Judicial Activism (IV) Legitimacy

In the previous parts of this paper, the author traced the evolution of the Supreme Court of India from a positivist court into an activist court. The Court has now become a political institution laying down rules of governance and its decisions have to be obeyed by the other organs of the government. There has been a phenomenal change in the nature of the judicial process. It has become more accessible, participatory and even legislative. By traditional standards, the Court has clearly gone beyond its constitutional mandate. There can be serious objections to the expanded role of the Court from the standpoint of the doctrine of separation of powers and the theory of judicial process. Yet, we find that neither the other organs of the government nor the people have raised such objections or have entertained them seriously. Judicial activism is welcomed by the political players as well as the lay people. Sometimes we find that the government itself invites such intervention with a view to either obtaining legitimisation of its own decisions (Mandal Commission recommendations) or in order to avoid taking unpopular decisions (Reference of temple-mosque controversy to the Court). Judicial activism is considered to be justified and decisions of the Court are considered to be binding by those who are required to implement them. This is what the author calls the legitimacy of judicial activism.

Why and how has judicial activism acquired legitimacy? A Court has to continuously sustain its own legitimacy by not only being independent but appearing to be independent, objective and principled. Since the Court is taking decisions which have political implications, it must tolerate greater criticism of its decisions from the people. The power to punish for contempt also requires constant legitimation. It must be exercised so as to allow maximum freedom of speech and expression. The paper shows how the Court has to use tact and vision for sustaining its image as a democratic and independent authority.