A fresh wave of judicial activism has raised issues about the judiciary’s role vis-a-vis the executive and the legislature. In response to our debate yesterday, we have received a flood of comments from experts.



It’s acting in public interest

I am glad that the Supreme Court has issued several directions to the executive in the recent past. The people should welcome this kind of judicial activism and appreciate it because the directions it has issued are in public interest. The Supreme Court’s directions to the executive to bring out the black money deposited by Indians in foreign banks are laudable. The Supreme Court should ensure that all the ill-gotten monies stashed away in foreign banks are brought to India and confiscated by the Central Government. All these tax evaders and black marketeers deserve exemplary punishment. One should not take any lenient view on this matter.

The Supreme Court’s directions in this regard are aimed at serving the public interest which will, in turn, help check inflation. As regards the Supreme Court quashing the appointment of Mr P.J. Thomas as the Central Vigilance Commissioner, the Prime Minister has told in Parliament that it was an “error of judgement”. The Prime Minister has also owned up responsibility for the CVC’s appointment. Once such a statement is made by the Prime Minister, there is no need for investigating the matter any further and this is the right time to close the issue.

Justice A.R. Lakshmanan, Former Supreme Court Judge and Chairman, Law Commission of India

Constitutional balance intact

Judicial activism has become necessary because of a number of lacunae in the functioning of the legislature and the executive. Both the legislature and the executive are guilty of either over-action or inaction. We also find that members of the legislature are turning out to be more and more corrupt and some corrective steps need to be undertaken. So we feel that the judiciary needs to step in. There is absolutely no question of the balance between the legislature, the executive and the judiciary being disturbed because of judicial activism. For instance, the Prime Minister himself was pulled up by the courts over the appointment of Mr P.J. Thomas as the Central Vigilance Commissioner. And the Prime Minister had to admit that he had made an “error of judgement”. So there has been a correction.

Moreover, India’s judiciary has been careful not to overstep its limits. Courts are very conscious of their roles. However, politicians are unhappy because their interests have been hurt.

M.P. Rao, Secretary, Bombay Bar Association, Mumbai

Time to root out corruption

Whatever is happening is for the good of the country. Corruption is spreading like cancer. Time has come to use harsh remedial measures. Corruption amounts to violation of human rights of the poor people because this money otherwise would have gone to them. This is also the right time for creating a better legal framework for tackling the menace of corruption. At a time when our Prime Minister, Chief Justice of India, Defence Minister, Service Chiefs and Cabinet Secretary are persons of unimpeachable integrity, honesty and character, it is rather surprising that a large number of corruption cases have come to the fore and an impression is gathering that everybody is corrupt.

Amarendra Sharan, Former Additional Solicitor-General of India

It’s ordained by statute

It is a conscious and conscientious discharge of duty by the court ordained by the Constitution and a matter of judges being true to their oath. This has nothing to do with activism or passivism. It is plain and simple discharge of duty.

P.P. Rao, Senior Advocate, Supreme Court

Judges must undo the wrong

There is nothing like judicial activism. The judges must decide the cases which come before them in accordance with the Constitution and laws. Matters which affect the people in high positions are rightly highlighted by the media.

By and large, the judges are discharging their duties and whenever things go wrong they have to correct them. It is the credibility of the judges which makes people feel that they are doing a good job. People don’t know the niceties of the Constitution or law, but it is their confidence in the judiciary which keeps the judges going. I very much appreciate what our judiciary is doing.

Pravin H. Parekh, Senior Advocate, Supreme Court

Applying course corrections

If there is no activism at this juncture, the situation will worsen in administration. People have become aware of the level of corruption because the Supreme Court is directly monitoring the investigations in big scams and the media is disseminating the news in a big way. There is need for reform in every field, particularly in education, to restore the sense of nationalism among people. Foolproof laws would rein in people in position from doing wrong things. India’s image in the international arena would be enhanced only if steps are taken in this direction.

J.S. Attri, Senior Advocate, Supreme Court

Nothing radical about it

Is activism by judges something new? It is something expected of the judiciary. Judges have always been activists. Senior judges like Justice P.N. Bhagwati expanded the scope of roti, kapada and makan. Compared with judges like Justice Bhagwati, you cannot call the present-day judges activists.

The Indian Constitution clearly defines the role of the judiciary. Under the provisions of the Constitution, judicial review of the functioning of the legislature and the executive is mandated. So there is nothing radical about it. There is no question of the constitutional balance being upset simply because judges are not going beyond their prescribed roles. It is the duty of the judiciary.

Justice Hosbet Suresh, Judge, Bombay High Court

Fearless, honest judges

Ordinary people can hope to obtain justice because judges like Chief Justice of India Justice S.H. Kapadia are fearless and honest. It is because of such judges that the judiciary can hope to bring about a change in the country. The judiciary is acting within the framework of the Constitution when it looks into the functioning of the executive and the legislature. The court gives a ruling when the matter is placed before it. So there is no question of the judiciary interfering in the working of the executive as far as the CVC’s appointment is concerned. An activist judiciary does not disturb the constitutional equilibrium. Judges are not going against the constitutional framework by taking up matters pertaining to the functioning of the executive or the legislature.

Benedict Lobo, Senior Advocate, Bombay High Court

As told to R. Sedhuraman in New Delhi, Shiv Kumar in Mumbai and Saurabh Malik in Chandigarh

Dont undermine the role of other branches of govt

The judiciary should not exercise its power of judicial review to undermine the legitimate role assigned to other branches of the government…The role of courts and judges in making law an instrument of social stability and progressive change cannot be overemphasised. The Supreme Court has delivered several landmark decisions in public interest litigation cases that are now part of the evolution of India’s own constitutional jurisprudence. The judicial process has a dynamic role to play, both as the guarantor of justice to litigants and as upholder of the constitutional conscience. But at the same time, it has to be ensured that the Basic Structure of our Constitution is not subordinated to political impulses of the moment or to the will of transient majorities.

Prime Minister Manmohan Singh at the Commonwealth Law Conference in Hyderabad on Feb 6, 2011

Tension will help develop law

Tension between the courts and the government is necessary for the law to develop. The contours of rights have to be decided by courts, not Parliament. The courts’ decisions on the legality of laws or executive action are based on many objective factors such as whether the law was restrictive, unreasonable or arbitrary. It would have been different had the rulings been based on a subjective view, and if the courts were to sit on judgement over Parliament.

Justice S.H. Kapadia, Chief Justice of India during a hearing in the Apex Court on March 10, 2011

Don’t exceed briefs

The judiciary should not exceed its briefs through judicial activism. According to a British Judge, “Judicial activism beyond a point is against the rule of law…” and “that is why I always tell my brother judges, ‘please see to it that we also should continue to learn’”. When we talk of ethics, the judges normally comment upon ethics among politicians, students, professors and others. But I would say that for a Judge too, ethics, not only constitutional morality but even ethical morality, should be the base…If the Judge is clear on concepts…he/she will be able to decipher the difference between judicial activism and judicial restraint.

Justice S.H. Kapadia , at the National Consultation on Second Generation Reforms in Legal Education in New Delhi on May 2, 2010


Closing the implementation gap

Nick Robinson in THE HINDU.

India‘s legal institutions have not been able to systematically identify violations of the law and credibly threaten punishment

The first decade of the 2000s witnessed what perhaps can best be described as a revolution in the way the Government of India declared it would implement its laws. From the Right to Information Act (RIA) to the National Rural Employment Guarantee Act (NREGA) to the Right to Education Act (REA), the story was the same. The government switched from policies where implementation was left to the discretion and whims of bureaucrats and budgets to ones where citizens were given a right to — and could demand — information, work, schools, or other entitlements. Ordinary Indians were to be empowered to hold the government accountable.

And yet this change to a “rights-based approach” was at best only a partial success. For instance, there have been almost no claims in court by anyone denied their rights under the Mahatma Gandhi National Rural Employment Guarantee Act, although certainly this programme has not been trouble free. Most Indians, especially the poorest — but even those better off — simply find it too difficult to enforce their rights on their own, especially in backlogged and hard-to-reach courts.

India is still missing the needed legal infrastructure. Its legal institutions have not been able to systematically identify violations of the law and credibly threaten punishment. As a result, Indians may be excused if they think their laws frequently look more like a vision statement for the country than something that will be reliably enforced.

Rethinking accountability revolution

Supreme Court of India

Recognising this larger implementation problem, the National Advisory Council (NAC) recently suggested that all government entitlements should have a grievance redress mechanism. In its note on the Draft National Food Security Bill released in January, the NAC proposes creating District Grievance Redressal Officers, who would be the enforcement “lynchpin” of programmes that fall under the proposed Bill, such as the Public Distribution System or the Integrated Child Development Scheme. These young professionals, drawn from outside the ranks of the bureaucracy for non-renewable five-year terms, would be given wide powers to investigate implementation failures under the Bill, fine those responsible, and compensate those improperly denied benefits.

This proposal is a promising start, and shows how independent sources of accountability might better ensure compliance with the law. Yet, these proposed District Grievance Redressal officers have powers that are at the same time too narrow and too wide. They are too narrow in that these officers should also be able to investigate similar implementation problems in other social welfare programmes not covered under the proposed Bill, like the REA or the MGNREGA. They are too wide because giving the same person the power to investigate, prosecute, and determine the guilt of officials creates a conflict of interest and an undesirable concentration of power. Instead, these officers should focus strictly on bringing complaints and allow an independent judge to decide their merit.

To tackle the implementation gap, the States can also build on the current Lokayukta system. Lokayuktas have been created in over a dozen States from Bihar to Karnataka, where they investigate complaints of corruption and recommend to the government that offending officials be censured. However, the office’s effectiveness is too often dependent on the individual personality of the Lokayukta, and is hampered by a lack of resources, the inability to investigate without a formal complaint, and the office’s non-binding recommendations. The States should consider stripping Lokayuktas of their power to give non-binding recommendations (which are of limited value anyway), and instead empower them with robust prosecutorial powers.

The Lokayuktas could be drawn from a combination of retired judges, as they are now, and younger professionals brought in from outside the bureaucracy selected through a competitive examination. Their mandate and manpower should be expanded so that they not only investigate corruption, but broader breakdowns in the implementation of law. If a Lok Pal were ever created by Parliament (a bill to create such a parallel central institution has been pending in varying forms for over 40 years), it could play a similar role in the Centre.

The idea of creating strong independent prosecutors to ensure policy implementation has already met with success elsewhere in the world; most notably Brazil’s much lauded Ministerio Publico system. Brazil, which has also had an implementation gap problem, gave its Ministerio Publico, or public prosecutors, wide powers in 1988 to enforce the law and the Constitution, essentially turning it into a “fourth branch” of the government.

These local, State, and national-level prosecutors in Brazil are chosen through a highly competitive examination, drawing upon the country’s best law graduates, and each prosecutor is given significant individual autonomy to decide which cases to pursue. They have become well-known for spearheading efforts to implement everything from environmental law to social policy. As the threat of prosecution by their office became increasingly credible this created a new culture of accountability throughout the government.

But does not the real failure in accountability in India lie at the feet of the courts? If the courts were efficient, accessible, or in general just worked better, no independent prosecutorial agencies would be required as people would bring cases on their own to enforce the law.

Certainly, the courts need reform, whether it is better courtroom management, new blood among judges, or sufficient resources to deal with heavy caseloads. Also, certain types of complaints, such as the improper denial of a BPL card or petty corruption, might be better dealt with by independent welfare tribunals or ombudsmen. The Office of the Ombudsman in Kerala provides one model of how appointing an adjudicator of enough stature to rise above the morass of local politics can help tackle low-level maladministration or corruption within the local government. Yet, focussing strictly on reforming the courts, or even creating new adjudicators, despite the need, misses the point.

People only go to court when there is enough incentive to do so. However, if one was denied ration for a month or is a victim of corruption, the courts are likely to just compensate you for whatever you were denied or, perhaps, just a bit more. The delays and appeals present in any court system, especially in India, combined with the expected low returns make bringing a complaint an unappetising proposition. Additionally, most Indians are intimidated by the judiciary and are uncertain of their rights. Instead, dedicated prosecutors are needed who can help identify breakdowns and then see complaints through the judicial system to their natural end.

Unleashing the “Fourth Branch”

In India, effective prosecutorial power will likely grow from existing offices, like the Lokayuktas, in combination with the creation of new institutions to tackle more discrete implementation failures, like the proposed District Grievance Redressal Officers. Such a piecemeal approach is not necessarily a weakness. Indeed, it gives the States and the Central government the ability to experiment with different enforcement approaches.

Still, this experimentation should be unified by a few general principals. These should include having truly independent prosecutors that come from outside the existing bureaucracy, as well as avoiding conflicts of interest by carefully separating prosecutorial from adjudicating powers. If India can develop these robust prosecutorial agencies to help rein in its bureaucracy, those fighting against corruption and for the rule of law will finally have the reinforcements they deserve.

(Nick Robinson is an Assistant Professor at Jindal Global Law School and a Visiting Fellow at the Centre for Policy Research.)