RECENT ACTIVIST TRENDS IN INDIAN JUDICIARY: JUDICIAL RESTRAINT AND JUDICIAL OVERREACH

Abstract

We need not go into the history of activism in judicial sphere to understand the wave of “judicial activism” that took everything on its way in its grip with time and took seemingly divisions in a democratic set up by storm.  Given the way “judicial activism” in India spread its roots, one can only watch it unfolding day by day than getting into the historical argument of “where did it all start?” Still for those curious about its history, it would suffice that we can trace it back to the time of celebrated decision in Marbury v. Madison 5 U.S. 137 (1803) through which concept of ‘Judicial Review’ was introduced in American constitutional jurisprudence. Not to forget Chief Justice Marshall who held in Marbury that ‘It is emphatically the powers and duty of the Judiciary to say what the law is.’ It was a huge statement if seen and analyzed in light of theory of ‘Separation of Powers’. 

  Speaking of “Judicial Activism” in India, Article 13 of the Constitution allowed enough space for “Judicial Activism” through doctrine of ‘Judicial Review’. What happened with time was for all to see when stalwarts of judicial field and legendaries like Justice Krishna Iyer and Justice P.N.Bhagwati sowed seeds of ‘judicial activism’, watering them with sprinkler of Article 13. From then onwards there was no looking back as we could see how these legendaries made sure to convert Apex Court of India into its Supreme Court, into Peoples’ Court by making its threshold open to one and all irrespective of status, colour and creed. 

 Before them judges showed much ‘restraint’ and exercised their powers strictly in conformity with the compartmentalization that separation of powers warranted. Such stalwarts’ who saw a scope for change and went for it did that only to make judiciary a protector – sentinel on qui vive. It was through them that people started looking at ‘judiciary’ as solution to all of their ills, as their Messiah – rightly called as ‘judicial romanticism’. Right from the beginning of this phase of “judicial activism” its founding fathers, mainly Justice Krishna Iyer, have been attacked by their peers for transcending the boundaries of ‘judicial restraint’. Their followers continue to contend that under the garb of ‘judicial activism’ judiciary tries to enter into the shoes of other two branches of government. So amidst all high hopes and expectations on judiciary with time, did it really take things for granted and usurped role of other institutions and considered itself legislator and executor in the process. And also is excessive juridical restraint shown by Hon’ble Court in some of the recent cases good for Indian democracy. These questions are the matters of the facts and therefore remain to be seen and analysed which forms the main thread of this paper. It is a cliché that excess of everything is bad even if it be excess of something good. Overdo good send you will ruin it, may be. So is it that under the smoke screen of “judicial activism” we see glaring examples of “judicial overreach”. Also is it that behind the veil of “judicial restraint” we see glaring examples of “imperial juridical restraint”. Should we go behind the scenes and check what is cooking inside and how? Yes, because in a democracy we have to assure about checks and balances else too much power to one institution will turn it a despot posing threat to credentials of democracy itself.