Fight over judicial activism

New Delhi: Union Minister of State for Law and Justice and Chief Justice of India on Saturday crossed swords over judicial activism at a conference on the occasion of National Law Day with CJI Dipak Misra saying it was their sacrosanct duty to protect the 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 judiciary's independence and should be lauded as long as it stayed 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," he said. The Minister emphasised that while judicial independence is a pillar of democracy, judicial accountability "is 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, the CJI dismissed the perception of judicial activism, saying protection of fundamental rights of citizens is the "sacrosanct duty of the judiciary" and it is obliged to stand with citizens if government entities "encroach" upon their 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.

Justice Misra defended courts taking a pro-active position on the fundamental rights of citizens and expanding their scope. "There is a perception that there is a judicial activism... I must clarify protection of fundamental rights of each and every citizen is the sacrosanct duty of the judiciary that has been conferred on by the Constitution. Fundamental rights have been expended from the date the Constitution came into existence," he said.

The CJI also said the judiciary has 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 is to defend the Constitution, its values, morals and philosophy, Chief Justice Misra said.

Pointing out that there was a direct co-relation between 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 work place by framing 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. (IANS)