Democracy, Economic Justice and Judicial Activism: Imperatives for a Post-Covid World

Judicial activism does not exist in the books of the Constitution, so it is best defined in opposition to judicial restraint. As judges, our previous approach was to recognise the need to exercise judicial restraint and avoid muddy waters by getting into policy matters or lawmaking. The Constitution’s division of powers states that the domain of law-making is allotted to the legislature, while the executive lays down policy decisions and governs. In this framework, the judiciary plays the limited role of resolving disputes brought before the court.

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In the constitutional sense, the judiciary therefore has three key roles. First, it enforces fundamental rights guaranteed under Part 3 of the Constitution. It similarly enforces all other non-fundamental constitutional rights. Apart from these rights, its final duty is to protect any other individual legal rights. Things soon changed, as courts found the executive and legislative, when left to their own, do not act on many pressing fronts. This resulted in judicial activism, which by definition means that the judiciary becoming more active – to interpret and expand laws, and meet society’s needs.

The question arises of what role the judiciary plays in a democracy. It is not concerned with the actual practices of repetitive democracy and elections, which are left to the Election Commission and Parliament. For a judge in a democracy, concerns should be three-fold: asserting fundamental rights, liberties and lives of the people; protecting other constitutional and legal rights of individuals; and ensuring that a rule of law prevails the country. While the judiciary therefore plays these limited roles in a democracy, all of them are vital to ensure democracy survives in a country.

However, the judiciary possesses limited powers to discharge these duties. Under Article 32, the Supreme Court can address any violation of fundamental rights. Similarly under Article 226, citizens can go to high courts for violations of not only constitutional rights, but any other legal rights like statutory rights or regarding policy decisions by the government. Particularly given the limitations of the Supreme Court to take up many cases, it is urged that citizens go to high courts to seek justice. However, if there are no discernible legal rights in an issue, the courts have no power to address it as the legislature and executive will accuse the courts of crossing into their domains. Furthermore, in order for the judiciary to address an issue, funding has to be first sanctioned by the legislature, and the executive has to take an administrative decision on whether the issue can be taken up by the courts. These are the problems the judiciary faces in granting relief to people, leaving courts with little room for judicial activism.

This makes economic justice a dilemma for the judiciary. The Preamble of the Indian Constitution speaks of justice that is social, economic, and political; however there are limited ways to uphold it. In 1950, fundamental rights were developed with the assumption that such rights were not dependent on a state having high economic resources. Other rights that post-independent India did not have resources to enforce, such as economic rights, were brought into the Directive Principles.

Fundamental rights are justiciable while directive principles are not, which is the basic problem the judiciary faces in enforcing economic justice. Article 37 dictates that Directive Principles are fundamental for the governance of the state and shall be applied by legislature, but cannot be enforced in a court of law.  The Directives of State Policy in Article 38 places an imperative on the state to ensure ‘social order in which justice, social, economic and political, shall inform all the institutions of the national life’. So while these rights are addressed in the constitution, Article 37 states that they are not enforceable, placing the onus on the legislative and executive to address these rights as and when resources come in.

Despite these constraints on the judiciary, the Supreme Court has been dynamic in advocating economic justice in the country. An example of this is the right to education, which was originally listed under the Directive Principles. In Article 45, it’s detailed that free and compulsory education will be provided until the age of 14. However, as time passed, the legislature and executive were not acting in this regard – to promote primary education. In 1992, the court found that state resources were sufficient and Article 21 of the right to life encompassed the right to education. This led to the legislature amending the Constitution to include right to education a fundamental right under Article 21(a).

The COVID pandemic has posed new arenas where judicial activism is necessary. Rights were especially affected during the COVID-19 pandemic, with lockdowns during 2020-21. With limited access to courts and low awareness among citizens on legal aid schemes, it was important for courts to step in to protect citizens’ rights. Judicial activism was especially necessary during the lockdown with regard to Article 19(1)g, which is the right to ‘practise any profession, or to carry on any occupation, trade or business’. During the lockdown, the state invoked the provision in Article 19(6) that allows the State to impose reasonable restrictions on this right in the general interests of the public. At this point, the judiciary should have evaluated whether the lockdown rules should have been so strict as to deprive people entirely of their fundamental right to livelihoods. Courts have the power to question whether such restrictions imposed by the state are reasonable in order to protect other fundamental rights as well.

Similarly, Article 19(1)(d) ensures the right to move freely throughout the territory of India. For migrant workers stranded without wages in the city, this right was essential for them to be able return to their villages to ensure access to basic needs. The severe restriction of their movement during the lockdown questions why this right was denied. The law once again has a clause that allows the State to impose reasonable restrictions on this right; and here again what the judiciary could have questioned is if the restrictions were reasonable.

A potential obstacle to judicial activism is that the Supreme Court is not always well-equipped to judge a situation due to the lack of country-wide information. Unlike the legislature or executive in the judiciary, it is left to a few judges to evaluate a situation. This is often why the judiciary does not overstep its limits. For instance, during the pandemic, the court initially called for free COVID tests at private hospitals to make the right to health accessible, which led to a huge outcry from private hospitals that contended the high costs of providing free testing. Taking this into account, the Supreme Court modified the order to ensure hospitals were reimbursed.

The COVID-19 pandemic was like the declaration of a state of emergency, and this is when judicial activism is most essential. It is important to remember that within the very separation of powers that limits the judiciary, it is only the judiciary that has the power to regulate the legislature and executive.

(The author is a former judge of the Supreme Court and a founding member of Odisha Dialogues. Excerpts from a lecture delivered at webinar held by Odisha Dialogues. Edited and composed by Ayesha Patnaik)