Thursday, September 20, 2012

Judical Activism - Part 1

The  news channel between 8:00 PM and 9:00 PM seems to be the few watch-worthy channels  surpassed only by National Geographic and The Discovery families. During this time all channels seem to have debates between various panellists most of whom are familiar faces akin to the Page 3 mugshots  one sees in the daily rags.
The low quality of debate never ceases to appal me.  After all most of the panellists are supposed to be “experts” in some fields  and I guess the  low quality come from low quality of thought process and not one of communication, . One  subject which seems to hog the limelight nowdays is that of “Judicial Activism”. This is a subject which has interested me since some time and hence maybe debates around this subject are all the more engaging to me.
What stands out in these discussions is the poor or rather lack of knowledge of elementary civics by participants and panellists.  I have never validated this, but I feel that in a reasonable sample size, 50% of the sample would not know the difference between the roles and responsibilities of the different organs of the government.
What I find surprising is the universal accolade by common citizens to the judicial system in trying to “clean up” administration. In the short term it is no doubt true that the quality of life has increased because of this activism, however if one sees this in the larger perspective  it is a complete break down of constitutional institutes and fraught with danger for the republic.
Let us start by getting a clearer view of the law and the organs. However complex the constitution and the language in it, one must keep in mind that law is basically common sense based around a few principles and  there has hardly  been any  radical innovations in the last many decades.
To give a dummys views,  the laws are based on the constitution which Has created three organs. One to create new laws (Legislate) one to implement the laws (Govern) and one to  interpret the laws,safeguard the constitution  and ensure that justice prevails(Judiciary). The roles of each organ is cleary defined and if any of these organs over step their roles, it is imperative to rectify this immediately. At the end of the day, the people are the ultimate rules and have the power to change anything by their power to vote. This brings a system of checks and balances.
Let us now get into the phenomenon of  judicial activism which seems to be more pronounced in India.
Wikipedia is the first choice of  research and though it can be hardly called an authority has this to say about Judicial Activism . "Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint"
I would not subscribe to the above view and would define Judicial Activism as a state where the judiciary takes a much broader view of their powers and tries to reach out justice to the people.
Let us try and understand a bit deeper on what is the role of the judiciary as  a prelude to the rest of the article. To put it very simply the judiciary has to:
  1. Ensure justice (both in criminal and civil matters) is done according to law
  2. Interpret the existing laws when there is a doubt therof
  3. Safeguard the structure of the constitution and ensure that the citizens’ rights are protected.

What the judiciary is not supposed to do and would be overstepping their role  if they do is:

  1. Create laws or judgements that are perceived as laws
  2. Make decisions outside laws
  3. Get into policy and administration
  4. Be the prosecutor, investigator and judge

A democracy as we were taught in school had 3 pillars as mentioned in the opening paragraph of this article. There is of course the  4th pillar which is the press. An objective assessment of these pillars would  undoubtedly indicate that all pillars are tottering if not already fallen.
The fact that the legislature has stopped legislating and the  government has stopped governing is well known.  We could argue that the press has played an important role in exposing many institutional misdeeds to the citizens and I will defer my perceptions on breakdown on this front. What is not well known is the breakdown in the judiciary which  will be explained in more detail in the next part of this post.


  1. Deepak, well written... The problem is systemic. We as Indians (largely and yes, I'm at the risk of stereotyping) do not want to be accountable or hold accountable to our actions; the systemic changes are tough and take a long time, but that is the only way to sustain it without quick fixes.
    We need to find a set of people who would govern better. This implies educating the rural masses, the intent to vote every time and on every issue and actually do it and then hold the elected rep to their promises. This doesn't mean things would change quickly, but it is the toughest process we need to go through; and in my view, the smaller-set of items, we legislate the easier it becomes to Govern and also for us to hold them responsible for those. So, the answer may not be as simple as "free market" or "less bureaucracy" or "less constraints" but sure is a good place to start.
    Instead, we go the opposite, we have so many rules and laws and continue to legislate more. It is so muddled that its out of reach of common man and we look at someone else to help us get there - which is why we've so much of judicial activism. The problem with this approach is, it is inherently not sustainable... It is so dependent on the gray-areas and how the guy in the chair is going to interpret it. And how the next guy in the chair will over-turn it !

    Take care, hope things are going well with you + family !

    (btw, I'm going to link your article in my blog and put in my comments as article too :-))

    1. Good to hear from you Gautham. I dont know if you remember, it is almost a decade back when someone mentioned that we make new processes whenever someone violates a process. The correct cure is to make that person follow the process and not make new ones. The situation in governance is similar. We have lots of existing laws and need to ensure adherence, simplify the laws thereby promoting adherence. WHat we dont need are new laws, agencies etc.
      Just like software development:-)

  2. Deepak :-) I converted my comment into an entry on my blog :-)