‘Courts dare and ought to say what the law is and what the law should be’

In an atmosphere of unease caused by jibes at judicial activism by the executive and legislature, a sitting Supreme Court judge asserted that it is a solemn duty performed by judges to curb “legislative adventurism and executive excesses.”

Justice Kurian Joseph reiterated the importance of judicial activism even as a low-intensity conflict is simmering between the judiciary, legislature and executive on various issues, including the National Judicial Appointments Commission law and the long-dormant Judicial Standards and Accountability Bill.

Prime Minister Narendra Modi had recently asked the judiciary to be wary of delivering verdicts driven by “five-star activists.”

Justice Joseph, who is one of the five judges on the Constitution Bench considering the validity of the National Judicial Appointments Commission law, said when the legislature’s law proves to be inadequate to administer justice, “courts dare and ought to say what the law is and what the law should be.”

Judicial response



Delivering the 5th Lala Amarchand Sood Memorial Lecture on Judicial Legislation organised by the Bar Association of India in Shimla on Saturday, Justice Joseph said: “Such judicial response is not the special attribute of an activist judge but a solemn role or function or duty of a judge, who is seen popularly as the court. Judicial activism is the obligatory response of the institution, the court, against injustice.”

He reminded the audience of the Supreme Court’s interventions in the 2G spectrum and the coal block allocation scams in this regard. “The Supreme Court took upon itself, in public interest, the duty to make up for the lapses on the part of the executive. We all know the tremendous impact of the judgments on the public exchequer,” Justice Joseph said.

He said the Supreme Court, by pioneering Public Interest Litigation petitions (PILs), had made constitutional social rights to housing, education, food, health and livelihood indivisible from the fundamental rights to life, equality and religion.

Addressing the criticism that judicial activism disturbed the “delicate balance of separation of powers,” Justice Joseph said: “Adoption of separation of powers is partial and not total. Legislature and judiciary are independent, yet judiciary can interpret, review and implement laws made by the legislature.”

He said for years the judiciary made up for the lackadaisical approach of the executive and elected representatives. The honourable judge pointed out that it was through judicial activism that the Supreme Court in 2001 ordered States to provide mid-day meals to schoolchildren.

“Today about 100 million children get a cooked meal at school, making this the largest mid-day meal programme in the world. It paved the way for the landmark National Food Security Act, 2013,” he said.