Every time the Supreme Court or one of our High Courts decides to enter the social or political arena from their regular habitat at the jurisprudential or legal ones, we cheer them for what is now commonly known as ‘Judicial Activism’. Be it Justice Krishna Iyer, Bhagwati, the one-man green bench Kuldip Singh or some of our recent stalwarts on the apex court bench, the citizens have only cheered them for their digressions.
I agree that most of the times such digressions, which we have learnt to glorify as activism, have benefited the society in general and certain citizens in particular. However, it is my view that the very concept of ‘judicial activism’ is unconstitutional by definition. Also, as paradoxical as it may sound, it is undesirable as it only cripples the nation in the long run.
Judicial activism by definition means an act that the judge is not expected to do. It is obvious that the role of a judge, both constitutionally and by virtue of the nature of their office, is to interpret and apply the law. Within this, by virtue of certain specific Articles in our constitution, viz. Article 32, 226, 141, etc. the superior court judges (High Courts and the Supreme Courts) have very wide discretions. However, wide as they may be, these are judicial discretions and to be exercised within the bounds of the constitution. Any action within such bounds is not proper to be labeled as activism as it is not a support of any cause by such judge over and above his constitutional duties but only a diligent exercise of the powers and duties conferred on him. And therefore, any act even in support of a valid cause qualifying as ‘activism’ on part of our judges is an act not authorized by our constitution.
Ordering the legislature and the judiciary to follow certain standards that ensure clean environment, ensuring bonded laborers are protected, intervening in the election of the Chief Minister by the legislature when there are widespread and confirmed reports of unacceptable behavior on their part are some of the many instances when even if unconstitutional by definition, activism appears desirable. However true that may sound, it is my opinion that when viewed in the larger and long-term interest of the nation, desirability of such action is negated.
In order to make myself clear, I need to refer you to a concept enunciated by the 19th Century philosopher Frederich Nietzsche. Nietzsche talks of a concept called ‘eternal return’ or ‘eternal recurrence’. For our limited purpose here, eternal return basically means that what goes around comes around. In simplest terms, life is not a linear but a circular path. Therefore, it takes no rocket science to propound that for any system to reach its zenith, it needs to have touched the rock bottom in the past. Even hindu philosophy talks of the need of destruction in order to ensure new creation. The hindu mythology has given enough importance to destruction to dedicate one of its trimurtis (Lord Shiva) to this job. To build new traditions, old ones need to give way.
I am quite skeptical that even the most optimistic of us would disagree that we are close to the rock bottom of the circle. Judiciary has for quite long now held on to the last leg of the fall by its activism, unconstitutionally interfering in spheres that it is not meant to touch. The result of the activism of our judges has been counter productive in both legislative and executive branches of the nation. So much so that the both these branches now work on directions of the judiciary even in the most pressing of matters. If none of the courts have yet addressed the issue, it is not worth their time, they presume.
History would tell us that people have always snapped. Revolutions at every level is triggered by such snap. As Albert Camus very succinctly puts it in his treatise The Rebel, revolutions are founded on the feeling of ‘all or nothing’. Our misfortune is that every other branch of our nation keeps us at a safe distance form the ‘all’ and the judiciary keeps pulling us away from ‘nothing’. Activism is unconstitutional and undesirable – we need to hit the rock bottom.
[…] [CROSSPOSTED] […]