INDIAN EXPRESS EDITORIAL
Chief Justice of India-designate S.H. Kapadia has said judicial activism, taken to its limits, might go against the rule of law. His views, stated at a public function on May 2, are part of a long running debate integral to any robust democracy: what are the fine lines that separate the powers of the legislature, executive and judiciary? Coming on the eve of his taking over as head of the world’s most powerful court, his public pronouncements are significant.
Ever since the ’70s, the higher judiciary has expanded its own powers in four ways. The first is by holding that judicial review is part of the basic structure — that is, every executive or legislative action can be questioned in court. The second innovation is a wide interpretation to fundamental rights, with words like “right to life” taken to mean, say, that encroaching slum dwellers must be rehabilitated. The third power is allowing well-meaning citizens to file PILs in the “public interest”, flooding the courts with a variety of requests. The final change was the Supreme Court’s decision to select their own. Equipped with these powers, their lordships have pronounced on a number of areas, even those which Parliament or the government would claim fell squarely within their domain. In January 2008, then-Lok Sabha Speaker Somnath Chatterjee went so far as to call judicial activism undemocratic. The recent spate of judicial controversies — from opaque selection to difficult impeachment — has only added fuel to the debate.
Drawing a line for judges is always a tall order, especially given the many benefits of an engaged and active higher judiciary. Offering one balancing act, former Chief Justice J.S. Verma argued in these pages that while it is legitimate for the judiciary to demand performance from a state authority, to take over its function might cross the line. He also argued that in complex matters involving political, legal and administrative questions, the court must isolate the legal quibble, judging only that. Drawing these boundaries is a work in progress. And the CJI-designate’s views indicate that progress could be robust.