By Dr. Nafees Ahmad
The Constitution is the highest code of conduct of the state and its authorities, institutions and citizens whereunder all other laws are legislated, executed and interpreted consistent with legislative accountability, judicial credibility and executive transparency to establish justice, order, tranquility, to promote general welfare, good governance, and to achieve equality, liberty and fraternity in present and for posterity.
The Constitution is an infallible, indelible and inalienable fundamental law of a geo-political entity whereby it performs its obligations of rule of law, democracy of judicial remedies and human rights common to all enveloped in transcendental institutionalism to accomplish justice, equality and fair play that deliver a just society.
Even the Greek philosopher Aristotle rightly said that “Man perfected by society is the best of all animals; he is the most terrible of all when he lives without law, and without justice”.
Therefore, judiciary cannot be expected to be hostage to the literal lines of law and function and perform deviant to its inherent idea of constitutionalism.
When constitutional ethos and spirit are amalgamated with judicial interpretations in a democratic architecture of governance, it is wrongly perceived and termed as “judicial activism”.
Here arises a question “Is it right to call it judicial activism?” However, I construe it as “judicial institutionalism” that derives its legitimacy from constitutionalism which is a proximal process in multicultural societies.
South Asian countries -- Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka -- are a reservoir of diversity, multi-culturalism, ethnic contradictions and racial paradoxes but having written constitutions with different constitutional designs and models representative of their aspirations whereunder constitutional institutions such as judiciary, executive and legislature are purported to have been at loggerheads with each other on various occasions whereas common causes of common men are neglected by the state and its instrumentalities.
The People of South Asia have been grappling with an acute problem of executive inaction in many areas of human welfare despite the fact that constitutional propositions, policies and priorities are directed at common good.
Consequently, the idea of socio-national responsibility of the judiciary comes into picture that is popularly known as judicial activism but the word “judicial activism” has not been defined anywhere in the constitutions of the South Asian countries.
Black’s Law Dictionary defines judicial activism as “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions”.
However, South Asian judiciaries are being approached by the common man owing to their frustration with the administrative and democratic processes in the region.
Judicial institutionalism is a cosmology of social, cultural and economic justice beyond the silence of lex lata and permeates the rubrics of lex ferenda presided over by the highest judicial establishment in a geo-political entity that has developed a profound reverence for textuality and its collateral constitutional cravings.
Judicial institutionalism is a manifestation of constitutionalism of judicial remedies conforming to constitutional limitations and laxities contemplated for the autonomy of common good.
Judicial institutionalism is an art of creating judicial responses, spaces and remedies to public grievances while maintaining the majesty and supremacy of the constitution.
Judicial institutionalism subsumes legal and social orders by judicial interpretation and creates a constitutional confluence of justice that addresses a catena of concerns such as social justice, affirmative action, equal opportunities, human rights, climate change, seismological imbalances, desertification, arts, sports, trade, entertainment, politics, science, technology, constitutional breakdowns, extra-constitutional governances and war etc.
Therefore, judicial institutionalism is a vertical and horizontal constitutionalisation of transformative constitutionalism of judicial jurisdiction backed by common sense that is judicially codified into law beyond the lines of law.
Hence, the concept of judicial institutionalism has today evolved into an institution deeply engrafted in fundamental constitutional principles of welfare governance. Thus, judicial activism solely rests upon the grand vision of justice promotion enveloped in judicial institutionalism by transcending judicial formalism.
(The author holds a Doctorate (PhD) in International Refugee Law and Human Rights from the Aligarh Muslim University. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program. Comments and suggestions on this article can be sent to firstname.lastname@example.org)