What the US and India have in common: Judicial activism

NEW DELHI: The latest issue of Time magazine has opened up a debate on the Supreme Court’s ‘interventionist’ role as it starts with its recent order for sealing thousands of shops in Delhi. “For activist judges, Try India,” says the headline that follows with the caption: “In New Delhi, the Supreme Court makes no apologies for its forays into governance.”

Simon Robinson’s article in the magazine also consoles people in the US who are said to be perturbed over some of the activist judges of the American apex court.

“If you think the US has a problem with activist judges, take a look at India — this country's judiciary is among the most opinionated and interventionist in the world,” it opines. “The Indian Supreme Court regularly wades into national debates; nudges lawmakers by making its opinions and, therefore, its possible future rulings, known; and criticises government policies. The judges’ contribution certainly adds a wonderful air of rowdiness to the public discourse of the world’s biggest democracy, but it can sometimes seem that the Supreme Court, as much as the government, runs the country,” Simon sets the tone. After touching upon the sealing order, the magazine recalls another ruling last month that “the country's 250 zoos could no longer breed animals”.  It (SC) “also recently stepped into the debate over a government decision to increase the percentage of state jobs reserved for poor people from lower castes”.

“The Supreme Court judges said that Parliament should allow the Court to examine the issue as well, and demanded that the government provide statistical backing for its argument in support of affirmative action.”

“Wealthy elites from lower castes — the so-called ‘creamy layer’ who have benefited from past affirmative action — should not benefit further,” says the magazine quoting the ruling. The author concludes that “hardly surprising then that not everyone is happy with the Court’s interventions.”

But the judges aren’t inclined to relinquish their role. In a speech last week, Chief Justice YK Sahara made no apologies for the activist approach, arguing that the SC should not only interpret legislation but should also make sure that other branches of government implement laws to ensure justice to the poor, says Time. The article also talks of government’s confrontation with the judiciary. “Indian government is often at loggerheads with the SC. In 1971, Parliament took the measure of passing an amendment to create a new section of the Constitution in which laws are beyond judicial review.”