New Dimensions of Judicial Activism, and the Structural Challenges
Chapter Fifty-Two
Syllabus topic 3, "Judicial Process in India"
Pages 211 to 214 of 356
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.
New Dimensions of Judicial Activism, and the Structural Challenges
Why it matters here. It is Vishaka's technique applied twenty one years later, which shows that the vacuum-filling dimension has not been abandoned.
4. Environmental governance. From Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715, through the creation of specialised machinery, the Court has moved from deciding disputes to supervising a regulatory field.
5. Governance and transparency. Directions on appointments to statutory bodies, on the functioning of investigating agencies, and on disclosure in public life.
6. Continuing supervision. The retention of matters over years, with periodic directions, which is a form of administration by court.
The structural challenges
1. Arrears. Tens of millions of cases pending across the system. This is the challenge that conditions everything else: a court that cannot decide ordinary cases within a reasonable time is spending its capacity on policy supervision at the cost of its primary function.
2. Vacancies. Sanctioned strength unfilled for long periods. Since 1993 the recommendation is the collegium's, so the responsibility is shared between the judiciary and the executive, and the delay is often in the space between them.
3. The State as the largest litigant. A substantial share of the docket is government litigation, much of it routine appeal against decisions the government has lost.
4. Cost and distance. The ordinary process is unaffordable for most people. That a special jurisdiction had to be created for the poor is the standing evidence.
5. The enforcement gap. Directions depend on an administration the court does not command.
6. Absence of criteria in appointments. No published criteria, no recorded reasons.
How the challenges bear on the activism
This connection is what MU's question is actually asking for, and most answers miss it.
Arrears make activism costlier. Every day spent supervising a policy field is a day not spent deciding appeals. The institutional liability in [The Institutional Liability of the Courts: Scope and Limits] is the other side of the activism.
The enforcement gap limits what activism can achieve. A guideline that is not implemented is a guideline in name only.
Vacancies and arrears are themselves a subject of activism. The Court has directed the filling of vacancies and the creation of infrastructure, which puts it in the position of directing a process in which it is itself a participant.
Selectivity. With a docket of that size, the cases that receive full attention are selected by who can reach the Court, which distributes judicial attention by access rather than by need.
New Dimensions of Judicial Activism, and the Structural Challenges
The answer the Court has given. Discipline of the jurisdiction, in State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402.
Facts. A public interest petition challenged the appointment of an Advocate General, and the Court used the appeal to review the whole history and working of public interest litigation and to consider what should be done about its misuse.
Held. Tracing public interest litigation through its phases, the Court directed the High Courts to frame rules to encourage genuine public interest litigation and to discourage the frivolous kind, requiring verification of the petitioner's credentials, prima facie verification of the correctness of the contents, and the imposition of exemplary costs on frivolous petitions.
Why it matters here. It is the Court managing the volume problem that its own jurisdiction had helped create.
A worked example
A petition asks the Supreme Court to monitor the appointment of members to every State information commission.
Is a right engaged? The right to information has been treated as flowing from Article 19(1)(a), so arguably yes.
Is it a new dimension? Yes, in the governance and transparency sense.
What do the structural challenges suggest? That monitoring appointments in every State will consume hearing days indefinitely, and that the Court has no means of compelling a State to select a particular person.
What is the disciplined order? A direction that vacancies be filled within a fixed period, with reasons for delay to be filed, and liberty to apply, rather than continuing monitoring of each appointment.
What the example shows. The new dimensions and the structural challenges pull against each other, and the second should shape the form of the order the first justifies.
Quick revision
- New dimensions: privacy, personal and sexual autonomy, dignity in dying, environmental governance, transparency in governance, and continuing supervision.
- Puttaswamy, Navtej and Common Cause, all 2017 to 2018, are the recent line; constitutional morality is the new standard.
- Structural challenges: arrears, vacancies, the State as the largest litigant, cost and distance, the enforcement gap, and no criteria in appointments.
- Arrears make activism costlier; the enforcement gap limits what it achieves; vacancies are themselves a subject of activism, in which the Court participates.
- Selectivity: with a docket of that size, attention is distributed by access rather than by need.
- Chaufal, (2010) 3 SCC 402, is the Court managing the volume its own jurisdiction created.
- The disciplined order is the one that enforces the obligation while leaving the means, and the hearing days, alone.
Test yourself
1. Name the new dimensions of judicial activism with a case for three of them. Privacy and informational autonomy, Puttaswamy, (2017) 10 SCC 1; personal and sexual autonomy, Navtej Singh Johar, (2018) 10 SCC 1; dignity in dying, Common Cause, (2018) 5 SCC 1; and, without a single leading case, environmental governance, transparency in governance, and continuing supervision of administration.
New Dimensions of Judicial Activism, and the Structural Challenges
2. List the structural challenges and say which conditions the others. Arrears, vacancies against sanctioned strength, the State as the largest litigant, cost and distance, the enforcement gap, and the absence of published criteria in appointments. Arrears condition the rest, because a court that cannot decide ordinary cases within a reasonable time is spending capacity on supervision at the cost of its primary function.
3. Explain the connection MU's question is asking for between the two halves. That the challenges shape what activism can properly do. Arrears make every day of policy supervision costly in ordinary justice; the enforcement gap means a direction may achieve nothing; the volume of the docket distributes judicial attention by who can reach the Court rather than by need; and the Court is itself a participant in the vacancy problem it directs others to solve. The disciplined response is to enforce the obligation while leaving the means to the body with the information.
4. How has the Court itself addressed the volume problem created by its own jurisdiction? In State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402, by directing the High Courts to frame rules encouraging genuine public interest litigation and discouraging the frivolous kind, requiring verification of the petitioner's credentials and prima facie verification of the correctness of the contents, and requiring exemplary costs on frivolous petitions.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.