How can courts best serve the public interest?

Questions of legitimacy, efficacy and elitism threaten the good intentions of judicial activism

In his book, The Rule of Law, Lord Bingham quotes the words of Thomas Fuller: "Be you never so high, the law is above you." The rule of law is the bedrock of all modern constitutional democracies and is the closest that we have to a universal secular religion. The question is, however, who makes the law: parliament or the judiciary? The traditional orthodoxy was that parliament makes the law and the judiciary interprets it. The advent of "judicial activism" has challenged this traditional orthodoxy.

At its heart, judicial activism may be defined as the "imposition of a judicial solution over an issue that earlier was subject to political resolution." Judicial activism is a subject that evokes mixed and usually extreme reactions in most jurisdictions, either admiration or criticism. Critics argue that it amounts to the usurpation of power by an unelected court and may serve to censor legislation by an elected legislature. Admirers consider judicial activism not an aberration, but a normal judicial function. In India particularly, the Supreme Court (SC) has emerged in recent times as a powerful voice of constitutional governance in the face of a weak executive. The Indian judiciary is no longer simply an institution adjudicating disputes between parties. The "least dangerous" branch of the government has become India's "most assertive organ".

SC as social auditor

In the post-Emergency period, the SC transformed itself into an institution enjoined to promoting the ideals of socio-economic and political justice. By recognising the inherent inequalities in the adversarial court system, the court has adapted its processes so that the voices of the poor and disadvantaged can be heard. This entails a series of radical adaptations — widening standing to anyone litigating in public interest; instituting court-initiated fact-finding; issuing mandatory orders that give the court continuous supervisory powers, and monitoring the implementation of those orders. With time, we have also witnessed a steady expansion of fundamental rights by reading into them the non-justiciable socio-economic rights.

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