Judicial activism, say you?

The decision of the legislative and the executive to launch a joint attack on the judiciary for what they term as unwarranted judicial activism shouldn't come as a surprise to anyone. After all, when such skirmishes have occurred barely 2-3 years after the birth of the Indian nation, that things should now come to this is neither a matter of surprise nor of astonishment. However, it is definitely a matter of concern.

The Constitution is clear in its demarcation of powers between the legislature, the executive and the judiciary. The legislatures are empowered to create laws, the executive to implement them, and the judiciary to ensure that all and any laws created are within the ambit of the Constitutional framework, as also that the executive is implementing the laws in the best and most effective manner. There is no ambiguity in this matter.

The authority of the judiciary to review the statutes created by the legislatures empower it to strike down such statutes as may be deemed as violating the provisions of the Constitution. Judges may strike down a statute, sure, but on what reason? And who is to say that their interpretation of the provisos of the Constitution is correct?

The judiciary may basically adhere to either of the two most prominent interpretative theories in law, viz. strict constructionism and living constitutionalism. Basically, the former asks of the judiciary to view statutes solely in view of their actual content, and not question the motive or intent of the legislature behind bringing about the said statute. They may only view the validity of the statute in terms of its adherence to the letter of the Constitution. The latter on the other hand grants the judiciary the right to interpret the statute in view of the Constitution provisos, but at the same time, keeping in mind whether the provisos with regard to the present have been adhered to, i.e. whether the statute adheres to the spirit of the Constitution.

Whether the Indian judiciary follows the constructionist or the living constitutionalist approach is a matter of study. The current judicial environment points towards a slightly constitutionalist tilt, but whether this tilt can be viewed as activism is debatable.

Chief Justice John Roberts of the United States Supreme Court has made a very poignant statement regarding judicial activism. He says and I quote, “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” But this doesn’t mean that the judiciary may not discharge their responsibility of interpreting the law and enforcing the limits the Constitution places on either the legislature or the executive. Judicial vigilance in upholding constitutional rights is in no sense improper activism. It is not judicial activism when the courts carry out their constitutionally-assigned function and overturn a decision of the Executive or Legislature in the course of adjudicating a case or controversy properly before the courts.

The courts, in having convicted two sitting Members of Parliament, have displayed maybe a sense of activism, but whether it is unwarranted activism is a matter of introspection. The legislature is deemed the representative of the people, and that within its folds, protected by its privileges, individuals continue to display wanton disregard for the law, flouting it day in and day out, is a distressing and disturbing thought. In such a matter, should not the judiciary be empowered to strike down or at least strip such individuals of such unjustifiable protections? Should not it be allowed to demonstrate that although Parliament is supreme as regards the law, it is Salus populi suprema lex esto (let the good of the people be the supreme law), which is the ultimate guiding principle?

The question is laid, and answers are sought. Time will tell the fate of this conflict.