FB   
 
Powered bysps
        Society for Policy Studies
 
 

 
Transcending judicial activism to judicial institutionalism
Updated:Mar 24, 2017
 
Print
Share
  
increase Font size decrease Font size
 
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 editor@spsinidia.in)  
 
 
 
 
Print
Share
  
increase Font size decrease Font size
 

Disclaimer: South Asia Monitor does not accept responsibility for the views or ideology expressed in any article, signed or unsigned, which appears on its site. What it does accept is responsibility for giving it a chance to appear and enter the public discourse.
Comments (Total Comments 0) Post Comments Post Comment
Review
 
 
 
 
spotlight image Relations between India and Peru  are united by El Niño and the monsoon yet separated by vast distances across oceans.  Jorge Castaneda, Ambassador of Peru to India, talks to INDIA REVIEW & ANALYSIS exclusively about what is bringing the two geographically-apart countries closer.
 
read-more
Indian judge Dalveer Bhandari was re-elected to the International Court of Justice on Monday as the UN General Assembly rallied behind him in a show of force that made Britain  bow to the majority and withdraw its candidate.
 
read-more
Those with a resolve make a big difference to the society. They inspire others to make the best out of a bad situation, steer out of morass with fortitude. Insha Mushtaq, the teenage girl who was pelleted to complete blindness during 2016 emerged as a classic example of courage.
 
read-more
Tibetan spiritual leader the Dalai Lama on Sunday said India and China have "great potential" and they could work together at a "practical level".
 
read-more
This week a major United Nations gathering on climate change gets underway in Bonn, Germany.
 
read-more

Prime Minister Narendra Modi's efforts to build India's global appeal for investors seem to have finally yielded returns in terms of the country's performance in the World Bank&rsquo...

 
read-more
Column-image

Title: The People Next Door -The Curious History of India-Pakistan Relations; Author: T.C.A. Raghavan; Publisher: HarperCollins ; Pages: 361; Price: Rs 699

 
Column-image

Could the North Korean nuclear issue which is giving the world an anxious time due to presence of hotheads on each side, the invasion of Iraq and its toxic fallout, and above all, the arms race in the teeming but impoverished South Asian subcon...

 
Column-image

Title: A Bonsai Tree; Author: Narendra Luther; Publisher: Niyogi Books; Pages: 227 Many books have been written on India's partition but here is a firsthand account of the horror by a migrant from what is now Pakistan, who ...

 
Column-image

As talk of war and violence -- all that Mahatma Gandhi stood against -- gains prominence across the world, a Gandhian scholar has urged that the teachings of the apostle of non-violence be taken to the classroom.

 
Column-image

Interview with Hudson Institute’s Aparna Pande, whose book From Chanakya to Modi: Evolution of India’s Foreign Policy, was released on June 17.