Active Judiciary, passive executive
In normal circumstances, judicial activism should not be encouraged. But the circumstances are not normal. The political system is in a mess. In several areas, there is a situation to administrative paralysis.
Take the recent Hawala case, which is a good example of judicial activism. What transpired in this case is very instructive.
In this case the prime minister's name was also involved, and the Central Bureau of Investigation (CBI) is under the direct charge of the prime minister. And therefore, most of the parties involved were not interested in expediting the investigation.
So should the Supreme Court ask for another investigative agency to intervene? There is no good investigative agency other than the CBI.
So, the CBI had to be insulated from government pressures. One way of doing that was by demanding the resignation of the prime minister. This was not a plausible option.
A special prosecutor had to be set up who could assist the investigative agency. But where do you get such a investigator who could remain above any government pressure?
So, the Supreme Court took the practical decision of monitoring the investigation of the CBI.
However, judicial activism is not a permanent solution.
It can only work as a threat if nothing if nothing else works. However, even with regard to judicial activism, there should be a sense of practicability.
Wherever a decision involves detailed and practical knowledge, which is outside the normal comprehension of the judge, the court should restrain from commenting on that area.
For instance, the Supreme Court ordered the municipality to collect garbage. However, I don't know how the judiciary can enforce the implementation of such an order. After the judge passed the order, it was found the modalities involved in garbage collection were such that the order could not be implemented.
So, in this case, it shows that the court had not done its homework properly. Judicial activism has its limitations.
However, the Supreme Court order to close all the factories that create pollution near a certanin vicinity of the Taj Mahal was welcome. For, the order left it to the technical bodies, to decide which factories should be closed down.
But judicial activism is not practical in the long run. It is a last resort remedy. But given the situation in our country, with the political system in a mess, judicial activism is the only solution.
If the executive is insensitive and indifferent, the court should intervene. But judicial activism should be only seen as filling a lacunae.
We need some drastic reform in the government and the administration. Till the system is made more accountable, judicial activism is the only hope left for the common citizen. In fact, judicial activism is the only hope elft for the common citizen. In fact, judicial activism can provide a jolt to the system to make the government more accountable and active.
The Constitution expressly confers upon the courts the power of judicial review. And as regards fundamental rights, the court has been assigned the role of a sentinel on the qui vive.
While the court naturally attaches considerable weight to the legislative judgement it cannot give up its own duty to determine finally the constitutionality of an impugned statue.
Frankly, there can be no particular area selected as such. Individual liberties, environment, misuse of the power of the state to benefit its chosen favourites are some of the most urgent areas where judicial intervention is desirable.
The only limit pertain to the parameters of the Constitution.
Chief Justice Earl Warren of...