For Activist Judges, Try India

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If you think the U.S. has a problem with activist judges, take a look at India — this country's judiciary is among the most opinionated and interventionist in the world. The Indian Supreme Court regularly wades into national debates; nudges lawmakers by making its opinions and, therefore, its possible future rulings, known; and criticizes government policies. The judges' contribution certainly adds a wonderful air of rowdiness to the public discourse of the world's biggest democracy, but it can sometimes seem that the Supreme Court, as much as the government, runs the country.

That's certainly the way it felt last week when thousands of Delhi shop owners called a three-day strike, burned tires in the street, organized mock funerals for the Delhi state government, and stoned policemen and passing vehicles. The cause of the traders' anger was a February Supreme Court ruling instructing the Municipal Corporation of Delhi to "seal" — close or demolish — 44,000 stores operating illegally in Delhi's residential areas. The Court established a three-member monitoring panel to ensure its orders were enacted, and after months of legal back and forth the "sealing drive" finally began last week.

Outraged shop owners blame their predicament on both the Court and corrupt local government officials, whom they accuse of taking bribes for years to allow traders to bypass local planning and zoning regulations. Now, the traders want the state and federal governments to find a way around the Supreme Court order, even if that means changing the Constitution. The Court's order is opposed by the ruling Congress Party and its main opposition, while Delhi's Municipal Corporation says it cannot carry out any more sealings because of the danger of a violent backlash. But after another hearing on Monday, the Supreme Court was adamant: The sealing drive will continue.

Setting aside the merits of the case — in a city of 15 million that has grown chaotically over the past few decades, stricter rules would be welcomed by harassed residents, although they would also hurt many small shop owners — the brouhaha clearly illustrates the central role of the Supreme Court in India's daily governance. And it's not confined to urban planning. Last month, the Court ruled that the country's 250 zoos could no longer breed animals, in response to a complaint by animal rights activists that the zoos are overcrowded and badly run. The Court also recently stepped into the debate over a government decision to increase the percentage of state jobs reserved for poor people from lower castes. The Supreme Court judges said that parliament should allow the Court to examine the issue as well, and demanded that the government provide statistical backing for its argument in support of affirmative action. Wealthy elites from lower castes — the co-called "creamy layer" who have benefited from past affirmative action — should not benefit further, the Court said.

Hardly surprising then that not everyone is happy with the Court's interventions. "From a mandate to interpret the law, the courts have redefined their role as wanting to correct aberrations and shortcomings in every walk of life," wrote journalist Harish Khare in the Hindu newspaper. "The rule of law or rather the Constitution [is] in danger of being supplanted by the rule of judges."

One source of judicial activism is the provision in Indian Law for "Public Interest Litigation" (PIL), which is not unlike class-action litigation in the U.S. Like the high court in other systems, India's Supreme Court rules on the constitutionality of laws passed by the legislature. But it also entertains matters that haven't come up through the lower courts but in which, according to the Supreme Court's own website, the "interest of the public at large is involved." PIL cases were encouraged from the 1980s as a way of empowering marginalized Indians to claim their rights. But so many people took up that call that the Court is now jammed with time-consuming and sometimes frivolous petitions.

But the judges aren't inclined to relinquish their role. In a speech last week, Chief Justice Y.K. Sabharwal made no apologies for the activist approach, arguing that the Supreme Court should not only interpret legislation but should also make sure that other branches of government implement laws to ensure justice to the poor.

That's a position that not everyone agrees with. "Our judges have succumbed to the temptation to interfere even with well-recognized executive powers such as treaty-making or foreign relations," wrote former Supreme Court Justice Bellur Narayanaswamy Srikrishna in a 2005 paper on the growth of judges as "social engineers."

"One shudders to think whither this trend could lead," wrote Srikrishna, "whether, for example, the constitutionality of a declaration of war or peace treaty signed by India could also be questioned in a court of law. If the courts were to strike down the peace treaty as being "unconstitutional," would the armed forces be compelled to prosecute the war under a judicial mandamus?"

Indian governments are often at loggerheads with the Supreme Court. In 1971, parliament took the extreme measure of passing an amendment to create a new section of the constitution in which laws are beyond judicial review. Last week, the Court, which has long held that the move was invalid and has created a repository for tainted laws, heard arguments for and against the right of the state of Tamil Nadu to use the amendment to reserve government jobs for the underprivileged. The Court has yet to hand down its decision.