ABSTRACT

The question of whether the judiciary can interfere with policy-making (and if it can, to what extent it should) evokes different responses from most of the Indian populace (Supreme Court judges alike). This difference in opinion largely results from the varied weightage each of us gives to the sanctity of institutional autonomy on the one hand, and the importance of the judiciary having the jurisdiction to adjudicate on a wide array of matters that concern the public on the other. The question of how much weightage should be given to either gets even more interesting because it necessarily runs parallel to questions on the competence and legitimacy of judges in assessing policy matters.This paper analyses the doctrine of separation of powers in light of the documented failure of the legislature and executive to satisfy the demands of the electorate, and discusses whether the role that the judiciary has assumed in the past three decades is in consonance with “good governance”, or takes away from it. Arguments have been made both in favour of and against judicial intervention in governmental policy, ending with a discussion on the current context.

We find that there is an appreciable difference between cases where a governmental policy exists, and where it does not, having a direct bearing on the extent of judicial intervention warranted. We argue that in cases where a policy already exists, the judiciary must tread lightly and appreciate its merits before critically analyzing it.Finally, it is highlighted throughout the essay that the judiciary is the highest institution to protect and safeguard the people of a state, and that when the people’s choice is not reflected in their elected representatives they deserve a remedy that does not necessarily require them to wait for another political term.

INTRODUCTION

Judicial Intervention in the actions of government is often frowned upon because the

judiciary is seen to be stepping outside the scope of its authority – the argument often

goes that the Judiciary exists not to govern, it exists to judge. This in essence is a

simplistic formulation of the Doctrine of Separation of Powers.

A powerful component of this doctrine (and a significant reason for its persuasiveness) is

the real possibility of tyranny should power be concentrated in the hands of any one man

or institution – the idea that absolute power corrupts absolutely. A strict conception of

this doctrine has been embraced under the United States’ Constitution and thus in the

American Legal System, the possibility of an activist judiciary is seen as anathema.

India however, has not recognised the doctrine of separation of powers in its absolute

rigidity.1 The Constituent Assembly envisaged an intricate system of checks and balances

between the three organs2, signifying that the emphasis of the separation of powers was

on interdependence rather than on strict autonomous functioning. These three organs

have been known to operate differently from a strict construction of the Doctrine and take

on responsibilities traditionally ascribed to other organs – hence the Legislature being

accorded an otherwise judicial power when determining breach of privilege or the ability

of the Executive to undertake a legislative function when promulgating ordinances.

This coupled with the parliamentary nature of Indian democracy results in a close and

symbiotic relationship between its legislature and its executive because the public

confidence and support of the legislature often rests solely on executive action. Clearly

then, the organs of the Indian State can accommodate the possibility of deviation from

the Doctrine.

But is this deviation desirable? The answer must be arrived at in the mould of the way

that the Indian state has developed – its evolution into a welfare state the functions of

which are continually increasing means that the scope of all three complementary organs

1 Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225 at 235-6.2 Ashok H. Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’ in B.N. Kirpal et. al. (eds.), Supreme but not Infallible (2000), p. 176

of state also necessarily expands. Thus, the matters over which the Judiciary must now

adjudicate increase.

Once it is recognised that the Judiciary does intervene in Executive or Legislative action,

the central questions that this essay seeks to answer come into relief – should the

Judiciary be intervening? To what extent should it intervene? And if we can determine

whether and to what extent it should, how should the intervention be carried out?

THE INCREASING EXTENT OF INTERFERENCE

The Judiciary can and often does interfere with the actions of the Legislature and the

Executive – the Constitution of India by way of Article 32 coupled with Article 13(2)

empowers the higher Judiciary to intervene. The concept of Judicial Review is accepted

as part of the “basic structure” of the Indian Constitution.3 Importantly, the Judiciary can

only intervene when the actions of the other two organs are in contravention of the

provisions of the Constitution.

In the present therefore, a matter of significance while discussing this interference thus

becomes the increasing scope of these provisions. The check on judicial interference can

be perceived to have been lowered by a combination of a continuous expansion in the

scope of the rights under the Constitution (that results in an increasing number of areas

and occasions where the Judiciary may interpret intervention as necessary to prevent the

contravention of the Constitution) coupled with the influx of Public Interest Litigation.

The interpretations of the scope of Part III of the Constitution (which ascribes the

fundamental rights) have been widened over the past decades. An illustrative and

pertinent example is the expansion of the scope of Article 214 i.e. the Right to Life.

Article 21 was originally invoked in the civil-political context of checking governmental

abuse. The judicial expansion of the understanding of the article now incorporates

3 Kesavananda Bharati v. State of Kerela (1973) 4 SCC 2254 “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

multiple socio-economic entitlements that the citizens have a right to and which are

coupled by complementary positive obligations upon the state5.

Previously, Article 21 was interpreted by the Supreme Court as meaning that persons

could be deprived of life or personal liberty as long as there existed legal prescription for

the same. Thus, the existence of any statute or ordinance to such effect was sufficient –

the fairness of such a measure would not be called into question6 and the meaning of

‘procedure established by law’ was not the same as the guarantee of ‘due process’

provided for under the United States’ Constitution.

This narrow construction began to change with the case of Maneka Gandhi v. Union of

India7, when the Supreme Court held that the governmental restraints on ‘personal

liberty’ would have to be in consonance with the requirements of fairness, reasonableness

and non-arbitrariness as required under Articles 14, 19 and 21 of the Constitution. The

Court thus held that there existed an ‘inter-relationship of rights’ i.e. any executive action

designed to curtail any of these rights would have meet the designated threshold for

restraints on all such rights.

This marked a watershed in the interpretation of rights with the concept of ‘life’ being

interpreted liberally to mean a dignified life. This was coupled with a marked move

towards a harmonization of the fundamental rights guaranteed in Part III of the

Constitution as interpreted with the otherwise non-justiciable directive principles

enumerated in Part IV.8 The scope of the Right to Life and consequently the areas of the

Supreme Court’s operation expanded to include socio-economic entitlements as founded

in the existence of duties upon the state towards the people.

PUBLIC INTEREST LITIGATION

5 “Judicial Activism under the Indian Constitution” – Address by Hon’ble KG Balakrishnan at Trinity College, Dublin, Ireland, October 14, 2009, p.116 AK Gopalan v. State of Madras, AIR 1950 SC 277 AIR 1978 SC 5978 “The provisions of Parts III and IV are supplementary and complementary to each other and not exclusionary of each other” Justice Jeevan Reddy in Unni Krishnan, JP v. State of Andhra Pradesh (1993) 1 SCC 645

Parallel to the movement towards expanding the scope of Part III of the Constitution and

the harmonization of Parts III and IV was the birth and development of the concept of

Public Interest Litigation (PIL) in the late 1970s. The combination of a new

understanding of the scope of what the Judiciary was to protect coupled with PIL resulted

in a near radical change in the level at which the Supreme Court now engaged with the

other two organs of the state.

The system of Public Interest Litigation originated as a means of providing the poor and

underserved with access to the justice system. This was achieved by a dilution of the

requirement of the Doctrine of Standing (which required that only a person to whom a

legal wrong is done could seek judicial redress). Under PIL, where a legal wrong was

done to a person or class of persons who, for reasons of poverty, disability or socially or

economic disadvantage could not approach the court, any member of the public or any

social action group could initiate an action in the higher courts on their behalf.9

Additionally, the introduction of “epistolary jurisdiction” further reduced the procedural

formalities that participants in the legal process were required to endure – under

epistolary jurisdiction the Courts could be moved by way of letters addressed to the court.

The Courts also innovated the use of the Civil Procedure Code and Article 32 read with

Article 143 to develop methods that focused more on engaging with the specific

complexities of each case. To counteract the difficulty of PIL petitioners in accessing

information, the Court began the trend of appointing Commissions that include judges,

journalists, lawyers, health professionals, bureaucrats, and other experts. “The use of

these commissions enabled the Court to check the facts alleged by the petitioner as well

as the State after a proper scrutiny without affecting its role as an adjudicator.”10 The

Courts also began engaging amicus curiae (Senior Advocates engaged to assist the Court)

who assisted significantly in cases of bonded labour, forest preservation, police excess,

and public accountability.

9 PN Bhagwati, “Judicial Activism in India”, The Gargoyle, Volume 17, Issue 1, Summer 1986, University of Wisconsin10 Supra, n.2

All of these were harbingers of a Supreme Court that took a renowned interest in the

substantive promises that the constitutionally guaranteed rights implied. Where it is

accepted that the organs of the state exist to work together in fulfilling the aspirations of

the people, failure of two of these organs that endangers the rights of individuals or

communities means that we must acknowledge the need and authority of the third i.e. the

judiciary to stand up for them. Justice Bhagwati is compelling when he tells us that

judges “cannot remain impotent, incapable and sterile in face of injustice.”11 Together,

the conceptual expansion of inter-linked fundamental rights and the increased

accessibility of litigation and information allow “groups and interests with unequal

bargaining power in the political sphere to present their case in an environment of due

deliberation.”12

In light of the increased recognition of economic, social and cultural rights above and

beyond the civil and political rights that form the basis of our democracy, it follows that

the judiciary can and must have jurisdiction over issues pertaining to legislative and

executive action that concern these rights. The evolution of public interest litigation,

appointment of commissions, assistance of amicus curiae and the passing of innovative

orders by the judiciary are in consonance with the spirit of participative democracy that

the drafters of our Constitution strove for.

There is thus a compelling composite reason for the judiciary to involve itself in the

process of policy formulation. However, arguments both for and against such

intervention must account for the context in which all three organs and the state currently

operate. The next segment deals specifically with this context and how intervention can

be considered excessive, while the segment following it deals with the real dangers of

allowing for a system that tries to accommodate large-scale judicial intervention in

policy.

THE PRESENT CONTEXT

While PILs were originally to protect the interests of the weak and the Court has often

reiterated that policy would be a bar to the Court’s interference, PIL in practice often 11 Supra, n.912 Supra, n.5

struggles with adherence to the divide between the roles of the organs of government.13

The idea that the court is primarily concerned with the process by which the decision was

arrived at as opposed to the decision itself is thus becoming diluted.

Justice Bhagwati emphasized that Public Interest Litigation constituted an arm of the

legal aid movement specifically geared to bring justice “within the reach of the poor

masses” - thus the driving force behind the adoption of the concept and the consequent

dilution of procedural requirements and expansion in the scope of the Judiciary was to

cater to an otherwise low-visibility section of society. This aspect of PIL has however

been slowly eclipsed, replaced with another type of “public cause litigation”14 – the

Court’s intervention is no longer sought for enforcing the rights of the weak and the

disadvantage but to address shortcomings in the actions (or visible lack thereof) of the

Executive.

The way in which the Court thus interferes with Government policy is by seeking to

determine whether the implementation or non-implementation of such policy results in a

violation of fundamental rights – when it does, the Court steps in and issues orders

accordingly.15 Such an outline sounds benign until one realizes that the determination of

whether there is such a violation is made with regards to the ever-increasing scope of Part

III of the Constitution that the Court interprets into existence.

Initially the Court skirted around the border of law and policy in certain instances such as

when it imposed restrictions on the felling of trees and the sale of timber16 and when it

issued directions to the Government to prescribe speed limits and mandated the

installation of speed control devices on the ground following the crashing of a school bus

in the river Yamuna on the grounds of inaction on the part of the Government.17 The

Court even refused at times to interfere on matters of policy as in the case of Deli Science

Forum v. Union of India18 where the Government’s telecommunications policy was

13 Supra, n.214 TR Andhyarujina, “Disturbing Trends in Judicial Activism”, The Hindu, 6th August, 201215 Supra, n.2, p. 17716 TN Godavarman Tirumulkpad v. Union of India (1997) 3 SCC 31217 MC Mehta v. Union of India (1997) 8 SCC 77018 (1996) 2 SCC 405

challenged or where PILs have sought the prohibition of the sale of liquor19 or the

adoption of a Uniform Civil Code20 (as set out in Part IV of the Constitution), these

instances merely underline the contradictions and inconsistencies in the Judiciary’s own

stand in the matter.

It abandoned any attempt to stay clear however, following its role in Vishaka v. State of

Rajasthan, a PIL regarding sexual harassment at the workplace – the case was marked by

the decision of the Court to step in and frame policy where the legislature had not and so

the Court declared that until the legislature enacted a law consistent with the provisions

of the UN Convention on Elimination of All Forms of Discrimination against Women

(CEDAW, to which India was a signatory), the guidelines set out by the Court would be

enforceable.

Even more recent instances where the Court has intervened substantially in matters of

pure policy-making include its orders in the Inter-Linking of Rivers Project21, its

directions banning the use of black film on automobiles22, the exclusion of tourists from

core areas of tiger reserves.23 Another subtle way in which the Court interferes in the

domain of government policy is where such matters of policy are made subject to the

Judiciary’s scrutiny.

The association with fundamental rights of the issues in these cases seems tenuous and

borders on dubious - it seems much more plausible that the involvement of the Court is

for the furtherance of better governance and administration.

In support of intervention it may be argued that such intervention, even where it is to

further better governance is not a bad thing and that it is important to realize that this

trend of escalation in Judicial Interference – from originally interfering only where

fundamental rights were explicitly violated to interference where there the lack of a

policy was detrimental to the citizens (as in the Vishaka case) to interference where there

19 Krishna Bhat v. Union of India, (1990) 3 SCC 6520 Ahmedabad Women’s Action Group v. Union of India (1997) 3 SCC 57321 In Re: Networking of Rivers, 2012 (3) SCALE 74; Ramaswamy R. Iyer, “With All Due Respect My Lords”, The Hindu, 2nd March, 201222 Avishek Goenka v. Union of India and Anr. (2012) 5 SCC 32123 Ajay Dubey v. National Tiger Conservation Authority and Ors.  2012 (6) SCALE 640

existed a policy but was merely considered unacceptable by the Judiciary – is a symptom

of a problem and not the problem itself.

Thus, it may be accepted that the increasing participation of the Judiciary in policy

formulation is a consequence of the steady and visible collapse in the standards of

functioning of both the executive and the judiciary to which the people are witness. The

disenchantment of the people with an apathetic, inefficient and non-reactive executive is

often cited as the reason that Judiciary is pushed into action. The public is seen as calling

upon the judiciary to intervene because the public sees the judiciary as their only means

of ensuring that their “representatives” do their job.

ARGUMENTS AGAINST JUDICIAL INTERVENTION

Arguments against allowing the judiciary to enter into the foray of policy-making are

numerous and object both on principled as well as consequentialist terms.

The first argument against allowing the judiciary to take cognizance of, decide on and

frame matters of policy is its unrepresentative nature. We have previously discussed the

concept of the Separation of Power that while admittedly not sacrosanct, provides a

compelling first level argument against interference in policy.

Criticism in this regard is focused – judges are appointed by way of selection in which

the people have little say.24 The judiciary is not representative of the will of the people

(which in a democracy must be the driving force behind state action.) Thus, the common

argument against powerfully discretionary judicial review – that allowing the judiciary to

rule on the validity of laws passed by a popularly elected legislature is a violation of the

separation of powers – may be easily extended to policy formulation. It has been further

argued that the legislature (and in our opinion, consequently the executive with its

politically elected heads) expresses the will of the people, however imperfectly, and in a

democracy this will is not to be lightly frustrated or thwarted.25 The judiciary must leave

to the legislature “that wide margin of considerations which address themselves only to

24 Supra, n.5, p.625 Markandey Katju, “Lessons in judicial restraint” The Hindu, July 20, 2012

the practical judgment of a legislative body representing (as Courts do not) a wide range

of mundane needs and aspirations.”26

Further, since the judiciary is an unelected body, it is not institutionally accountable to

the people in any true sense. While it is true that present forays by the Judiciary have

been for the popular good and while it may even be argued that this interference has been

in response to the popular call for such interference, this in itself is not sufficient

justification. Justice Kapadia’s opinion that judges must remember that the validity of

their decisions cannot rest on popularity rings true as does the idea that resisting the

pressure to please the majority is a strength of the judiciary, not a weakness.27 Judicial

Activism not grounded on textual commitment to the Constitution is thus necessarily

harder to justify.

Even apart from the ambiguity of whether in principle the judiciary can participate in

policy formulation, it remains true that it simply does not possess the requisite expertise

or the resources to carry out effective policy formulation (whether legitimate or not) and

execution thereof. Judges themselves often acknowledge unequivocally that they lack the

competence to make policy choices and to run the administration28. Wallace Mendelson29

(while referring to the American Legal System) questioned the existence of any “nine

men wise enough and good enough to wield such power over the lives of millions” and

“master the complexities of every phase of American Life”, especially given that the

judiciary was not a representative body reflecting a wide range of social interest (in

contrast with the legislature) and the lack of professionally trained investigators that

renders the courts reliant for data on the partisan advocates before them (although to a

certain degree, the Indian Judiciary’s inventive use of commissions mitigates the final

factor.)

Over and above this marked lack of expertise is the fact that the judiciary does not posses

the resources required to implement or even supervise the effective implementation of its 26 James Bradley Thayer, Professor of Law of Harvard University, 'The Origin and Scope of the American Doctrine of Constitutional Law', Harvard Law Review, Vol. VII, No. 3, October 25, 198327 Chief Justice Kapadia, 5th MC Setalvad Memorial Lecture on Judicial Ethics, Delhi, April 16 201128 Ibid; Supra, n.2529 Supra, n.25; Wallace Mendelson, “"The Influence of James B. Thayer upon the Work of Holmes, Brandeis, and Frankfurter”, 31 Vanderbilt Law Review 71 (1978)

orders. While it has sought to innovate monitoring mechanisms30 also (sometimes the

Social Action Groups that initiated the action monitor progress, other times the court

instructs an officer of the government to keep check), these are either reliant on the

willingness of a party to assist the court or the executive lending its resources in

assistance – neither is a means truly in control of the Judiciary.

This evident lack of the Judiciary’s power to ensure the implementation of its orders

means that the judiciary reduces its own potency. “A judicial system can suffer no greater

lack of credibility than a perception that its order can be flouted with impunity” 31 – this

signifies that the perception of the Judiciary’s power is as important as the existence of

power itself. This is because both affect the core of the Judiciary’s ability to operate i.e.

the obedience that the general public offers the Court in deference to its stature and

perceived authority.

Other problems that must be noted include the problems of consistency within the

Judiciary itself. While it is a basic postulate that the law must be certain and not become

vulnerable to the individual ideas of individual judges (irrespective of intent)32, the area

of PIL shows clear and marked differences of opinion between individual judges of the

Supreme Court. Justice Pathak underscored the importance of treating the court as a

single institution instead of a group of individual judges33. The variance of individual

judges’ approaches to policy intervention in PILs undermines this idea.

At this point, we must give sufficient attention to the argument in response to the claim

that the judiciary’s intervention in policy making is due to the legislature and the

executive not properly performing their own functions. While this may be arguably true,

the same charge is often leveled against the Judiciary34. The corresponding organs of the

state may just as well take over the functions of the judiciary where it has performed

unsatisfactorily35 (and there can be little doubt that the judiciary has often failed to meet 30 Supra, n.531 Supra, n.2, p. 182; Justice SP Barucha expressed a similar concern in “Inaugural Lecture of Supreme Court Bar Association’s Golden Jubilee lecture series”, reproduced in Jagga Kapur (ed.), Supreme Court on Public Interest Litigation, Vol. IV, VI32 Supra, n. 2, p. 18033 Bandhua Mukti Morcha v. Union of India (1983) 3 SCC 161, p. 18834 Supra, n.2535 Supra, n.14

the expectations of the public – case in point its inefficiency and the pendency of cases.)

The ideal response to a malfunctioning legislature or executive is correction by the

people via a proper exercise of their franchise36 (or by peaceful demonstrations, dialogue

and criticism disseminated by the media) – not a hijacking of executive function by the

judiciary. This is especially so given the marked identification of the judiciary

insufficiency to perform such role because of what it lacks as previously shown.

Finally, we must recognize the possibility of absolute power corrupting absolutely – if the

Supreme Court becomes our highest policy making body (a body decidedly untempered

by accountability) then how does it avoid the corrupting effects of raw power? If the

Judiciary is allowed to abrogate the very checks and balances that regulate its actions,

then what safeguards does the electorate have for when the judiciary does go wrong?

High Court decisions may still be subject to correction by the Supreme Court, but what of

the possibility of errors by the Supreme Court itself? Quis custodiet ipsos custodes? And

perhaps just as importantly, once the Supreme Court raises expectations within the people

by visibly taking the responsibility of policy from the executive upon itself, can it truly

satisfy the expectations it has aroused?37

THE EXTENT OF JUDICIAL INTERVENTION

Admittedly, the arguments against judicial intervention are numerous, however a

common thread in these arguments when seen in the context of India in the present show

that the core issue is not that the judiciary should play no role in policy formulation, it is

about how much of a role it should play.

While addressing this core idea, the following two questions are of prime importance -

a. How should it be determined whether the judiciary should intervene?

b. What should be the extent of such intervention?

The answer to the first is relatively simple because of its heavy reliance on the second.

Every matter that violates the rights of individuals or communities in the society (in

regard to the progressive realization of the inter-relationship of the rights enumerated 36 Supra, n.2537 Ibid

under Part III and Part IV) calls for the attention of the judiciary. The judiciary must be

respected enough to know when it should or should not intervene in matters of policy,

and in the recent past it has respected this doctrine of deference. This requires the courts

to ascertain whether an issue has a legal content or political content.38 Beyond that, the

questionability of the intervention largely depends on the nature of the intervention itself.

While determining what the extent of judicial intervention should be, the distinction

between cases in which no policy exists and where it does exist is to be appreciated.

We argue that in cases where no policy exists, but a dispute has been brought concerning

the violation of rights of the individual or the community, the judiciary has a lower

standard of self-restraint or deference with regards to intervention. As already discussed

above, these cases usually require the Courts to interpret the law as laid down in Part III

(read with Part IV) as against the right (and duty) of the legislative to frame law and the

legislative to frame policy. Being cases of such nature it is argued that it is imperative on

the judiciary to secure rights as is/would be consistent with Part III. For example, where

the lack of policy leads to the inability to prevent sexual harassment at the workplace, or

degradation in the environment leading to health hazards in the short-term or long-term

the society is better off having the judiciary suggest a policy for that particular case.

These suggestions/guidelines, although seen as intervention into policy matters, are

different from enacted law because they make space for law or policy to supersede them

– a kind of “sunset clause” that provides for interim protection until any action by the

legislature comes into play (as was the case in Vishakha), but ensure that the immediate

need is catered to (which is why Vishaka serves as an excellent example of where

intervention may be justified given that there has still been no legislative action on the

issue.39) The judiciary must be presumed to be competent to appraise the immediacy of

the need in each case for it to serve as a credible institution.

In cases where a policy does exist, we argue that judicial intervention must be more

restricted, and based on a clear criterion. The standard of judicial self-restraint is raised

38 Justice SH Kapadia, “5th MC Setalvad Memorial Lecture on Judicial Ethics”, Delhi, 16th April, 201139 Supra, n.5, p.23

because in such a situation it is clear that the government did attempt to formulate a

policy, and it must be presumed by virtue of our parliamentary democracy that it is more

competent than the judiciary to enter into such an exercise of policy formulation. Thus,

by default, government policy should be held to be “valid” policy.

According to Lord Diplock, the power of judicial review is limited to the grounds of

illegality, irrationality and procedural impropriety. In the case of arbitrariness, the defect

of irrationality is obvious.40 As stated by the Supreme Court41, “if a contract has been

entered into without ignoring the procedure which can be said to be basic in nature and

after an objective consideration of different options available taking into account the

interest of the State and the public, then the court cannot act as an appellate court by

substituting its opinion in respect of selection made for entering into such contract. But at

the same time the courts can certainly examine whether the “decision-making process”

was reasonable, rational, not arbitrary and violative of Article 14.”

The appropriate extent of intervention would be for the judiciary to point out the apparent

defects in policy, strike it down depending on the immediacy of the situation, and direct

the government to frame a new policy addressing the defects, but not to frame that policy

for it.

For example, the Court may question the government on its lack of transparency in the

allocation of 2G spectrum, and come to a ruling on the fairness of the procedures

undertaken therein, but it may not lay down a particular economic policy as the “most

beneficial”, as that is a strictly political matter. Similarly, the Court may point out the

defects in the policy of the Chhattisgarh government to appoint and arm Special Police

Officers as violative of Article 14 and 21 of the Constitution,42 but it may not frame an

alternate policy.

CONCLUSION

40 Council of Civil Service Unions v. Minister for the Civil Service, (1984) 3 All ER 935.41 Sterling Computers Ltd. v. M&N Publications Ltd., (1993) 1 SCC 445.42 Nandini Sundar & Ors v. State of Chhattisgarh (2011) 7 SCC 547

The possibilities of intervention causing damage to the people-executive dynamic or of

abuse undoubtedly exist – although in our opinion are remote. Nevertheless, this

possibility stands contrasted with the inevitability of the damage that will be caused to the

people and to the dynamics and activities of proper governance that a lack of judicial

intervention will enable. And in this balance of probabilities, the argument for allowing

controlled judicial intervention is strong.

At the same time, we believe that a more optimistic possibility presents itself – given the

stray of the electorate’s faith from the legislature and the executive to the judiciary, the

Government will eventually be forced into reform. Alternatively, any perceptive

opposition would notice the gradual uprooting of the other two organs’ roots and would

adopt and project a reformist agenda – one that would attract the sympathies of the

electorate that the judiciary presently commands.

In either case however, a cautious and nuanced approach by the Judiciary that

acknowledges and avoids some of its current excesses would be a positive development –

one fit for the unique and inter-dependent organs of state in the world’s largest

democracy.