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Mainstream, VOL 62 No 12, March 23, 2024

Metamorphosis of Judicial Activism | Arup Kumar Sen

Saturday 23 March 2024, by Arup Kumar Sen


In summing up the role of the Indian judiciary in post-Emergency years, the eminent scholar of Jurisprudence, S. P. Sathe observed: “Post-Emergency judicial activism was probably inspired by the Court’s realization that its elitist social image would not make it strong enough to withstand the future onslaught of a powerful political establishment. Therefore, consciously or unconsciously, the Court began moving in the direction of the people…it facilitated access to the courts by relaxing its technical rules of locus standi, entertaining letter petitions or acting suo moto, and developing pro-active public law technology for the enforcement of human rights”. (S. P. Sathe, Judicial Activism: The Indian Experience, Washington University Journal of Law &Policy, 2001)

In recent years, we have witnessed a metamorphosis of ‘judicial activism’. Eminent judges in India have started joining the political party in power at the Centre just after their retirement or voluntary retirement from judicial service. This may be characterized as a metamorphosis of ‘judicial activism’, as imagined by S. P. Sathe. Rather than championing “the enforcement of human rights”, this transformation will serve State Power in India.

Recently, a retired Chief Justice of India was nominated to the Rajya Sabha in 2020 by the BJP government within four months of his retirement. Very recently, hours after resigning as a judge of the Calcutta High Court, Abhijit Gangopadhyay announced that he was joining the Bharatiya Janata Party (BJP). What Justice Deepak Gupta, a former judge of the Supreme Court, said in this context is quite significant: “Although I don’t approve of Justice Abhijit Gangopadhyay’s decision, I don’t think there is any legal bar. However, I think the time has come for the Supreme Court to restate the values expected from judges of superior courts.” He further said: “The manner in which the judge resigned and joined a political party doesn’t speak well of judicial independence.” (Quoted in The Hindu, March 22, 2024)

It should be mentioned in this connection that Abhijit Gangopadhyay blatantly defended the political agenda of the BJP in West Bengal immediately after joining the Party: “I joined the BJP because it is a national party which is also active in West Bengal, and it is the only party which can change the political scenario in Bengal which, in the last 10-15 years, has been very bad. It is the only party that can change the situation in Bengal.” (Quoted in The Indian Express, March 22, 2024)

The metamorphosis of ‘judicial activism’ in recent times does not augur well for the future of our polity.

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