Jaideep A Prabhu
A Case of Judicial Activism?
This article originally appeared in centreright.in. CRI content has now been subsumed in swarajyamag.com. The views expressed here are personal and do not necessarily reflect those of the editors of swarajyamag.com

A few days ago, the Supreme Court of India ruled that laws placed under the Constitution’s Ninth Schedule after April 24, 1973, providing immunity from legal challenges are subject to scrutiny of courts if they violated fundamental rights (LINK HERE). This verdict has been hailed by a large part of the Indian population as a step in the right direction, and many are keeping their fingers crossed that this will mean the end to discriminatory laws the monkeys on Sansad Marg – I am sorry, I mean the honourable members of the Parliament – have passed.

This is not the first case of judicial activism by India’s highest court. Recently, they asked the government of Delhi to clean the streets, take polluting buses off the streets, and demolish illegal construction. Over the last four or five years, Delhi has improved drastically as a result. Other major instances in which the Supreme Court saved the country were Golaknath v. State of Punjab in 1967, the invalidation of the Bank Nationalisation Bill in 1970, and the abolishing of princely titles the same year. Parliament, naturally, tried to pass an amendment to take away the Supreme Court’s power of review, and the Supreme Court struck back in 1973 in the Kesavananda Bharati v. the State of Kerala case (LINK HERE).

In principle, all three branches of government are supposed to check each other, particularly the executive, which may usurp more than necessary power and the regime may devolve into a dictatorship. In this case, the judiciary seems to have taken on great responsibility, outmanoeuvring the legislative on many an occasion. How healthy is this departure from accepted principles? (LINKS HERE, HERE, AND HERE) At present, I am reading an interesting book, “All the Laws But One,” by former US Supreme Court Chief Justice William H. Rehnquist. The book deals with civil liberties during wartime, and the title derives from an old Abraham Lincoln speech in 1864(?) in which he obliquely refers to the Ex Parte Merryman case…in non-legalese, the incident was regarding Lincoln’s suspension of the writ of habeas corpus, the foundation of any open society, during the American Civil War. In simple terms, Lincoln defends his actions (he had no right to declare so, only the US Congress did) by saying that in times of emergency, it was better to break one law and preserve the Union than follow the strict interpretation of the constitution and jeopardise the very survival of the Union and hence the constitution.

Similarly, today in India, we have a situation in which the Supreme Court’s understanding of its role seems domineering over other branches of the government. As much as I’d like to criticise them, they seem to be the most functional branch of the government and I am wondering of the “all the laws but one” argument applies here too. On one hand, powers should be balanced between the three branches, but then on the other hand, all these principles assume a perfect society in which all people are well-informed and educated. In India’s case, I welcome the Supreme Court’s actions, but I also keep in mind that these are desperate remedies, not solutions.