Monday, November 28th, 2022 09:26:28

Indian Judiciary Activism Versus Accountability

Updated: January 1, 2011 11:58 am

On December 8, 2010, the newly-appointed Maharashtra Chief Minister Prithviraj Chavan announced that the scam relating to Adarsh Cooperative Housing Society would be probed by two retired judges, either belonging to Supreme Court (SC) or High Court (HC).

Ostensibly, by this act, the Chief Minister seems to have erected a façade of ‘clean governance’. The rationale is simple. If the common man does not confide in the politicians and the bureaucrats, which he doesn’t; he still would have faith in the judiciary, at least in the higher echelons of the judicial system.

Furthermore, it is all the more acceptable that the independent arm of judiciary probes into executive and legislative malfunctions. And the raison d’etre of Mr Chavan’s act is supposedly extracted from the French philosopher Montesquieu’s classification of the three arms of the government. The modern idea of justice has since then permeated to the orient from the corridors of the West.

In ‘Modern India’, the journey of the dispensation of justice began when Sir Elijah Impey enthroned himself on the coveted position of the Chief Justice of the Supreme Court in 1773; which itself was a product of the Regulating Act passed in England to ‘regulate’ the ‘errant’ officials of the East India Company. Obviously, this does not imply the non-existence of justice, more so; pro-poor justice in pre-modern India.

Who will not reminisce the evolution of the Indian Judicial system since the era of ‘vidhatas’ (assemblies) in the Rig Vedic period to the individual brilliance of Jehangir in the form of Janzeer-i-adl (chains of justice with bells).

The Judicial system in India had been well structured, though at times reaching the zenith of glory or the abyss of disgrace during the periods of individual feudal lords, kings or emperors.

Nevertheless, till the advent of the concepts of Western Democracy and Justice, probably there was no serious thought regarding “Justice” to be ‘just’! Since antiquity, justice in India (if not in the rest of the world too) practically was viewed as the decrees bestowed on the society by a privileged lot; the lot being the brahmins, the kings, the ulemas or the badshahs, including the regional variations of these nomenclatures. Whether it was the Manusmriti or the Quran, whether it was the temple priest or the qazi, on the majority of occasions, Justice in India had been the prerogative of a coterie.

So, when the Supreme Court in Calcutta was set up in 1773, it must have evoked a response of gayness, at least amongst the progressive denizens of the city. But soon it was to falter in its objective of being a “Court of Equity” as Nand Kumar was denied access to ‘just’ “Justice”. With time, Indians overcame the initial mesmerisation regarding the British system of Justice when the Ilbert Bill was vehemently opposed and not put into effect! Hence historically, Justice was belied, if not denied, to the native Indians, probably because of racial arrogance of the Britishers or due to the very nature of Justice itself! Indians at that period, meant Indians of all variety, whether rich or poor.

With the dawn of Independence, the free Indians dreamt of a different society altogether, far from the clutches of foreign oppression and closer to the Utopia of social integration. But whether free India has really been able to cherish her dreams of pluralism and justice through its arduous journey in the last six decades still remains a matter of debate. Probably the starting point of the ‘goof up’ had been the rampant imposition of the British system of Justice on a society which was hardly aware of it, either from the point-of-view of the concept, or from the perspective of language.

Moreover, Indians never did a Phoenix act in regard to their struggle for Independence, which meant that the masses were in oblivion of the romantic ideas of Liberty, Equality, and Fraternity and for that matter, Justice. Nor were they well accustomed to Socialism and Social Justice; the rights of the proletariat and the farmers being wholly out of question.

However, the reputation of India’s Judiciary has definitely taken a serious beating in the post-colonial period. If statistics are a measure of things, then a 2007 report by the Transparency International (TI), as quoted by Praful Bidwai, says that 77 per cent of Indian respondents believe that the Indian Judiciary is corrupt. The report further avers that “bribes seem to be solicited as the price of getting things done”. According to the report, the estimated amount paid in bribes in a 12-month period was around US $580 million.

Nevertheless, the general perception in India has been that the higher judiciary is more or less untainted, and in fact, an epitome of honesty, at least as far as a direct comparison with the brutally corrupt politician-bureaucrat-hooligan nexus is concerned.

In essence, such a belief was the bedrock of the concept of Judicial Activism in India. It was this faith of the gullible masses in the higher judiciary, which propelled Justices Bhagwati and Krishna Iyer to entertain the idea of Public Interest Litigation (PIL) way back in the 1980s.


Judicial Activism in India has faced, quite naturally as any novel movement would, both appreciation and criticism. Praise has been heaped on the higher judiciary since the idea could translate into reality the common man’s dream of acquiring justice through the provisions of Articles 32 and 226 of the Indian Constitution. At least, the aam admi could dare venture into the court of law so as to secure the Fundamental Rights as enshrined in the pages of the revered Constitution.

However, there have been criticisms of this ‘activity’ of the higher judiciary from various quarters. Abhinav Chandrachud in his Op-Ed in The Hindu, deftly points toward some interesting insights into the metamorphosis of judicial activism in India. He says that the Supreme Court has even issued notices to the Union government seeking an explanation of the steps taken by it to ameliorate the plight of Indian students in Australia. Since Foreign policy is a subject which is considered to be outside the purview of the courts, such a move by the Apex Court evokes consternation.

At the same time, it must be noted that the Supreme Court has also taken cognizance of the purported acts of jobbery by the executive in the Commonwealth Games, 2G spectrum scandal, the Neera Radia controversy, Adarsh Housing scam and even on the appointment of the Chief Vigilance Commissioner PJ Thomas. Hence, the higher judiciary has remained vigilant in order to censure the legislature and executive whenever the latter had acted as usurpers and oppressors.

But the moot question is: “Is the higher judiciary, at times, not transgressing its jurisdiction when it is asserting itself through the instrument of Judicial Activism?”. Moreover, is the institution of higher judiciary ‘a law unto itself’? Should not the principles of transparency and accountability also be applicable to it? Are the judges micro-managing things in other domains and turning away their faces when their own comrades are being accused?

The term ‘Judicial Activism’ owes to Arthur Schlesinger Jr when he introduced it in a January 1947 Fortune magazine article titled “The Supreme Court: 1947”. From the very beginning, the phrase was controversial. Schlesinger’s original introduction of judicial activism not only failed to explain what counts as activism, he also declined to say whether activism was good or bad.

On the other hand, Black’s Law Dictionary defines Judicial Activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions”. In the Indian context, it can be safely presumed that judicial activism was started with the aim to provide Social Justice to the millions of hapless masses and to make the society more inclusive.

Whether it failed or succeeded in that venture remains a matter of debate and speculation.

For all practical purposes, the legislature and the judiciary work independently. But they act as check and balance on each other. On the one hand, Articles 121 and 122 of the Constitution give leeway to both the arms to function without mutual interference, and Article 124 allows the Supreme Court to select its own personnel through a collegium of judges with minimum interference by the executive and the legislature. On the other hand, an aggrieved citizen can reach out to the court of law if the Fundamental Rights are perturbed and this puts the executive under a judicial scrutiny. Also, a judge can be, at least theoretically, removed by the legislature, if proved guilty of ‘misbehaviour or incapacity’.

Furthermore, the legislature cannot amend the Constitution according to its own whim since the domain of Article 368 has been defined by bringing in the concept of Basic Features of the Constitution, an idea which grew out of the 1973 Keshavananda Bharti case.

Hence, it can be inferred that the Indian Judiciary has the scope of keeping a strict vigil on the excesses committed by the other two arms of the government and vice-versa. However, though the judiciary has gone ahead uninhibited with its activism, has there been instances where its own personnel been reprimanded for ‘crossing the line’? Has there been any case of impeachment of an Indian judge in the last six decades of our Independence? The answer is a straightforward No. In 1993, the nation came close to such a historic event, but the ruling party’s U-turn absolved the judge in question.

Does that mean that our Judicial system is utterly nonchalant regarding any excesses committed by its own personnel? Not always. On Novemner 26, 2010, the Supreme Court observed that “there is something rotten” in the Allahabad HC in the sense that being relatives, some judges in the said court were colluding with lawyers and justice was taking a back seat.

 Judicial Activism


A stalled economic recovery. The airwaves filled with demagoguery about important constitutional issues. A president who chides the Supreme Court for striking down a major piece of federal reform legislation. And, in response to charges of a pro-corporate tilt on a Court with a narrow conservative majority, Justice Roberts defends the Court’s intervention with the bland claim that judges do nothing more than “lay the Article of the Constitution, which is invoked beside the statute which is challenged” in order “to decide whether the latter squares with the former”.

2010? 1936. That mechanistic image of the judicial process was the handiwork of Justice Owen Roberts, responding to critics who complained that the Court was overriding New Deal economic legislation on the basis of its own political preferences. Current Chief Justice John Roberts would deflect such charges of “judicial activism” —the idea that judges improperly strike down democratically enacted laws according to their own moral and political convictions—by appealing to the metaphor of an umpire calling balls and strikes.

Indeed, the phrase “judicial activist” (or “activist judge”) is so frequently used that it has come to exemplify what George Orwell described in the 1946 essay “Politics and the English Language” as a term with “no meaning except in so far as it signifies ‘something not desirable’”. Consider how it has been employed in recent judicial-confirmation hearings. Conservative senators who worried that nominee Sonia Sotomayor would be a judicial activist pointed to her appeals court decision in Ricci v. DeStefano, in which she had refused to override employment policies adopted by the democratically-elected government of New Haven. A year later the National Rifle Association announced that it would oppose Elena Kagan’s nomination because she might not be activist enough—her record suggested to them that she would uphold laws restricting gun possession. Meanwhile, liberal senators spent the hearings excoriating the activism of the conservatives on the Court, who had voted in Citizens United v. Federal Election Commission to strike down certain federal restrictions on corporate involvement in the election process.

The consensus that judges must refrain from imposing their personal beliefs goes back at least to Alexander Hamilton’s Federalist No. 78. Hamilton described the judiciary as the “least dangerous” branch because it has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

We expect judges to be impartial and independent. That is why federal judges have life tenure. But we also demand that they respect democratic choices. They should enforce the policy decisions of the political branches—local and federal—unless the Constitution commands otherwise.

It’s that “unless” that causes the difficulty. The Constitution is the “supreme Law of the Land,” so, faced with a federal, state, or local law or policy that violates the Constitution, the judge must act. Judges would violate their oaths of office if, for example, they sat back and allowed the government to put people in jail for engaging in constitutionally protected activity (remember how the Commonwealth of Virginia threatened Mildred and Richard Loving with imprisonment for marrying across racial lines?) or permitted local officials to adopt policies that undermined the federal government’s exercise of its constitutional authority (think about Arizona’s ongoing attempt to adopt its own immigration policy). At the same time, judges equally violate their oaths of office if they strike down properly enacted laws because they think those laws are unwise or contravene their personal moral or religious codes.

The question is not whether federal judges should strike down popularly enacted policies, but when.

The consequences of bold judicial action can be awful. In Dred Scott, for example, the Court declared that black people could never be considered citizens and struck down Congress’s ban on slavery north of the 36th parallel as an unconstitutional denial of slaveholders’ property rights. This was one of the lowest points in the Court’s history. That said, some of the Court’s greatest triumphs involved bold intervention: “one person, one vote,” now a bedrock constitutional principle, was judicially imposed on the nation less than 50 years ago by a set of decisions rightly called the Reapportionment Revolution. And some of the Court’s greatest mistakes came when it showed timidity. Consider the turn-of-the-century decisions in Plessy v. Ferguson and Giles v. Harris, in which the Court’s passivity before, respectively, Louisiana’s segregation ordinance and Alabama’s disenfranchisement statute gave the green light to Jim Crow laws. To riff on Barry Goldwater, vigor in the protection of constitutional rights is no vice; restraint in the face of constitutional violations is no virtue.

These days, when it comes to accusations of judicial activism, the favored conservative target is the Warren Court (1953–1969). Yet most of its decisions were not directed at Congress, but at state and local policies—the South’s adherence to Jim Crow; Connecticut’s refusal to allow married couples to use contraceptives; Florida’s refusal to provide lawyers to indigent defendants—that departed from a national consensus about constitutional guarantees of liberty and due process. By contrast, the Rehnquist and Roberts Courts have struck down more acts of Congress per year than any other Courts in our history. And the most trigger-happy justices have been the conservatives.

The question is not whether federal judges should strike down popularly enacted policies, but when. This question has no mechanical answer. So let’s drop the vacuous accusations of activism and instead argue about the right answers to constitutional questions, and the real meaning of fidelity to the most important constitutional principles: liberty, equality, and opportunity for all.

And when we have that discussion, let’s bear in mind that obligations of constitutional fidelity do not stop at the bench. Judges would be less busy if policymakers took their constitutional responsibilities more seriously. Public officials—national and state; judicial, executive, and legislative—take an oath to support the Constitution. Unfortunately, many fail to take that oath seriously, and laws and policies are adopted out of political expediency by legislators who know that the courts will strike them down. Thus Senator Arlen Specter voted in favor of the Military Commissions Act, which sharply limited the right of Guantánamo detainees to challenge their continued confinement, and then turned around and urged the Supreme Court to strike the Act down, calling it “anathema” to what he acknowledged to be “fundamental” constitutional guarantees of liberty. Similarly, local legislators pass ordinances denying undocumented individuals the right to live or to work in their communities, despite the fact that the Constitution clearly grants control over immigration to the federal government.

Politicians have constitutional responsibilities, too. And if they showed more restraint, judges would not have to intervene so often.

Courtesy – Boston Review

By Pamela S Karlan


“Something is rotten in the State of Denmark, said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court”. This was what justices Markandey Katju and Gyan Sudha Mishra commented pertaining to the case of Raja Khan vs. UP Sunni Central Wakf Board. Nonetheless, obduracy of the judiciary persists as Allahabad HC Registrar General was sent to Delhi to explore the possibility of either filing a curative petition or a review petition in the SC against the allegations.

In fact, the Allahabad HC Bar Association has also indicated its willingness to move the SC seeking removal of the remarks.

In another instance, the Rajya Sabha Chairman has held that Soumitra Sen, a Judge of the Calcutta HC was prima facie guilty of financial offences, when he acted as a receiver appointed by the Calcutta HC. Parliament plans to go ahead with his impeachment proceedings. However, since the process is to be completed in a single session, the matter has been deferred to the Budget session. Hence it remains unlikely that it would happen soon and may meet a similar fate as that in 1993.

Therefore, it becomes pertinent to constitute a committee so as to assess the performance of the higher judiciary since a clean system at the top would necessarily make the lower strata cleaner. In that vein, the Judicial Standards and Accountability Bill, 2010, cleared by the cabinet has been introduced in the Lok Sabha on December 1, 2010.

The said Bill makes judges accountable for their lapses. It will also mandate the judges of the HCs and the SC to declare their assets and liabilities, including those of their spouses and dependents.

Though the Bill is to replace the Judges Inquiry Act (1968), it seeks to retain its basic features. It contemplates setting up of a National Oversight Committee with which the public can lodge complaints against erring judges.

The 5-member Oversight Committee will be headed by a retired Chief Justice of India, as appointed by the President, and have a serving Judge each of the SC and a HC, both nominated by the Chief Justice of India; the Attorney-General; and an eminent person nominated by the President. Thus it would be a holistic combination of executive and judiciary.

On receiving a complaint, the committee will forward it to a system of scrutiny panels. In the case of a complaint against a Supreme Court Judge, the panel will consist of a former Chief Justice of India and two sitting SC judges, and likewise. However, this appears to be a lose end of the Bill.

If the charges are serious, the committee can request the judge concerned to resign. If the judge does not do so, the Oversight Committee will forward the case to the President with an advisory for his removal. Again, the system goes back to Article 124(4) of the Constitution and hence the long-winded process of impeachment.

Apart from declaring their assets, judges may be required to file an annual return of assets and liabilities with all the details put up on the websites of the SC and the HCs. The bill will also require the judges not to have close association with any member of the Bar of the same court.

Though the Bill is a welcome step but a particular provision of the Bill definitely warrants more attention. After all, how can the allegations against a Judge be investigated by his fellow Judges? Would this not be biased?


In this backdrop, it would be pertinent to put forward the various dimensions of Justice as viewed in the modern sense of the term. The traditional concept of Justice was the observance of a lifestyle as of Yudhisthira, while presently, we have the idea of Social Justice; in which Legal, Political and Socio-Economic notions of Justice comprise a continuum within the general scheme.

On top of these, the concept of Human Rights forms the complete set of Justice. In independent India, the Fundamental Rights, the Democratic polity, along with the implementation of the Directive Principles, probably in totality usher in the idea of Social Justice. Nevertheless, one needs to scrutinise the functioning of the said rights and principles in order to substantially fathom the status of Justice in India at present. This would in turn aid us to devise suitable mechanisms so as to reach the teeming millions and hence invigorate our society.

Theoretically, the term ‘legal justice’ can broadly be applied in the following two contexts :

(a)          Justice according to Law, and

(b)          Law according to Justice

Presently, in India, we have legal justice in both these forms. Article 14 of our Constitution proclaiming ‘Equality before Law’ pertains to context(a) whereas Article 17 concerned with the Abolition of Untouchability can be associated with context(b).

However, the implementation of these Articles in reality for the past six decades has been the matter of actual concern. Has the Indian Judiciary, with its pyramidal hierarchy and top heavy status, been able to reach the ordinary masses, especially in the countryside? If yes, then why are there still practically uncountable number of cases pending in the lower judiciary, if not in the State High Courts? Why is there still umpteen number of instances of nepotism and corruption associated with our Judiciary? And why the common man on the street has shivers down his spine, if asked to visit the premises of the local court?

These are some of the queries which paint the ‘not so august journey’ of our esteemed Judiciary over these years!


Now, what could be the reasons behind this sort of dismal situation? Maybe the ever increasing population, may be the ever decaying value-system or may be simply the lack of will of the Indians to fix the system and blame everything on the politico-administrative setup of the country. Whatever it is, the flaws need to be plugged soon, if India desires to stand up against the onslaught of globalisation since its quality manpower is in great demand in this era of liberalisation. And if the common masses are uplifted through a just system of Justice, it would be a perfect icing on the cake!

The scheme of rectification, inter alia, may include the following :

  • A transparent and merit-based system of recruitment of Judges, right from the lowest echelons of the system. An All India Judicial Service by invoking Article 312 of the Constitution may be an apt tool in this regard.
  • Accountability of the Higher Judiciary: the present Judicial Standards and Accountability Bill is a right step. However, cases against judges need to be examined by a body independent of the judiciary. The serious matters need not be referred to the process of impeachment.
  • Accessibility of the Judiciary for the downtrodden: implementing Article 39A (which speaks of Free Legal Aid) of our Constitution as a Fundamental Right might be Utopian at this present juncture but is probably unavoidable in the long run for a just and egalitarian society.

At least, the economic criterion for free legal aid could be made somewhat practicable, in the light of the scenario of inflation and rise in the level of the exemption limit for taxation.

In sum, it needs to be stated that the Indian Judiciary has performed its bit in the last six decades and hopefully shall continue to do so. Nevertheless, it is not an infallible institution. It too needs to be accountable and hence critical of itself. It has to reach out to the masses. Hence, there is supposed to be no harm if an independent body scrutinises its acts of ‘alleged misconduct’. The priority has to be the concerns of the citizenry and elitism needs to be done away with.

India is surely not in a position to endure the notorious British Judges Jeffreys and Seroggs of the 17th century. That would simply be anachronistic.

 By Uddipan Mukherjee



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