New Dimensions of Judicial Activism, and the Structural Challenges

In one line

The activism of the 1980s was about reading rights into the Constitution; the activism of the present is about privacy, autonomy and governance, and it is conducted by a court whose main problem is that it cannot get through its own list.

In the wording a student can write in an exam: the new dimensions of judicial activism are the fields into which it has moved since about 2000: privacy and informational autonomy; personal and sexual autonomy; dignity in dying; environmental governance through specialised institutions; electoral and governance transparency; and continuing supervision of administration. The structural challenges are the conditions under which it is exercised: arrears, vacancies, the State as the largest litigant, cost and distance, the enforcement gap, and the absence of criteria in appointments.

The new dimensions

1. Privacy and informational autonomy. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

Facts. A nine judge Bench was constituted to decide whether the Constitution guarantees a fundamental right to privacy, because two early decisions, M.P. Sharma and Kharak Singh, had said it did not, while later decisions had assumed it did.

Held. Unanimously, M.P. Sharma and Kharak Singh stand overruled to the extent that they held privacy not to be protected, and the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III.

Why it matters here. It is a new dimension in two senses: the subject matter did not exist in this form when the Constitution was written, and the technique was to overrule the Court's own early decisions by a Bench large enough to do it.

2. Personal and sexual autonomy. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

Worked in full in [The Constitution as a Living Document]. Section 377 of the Indian Penal Code was held unconstitutional so far as it criminalised consensual sexual conduct between adults in private, as violating Articles 14, 15, 19 and 21, and Suresh Kumar Koushal was overruled.

Why it matters here. The reasoning is the new dimension: constitutional morality, and not popular or majoritarian morality, governs the interpretation of fundamental rights, expressly against majority sentiment.

3. Dignity in dying. Common Cause v. Union of India, (2018) 5 SCC 1.

Facts. A registered society sought a declaration that the right to die with dignity is a fundamental right within Article 21, and directions permitting a competent adult to execute an advance medical directive refusing life-sustaining treatment.

Held. The right to live with dignity includes dignity in the process of dying, passive euthanasia is permissible in law, and an advance medical directive is legally valid. Because Parliament had not legislated, the Court laid down detailed guidelines on who may execute a directive, how it is to be recorded and witnessed, and the medical board procedure for giving effect to it, to hold the field until legislation is made.