Judicial Activism

Minister, chief justice of India spar over changing role of judiciary

chief-justice-with-president-pti President Ram Nath Kovind, Chief Justice of India Dipak Misra and Lok Sabha Speaker Sumitra Mahajan at the inauguration of National Law Day | PTI

A Union minister and the chief justice of India on Saturday crossed swords over judicial activism at a conference on the occasion of National Law Day, with Chief Justice Dipak Misra saying it was the sacrosanct duty of the judiciary to protect fundamental rights of the citizens.

Addressing the conference, Minister of State for Law and Justice P.P. Chaudhary said judicial activism was an outcome of the judiciary's independence and should be lauded as long as it stays away from the realm of policy. But when judicial activism and review waded into policy making, its consequences could be disruptive, he added.

"Judicial activism by itself is a necessary outcome of judicial independence, and may be lauded, especially when it is undertaken to protect those who may not otherwise have ready access to justice," Chaudhary said.

"But quite apart from this, is another species of judicial activism where the judiciary is also stepping into areas that are strictly speaking in the realm of policy," he added.

He said that as a 'fundamental principle' of governance, decisions "should, as far as possible, be predictable and not disruptive."

"When judicial activism and review wades into policy making, sometimes its consequences can be disruptive. This needs to be avoided if possible," Chaudhary said.

The minister emphasised that while judicial independence was a pillar of democracy, judicial accountability 'was the base of that pillar.'

"Without accountability there can be no legitimacy. Those in government and those outside it are both fully aware of the fickle nature of power and are fully aware that a strong and independent judiciary is necessary for everyone. We must do everything possible to preserve the moral authority and legitimacy of our judiciary," he said.

Taking the floor after the minister, Chief Justice Misra dismissed the perception of judicial activism, saying protection of fundamental rights of citizens was the 'sacrosanct duty of the judiciary' and it was obliged to stand with citizens if government entities 'encroach' upon citizens' fundamental rights.

"The citizens have been guaranteed fundamental rights, and the governing entities are not expected to encroach upon it. The moment they encroach upon it or there is an apprehension that there is an encroachment, the judiciary is obliged to stand by them," he said.

Chief Justice Misra defended courts taking a proactive position on the fundamental rights of citizens and expanding their scope.

"There is a perception that there is judicial activism....I must clarify protection of fundamental rights of each and every citizen is the sacrosanct duty of the judiciary, which has been conferred by the Constitution. Fundamental rights have been expanded from the date the Constitution came into existence," he said.

The chief justice also said the judiciary had no desire to make policy.

"Nobody intends, nobody desires to enter upon the policy-making areas. We don't make policies, but we interpret policies and that's our job," he said.

The prime task of the three wings of the state was to defend the Constitution, its values, morals and philosophy, Chief Justice Misra said.

Pointing out that there was a direct correlation between the Directive Principles of State Policy and the fundamental rights, Chief Justice Misra called for quality governance and said, "Cooperative constitutionalism is the responsibility of the three organs of the State to protect the Constitution, which is the source of their origin."

Referring to the protection of women at the workplace by framing of the Vishaka Guidelines and rescuing children working in industry, Chief Justice Misra said, "What you see today may be relevant tomorrow."

The two-day conference on the occasion of National Law Day was also addressed by President Ram Nath Kovind, Lok Sabha Speaker Sumitra Mahajan, Niti Aayog Vice Chairman Rajiv Kumar and Law Minister Ravi Shankar Prasad.

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