JUDICIAL ACTIVISM IS NOT THE SOLUTION TO PEOPLES’ PROBLEMS
Daya Varma
The Indian left is put to test time and again about what attitude to take on Judicial Activism. When judges’ decisions suit the left, such activism is hailed. When it does not, a critical appraisal is made. Obviously, any judicial decision will make some people happy and others unhappy. In the case of the present stay order by the Supreme Court on the issue of reservations for OBCs, the elite are happy and the left is unhappy.
Judicial activism has been promoted by the left because the decisions that judges make at times promotes human rights, for example, stopping the demolition of poor people’s dwellings, or benefits the environment, for example, reducing vehicle pollution in Delhi, or upholds constitutional principles, like opposing unjust censorship. Yet, in the long run, it is folly to bypass the political process and instead look to the courts to solve peoples’ problems.
Military dictators soon after taking power usually arrest a few corrupt officials and promise to run a clean government. In the case of Pakistan, they execute or banish rivals. But a favorable judgment on one issue or another by the courts in a democratic society is no reason to rely on the judicial elite to sidestep basic issues of governance or not force changes in governmental policies. After all judges have no greater wisdom than thousands upon thousands of people in any country. Their job is not to govern but to ensure things are done in accordance with the law of the land, which is their specialty. The moment they are allowed to go beyond that, they clear a path for short-cut solutions or long-term problems. It would be appropriate for the Indian Parliament to reinstate the directive which governs the conduct of the judiciary. While the Supreme Court was within its juridical rights to pass a judgment in the Shah Bano case, it clearly is beyond its bounds to express views on whether or not Muslims constitute a minority and whether or not reservations for OBCs is justified.