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Friday, November 17

Judicial activism: Good or bad?

Sometime ago I posted my rather withheld reaction to the conviction of Santosh Singh in Mattoo case. A recent comment on that post led to this post.

We live in the times of Judicial Activism in India and I can either say that it could not have come at a better time or I can observe that perhaps this was in the natural order of things. Passing through the Nehruvian era, Emergency, unsuccessful Junta Party govts when the public trust in the legislature and executive has deteriorated increasingly, judiciary remains the last hope of the Indian middle class. Is it something to be celebrated or even relied upon is the question I want to explore.

Every activist is motivated by a ideology and it although it is easy to believe that the driving ideology behind the Judicial Activism is one of justice for one and all, we would be naive to do so. No doubt it remains the primary guiding force but the question is not about the intention to seek justice for all but about how one perceives the justice. In a big and diverse country like India, national interests do not always match with regional or local interests. And these matters are also not always state vs people. These are often much more thorny issues like big dams, mining, encroachment etc where the interests of a large chunk of people are posed against another large chunks. There are issues that have inherent in them emotional aspects. Now there is a catch. If courts argue and decide such issues without the considerations of such aspects, they are bound be seem unjust to one party or the other. One example would be if court settles the matter of Ram JanmBhoomi based on land records. On the other hand if courts do try to take into account the emotional aspects, they are prone to populism.

The problem of an active judiciary is that it has to encounter more and more such cases. Sometimes it has to over stretch its own mandate to deliver what it must and sometimes it just have to disappoint the people. And executive and legislature not only hide behind it but also take advantage of it. Instead of doing their own job and take unpopular decisions, they pass the buck more and more to the judiciary. People feel happy that courts have set the things right whereas they should actually feel angry that their appointed representatives are doing such a shody job ! So it takes a court to question the completely unscientific numbers on OBC population, the whole parliament attack case is reduced to a court case with politicians merely using at first the incident and later on the court verdicts to further their own agenda. And the court must do all this while still bound in the legal framework ! At the end of day, an active judiciary cannot fill in for a dysfunctional executive or legislature.

Seeing the conditions around us then it is no wonder that even the courts have fallen prey to increasing amounts of populism. Arun Shourie describes in his latest book "Bending over Backward" how step by step, one by one reservation decisions have moved in a particular direction. Reading those decisions along with his commentary is very eye opening as in how the individual ideologies are bound to creep in when issues are so complicated. This perhaps is a proper warning. An active and fair judiciary is must for a democracy, one of its corner stones but an activist judiciary may not be. Before we start putting too much hopes on Judiciary, we ought to remember that those sitting as judges come from our own society, born and brought up here. They are subject to same influences as we are and sooner or later that is bound to show up.

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