Judicial activism in India is largely a story of political failures. There is no other way to describe the role played by the Supreme Court and the high courts.

From prodding executive authorities to carrying out basic tasks to deciding momentous questions, India’s higher courts have only stepped in to fill the breach created by the executive and legislative branches. These failures are not new and, in fact, date to the first decades after Independence.

Zia Mody’s book—10 Judgements That Changed India—looks at these questions by examining significant judgements delivered by the Supreme Court. Mody’s catalogue of cases covers the ground well: safeguarding the Constitution (in Kesavananda Bharati vs State of Kerala in 1973) to giving shape to vital measures such as preventing sexual harassment in workplaces (Vishaka vs State of Rajasthan in 1997).

Can one find a common thread that runs through these cases? On the face of it, no: The diversity of circumstances in which these cases arose is large. In any case, court cases—from their start till the final appeal—are not based on some overarching judicial philosophy but are decided on fact and points of law. Yet, in each of the 10 cases, the appeal to the apex court reflected some facet of executive failure or legislative encroachment. In Kesavananda, for example, it was the aggressive amendments to the Constitution in the early 1970s—largely to emasculate the Right to Property, a process that dated all the way back to the 1950s—that was challenged. In Supreme Court Advocates-on-Record Association vs Union of India (1993) it was the independence of judiciary that was sought to be preserved.

What is interesting is that it is possible to further narrow or refine the causes behind the court’s activism. This sounds suspiciously like a search for a theory of final causes. But it is not. Look at the trajectory from one of the earliest “big" cases, that of Shankari Prasad (which dealt with the abridgment of Fundamental Rights by Parliament) in 1952 all the way to Vishaka in 1997 and you can notice one simple fact. The government of the day acted to shape laws, to take action or not to take it (in Vishaka’s case for example) solely on one ground: its political relevance. Land reform was appealing not because it promised to enhance productivity of farmers but because of its vote getting potential. Drafting of guidelines to prevent sexual harassment had to wait for judicial intervention long after independence was secured: women, as a class of voters, were too dispersed to be politically relevant for the government to care. See any public interest litigation and you will realize this sad fact. Are citizens who are not politically organized into some caste group, lobby or union irrelevant? It has taken judicial intervention to give voice to this huge mass of citizens who simply want to lead their lives quietly. Those who decry the higher judiciary as being undemocratic, as it seemingly encroaches on the domain of elected governments, conveniently forget this fact.

These are not academic questions any more, if they ever were. Today, the government of the day wants to secure primacy in the appointment of judges again. It seeks to do this by creating a national judicial commission (a step which, by the way, Mody advocates but with the best of intentions. See the discussion on pages 180-183 of the book). It cries foul when the courts intervene and prevent it from wantonly selling off natural resources as it pleases. In the politically permissive conditions that prevail currently, the list is virtually endless. And the issue is not one of this or that government; it is one that arises from degeneration of the executive branch itself. The dangers of unchecked, unelected, and very powerful institutions are too well known to be elaborated here. But the Indian experience shows that elected institutions pose an equal, if not greater, threat to liberty. A powerful Supreme Court is a vital safeguard whose importance cannot be understated. Zia Mody’s book is a good starting point to explore these questions.

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