This the second and final part of my article and views on judicial activism. There is another piece I’m writing that is strictly legal in nature that would’nt be put up. The first part’s here.

Proceeding from this perspective, we must now go to understand the judgment. On reading the judgment one would notice that the operative part of the judgment; that which relates to the facts would end at the first few pages after which the Hon’ble judges draw tangents and express opinions on issues that are nowhere related to the factual situation. Public Interest Litigation or what we call PIL was initiated as an attempt to bring the common man closer to the Court and be heard in the early 1980’s. The Court today cites Montesquieu and the ‘Spirit of Laws’ and says that the separation of powers theory must be upheld; that the judiciary must not overstep its boundaries to engage in actions that are the prerogative of the executive and the legislature. Lord Reid in an oft quoted statement emphasized that judges must never create the law but uphold and adjudicate upon it and his ideas clearly seem to reflect upon the mindset of the two learned judges who gave this decision.

Such a judgment acts as a bad precedent to be applied as the ‘law of the land’. Truly Article 141 must apply only to ratios but with the expansive interpretation of even this Article by the Court serious doubts are created whether the dicta given would apply as law. Let us take the example cited in the judgment of the Nursery school admissions[1] presently being adjudicated by the Delhi High Court. When the Supreme Court expresses an opinion that the Courts must not involve themselves in such activities, would it mean that the entire process to ensure a transparent admission process for young children by an independent body is to be considered futile? Judges of the Court have every right to express their opinion but even that must be made in a given context and surely the present one is not apt. One ought to consider the consequences and then carry forward the action. There have already been instances where as a result of the judgment the High Courts are declining to hear PIL matters and sticking to the old concept of what we called ‘locus standi’.

On the other hand, one needs to take note of the fact that ‘Judicial Activism’ is an example of a carefully cultivated institution in our Country today. It has become much more than a mere attitude of the Court and more of a duty of the Court to step in when the other branches fail to do their duty. The need of such an institution is required and justified in situations where the Court has stepped in to address major human rights issues. The ongoing Right to Food litigation is an apt example. But even still, the boundaries of such an attitude must be defined. One must recall that in as early as 1983 Justice Fazal Ali opined that a Constitutional bench should be dealing with this issue and setting appropriate guidelines as regards judicial activism and PIL. Even though late it is a welcome measure that finally the Court has decided to act on this issue and address it.

[1] Two days after the Aravalli Golf case judgment the Supreme Court heard the Nursery School’s case that was heard by the Delhi High Court and made some rulings in the case.