The Criticisms of Judicial Activism

In one line

The five standing objections to Indian judicial activism are separation of powers, institutional competence, democratic legitimacy, inconsistency and unpredictability, and the diversion of the court from its ordinary work, and each has a specific and defensible form.

1. Separation of powers

The objection. Framing rules of general application is legislation; supervising the administration of a scheme is administration. A court that does either has taken a function the Constitution assigns elsewhere.

Its specific forms. Guidelines binding until Parliament legislates. Continuing mandamus supervising an administration over years. Directions on appointments and on the internal running of institutions. Orders with substantial budgetary consequences.

Why it is not answered by article 32 alone. The obligation to give relief where a right is violated explains why the court must act; it does not determine what form the relief may take, and the objection is about the form.

2. Institutional competence

The objection. The court has no method for deciding technical, economic and polycentric questions. It hears two parties, receives a report it cannot fully test, and cannot see the consequences of its order for people who are not before it.

Polycentricity is the precise version of this, and it is worth using the term. A polycentric problem is one in which every element affects every other, so that changing one part changes the whole, as with a budget or an industrial policy. Adjudication is designed for bipolar disputes and handles polycentric problems badly.

The usual response, appointing an expert committee, transfers the problem rather than solving it, since the court must still decide whether to accept the committee's view and on what basis.

3. Democratic legitimacy

The objection. Judges are not elected and cannot be removed for their decisions. A decision that allocates resources or sets a policy is a political decision made by an unaccountable body.

Two sharper forms.

Article 51A(g) and article 48A were enacted by an elected Parliament as a duty and a directive, and using them to create an enforceable right converts a deliberate choice about enforceability into its opposite.

And the executive ratifies treaties without the legislature, so the reading-in doctrine described in [Guidelines Drawn from a Convention India Had Ratified] enlarges executive power at Parliament's expense.

4. Inconsistency and unpredictability

The objection. If article 21 contains whatever a bench holds that dignity requires, its content varies with the bench. Neither a legislature drafting a statute nor a citizen ordering their affairs can know in advance what the article forbids.

The evidence for it is real. Similar claims have succeeded and failed, the intensity of intervention has varied across decades, and the same jurisdiction has been described as its own high point and its own excess by different observers.