Chief Justice of India (CJI) BR Gavai stated on Tuesday that while judicial activism will stay and play a role in India, it should not devolve into "judicial terrorism".
When it is found that the legislature or the executive has failed in their duties to safeguard the rights of the citizens, the judiciary is bound to step in, the CJI said.
“Judicial activism is bound to stay. At the same time, judicial activism should not be turned into judicial terrorism. So, at times, you try to exceed the limits and try to enter into an area where, normally, the judiciary should not enter,” he said.
The Chief Justice emphasised that the power of judicial review should be used in rare cases.
“…that power [judicial review] has to be exercised in a very limited area in very exception cases, like, say, a statute, is violative of the basic structure of the Constitution, or it is in direct conflict with any of the fundamental rights of the Constitution, or if the statute is so patently arbitrary, discriminatory… the courts can exercise it, and the courts have done so,” he said.
Justice Gavai was speaking at the Oxford Union.
Advocate-on-Record Tanvi Dubey, along with the Oxford Union, organised the event.
In the address titled ‘From Representation to Realization: Embodying the Constitution’s Promise’, he highlighted that decades ago, millions of Indians were referred to as ‘untouchables’. However, the Constitution of India has ensured that an individual from that same group is now addressing the Oxford Union as the holder of the country’s highest judicial office.
“The Constitution of India carries within it the heartbeat of those who were never meant to be heard, and the vision of a country where equality is not just promised, but pursued. It compels the State not only to protect rights, but also to actively uplift, to affirm, to repair."
Chief Justice Gavai further said that Dr BR Ambedkar believed that in an unequal society, democracy cannot survive unless power is also divided among communities, not just among institutions.
“Representation, therefore, was a mechanism of redistributing power, not only between the legislature, executive and judiciary, but among social groups that had been denied a share for centuries.”
He concluded by quoting from scholar Gayatri Chakravorty Spivak’s essay, ‘Can the Subaltern Speak?’.
“Yes, the subaltern can speak—and they have been speaking all along. The question is no longer whether they can speak, but whether society is truly listening,” he said.