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From Judicial Activism to Accountability

By Ravi Kishore | PUBLISHED: 08, Oct 2010, 13:29 pm IST | UPDATED: 15, Apr 2011, 13:29 pm IST

An act of the judiciary is termed as Judicial Activism when the Court goes beyond the black letter of the law and gives a ruling which furthers the cause of protecting the basic rights of all individuals. The seeds for judicial activism were sown in the case of Maneka Gandhi v. Union of India, wherein a seven judge bench of the Supreme Court held that all law must be just, fair and reasonable. After this landmark decision, courts have assumed an activist posture and come forward to the rescue of aggrieved citizens.

In a number of cases, subsequent to the Maneka Gandhi case, the judiciary interpreted the constitutional provision in its wider possible meaning to protect basic civil liberties and fundamental rights. The Emergency of 1975 and its aftermath constituted defining moments for judicial activism in India.

This was perhaps because looking at the excesses of the emergency; the Supreme Court woke up to the fact that it has been assigned the widest powers under the Constitution for protection of the Constitutional rights of citizens.

There was no reason why the court should not adopt an activist approach and issue directions to the State and Union governments and other governmental organisations and take positive action with a view of enforcing the fundamental rights of citizens. The judges of the Supreme Court realised that they must not merely isolate themselves in an ivory tower and neglect the needs and problems that plague our society.

Justice Bhagwati, who gave the judgment in the Maneka Gandhi, was the pioneer in the field of Judicial Activism in India, which gathered momentum in the 1980s and is most evident through the development of Public Interest Litigation. The concept of PIL first caught public attention, when the Supreme Court initiated a case by converting a letter written by the People’s Union for Democratic Rights, a civil society organisation.

The letter, addressed to one of Supreme Court judges, was based upon a report made by a team of three social scientists who were commissioned by the People’s Union for Democratic Rights for the purpose of investigating and inquiring into the condition under which workmen were employed in the construction work of various projects connected with the Asian Games.

In this case, the Supreme Court came down heavily based solely on this letter proving that justice is truly for all and not just the lucky few whose money gives them access to lawyers.

Over time the common citizens discovered that the administration had become so apathetic and non-performing and corruption and criminality so widespread that they had no recourse except to move the courts through PIL, enlarging the field for judicial intervention. It is for this reason that Public interest litigation and judicial activism have touched almost every aspect of life.

Be it the case of bonded labour, rehabilitation of freed bonded labour, payment of minimum wages, protection of pavement and slum dwellers, juvenile offenders, child labour, illegal detentions, torture and maltreatment of woman in police lock-up, the implementation of various provisions of the constitution, environment problems, the courts took cognizance of each case and laid down various judgements to protect the basic human rights of each and every member of the society.

Here, it is important for us to keep in mind the social milieu of the times. These judgments came at a time when in spite of all constitutional provisions and other enactments, socio-economic justice remained a distant dream for the poor and downtrodden, and restored people’s faith in our judiciary making the Courts accessible to the common man, who realised that the Courts are not meant only for the rich and the well-to-do, for the landlord and the gentry, for the business magnate and the industrial tycoon but they exist also for the poor and the downtrodden, the have-nots and the handicapped and the half-hungry millions. It was only the moneyed who had so far had the golden key to unlock the doors of justice. But now, for the first time, the portals of the court had been thrown open to all.

As the years passed, the Courts continued this trend. The scope of the fundamental rights enshrined in our Constitution, was further enlarged to encompass a wide range of rights. An interesting example of this was the case of PUDR v. Union of India, wherein the Supreme Court interpreted the freedom of speech and expression to include expression through the exercise of voting. The Court went on to say that this right could be fully enjoyed only when the voters had the requisite information about the candidates.

This trend gained further momentum in the post-1989 period due to the decline of the executive after the emergence of unstable coalition governments and the regionalisation, ruralisation and criminalisation of Indian politics. The electronic media also played an important role in strengthening this phenomenon by building public opinion in its favour. Post-1991 the processes of liberalisation, privatisation and globalisation  also helped the Supreme Court in gaining strength and in asserting its authority.

The great contribution of judicial activism in India has thus been to provide a safety valve in a democracy and a hope that justice is not beyond reach. There could be no doubt about the fact that judicial activism had come to stay in India and would prosper as long as the judiciary was respected and  not undermined by negative perceptions, which had overtaken the executive and the legislature.

No doubt law regulates the society, but some time society also regulates law. With the coming of the new millennium and the information age, there was a shift in public perception. Increased awareness has led the citizens of India to look for transparency and accountability not just in the government, but all organs of the state and this included the judiciary as well. The earlier approach that the judiciary was beyond reproach was not acceptable anymore.

The judiciary was to be treated as any other organ of the state. There was concern among the public about lack of transparency in judicial appointments and a sense of increasing unease because of a lack of a credible mechanism to deal with serious complaints against the higher judiciary.

As Plato has quoted, "Power corrupts and absolute power corrupts absolutely" and in many ways this absolute power had come to be vested in the higher judiciary.

Since the aim of all state agencies is to serve the public, in keeping with the times, it was thought to treat the judges as public servants in a sense and make them accountable. The recent Delhi High Court judgment by justice Ravindran Bhatt directing the judges to declare their assets is clearly an outcome of this shift in public perception. Another instance is the ongoing case of Dinakaran, Chief Justice of the Karnataka High Court who has been accused of land grabbing. These steps, though perhaps a bit late, are encouraging.

The task of the government is to work for the betterment of the population of the country. The cornerstone of a democracy is transparency in the governing process. This principle was clearly reflected in the rulings of the Supreme Court, which fought for accountability in the governing process through judicial activism, using PIL as a tool.

Today, this notion of accountability has grown to encompass the judiciary as well. It is no longer only the legislature which is sought to be held accountable, but the entire machinery of the state. Although our system is by no means perfect, we should pride ourselves for being citizens of a democracy, in which public interest is valued and transparency in the workings of the state, is fought for at all levels.