How Far Should Judicial Activism Go? Minister and CJI Cross Swords

A Union Minister & Chief Justice of India crossed swords over judicial activism at a conference on National Law Day

A Union Minister and Chief Justice of India on Saturday crossed swords over judicial activism at a conference on the occasion of National Law Day with CJI Dipak Misra, saying it was their sacrosanct duty to protect the fundamental rights of citizens.

Addressing the conference, Minister of State for Law and Justice PP Chaudhary spoke of how judicial activism is an outcome of the judiciary's independence and should be lauded – with one rider:

Judicial activism by itself is a necessary outcome of judicial independence, and may be lauded, especially when it is undertaken to protect those who may not otherwise have ready access to justice. But quite apart from this, is another species of judicial activism where the judiciary is also stepping into areas which are strictly speaking in the realm of policy. When judicial activism and review wades into policy making, sometimes its consequences can be disruptive. This needs to be avoided if possible.

“Obliged to Stand With Citizens”

The Minister emphasised that while judicial independence is a pillar of democracy, judicial accountability "is the base of that pillar”:

Without accountability there can be no legitimacy. Those in government and those outside it are both fully aware of the fickle nature of power, and are fully aware that a strong and independent judiciary is necessary for everyone. We must do everything possible to preserve the moral authority and legitimacy of our judiciary.

Taking the floor after the Minister, the CJI dismissed the perception of judicial activism, saying that protection of fundamental rights of citizens is the "sacrosanct duty of the judiciary" and it is obliged to stand with citizens if government entities "encroach" upon their fundamental rights.

The citizens have been guaranteed fundamental rights and the governing entities are not expected to encroach upon it. The moment they encroach upon it or there is an apprehension that there is an encroachment, the judiciary is obliged to stand by them.

Justice Misra defended courts taking a pro-active position on the fundamental rights of citizens and expanding their scope –

There is a perception that there is a judicial activism... I must clarify that protection of fundamental rights of each and every citizen is the sacrosanct duty of the judiciary which has been conferred on by the Constitution. Fundamental rights have been expended from the date the Constitution came into existence.

The CJI also countered the minister’s statement, stating that the judiciary has no desire to make policy:

Nobody intends, nobody desires to enter upon the policy making areas. We don’t make policies but we interpret policies and that’s our job.

Defending the Constitution

In the same vein, Chief Justice Misra spoke about how the prime task of the three wings of the state is to defend the Constitution, its values, morals and philosophy.

Also, pointing out that there was a direct correlation between Directive Principles of State Policy and the fundamental rights, Chief Justice Misra called for a quality governance and said:

Cooperative constitutionalism is the responsibility of the three organs of the State to protect the Constitution, which is the source of their origin.

Referring to the protection of women at the workplace by framing Vishaka guidelines and rescuing children working in industry, Chief Justice Misra said,

What you see today may be relevant tomorrow.

The two-day conference on the occasion of National Law Day was also addressed by President Ram Nath Kovind, Lok Sabha Speaker Sumitra Mahajan, Niti Aayog Vice Chairman Rajiv Kumar and Law Minister Ravi Shankar Prasad.