Judicial Activism

Judicial activism. Some approve of it, saying the courts have to step in when the legislature refuses to do the right thing. Others support it because the pace at which society reforms itself is too slow; and politicians, even if they believed in some reforms, would not risk losing the next election. Judges, in this view, should actively speed up the move in the right direction.

 

Others are deeply suspicious of judicial activism because, hey, the judges aren’t elected representatives. Also, as Pranay Kotasthane says in Missing in Action:

“It is difficult to imagine how a single complainant with a specific grievance in a combative judicial process would be the basis for drafting a norm or law for the society.”

Besides, are judges qualified to understand second and third order consequences of the laws they create? Do they even try to weigh the costs and benefits of a big picture change while passing judgment? And can’t individual judges be biased?

 

These views are not unique to India. In America, the legislature won’t dare touch the topic of abortion. So both times, first to legalize abortion, and more recently to overturn it, it was the American courts that made the decision. In turn, this is why the appointments of US Supreme Court judges is so viciously fought in the American legislature:

“(It) is an implicit acceptance that judges insert their personal code into judgments.”

In India too, topics like caste-based reservations, rights of women, decriminalization of homosexuality and the Ram-Janmabhoomi dispute all go through the courts.

 

In addition, in India there’s one more angle to all this:

“(As politics got more and more partisan over a long time, not just recently) the drafting of laws became more imprecise or vague to accommodate political bargains.”

In turn, that has increased the frequency with which the judges have had to interpret these ambiguous laws, effectively turning judges into lawmakers.