High expectations, PIL and over-activism an invitation for criticism of Supreme Court: retired Justice AK Sikri

"It may be that PIL or over activism which the judiciary indulged into ... maybe it is an invitation for all these kinds of criticisms...", Justice Sikri remarked.
High expectations, PIL and over-activism an invitation for criticism of Supreme Court: retired Justice AK Sikri
Justice (retd.) AK SikriSupreme Court Judge

Former Supreme Court Judge, retired Justice AK Sikri on Saturday mused that the criticism faced by the Supreme Court of India in the recent times may stem from the high expectations placed on the top court given its expanding role over the years.

The transformation from a conservative court to a court typifying judicial activism through public interest litigation (PIL) may have played its role in the top court inviting criticism when people feel that the expectations have not been met.

"It may be that PIL or over activism, which the judiciary indulged into ... maybe it is an invitation for all these kinds of criticisms. Because with this, although it has done wonders for the welfare of the people in this country … but enlarging the scope of PILs... by broadening of locus standi rule, going and intervening in every kind of political matter or policy decisions also, in the process, being over activism - with this the expectations of society has also gone up high," he said.

Justice Sikri was a co-panelist at the Money Life Foundation's annual RTI lecture, which featured a lecture by former Chief Justice of India, MN Venkatachaliah on the theme "Is our Judiciary delivering on its role as a sentinel on the qui vive in these changing times?", as well as an address by Senior Advocate Indira Jaising.

Watch the full session:

The Indian Supreme Court has seen its ups and downs in the last 70 years, Justice Sikri observed.

Starting from a conservative role in the initial years, the top court emerged transformed after the emergency era, which also saw the "black spot" of the ADM Jabalpur case. The post-emergency period saw the advent of transformative Constitutionalism and judicial activism, Justice Sikri noted.

It may be that PIL or over activism which the judiciary indulged into ... maybe it is an invitation for all these kinds of criticisms...
Justice (retd.) AK Sikri

Of late, the former Supreme Court judge noted that critics have flagged several issues on the Supreme Court's functioning.

These issues include whether the Court is protecting the rights of the people selectively, whether its use of the power of contempt is justified, whether the role of the Chief Justice of India as master of the roster is being discharged objectively, whether the courts are acting selectively by not taking up important issues and whether it is sidelining important cases or playing the role of a procrastinating institution.

Justice Sikri went on to opine that a factor influencing such a negative perception of the top court may have to do with the broadened role of the Supreme Court over the years or over-activism. With these, the expectations of society have also become high, he noted.

He added that the judiciary cannot act as the catalyst for change.

"Ultimately, change in society has to come from other sources. It is not as if this is the role of the Judiciary The question is what kind of role judiciary should play?", Justice Sikri remarked.

In a democracy, he said, the judiciary is expected to protect the Constitution and the rule of law. Constitutionality or Constitutionalism is the attribute of better democracy and a better State, he added.

Judiciary cannot act as catalyst for change in society.
Justice AK Sikri

The significance of the judiciary's role in democracies was also highlighted by pointing out that even democracies have its own risks.

"Even a constitutionally elected government may act in a despotic way," he said referring to how Hitler and Mussolini eventually turned despotic.

Quoting the book "How Democracies Die" by Steven Levitsky and Daniel Ziblatt, Justice Sikri further observed:

"Many efforts to subvert democracy are legal, in the sense that they are approved by the legislature and accepted by courts. They may even portray it as efforts to improve democracy, making the judiciary more efficient, combating corruption…"

Even a Constitutionally elected government may act in a despotic way.
Justice AK Sikri

He went on to highlight that the judiciary's role would come in where there are such efforts to topple democracy. If there is an onslaught on the Constitution or the freedom of the people, the judiciary has to step in, he underscored.

On democracy itself, Justice Sikri echoed Justice Venkatachaliah's observation that, despite its ills, it was found comparatively better than other systems of law.

"When compared with other systems, it (democracy) may be so far the best or 'the least worst', if I say in a negative manner", Justice Sikri said.

On the government's role, he observed that "Any government acting in consonance with the Constitution cannot take away the fundamental rights of the individuals. It is based on the liberty of individuals which is to be respected."

As far as the judiciary's role was concerned, Justice Sikri opined that there is some need for introspection on the way forward. The system should not remain opaque as perceived by critics of the Supreme Court, he said.

"On the whole, the judiciary has been able to play the role over time as a sentinel on the qui vive. But some introspection is needed on how to go forward," Justice Sikri added.

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