Wednesday, July 20, 2011

Socialism, Judiciary, and Activism

In a recent judgment the Supreme Court has spoken profusely on the activism shown by the judiciary. The judgement came on a PIL filed by an NGO, National Campaign for Dignity and Rights of Sewerage and Allied Workers, highlighting the frequent deaths of sewage workers trapped in manholes.

The court pooh-poohed the allegation of judicial activism.

The court said it is praised when it gives judgments in favour of the rich but condemned with a “theoretical debate raising the bogey of judicial activism” when it gives relief to the poor on a PIL.

A Bench of Justices G S Singhvi and A K Ganguly, in a 45-page judgment, said

the highest court will be failing in its constitutional duty if it does not accept genuine PILs and “those who are decrying public interest litigation do not seem to realise that courts are not meant only for the rich and the well-to-do, for the landlord and the gentry, for the business magnate and the industrial tycoon but they exist also for the poor and the down-trodden, the have-nots and the handicapped and the half-hungry millions of our countrymen”.

However the court did not specify what it thought to be its constitutional duty. Prior to the 42nd amendment India was not a Socialist country. So, do we assume that the obligations of the court changed after this amendment?

The court ensuring that everyone is equal before the law can be a constitutional and legal obligation. It is correct in saying that the law exists for all, both the rich and the poor.


In a startling observation, the bench said that “so far the courts have been used only for the purpose of vindicating the rights of the wealthy and the affluent.”

This is an observation which smacks of socialist activism. We need to notice the obvious and realize that Affirmative Action and Social Justice, especially when coerced by the state are unfair actions primarily aimed at redistribution of wealth, where the state robs the haves for the sake of havenots while constantly increasing its own (the state's own) power over the people.

We, as the peoples, are facing a dual crisis. One of inaction by the legislative and the executive, and the other of socialistic activism by the judiciary.

We need to make it clear that we are not opposing the protection offered by this judgment to the workers. We are appreciating the fact that the rights of the people are upheld. What we are criticizing is that the court is failing in its duty while it refuses to chastise the government for not leaving domains where private enterprise can offer services on a competitive basis and under consumer protection laws. Also the judiciary exceeds it boundaries when it identifies itself with statist socialistic activism.

Why has the Supreme Court not given a similar ultimatum to the government for increasing the number of courts and judges?

Further, notice the court statements:

1. “It is only these privileged classes which have been able to approach the courts for protecting their vested interests. It is only the moneyed who have so far had the golden key to unlock the doors of justice,”

If it is only the privileged classes who had the access to justice, whose fault is it? What is the corrective action being recommended by the Supreme Court?

2. “There is a misconception in the minds of some lawyers, journalists and men in public life that public interest litigation is unnecessarily cluttering up the files of the court and adding to the already staggering arrears of cases which are pending for long years and it should not therefore be encouraged by the court. This is, to our mind, a totally perverse view smacking of elitist and status quoist approach,”

Isn't the SC itself being elitist? Isn't it even being status quoist if it has not given a similar ultimatum to the government for increasing the number of courts and judges?

3. “If the sugar barons and the alcohol kings have the fundamental right to carry on their business and to fatten their purses by exploiting the consuming public, have the Chamars belonging to the lowest strata of society no fundamental right to earn an honest living through their sweat and toil?”

Terming voluntary exchange between the manufacturers of a commodity and consumers of the commodity as exploitation the SC has betrayed its Social Engineering proclivities. It assumes that the rich exploit and the poor toil. It refuses to see the glaring facts that affirmative action is exploitation as well. The courts exist not only for protecting citizens from other citizens, but also for protecting the citizens from the state, especially a state which is a commission agent of wealth redistribution.

4. The most unfortunate part, the court said, is that when the judiciary issues directions for ensuring the right to equality, life and liberty of those who suffer from the handicaps of poverty, illiteracy and ignorance, “a theoretical debate is started by raising the bogey of judicial activism or judicial overreach”.

Is equality the equality of opportunity or equality of result? These two hugely differ in their meanings. The former is fairness while the latter unfair.


1. While there is large scale apathy and inaction in the Legislative and the Executive, it is encouraging to see action on part of the judiciary.

2. However, the action is not well guided, however well intentioned it may appear to be. Further, the misguided action can be counter-productive and worse than status quo!

3. Let there be change for the better, for we must remember that not all change is necessarily good!

4. If the SC reveres the constitution then it must forsake activism but if it wants to be active for the upholding of justice and fairness in a larger perspective then it must open itself to questioning of unfairness in the constitution itself. Otherwise this selective activism betrays prejudice which is the worst form of injustice and unfairness.

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