Judicial Activism

Justice Alladi Kuppuswami

The three arms of the Government are the Legislative, the Executive and the Judiciary. The Legislative passes the laws and the Executive gives effect to them. The role of the Judiciary is to decide whether an act passed by the Legislature or an act of the Executive is according to the principles laid down by the Constitution or according to the principles of natural justice or otherwise illegal and strike it down if it is not. If a court strikes down a law it is open to Legislature in its turn to make amends by passing another law which according to it is necessary by getting over illegality. In a recent case the Supreme Court held that private unaided colleges need not have a quota system. As the legislature felt that it was necessary to have a quota system even in private, unaided colleges it was trying to introduce the need to follow the quota system even by private unaided colleges by passing suitable quota system. It was unfortunate that the Chief Justice of India observed that in such a case courts should be abolished.

Sometimes judges find it unjust to strictly interpret the law while their sense of justice differs from it. But judges have found that in many cases by giving a liberal interpretation to the words of a statute it is possible to serve the ends of justice. This is termed as “Judicial Activism”. Sometimes judicial activism can also be consistent with judicial restraint. If a legislature passes progressive laws judges who practise judicial restraint are truly activist as they allow progressive laws consistent with justice to remain unaltered. If however, in such a case, they practise Judicial Activism and strike down such laws as they are not according to their views of justice the activism results in conservatism as it happened in the case of the judgment of the Supreme Court holding that there need not be any quota system for minorities in private unaided colleges. In both cases of activism, the judge does not interpret the law literally but gives it an extended interpretation which according to him will serve the ends of justice and he is therefore termed activist. Paradoxically a judge who practises judicial restraint may be more progressive than an activist judge when he allows a progressive law to remain by practising restraint. As I said in one of my speeches on Judicial Activism a too activist judge is like a bull in a china shop creating confusion in the minds of the legislature as well as of the people.

In the case of Executive action the expression “Judicial Activism” is inappropriate when the Executive is guilty of inaction or illegal action the court has to step in and do its duty in one case or set aside the illegal action in the other. In either case Judicial Review is mistaken for Judicial Activism.

Previously courts had to wait until aggrieved persons filed cases before the court and requested the court to set aside illegal action. Now what is known as “Public Interest Litigation” has come to be in vogue. Illegalities are brought to their notice by bodies, institutions and social workers as they find that the aggrieved party or parties are too poor to go to court. Sometimes courts act suo moto (of their own accord) when they find illegalities are perpetrated by the Executive or where illegalities exist in society. Such action is not Judicial Activism as the courts are doing their duty. But there is a danger of judges acting beyond their limits in trying to show themselves as champions of the oppressed. This is to be avoided. As remarked often judicial tyranny is worse than executive tyranny as in the former case there is no remedy and in the latter there is the remedy by Judicial Review.

* Some of the ideas in this article have been addressed in an article by me titled “Judicial Activism” published in my book The Constitution: What It Means to the People (Hyderabad: S. Gogia & Company, 2000).

HUMOUR IN BHAGAVADGITA

The following is a humorous paragraph based on BHAGAVADGITA sent by Sri Alladi Kuppuswami, Retired Chief Judge of the Andhra Pradesh High Court:

A man who committed murder and was about to be sentenced to death by a Judge quoted from the Bhagavad Gita: “A man who considers him a killer and one who considers himself being killed–both of them do not know–one does not kill and the other is not killed.” He therefore asked the Judge to acquit him. The Judge said, “True–I do not kill you by sentencing you to death nor are you killed. I therefore sentence you to death.”