JUDICIAL ACTIVISM VS RESTRAINT

There is a great deal of debate in all functional democracies over judicial activism as opposed to judicial restraint. It all started in the wealthiest democracy in the world – United States where progressive judicial verdict was responsible for putting an end to the segregation in schools in 1954. Till then, African American students were not allowed to study in the schools meant for American white students.

As far as India is concerned, the nation owes to V R Krishna Iyer for opening the gates for judicial activism by entertaining a post card as writ petition. He delivered quite a few landmark judgments which paved the way for his successors to try their hand in judicial activism. No doubt, judicial activism helps change erroneous or anti-people socio-economic policies of the government. The question is where does activism stop and restraint begin?

In fact, conventionally judiciary is expected to observe restraint. There is a school of thought among the legal luminaries that courts should leave policy decisions to the Legislature and Executive bodies. Again, if we go by convention, judiciary is expected to interpret law and determine whether a law is in accordance with the Constitution of the country. It can point out if the Legislature/Executive deviates from the path laid out by the Constitution. The judgment should speak for the judges and not the judges themselves barring occasional or rather incidental oral observations. The Apex court has time and again reminded the High Courts that judiciary should observe utmost restraint in the open court.

There was an occasion in 2007when Justice Markandeya Katju found fault with the Supreme Court itself for “breaching boundaries of ‘self-restraint’ by asking the Central government to formulate a comprehensive scheme on consumer fora”. Justice Katju said that in the name of affirmative action or judicial activism, Supreme Court could not amend the law as it would be a “naked usurpation of legislative power. This court must exercise judicial restraint”. Interestingly, his brother Judge of the same Bench voiced his strong dissent and criticised Katju for not practicing what he preached. What he meant was that while Justice Katju wanted judicial restraint, he himself violated it by criticising the earlier decision in the open court. That the issue was referred to the Chief Justice is a different story. The moral is that the judiciary must observe utmost restraint while making observations in the open court.

Why should it be so? Courts are composed of unelected judges and the courts are the least democratic branch of the State. Judiciary, a creation of the Constitution to interpret laws and to render justice to those who have no hopes of getting from other arms of the State, should not get involved in political questions or conflicts between the other two branches of the State.

As a matter of fact, judicial restraint demands that the courts should not impose their views on other branches of the government or the states unless there is a clear violation of the Constitution. The language of the judges in an open court should not resemble that of a politician or give out their personal views or go to the extremes. The seat of judiciary is a sanctified one and there can be no scope for a language that does not befit the dignity of the exalted branch of the State. In fact, there are some who believe that a passive role of the court is preferred to an extra-judicial role. After all, those who have to face the wrath of the people or accountable to the people and the legislature are the elected representatives and the government.

In the light of what we understand as “judicial restraint”, let’s look at the observations of the Andhra Pradesh High Court while hearing the petition in connection with the violence on Osmania University campus, as reported in the media , assuming that the media report truly reflects what the honourable judge said in the open court.

Police excess, though thoroughly unjustified, is not something that has begun after the T-agitation started in November last year. Nor is it unique only to Andhra Pradesh. Nor lathi charge is something new that the Police started using selectively. Agitationists - either student unions or social activists - are dispersed, when there is interference with law and order, by lathi charge. Can we forget the way Jayaprakash Narayan’s scalp was battered with lathis before the Emergency? Every state has its share of Police excess and no one can defend it. Police might say there was provocation from the protestors. As far as the OU violence is concerned, we are yet to get an impartial account.

But the judicial observation in the AP High Court ran like this. “The State police are a lawless lot and accountable to none. It looks like they are acting at the behest of somebody”. Who is that SOMEBODY is known to the honourable judge and to those keen observers of current affairs in the state. It is pure conjecture and only legal pundits can answer the question whether there is any scope for conjectures in judicial observations.

If there was any doubt about the target, further observation of the judge cleared it. “It is all the more unfortunate that such things are happening at a time when a renowned former police officer is the governor of the state. His presence should act as a deterrent on the police. But the reverse is happening”.

The observation on the state DGP was a personal taunt. “Girish Kumar was working on the basis of interim directions of the high court. He seems to be more concerned about saving his seat than overseeing the law and order situation in the state”. There is no link between the State government appealing against the order of the CAT and the violence on the OU campus. But the observation makes one feel that the DGP remains in his post with the sufferance of the court and he was done a favour.

Further, what was not in conformity with the practice of judicial restraint is the comparison with Jallianwalabagh and General Dyer. “There are several Dyers here and your government is not competent enough to control them”, was the judicial, shall we say, extra-judicial observation. Usually, this is the language missile that a politician fires at his opponents. But, here politicians were given on a platter something that will cause verbal diarrhoea for them.

The last straw in the judicial observation was the invitation to Amnesty International. Does our Constitution recognise this body? Don’t we have enough vigilance mechanisms like National Human Rights Commission, National Commission for Women etc to look into human rights violations? Even an irresponsible political party does not demand the intervention of Amnesty International. Thank God, there was no reference to UN Security Council. With all humility and deference to the judiciary one can say that intemperate language does not go well with the image of the judiciary.

Expression of my views in this blog is confined to the observations and NOT to the merits or demerits of the judgement itself which dismissed the appeal of the state government.