A judgment on judges

Take the vexed issue of judicial activism. There is a growing perception of 8216;judicial overreach8217;. What8217;s forgotten is that there are several kinds of judicial activism. The late jurist, Professor S.P. Sathe saw it as negative judicial activism and positive judicial activism, which, unlike the former, has salutary benefits for society. An appreciation of the varying nature of judicial intervention with its varying impact can, in fact, exercise a sobering influence on the stridency of the current debate.

The Supreme Court had itself suggested that 8220;there is great merit in the Court proceeding to decide an issue on the basis of strict legal principle and avoiding carefully the influence of purely emotional appeal8230;8221;Bandhua Mukti Morcha versus Union of India.

In the era of 8216;judicial co-governance8217;, the judiciary also runs the risk of losing credibility, especially if its orders remain unimplemented. Some years ago, Justice S.P. Bharucha expressed this concern in these words: 8220;This Court must refrain from passing orders that cannot be enforced, whatever the fundamental right may be and however good the cause. It serves no purpose to issue some high profile mandamus declaration that can remain only on paper.8221; The SC in a recent order expressed a similar concern: 8220;The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently8230; is not only unconstitutional, it is also fraught with grave peril for the judiciary.8221;

Although it is a tough point to make in the current heated atmosphere, a close reading of the judicial response to social and economic rights as for example the court8217;s response to farmer suicides has arguably been defensive and not gone far enough. Upendra Baxi, in a 1996 lecture, identified critics of judicial activism as deploying 8220;a psychological strategy8221; aimed at 8220;activating a whole variety of fears in the judicial psyche8221;. Justice Krishna Iyer8217;s counsel that 8220;a judge need not be apolitical but she must be independent and fearless8221; makes immediate sense in this context.

An independent and fearless judge is likely to be an activist judge. He or she has to explore the boundaries of law even while knowing the limits of such exploration. Justice J.S. Verma summed it up when he observed in a recent lecture, 8220;there is a clear distinction between commanding performance by the concerned authority and the judiciary taking over that function itself8221;.

The bottomline is that people still have faith in the higher judiciary and that perhaps why the present critique of judicial functioning is relevant only up to a point. The challenge before the Judiciary is to keep this faith going.

The writer is a Supreme Court advocate