A simple postcard was enough for former chief justice of India Prafulchandra Natwarlal Bhagwati to convert it into a public interest litigation. It was 1985—a time for change in the Supreme Court and the beginning of judicial activism, as we know it today. Bhagwati retired in 1986. A decade later, when the role of the judiciary is a subject of great debate, Bhagwati spoke to Lekha Rattanani about this development. Excerpts.
Would you agree with Chief Justice Ahmadi that an activist role has been thrust upon the judiciary?
There are two theories about the functioning of the judiciary. One believes in judicial restraint and the other in judicial activism. When a constitutional issue comes before the judge, he has to make a choice dictated by his social philosophy. There are some like me who believe that the judge has to invest the law with meaning and content to advance human rights jurisprudence. When the executive fails to discharge its constitutional or legal duties and the legislature does not act, the judiciary has to step in. Though the judiciary is not elected, it is accountable to the people and committed to justice.
Is this increase in judicial activism a temporary phenomenon?
Judicial activism started in the early '80s when Justice Krishna Iyer and I delivered several judgements. It is not necessarily a temporary feature. But its intensity depends on the extent to which the executive or the legislature fail to perform its constitutional or legal duties.
You used to convert postcards and letters into public interest litigations. Is that where it all began?
I started public interest litigations in India and even entertained letters from social action groups. This was to vindicate the rights of the weaker sections because I found that justice was totally denied to them by our legal system. Today, when there is tremendous corruption and total misuse of power by politicians and the bureaucracy, the judiciary is the only bulwark and it
has to act actively to maintain democracy and the rule of the law.
Of late, the judiciary has taken some decisions which are the purview of the legislature or executive, leading to criticism that judges have crossed the line.
There may be a few cases where the judiciary has strayed into the executive or the legislature's territory. If judges feel that democracy is in peril, I would excuse them if they exceeded their legitimate powers because what they are doing is for the benefit of the people. But a word of caution is necessary—for though the cause may be worthy, judges should not stray too far in a field not allocated to them under the Constitution, because that can become counter-productive and defeat the purpose of judicial intervention.
What corrective measures do you suggest?
The only solution is to develop people's power. The people must learn to assert themselves.