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HORIZON

Judicial Activism : The Indian Experience

by Abul Hasnat Monjurul Kabir
***Courts of justice are not, in the words of an insightful Indian Supreme Court judge-for powerful people with quibbling minds and long purses. It is an invitation for the disadvantaged and disempowered to redeem their faith in constitutional, democracy, necessary if the constitution is to be ascribed a meaning consistent with justice.
"Judicial Activism is like-a shar^edged tool ‘Which has to be used dS a Scalpel by a sktjlfj.il surgeon to cure the malady not di;1 a Rampart knife which can kill." J S Verma. Indian Supreme Court judge in the Jain hawala case. India Today. March 15, 1996.
TiHE Judiciary has adopted an activist goal oriented approach in the matter of interpretation of fundamental rights. The Judiciary has expanded the interpretation of fundamental rights and in the process rewritten some parts of the constitution through a variety of techniques of Judicial activism. The Supreme Court in India has undergone a radical change in the last few years and it is now increasingly being identified by justices as well as by people as The last resort for the purpose of the bewildered" The transition from traditional captive agency with a low social visibility into a liberated agency with huge socio-political feasibility is an interesting development in the career of the Indian appellate judiciary. The Supreme Court of India has through Judicial activism found a .new historical basis for the legitimation of judicial power and acquired a new credibility with the people. This development has been the result of intense social activism on the part of some of the justices of the Supreme Court of India.
In highly evolved legal systems, such as In the US. the Judiciary drew succour from as well as assimilated public opinion and stated it as a legal principle even if it meant reneging on earlier pronouncements. For example as public sentiment changed in the '50's, an activist Supreme Court was a formidable moving spirit behind the civil-rights movement where nearly a century earlier it had given racial bias a clear sanction under the law. In the US a good or bad Judgement becomes the subject of constant debates in society law schools. In the words of the eminent Harvard Law Professor Paul Freund, the role of the Supreme Court is "Ultimately that of a maral teacher".
In most of the South Asian countries necessary institutional crutches or balances are missing. And the only real checks are public opinion and the press. If the courts fall in their duty or display gross malafides in upsetting constitutional norms
there is one reason why public opinion and the press will not sway towards Parliament and the Executive.
The hawala scandal is by no means any definitive indicator of who is corrupt and who is not. It is in essence a historic symbol of an institutional overhaul that was long overdue. A churning of the democratic process in which the thrust of enlightened public opinion spiced with a dose of political oppor-tunitism and activism of the Supreme Court have converged to restore a modicum of moral authority to a system. One that has been rapidly deteriorating into a brazen display of naked political power without accountability to real sovereigns of this land — the people. For the Supreme Court of India to be virtually dictating terms to the Central Bureau of Intelligence (CBI) in the hawala case — in other words, telling the executive to do itsjob-is a reflection of a systematic breakdown of the other branches of the Government. The Supreme Court has chosen to play is no accident. Its emergence as the grand arbiter for the sake of enforcing human rights and human dignity and welfare of the vast majority of people notwithstanding the fact that the judi-
ciary is itself ridded with some of the same problems that afflict other limbs of the government — is a matter of constitutional dialectic.
All people need something to guide them. In their personal lives they may look to religion and religious books. In civil society. the constitution has a life of its own but it speaks only through institutions. And when one institution breaks down, another becomes more powerful — if parliament fails, the bureaucracy becomes more powerful. If Ine executive is weak parliament assumes a stronger role. If both lose their credibility by abdicating their responsibilities then the courts begin concern ing themselves not only with policies but also examining their wisdom and need.
What the Supreme Court of India is doing for the protection and promotion of human rights and the establishment of the organic accountability of the government for the first time is not without international precedent. In 1993 Italian judges be came public heroes following the arrest of more than 100 people, including cabinet ministers in a kickback scandal involv
ing organised crime. Similarly heads rolled in France, Germany, Spain and last year two former South Korean Presidents were given death sentence for assuming state power without any legal claim and basis and for other serious charges. In many of these countries people's movement backed the judiciary when it took the executive to task.
The judiciary in India has sincerely tried to give effect to the human rights norms embodied in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic. Social and Cultural Rights (ICESCR) have been incorporated into the domestic law by a process of judicial process of judicial interpretation. The entire law of bail was humanised" by a judicial interpretation of Article 21 oi the Constitution of India and the Supreme Court of India hold that a new insight should inform the Judicial approach in the matter of pre trial release. II a Court is satisfied after taking into account the information placed before it that the accused has roots in the community and is not likely to abscond, it need not insist on a monetary fund and may safely release the accused on a personal bond. The human rights norm set out in the international instruments was thus translated into national practice.
India's "judicial" experiment with democracy has much to commend it. It invites access to the courts as interrogators of power and dispensers of substantive social and economic justice. It creates new ways of eliciting information and provides the possibilities of comprehensive remedies. Like all social experiments. it needs the discipline of integrity, due process and courage The end result may not be cataclysmic in civil and political society or. by itself effect distributive justice. But it will create a responsive administration and mitigate harshness, arbitrariness and pain. Courts of justice are not. in the words of an insightful Indian Supreme Court.judge-tor powerful people with quibbling minds and long purses. It is an invitation for the disadvantaged and disempowered to redeem their faith In constitutional. democracy, necessary if the constitution is to be as-cribed a meaning consistent with justice.
The writer, a researcher is a student of Law. University of Dhaka. Currently he is working on Human Rights Enforcement Mechanism in South Asia.