 226 empowers High Courts to issue directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Such directions, orders or writs may be issued for the enforcement of fundamental rights or for any other purpose.

Judicial activism: It is an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions. Eg: Suo moto (on its own) cases, Public Interest Litigations (PIL), new doctrines etc).

  • Judicial Activism has no constitutional backing.  Indian Judiciary has invented it.

Examples of Judicial Activism

  • The case of Kesavananda Bharati v. State of Kerala: While ruling that there is no implied limitation on the powers of Parliament to amend the Constitution, it held that no amendment can do violence to its basic structure (the "Basic Structure Doctrine"). 
  • Further, it established the Supreme Court's right of review and, therefore, established its supremacy on constitutional matters..

Ethos of judicial conduct

  • The oath taken by every judge is inter alia of being bold and independent
  • The judges shall never succumb to any pressure
  • The public opinion reaching the judges through media reports or the utterances of influential people shall neither force them to act nor deter them from acting
  • They shall act or refuse to act solely on the dictates of their own conscience

Significance: PIL and judicial activism have enabled the people to secure prompt relief and protection of their rights, which they failed in securing from the other two wings of governance.

Shortcomings of judicial activism

  • Slows governance: It may obstruct the normal functioning of the executive and divert the attention of public officials to collecting material for being placed before the court. 
  • Fear among officials: Most competent, knowledgeable and bold officials who would have come up with innovative ideas to salvage an unusual situation are hesitant to act for the fear of being called upon to explain their action or inaction before the judiciary.
  • Judicial overreach: There is a very thin line between judicial activism and judicial overreach, as when the activism crosses its limit and starts becoming judicial adventurism it takes the form of Judicial overreach.
  • Examples of Judicial Overreach: National Anthem Case:The Supreme Court on December 2016, passed its judgment in the case of Shyam Narayan Chouksey v. Union of India, which makes it mandatory, that:
    • All the cinema halls in India shall play the National Anthem before the feature film starts along with other directives

Judiciary's limitations: 

  • Unelected: Judges are appointed and not elected. 
  • No independent investigation: The judiciary does not have any investigation agency of its own to verify the truth of the averments made before it and assess the impact of its commands on people and the other two wings of governance. 
  • Subjectivity: The notions formed by the judges and reflected in their opinions depend on their own teachings and upbringing, which may not necessarily be reflective of the public opinion, which in a democracy can be voiced only by the elected representatives of people. 
  • Unchecked errors: An error committed by the legislature or executive is capable of being corrected either by themselves or by the judiciary in the exercise of its power of judicial review. But an error in a judicial order, may be, may not be capable of being corrected with that ease. 

Way forward:

  • Pandemic crisis and judiciary: The judiciary should be extremely cautious to see that it is not unwittingly falling into the trap of politically motivated pleas.
    • A saner jurisprudential precept is: Do not issue a decree that cannot be enforced or the execution whereof the court cannot supervise!
    • The three wings of governance ought to trust each other and should not begin with the assumption that the other wing of governance must have faltered.
  • Supporting public functionaries in a series of crises: The coronavirus is not alone, there are earthquakes, fires, locust attacks, Amphan and so on. At the top are our neighbouring countries that are threatening us. So the judiciary should stand up to the challenge.
  • Countering negativity in media: 
    • A casual view is formed that the government has failed to act with the speed and vigour that some expect. 
    • The media — print and electronic — may have failed in adequately highlighting the positive part of the executive’s actions. 
    • Such highlights are not to be seen in isolation, segregated from immensely positive governmental planning and programmes.

Aharon Barak, President of the Supreme Court of Israel has said: “the judiciary is itself a branch of the state — are all that can prevent a crisis.”  And he sounded a note of caution to judges when he said, “…enthusiasm is rarely consistent with impartiality and never with the appearance of it”.

Therefore, unchecked judicial activism may threaten the delicate balance of power between the three organs of the state.