Just like the United States, there are government leaders in India who criticize judicial activism. Some judges even go so far as to proclaim that their colleagues “must not behave like emperors.” But Ruma Pal will have none of it.
In a lecture last March, Pal, former justice of the Supreme Court of India, rejected the concepts of separation of powers and parliamentary superiority as relics of a colonial policy that are irrelevant today.
She said judicial activism “has been critical in protecting and preserving the fundamental rights and basic dignities” of Indian citizens.
Justice Pal, who served on the Supreme Court from 2000 to 2006, made this passionate defense of judicial activism as guest speaker for The Nand and Jeet Khemka Distinguished Lecture Series, co-sponsored by the Law School and the Center for Advanced Study of India.
Explaining her position, Justice Pal said separation of powers is a fluid concept which allows for the judiciary to step in when the executive and legislative branches fail to act. In particular, she said, the Constitution grants the Supreme Court the power of judicial review, which includes the ability to enforce fundamental rights by issuing directives.
Nonetheless, the executive branch fears that this gives the judiciary too much power, and accounts for its criticism of judicial activism, said Justice Pal.
In 1975, the president acted on this fear and attempted to “entrench itself as the sovereign power” under the Constitution by declaring a state of emergency and suspending elections and civil liberties, said Justice Pal. This order effectively curtailed the power of judicial review.
High courts challenged the decree but the Supreme Court backed it. The order was lifted in 1977.
“This shameful instance of judicial deference to...the executive has remained a blot on the reputation of the Supreme Court as a protector of the citizen from executive excesses,” said Justice Pal.
As a corrective, the Supreme Court later established substantive due process by ruling that an individual could not be deprived of life or liberty arbitrarily. The establishment of due process, among other policies, has led critics to charge that the Indian judiciary second-guesses Parliament and rewrites the Constitution. Justice Pal countered this criticism by asserting that concepts such as equality, undefined by the Framers, are like “empty vessels into which each generation pours its content by judicial interpretation.”
Justice Pal credited judiciary activism with keeping “democratic principles alive” by providing continuity during political instability, giving a voice to oppressed groups, and “acting as a buffer” to protect citizens against executive and legislative action and inaction.
More important, she said in a country rife with political, ethnic and linguistic divisions, the judiciary has promoted the “feeling of Indian-ness” because “nationhood is preserved by and operates within the framework of the Constitution.”