Evolution of Judiciary: The Rise of Judicial Activism
The evolution of the Indian judiciary can be segmented into distinct phases. The period post-1980 marks a significant shift, often termed the phase of ‘Judicial Activism’. This phase did not emerge in a vacuum but was a product of the prevailing political and social conditions of the time.
- Political Context and the Executive-Legislative Vacuum:
- Post-Independence Dominance (1947-1967): The Indian National Congress enjoyed unparalleled political dominance at both the Centre and in the states. This era, as described by political scientist Rajni Kothari in “The Congress System in India” (1964), was marked by a high degree of public trust in the political executive to deliver on the promises of the newly independent nation.
- Decline and Crisis (1967-1980): The period after 1967 witnessed a fragmentation of the Congress system, with opposition parties forming governments in several states. This led to political instability. The imposition of the National Emergency in 1975 by the Indira Gandhi government marked a low point for Indian democracy, severely curtailing fundamental rights and undermining institutional integrity. The subsequent victory of the Janata Party in 1977 was a popular mandate against authoritarianism, but their government was short-lived and collapsed due to internal contradictions.
- The TINA Factor and Public Disillusionment: By 1980, the Congress returned to power, not necessarily due to a resurgence in its popularity, but because of what political commentators termed the ‘TINA’ (There Is No Alternative) factor. Decades of unfulfilled promises, rising corruption, the politicization of crime, and the criminalization of politics led to widespread public disillusionment with the legislative and executive branches. This created a significant “governance vacuum” or “institutional vacuum.” As per the constitutional framework, this void was progressively filled by the judiciary.
Judicial Activism: Concept and Manifestation
Judicial Activism represents a proactive approach by the judiciary to uphold citizens’ rights and promote justice, often by stepping into areas traditionally reserved for the legislature and the executive.
- Definition and Scope: It signifies the judiciary’s departure from a purely interpretative role to a more participatory one in governance. Jurist Upendra Baxi has described this phenomenon as “Social Action Litigation,” highlighting its role in giving a voice to the marginalized and enforcing the accountability of other state organs. It is essentially the judiciary compelling the executive and legislature to perform their constitutional obligations.
- Judicial Review vs. Judicial Activism:
- Judicial Review: This is a foundational power, explicitly rooted in the Constitution under Articles 13, 32, 136, and 226. It is primarily a reactive mechanism where the court examines the constitutional validity of a law or executive action after it has been passed or taken. The landmark case of Kesavananda Bharati v. State of Kerala (1973) firmly established judicial review as a part of the ‘basic structure’ of the Constitution, making it unamendable.
- Judicial Activism: This is a proactive approach. It often originates from judicial review but goes a step further. Instead of merely striking down a law, the activist court may issue guidelines, directives, and commands to the executive. This can lead to what is termed Judicial Legislation, where the court, in effect, creates law to fill a legislative gap. For example, the Minerva Mills v. Union of India (1980) case was a classic instance of judicial review, but it also set the stage for activism by asserting the court’s power to review even the proclamation of a National Emergency on grounds of mala fide intent, thus checking executive overreach.
Public Interest Litigation (PIL): The Instrument of Activism
The primary tool for judicial activism has been the Public Interest Litigation (PIL).
- Dilution of Locus Standi: Before the 1980s, the judiciary strictly adhered to the principle of locus standi, a Latin maxim meaning ‘place to stand’. It stipulated that only a person whose own rights were directly violated could approach the court. This principle acted as a significant barrier for the poor, marginalized, and disenfranchised who often lacked the resources or awareness to seek justice.
- Pioneering Role of Justices Bhagwati and Iyer: In the late 1970s and early 1980s, Justices P. N. Bhagwati and V. R. Krishna Iyer championed the concept of PIL. They argued that in a country with widespread poverty and ignorance, procedural technicalities like locus standi should not impede access to justice. In S.P. Gupta v. Union of India (1981), often called the First Judges’ Case, Justice Bhagwati articulated the philosophy of PIL, stating that any member of the public acting in good faith could approach the court on behalf of those whose rights were being violated. He famously demonstrated this by treating a simple postcard highlighting the plight of undertrial prisoners in Bihar as a writ petition in the Hussainara Khatoon v. State of Bihar (1979) case, which led to the release of over 40,000 prisoners.
Performance and Evolution of PIL
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The 1980s: Focus on Civil and Political Rights:
- The initial wave of PILs focused on the rights of the deprived and oppressed.
- Asiad Workers Case (1982): In People’s Union for Democratic Rights v. Union of India, a PIL was filed regarding the sub-standard working conditions of laborers constructing facilities for the 1982 Asian Games in Delhi. The Supreme Court held that the non-payment of minimum wage was a violation of Article 23 (right against forced labour).
- Prisoners’ Rights: The Supreme Court passed several judgments to improve the inhuman conditions in prisons and protect inmates from torture and abuse, establishing that prisoners do not lose their fundamental rights.
- Fake Encounters: The judiciary ruled that state officials, including the police, do not enjoy sovereign immunity for extra-judicial killings and that the state is liable to pay compensation to the victims’ families.
- Shriram Foods and Fertilizers Industries v. Union of India (1986): Following an oleum gas leak, the Court established the principle of ‘absolute liability’ for industries engaged in hazardous activities, a significant step in environmental jurisprudence.
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The 1990s: Expansion to Socio-Economic and Cultural Rights:
- This decade coincided with India’s Liberalisation, Privatisation, and Globalisation (LPG) reforms. PILs began to address issues arising from this new economic paradigm, focusing on protecting workers, tribals, and the environment from corporate exploitation.
- Indra Sawhney v. Union of India (1992): The Court upheld the 27% reservation for Other Backward Classes (OBCs) but introduced the concept of the “creamy layer” to exclude the affluent among them.
- S.R. Bommai v. Union of India (1994): The Court checked the misuse of Article 356 (President’s Rule) by ruling that the proclamation is subject to judicial review and that the test of a government’s majority must be conducted on the floor of the House.
- Jain Hawala Case (Vineet Narain v. Union of India, 1997): The SC gave directives to ensure the independence of the Central Bureau of Investigation (CBI) and recommended statutory status for the Central Vigilance Commission (CVC).
- Vishaka v. State of Rajasthan (1997): In a landmark example of judicial legislation, the Court, noting the absence of any law on the subject, laid down comprehensive guidelines to prevent sexual harassment of women at the workplace. It declared that these guidelines would be treated as law until Parliament enacted a specific legislation.
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The 2000s and Beyond: Deepening Intervention:
- The scope of PIL expanded exponentially, with the judiciary intervening in matters of governance, environment, and policy.
- Environment: In M.C. Mehta v. Union of India, a series of judgments led to directives such as the mandatory shift to CNG for public transport in Delhi to curb air pollution. The Right to a healthy environment, including safe drinking water, was interpreted as an integral part of the Right to Life under Article 21.
- Governance and Corruption: The Supreme Court cancelled 214 coal block allocations in the Coal Allocation Case (2014), citing arbitrariness and illegality. It struck down the appointment of a CVC for not adhering to the institutional integrity requirements laid down in the Jain Hawala case.
- State Policy: In Nandini Sundar v. State of Chhattisgarh (2011), the Court declared the deployment of tribal youth as Special Police Officers (in Salwa Judum) to be unconstitutional, stating that maintaining law and order is the exclusive domain of the state and cannot be privatized.
- The judiciary has also prodded the executive on complex policy issues, such as in the Jharkhand Assembly Case (2005) where it ordered the Speaker to conduct a floor test, and in another instance, asked the executive to explore the feasibility of the interlinking of rivers.
Misuse of PIL and Judicial Overreach
While PIL has been a powerful tool, its liberal use has led to criticism and charges of misuse and judicial overreach.
- Frivolous Litigation: PILs have been filed for publicity, private gain, or to settle political scores (e.g., a PIL seeking a re-vote after the A.B. Vajpayee government fell by one vote in 1999).
- Judicial Overreach: Critics argue that the judiciary, by entering into the exclusive domains of the legislature and executive, violates the principle of separation of powers.
- Directing the executive to explore a massive policy project like the interlinking of rivers or repeatedly urging the legislature to enact a Uniform Civil Code (UCC) are cited as examples of the judiciary stepping beyond its constitutional mandate.
- Such interventions can be problematic as the judiciary lacks the technical expertise, financial resources, and popular mandate to formulate and implement complex policies.
Weaknesses and Challenges in the Indian Judiciary
Despite its activist role, the judiciary itself is beset with several deep-rooted problems.
- Pendency of Cases: This is the most significant challenge. As of 2023, the backlog across all courts is nearly 5 crore cases. At the current disposal rate, it would take centuries to clear this backlog, undermining the adage “justice delayed is justice denied.”
- Judicial Corruption and Accountability:
- The impeachment process for judges of the higher judiciary (under Article 124(4)) is extremely rigid and politically contingent. No judge has ever been successfully impeached in India’s history (e.g., the motion against Justice V. Ramaswami in 1993 failed in the Lok Sabha).
- This near-absence of a robust accountability mechanism creates a perception of immunity.
- Appointment of Judges (The Collegium System):
- The current system of appointment, a product of the Second Judges Case (1993) and Third Judges Case (1998), is known as the Collegium System. It has been heavily criticized for being opaque, non-transparent, and fostering the “Uncle’s Judge Syndrome,” where nepotism and patronage allegedly play a role. It is argued that a few hundred families have dominated appointments to the higher judiciary. The attempt to replace it with the National Judicial Appointments Commission (NJAC) through the 99th Constitutional Amendment was struck down by the Supreme Court in the Fourth Judges Case (2015) on the grounds that it violated the independence of the judiciary, a part of the basic structure.
- Colonial Practices: The judiciary continues to follow practices inherited from the British era, such as long vacations (summer and winter) and the use of honorifics like “My Lord,” which are seen as anachronistic in a modern republic.
- Lack of Representation: The higher judiciary lacks social diversity. There is a significant under-representation of women, Scheduled Castes, Scheduled Tribes, and other marginalized communities, raising questions about its representative character. To date, India has not had a woman Chief Justice.
- Politicization of the Judiciary: The growing trend of judges accepting post-retirement appointments in government-controlled tribunals or as Governors raises serious questions about pre-retirement judgments and the independence of the judiciary. This is often described as the emergence of an “Executive Judiciary.”
Proposed Judicial Reforms
- Tackling Pendency:
- Increase the judge-to-population ratio. The Law Commission of India has recommended a ratio of 50 judges per million people, whereas India currently has around 21, with many positions vacant.
- Establish Regional Benches of the Supreme Court as suggested by the Law Commission to increase access to justice.
- Create a separate Constitutional Bench in the Supreme Court at Delhi to deal exclusively with matters of constitutional interpretation, while appellate work is handled by regional benches.
- Reforming Appointments:
- The debate over the Collegium vs. a revised NJAC continues. A more transparent and accountable mechanism that balances judicial independence with executive and public participation is needed.
- The creation of an All India Judicial Service (AIJS) for the subordinate judiciary is often proposed to attract talent and ensure standardized recruitment and training.
- Ensuring Accountability and Efficiency:
- Introduce performance audits for judges, possibly through a mechanism involving various stakeholders like lawyers, litigants, and civil society.
- Curtail long judicial vacations and modernize court procedures using technology.
- Address the “Uncle’s Judge Syndrome” by incorporating principles of diversity and positive discrimination in appointments to make the judiciary more representative.
Prelims Pointers
- Minerva Mills Case (1980): Supreme Court held that the proclamation of a National Emergency is subject to judicial review on the grounds of mala fide intention.
- Judicial Activism: Arose prominently in the 1980s in response to a perceived ‘legislative and executive vacuum’.
- Public Interest Litigation (PIL): A mechanism that relaxed the traditional rule of Locus Standi.
- Pioneers of PIL: Justice P. N. Bhagwati and Justice V. R. Krishna Iyer.
- Hussainara Khatoon v. State of Bihar (1979): Widely regarded as the first major PIL case in India, dealing with the rights of undertrial prisoners.
- People’s Union for Democratic Rights v. UoI (1982): Known as the Asiad Workers Case; interpreted non-payment of minimum wages as a form of forced labour under Article 23.
- S.R. Bommai v. UoI (1994): Curtailed the misuse of Article 356; made its proclamation subject to judicial review.
- Indra Sawhney v. UoI (1992): Upheld OBC reservation and introduced the “creamy layer” concept.
- Vishaka v. State of Rajasthan (1997): SC laid down guidelines against sexual harassment at the workplace, which were to be treated as law. This is a prime example of judicial legislation.
- Jain Hawala Case (Vineet Narain v. UoI): Led to SC directives for the autonomy of CBI and statutory status for the CVC.
- National Judicial Appointments Commission (NJAC): Introduced via the 99th Constitutional Amendment Act; struck down by the Supreme Court in the Fourth Judges Case (2015).
- Master of the Roster: A term referring to the administrative power of the Chief Justice of India to constitute benches and allocate cases.
- Recommended Judge-to-Population Ratio: 50 judges per million people (as per the Law Commission of India).
- All India Judicial Service (AIJS): A proposed service for recruitment of judges at the level of Additional District Judges and District Judges for all states.
Mains Insights
1. Judicial Activism: A Necessary Corrective or a Trespass on Separation of Powers?
- As a Necessary Corrective:
- Filling Governance Gaps: Judicial activism has been crucial in situations where the executive and legislature have failed to act, for instance, in environmental protection (CNG directive) and protecting human rights (undertrials, bonded labour).
- Upholding Constitutional Morality: The judiciary has often stepped in to protect the rights of marginalized groups and enforce constitutional principles against popular or majoritarian politics.
- Enforcing Accountability: PILs and activist judgments (e.g., Coal Scam, 2G Scam) have forced accountability on the executive, which might have otherwise gone unchecked.
- As a Trespass (Judicial Overreach):
- Violation of Separation of Powers: Critics argue that by engaging in policy-making (e.g., interlinking of rivers) and legislation (Vishaka Guidelines), the judiciary encroaches upon the domains of the legislature and executive, disturbing the delicate constitutional balance.
- Lack of Expertise and Legitimacy: Judges are legal experts, not technocrats or policy specialists. Judicial interventions in complex policy matters can lead to sub-optimal outcomes. Moreover, unlike the legislature, the judiciary is not a popularly elected body and lacks direct democratic legitimacy for law-making.
- Risk of Populism: There is a danger of the judiciary using activism to deliver populist judgments, which may not be legally sound or practically implementable, leading to a “tyranny of the unelected.”
2. The Collegium Debate: Independence vs. Accountability
- Arguments for the Collegium System:
- Ensures Judicial Independence: It is seen as a bulwark against executive interference in judicial appointments, thereby protecting the judiciary’s ability to act as a check on the government without fear or favour. The Supreme Court’s reasoning in the Fourth Judges Case was primarily based on this principle.
- Expertise in Selection: Judges are best placed to evaluate the professional competence, integrity, and judicial temperament of candidates for judgeship.
- Arguments Against the Collegium System (for a reformed process like NJAC):
- Opacity and Lack of Transparency: The process is shrouded in secrecy, with no clear criteria for selection, leading to allegations of nepotism and the “Uncle’s Judge Syndrome.”
- Lack of Accountability: The system is a closed loop (“judges appointing judges”) with no external accountability or public scrutiny.
- Erodes Democratic Principles: In a democracy, the appointment to such high constitutional offices should have some input from the elected representatives of the people. The NJAC model sought to incorporate this principle.
3. The Paradox of an ‘Activist’ yet ‘Ailing’ Judiciary
- Cause-Effect Relationship: The judiciary’s activism, while celebrated for holding other branches accountable, has also diverted its attention and resources from its core function of adjudicating disputes. The floodgates of PIL have contributed, to some extent, to the mounting pendency of cases.
- Credibility Crisis: While the judiciary critiques corruption and inefficiency in other organs, it faces similar challenges internally (pendency, corruption allegations, lack of accountability). This internal weakness undermines its moral authority to sermonize others.
- The Way Forward: Judicial reforms must be holistic. While strengthening the judiciary’s role as a watchdog, internal reforms related to appointments (transparency), accountability (a robust internal mechanism), efficiency (tackling arrears), and accessibility (reducing costs) are equally critical for sustaining its legitimacy and effectiveness.