Why judicial activism matters

The Supreme Court of India will hear several constitution bench cases in the coming months. Chief Justice Ramana’s tenure as the Chief Justice of India was not momentous. As remarked by several journalists, scholars and academicians, the Supreme Court did not decide any case of significance during his tenure, despite having several matters of extreme constitutional importance before it: Declaring all Muslims as ‘backward classes’, Sikh reservation in Punjab, reservation for economically weaker section, and the religious right to excommunicate dissidents among others.

These cases are not just of constitutional importance but also of political significance. Matters relating to reservation laws will have socio-political impact and pose an additional challenge of traversing the thin line between judicial responsibility and judicial overreach. The debate on the bounds of judicial review returned to limelight during the pandemic when the Supreme Court actively intervened in the policy decisions of the government sparking a debate on judicial activism. With the SC constitution bench set to hear major cases in the coming months, the debate will gain momentum among general public.

‘Why’ matters, not ‘what’

What is often missed by those who oppose judicial activism is ‘why’ the court resorts to activism and the role of judiciary in protecting the rights of citizens. The focus in a debate on ‘judicial activism’ is typically limited to ‘what’ the court did, without adequate conversation on ‘why’ the court intervened.

In other words, to determine if the judiciary overreached its limits, what is looked at is ‘what did the judiciary do?’. In Vishaka v State of Rajasthan (AIR 1997 SC 3011), the court laid down guidelines. In the Sabarimala decision it interpreted religious texts and decided the constitutionality of a religious practice.

However, to decide if the Supreme Court or High Court overreached, the right questions is not “What the court did?” but rather “Why the court did what it did?” The ‘why’ element is more important than ‘what’.

Articles 32 and 226 of the Constitution of India empower the Supreme Court and High Court respectively to enforce fundamental rights of persons. Important note here that articles 32 and 226 confer this power based on the ‘why’ question.

The intervention of the SC and HC is a constitutional duty in instances where there is a violation of fundamental rights. Hence, if the answer to “why did the SC or HC intervene?” is “for the enforcement of fundamental rights of persons”, then “what” the courts did is irrelevant. It is irrelevant even if the decision of the court amounts to ‘legislating law’ or interpreting religious texts. There is no provision in the Constitution that restricts the power and duty of the constitutional courts to enforce funda-
mental rights.

It is argued that there is a need to shift the focus from ‘what the constitutional courts are doing?’ to ‘why the courts are doing what they are doing?’ Asking the latter will render the debate over judiciary overreaching into the realm of religions, executive or legislature futile since protection of fundamental rights is the duty of the constitutional courts.

In times when the society is evolving faster than laws; in times when the fragility of human life is being exposed through pandemics and global warming; in times when the sustenance of human life becomes difficult with inflation and rising unemployment among other things; when the climate crisis is causing severe heat waves, floods, and poor harvest, the welfare of people becomes crucial.

The judiciary’s role in protection of fundamental rights matters today more than ever, even if it amounts to so called “judicial overreach”.

(The writer is a final year law student at Ramaiah College of Law, Bengaluru.)