Judicial activism is a peacemaker, judicial overreach is a trespasser

Today, I wish to speak of a powerful force that binds us all: Hope. Each court signifies a pillar of hope that exists in the heart of society. The hope is for justice. The judicial institutions around us, they're not merely constructed of bricks and mortar; rather, they are corridors of hope. Every person that approaches the doors of our courts comes with the hope that justice will be served. Thus, our courts narrate countless stories of hope. The moment hope falters in the hearts of the common man, questioning whether this institution will stand by them through thick and thin, we risk losing the essence of our establishment.
 
There's a well-known adage that the judiciary is the “least dangerous” branch of government, given its lack of control over the purse or the sword. However, I find myself only partially in agreement with this sentiment. While it’s true that the judiciary does not wield the financial power or command the force, it would be a mistake to consider it the least formidable among the government’s three branches. Far from it, the judiciary stands as a bastion of hope for the common man.  Lacking the might or resources to stand against the well-established institutions or government organizations, the common man turns towards the judiciary, looking to courts as avenues for justice. With the judiciary's backing, an ordinary individual, armed with the gavel and the Constitution, becomes as influential and empowered as these foundational symbols themselves.
 
As a nation, we nurture the aspiration to grow more prosperous, both socially and economically, as time marches on. This flame of hope must never be extinguished. Even in the most advanced nations, there exists the perpetual desire for improvement. It falls upon the shoulders of government organs, particularly the judiciary, to answer this call—to be the beacon of hope that lights the way.
 
It is here that I would like to say that the true measure of the judiciary's strength lies not in its resistance to executive control, nor in its material infrastructure or its resilience against external forces seeking to undermine its integrity. Rather, its vitality and relevance are deeply intertwined with the faith that the citizen places in it.
 
The erosion of faith in the judiciary will signal a critical disconnect between the institution and those it is intended to serve. Such an erosion could be due to a perception of inaccessibility, delay, or, worse, injustice, which can erode the foundational trust that binds the judiciary to the community it serves. Therefore, the judiciary's legitimacy and authority are intrinsically linked to its ability to inspire belief in its processes and outcomes.

Also Read: Lawyers' letter to CJI Chandrachud raises the same issue former CJI Ranjan Gogoi had highlighted in his book

To fortify this bond of trust, the judiciary must not only be effective but be seen to be effective. It requires a proactive approach to understanding and addressing the concerns of the public, simplifying legal processes, and ensuring that justice is not only done but is also perceived to be done. Innovating ways to make the judicial system more approachable, adaptable, and responsive to the evolving needs of society are integral steps in preserving this trust.
 
A robust democracy is sustained by the pillars of a strong Judiciary, an entity that anchors its roots deeply in independence and impartiality. India, embracing this pivotal concept, has positioned its judiciary to serve as an essential balance against the legislative and executive branches of government, ensuring that no single entity wields unchecked power.
 
The judiciary's primary duty is the solemn and critical interpretation of the constitution—a document that, much like the nation it governs, is subject to the winds of change. As society evolves, new challenges and complex questions arise, necessitating that the constitution adapts to contemporary realities while remaining true to its foundational principles.
 
It is within this dynamic environment that the unique symbiosis between the Constitution and the judiciary manifests. The judiciary does not exist in stasis; it matures in conjunction with the constitution, simultaneously guiding its progression. With each interpretive act, judges breathe life into the text, allowing it to function as a living document that is relevant to the people it serves. In doing so, the judiciary aids in sculpting the nation's legal landscape, ensuring that it remains just and equitable for all citizens.
 
The evolution of the judiciary, therefore, is not a mere response to changing times; it is an active process that shapes the very essence of the Constitution. As the guardian of constitutional integrity, the judiciary has a profound responsibility to be both reflective and visionary—reflective of the values and aspirations of its citizenry, and visionary in foreseeing the needs of a progressive society.
 
We find ourselves in an era where our societal fabric is intricately woven with threads of law, economics, environment, and technology, among numerous other strands. The decisions made by India’s higher judiciary today reach far beyond the courtroom; they ripple through the very pulse of our Nation's stability. By interpreting and reinterpreting the Constitution with wisdom and foresight, the judiciary reaffirms the rule of law and reinforces the fabric of democracy. It ensures that the constitution remains an enduring testament to the principles of justice, liberty, and equality, even as it evolves to address the trials of an ever-changing society. In this way, the judiciary is not merely an arbiter of laws but an integral protagonist in the nation's narrative, guiding its journey through the annals of time towards a more just and democratic future. And what could be a better testament to this evolution than the role of the judiciary in India’s economic transition from socialism to liberalisation.
 
In the years following our independence, India embraced socialist ideals, aiming to create an egalitarian society through state-led economic policies. This was reflected in our laws and the judgments of our courts, which often prioritized the collective good, state control over resources, and the redistribution of wealth. It was within this context that the judiciary operated, balancing the aspirations of a newly sovereign nation with the rights and liberties of its citizens.
 
However, the winds of change began to sweep across our nation in the early 1990s. India stepped into a new era of liberalisation, privatisation, and globalisation. These economic reforms transformed the landscape of our nation, sparking rapid growth, increased investment, and integration with the global economy. It fell upon the judiciary to navigate these tumultuous waters, ensuring stability, fairness, and adherence to the rule of law.
 
The Supreme Court of India and various High Courts had to assume a proactive role in interpreting the Constitution in a manner that fostered economic liberalisation while upholding fundamental rights. Judgments of the court had to adjust the scales of justice, ensuring that while the market was allowed more freedom, the vulnerable did not suffer as a consequence. It’s duty was to strike a balance— ambitious enough to allow economic innovation to flourish but prudent enough to mitigate its excesses.
 
The shift from a controlled economy to a free market required the judiciary to redefine the scope of state intervention in businesses. It became the interpreter of a dynamic economic language, sometimes criticized for its significant involvement, yet undeniably crucial in upholding the principles of equity and fairness.
 
The judiciary in any nation plays a pivotal role as an arbiter of balance. Its function extends beyond simply interpreting the law to also ensuring that as a country embraces the twin forces of globalization and privatization, the fabric of social justice remains intact. This becomes particularly salient when considering the impact of such economic policies on different strata of society. A noteworthy instance where the Indian judiciary has successfully mediated between concentrated economic development and equitable social policy is the implementation of agrarian reforms. These reforms are emblematic of the judiciary’s commitment to ensuring that the disadvantaged and landless farmers receive a fair share of the agricultural wealth. More so, they demonstrate the nuanced understanding that genuine prosperity arises not merely from robust business sectors but also from an uplifted standard of living for the “common man”.
 
In essence, the economy of a country is multifaceted and reflects the overall wellbeing of its population. It is bolstered not only by thriving businesses but also by the health, education, and economic stability of its citizens. It is here that the true measure of an economy’s success should be gauged—not just in gross domestic product (GDP) but also in improvements in the quality of life for the average person. The judiciary, through its prudent oversight, ensures that as the country pursues economic growth, it does not forsake the principles of equity and justice.
 
For in seeking a prosperous future, a country must not merely focus on the visible indices of economic growth but must also ensure that such growth translates into tangible benefits for all its people. Bridging the divide between progress and social welfare, the judiciary enshrines its role as a protector of both economic dynamism and the public’s moral and material interests. This dual responsibility is the hallmark of a judiciary, committed not only to the rule of law, but also to the ethos of a just and egalitarian society. Agrarian reforms, abolition of zamindari, upholding the abolition of Fundamental Right to property, upholding of ceiling laws, are all instance of the judicial balancing of a new economic era with changed social equations.
 
Private law, encompassing areas such as contract law, property law, tort law, and commercial law, also plays a critical role in the functioning of market economies, even if it is not often in the public spotlight. These areas of law provide the framework within which individuals and businesses understand their rights, duties, and liabilities, and they gain critical importance when considering the broader economic implications.
 
Contracts form the backbone of commercial transactions. Every sale, service agreement, lease, or business merger operates under the auspices of contract law. When courts interpret and enforce contracts, they set precedents that can either foster or deter future economic transactions. A positive judicial nod signifies that agreements entered into will be honoured. However, if courts frequently set aside contracts or interpret them in unpredictable ways, businesses may become more cautious, potentially slowing down investment and the uptake of new ventures.
 
Property law, meanwhile, provides the rules for ownership and transfer of assets, an essential aspect of any commercial endeavour. Secured property rights enable individuals and businesses to invest in and develop assets with confidence. If property rights are under threat from arbitrary seizure or weak enforcement, economic development can be severely hampered. On the same note, I would like to mention that appropriate and unbiased orders in criminal cases inspire public confidence in a vital area of governance, namely, life and liberty of the citizens.

The pursuit of economic expansion is vital for any nation. However, it must not be at the expense of environmental integrity. The Indian judiciary has been entrusted with the critical responsibility of harmonizing the dual objectives of fostering economic growth and preserving the environment—a delicate balance it has adeptly maintained through numerous judgments.
 
These verdicts reflect a nuanced understanding that sustainable development is the cornerstone of a progressive society. By integrating environmental considerations into economic planning, the judiciary has sent a resolute message: the environment cannot be compromised for short-term gains. The courts have time and again set legal precedents that emphasize the necessity of intergenerational equity, ensuring that natural resources are used judiciously to meet current needs while safeguarding them for future generations.
 
In landmark cases such as the Oleum gas leak case (M.C. Mehta vs. Union of India) and the Ganga pollution case, the Indian judiciary reinforced the doctrine of absolute liability and the “Polluter Pays” principle. It positioned the environment as a national asset held in trust for the benefit of the public, mandating that the government and industrial entities take substantive measures to prevent ecological degradation. Through these decisions, the judiciary has not only protected the environment from potentially destructive industrial and governmental actions but has also reminded these bodies of their intrinsic obligation towards environmental stewardship.
 
The judiciary’s environmental jurisprudence also recognizes that a healthy environment is inextricably linked to the overall well-being of the nation's citizens, who have a constitutional right to a clean environment—a very important facet of the Right to Life. By playing this proactive role, the Indian judiciary contributes significantly to nurturing a more sustainable and equitable growth model.
 
This integrated approach mirrors the judiciary's larger vision for a nation, where economic prosperity and ecological sustainability exist in a state of dynamic equilibrium, collectively contributing to the nation’s well-being and progress.
 
The Judicial branch has often struck chords that resonate with progress, and at times, chords that have led to contemplative silences. With the might of the pen comes a burden—the burden of choice. The choice to either nurture the seeds of reform or the risk of adventuring into territories that might upset the delicate equilibrium of governance. “Adventurous” judicial activism carries with it this risk, where decisions, albeit well-intentioned, have sometimes led to unintended consequences, muddying the waters of legal certainty.
 
In that context, the advent of Public Interest Litigation (PIL) is relevant as it marked a revolutionary shift in the legal landscape, transforming the judiciary from a passive arbiter of disputes into an active force for social change and, at times, bringing in debatable changes in political life and values. This evolution in legal thought and practice underscored the judiciary’s role in addressing grievances beyond the confines of individual disputes, focusing on broader questions mentioned above.
 
However, like a double-edged sword, PIL’s expansive reach and impact also underscore its potential pitfalls. On one side, PIL has been instrumental in effecting landmark changes in various sectors, including environmental protection, human rights, and government accountability. On the other side, the broad latitude provided by PIL has sometimes led to what can be seen as judicial overreach, with courts encroaching upon the domains traditionally reserved for the legislative and executive branches and trenching upon political morality with doubtful credentials. Additionally, the rise in frivolous and vexatious PILs has sometimes burdened the already overextended judiciary, detracting from its ability to address genuine cases of public interest efficiently.
 
This delicate act of navigation—choosing when to act as a catalyst for change and when to uphold the status quo—underscores the judiciary’s immense responsibility. It is within this context that the distinction between “judicial activism” and “Judicial overreach” becomes profoundly significant.
 
I would say “judicial activism” is not the same as “judicial overreach”. The former is a peacemaker; the latter is a trespasser.
 
Around the world, nations are recognizing the urgency with which their judicial systems must adapt. These systems are called upon to be prophetic, to understand the undercurrents of their rulings, and to promote an environment wherein the law befriends vitality rather than unwittingly hindering it.
 
A functional judiciary, endowed with sufficient resources and personnel, is therefore not a luxury but an imperative for sustained development of the nation. The repercussions of a stalled judiciary are not confined solely to the economic sphere; the social implications are equally profound. In the absence of timely justice, the public’s trust in the institution wanes, and the rule of law is undermined, affecting the nation's overall wellbeing.
 
The Economic Survey 2018-2019, presented by the finance minister of our country, indicated that the backlog plaguing our judiciary acts as a significant impediment to India’s GDP growth and investment climate. India, like its global counterparts, must step forward into this integrated future—one where justice is dispensed not only with a gavel of legality but also with a compass of economic wisdom and social reform. The ongoing challenge for the judiciary in promoting the nation’s growth lies in its continuous adaptation to the evolving needs of a dynamic society, ensuring legal predictability, and addressing novel issues brought about by emerging industries and technologies and societal values. In doing so, it must remain vigilant not to encroach upon policymaking, preserving the sanctity of the checks and balances system.
 
While it’s undeniable that the judiciary is a cornerstone in the advancement of a nation, its capacity to foster all round progress is contingent upon its ability to function efficiently and effectively. A vital aspect of the judiciary’s efficacy is its capacity to efficiently manage caseloads. However, a persistent challenge that undermines this efficiency is the perennial backlog of cases, coupled with a critical shortage of judges. This issue is no stranger to our discussions; it has been highlighted at numerous events, underscoring the persistent shadow it casts over our judicial system. Despite our collective awareness and the emphasis placed on addressing this challenge, the backlog of cases continues to loom large, haunting the judiciary’s efforts to dispense justice timely.
 
Elevating the number of judges on the bench might seem like a straightforward remedy to the endemic backlog of cases, yet sheer numbers alone cannot guarantee the dispensation of quality justice. Appointing judges isn’t simply a numbers game; it hinges profoundly on the quality and integrity of those who don the robe. It is the calibre of the judiciary, after all, that will leave an indelible imprint on the prosperity and socio-economic trajectory of the nation.
 
Yet, quality does not sprout in isolation—it demands a meticulous appointment process with a special focus on merit and an uncompromising stance on ethical standards. It calls for comprehensive training and continuing legal education that keeps pace with the dynamic landscape of law and society. Perhaps most crucially, it necessitates a culture within the judiciary that perpetuates high standards, encourages intellectual rigor, and demands integrity, both in and out of the courtroom.
 
Moreover, in an age where innovation and infrastructure underpin significant advancements across various sectors, the judiciary must not lag behind. To forge ahead, it’s imperative that we rethink judicial infrastructure, incorporating cutting-edge technology and modern practices to streamline processes. There exists untapped potential in collaborative efforts where the judiciary can engage with industry experts to devise strategic solutions explicitly targeted at reducing backlogs. Such alliances can introduce fresh perspectives, and employ data analytics, case management software, and other digital tools to alleviate procedural bottlenecks. While technology can never replace human judgement, it would certainly call for replacement of the status quo judge who is not willing to look ahead.
 
From a little different perspective, India’s journey through the terrain of rapid technological evolution is fraught with both promise and peril. While these advancements offer immense potential for growth and innovation, they also pose significant challenges, notably in the form of impersonation and the proliferation of misinformation. Such phenomena can lead to social unrest and discord. Misinformation, often disseminated under the guise of liberty and free speech, threatens to fragment our nation, highlighting a need for a system of governance that balances individual freedoms with collective responsibility.
 
The concepts of law and order transcend mere terminologies; they are the very foundation of a dignified human existence. The preservation of these principles is paramount, serving as the cornerstone upon which the security and stability of our society are built.
 
The State, in conjunction with the judiciary, bears a solemn duty to uphold these principles, ensuring that the freedoms granted to us by our Constitution are not misused to the detriment of our collective well-being. It is essential to strike a delicate balance between safeguarding free speech and preventing the spread of harmful misinformation. A nation’s strength lies in its ability to unite its people toward common goals while respecting and protecting their diverse voices and identities within a democratic structure. This process involves constant negotiation of the social contract between the State and its citizens, where liberties are exercised with a keen awareness of their impact on the nation’s fabric.
 
Holding the office of a judge commands immense respect and authority, endowing individuals with the capacity to shape public trust and perception of the judiciary. Their demeanour, encompassing both their professional undertakings within the courtroom and their personal conduct beyond its confines, establishes a benchmark for ethical practices and integrity across the judiciary and the legal community at large.
 
This elevated standard of conduct serves not only to uphold the dignity of the judicial office but also to reinforce the sanctity of the legal system in the eyes of the public. It is essential, therefore, that they navigate their roles with utmost caution and responsibility, mindful of the profound impact their conduct can have on the institution’s credibility and the societal trust vested in them.
 
In the grand narrative of our Nation's ascent on the global stage, the judiciary, with its profound interpretations and decisions, needs to illuminate the path towards a more just, economically vibrant, and resilient future.

 
This is an abridged version of Justice Gogoi’s keynote address at the 76th foundation day of Gauhati High Court.