Judicial activism has suddenly emerged as a major theme ever since the recent observations of a Supreme Court judge earlier this month that the DMK government could invite dismissal for not conforming to the court’s stance on the bandh it had announced over the Sethusamudram project.

As V.R. Krishna Iyer argues, ‘judicial activism’ has developed as a philosophy motivating judges to depart from strict adherence to judicial precedent in favour of progressive policies. Since occasionally these decisions represent intrusions in legislative and executive matters, he calls for “benign interpretation within the parameters of Corpus Juris”. Considering that the contribution by the Indian judiciary in this arena for the past 25 years has been considerable, the restraint implicit in Krishna Iyer’s observations is important.

In fact, despite support for judicial activism by prominent judges like Justice John Marshall and Justice Earl Warren to safeguard individual and collective rights, the US judiciary has not shied away from the accountability debate. The ABA Commission on Separation of Powers and Judicial Independence in 1998 admitted loss of public confidence in the judiciary. Gallup polls between 1986 and 1994 revealed that the percentage of respondents expressing strong confidence in the Supreme Court declined from 54 per cent to 42 per cent. The Commission recommended a number of measures to arrest the trend of increasing confrontation and criticism of the judiciary. Obviously, there are lessons in judicial restraint for India in this experience, despite increasing instances of the executive proving remiss.

The judiciary’s intervention in ensuring individual as well as collective rights of the citizen is an area in which judicial activism has been welcomed worldwide. The contribution of the Indian judiciary since the onset of public interest litigation has been pioneering and rightly lauded. Clearly, executive decisions that impinge on such areas should be scrutinised on request and even perhaps suo motu as well. But those falling in the politico-administrative or governance domains are more difficult to categorise. For instance, bargaining and compromise is an important aspect of political decision-making. Trained in adjudging complaints on the legal balance of right and wrong, the judiciary could trip badly when it comes to pronouncing on intricate issues of governance.

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