Respected Judges, Teachers, Guests, and my dear Friends, A Very Good Morning to all of you...Today, I stand before you to speak on the topic "Judicial Activism"...
For a Mind as free as the Ocean,
Imagination as limitless as the sky
Heart as wild as the wind, and
Spirit as unshakable as the Earth....
.....Judicial Activism most aptly seems to be the ultimate panacea in bringing back a vibrant democracy, resplendent with justice, liberty, equality and fraternity. A judge without judicial activism is like a flower without color and fragrance and like a vehicle without fuel and wheels. Their Lordships are vested with the Divine task of breathing in fresh air into the organic document called the Constitution, thus creating a bulwark of the modern day state.
Ever since the pinnacle of judicial activism in India was reached in the Kesavananda Bharati, there has been no looking back. Deriving its plenary powers from Arts. 13, 32, 141, 142, 226 and 227 of the Constitution of India, the Supreme Court has wielded its magic wand of justice countless number of times, with great alacrity.
Be it the Sunil Batra case, which heralded the whole new doctrine of Epistolary Jurisdiction; or be it the Hussainara Khatoon case, which took shape as a result of the Court’s attention to a series of newspaper articles highlighting the deplorable plight of under trial prisoners; be it the Olga Tellis case, wherein a journalist asserted the rights of the pavement dwellers of Bombay; or be it the Sheela Barse case, wherein again, a journalist was found vehemently championing the cause of women prisoners; our jubilant judiciary is being virtually seen as the sentinel on the qui vive, safeguarding the mandate of democratic constitutionalism, as also preserving the holiness of the Golden Triangle of the Preamble, the Fundamental Rights and the Directive Principles of our Constitution. It is hearty to see that, the hapless prisoner, the neglected child, the destitute woman, the bonded labor, the pavement dweller, the butcher…all of these have finally found the light under the Constitutional sun. The liberalization of locus standi has, Touch Wood, gotten us going towards the long cherished dream of a socialistic society.
Standing true to Montesquieu’s theory of Separation of Powers mandating a system of checks and balances among the 3 pillars of democracy, the Indian judiciary has mobilized several statutory amendments; prominent among them being the insertion of Article 21A into the Constitution as a result of the Unnikrishnan judgement and the exhaustive amendments made to the Criminal Procedure Code as a result of several pronouncements according criminal justice to women, including the case of Rajkumari v. SHO, Noida. Not to mention the development of Environmental Jurisprudence, which wholly and solely rests on the prop of Judicial Activism.
Not only India, but also the United States has experienced the magic of Judicial Activism. Starting with its approval in Marbury v. Madison, the USA has seen many cases of the like Brown v. Board of Education and Griswold v. Connecticut, wherein the judiciary blazed through hitherto untrodden paths to create indelible world histories.
But Friends, let us not be at a loss to comprehend Cardozo when he declares, “The great tides and currents that engulf the rest of the men do not turn aside in their course and pass the judges by.” Analogies are umpteen, portraying many a Judge falling prey to showmanship, extremism, adventurism and overreach. Black sheep in the justice administration system are many, and pitfalls numerous. A telling need of judicial restraint is being sensed never before so extremely. The cases of Jharkhand Assembly and Bandhua Mukti Morcha clearly portray how judiciary, at times has let itself slip into the shoes of the Executive. The Dreyfus Affair in France, the Dredd Scott Trial in the USA and the Trial of Seven Bishops in England unequivocally establish the hard truth that, after all, Judges too are erring human beings. Also, many a judgment these days is seen mirroring the economic policies of the executive.
So, what is the solution? Should judicial activism be once and for all banished from the legal artillery? Or should judicial restraint find itself deeply entrenched into the jurisprudential system? The answer to both of these questions is a big, loud, emphatic NO.
What we quintessentially need at this point in time, is a Golden Mean of judicial activism, which arrests ersatz showmanship, but at the same time, does not fall back on according for a warm red carpet welcome to a judicious exercise of judicial activism.
Comrades, let us march forward, with panache and éclat, towards the great dream of humanity – that of creating a just and peaceful world. Let us bow before our robed brethren, for their genuine concern towards humanity. Let us salute those citadels of Justice, which have flung open the doors of the courts to the lowliest, least and the last.