"Judicial Activism Shouldn't Turn Into Judicial Terrorism": Chief Justice Of India

Chief Justice of India (CJI) BR Gavai described the Constitution as a "quiet revolution etched in ink" and a transformative force that not only guarantees rights but actively uplifts the historically oppressed. He was speaking at the Oxford Union on the theme 'From Representation to Realisation: Embodying the Constitution's Promise'.

He also cautioned against straying into what he called "judicial terrorism" from "judicial activism".

Responding to a question by the news website Bar and Bench, Chief Justice Gavai said while judicial activism has relevance in India, it would not be a good thing to step into an area where the "judiciary should not enter".

"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," Chief Justice Gavai said in response to a question by Bar and Bench.

He said the judiciary will still step in if the legislature or the executive fail in their duties to safeguard the rights of people. However, the power of judicial review should be used in rare cases, Chief Justice Gavai said.

"... 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.

In April this year, the Supreme Court for the first time prescribed that the President should decide on bills reserved for her consideration by the Governor within three months from the date on which such reference is received.

A month later, President Droupadi Murmu wrote to the Supreme Court and asked if timelines could be imposed on Governors. President Murmu sought the Supreme Court's opinion under Article 143 of the Constitution, which gives the President the power to consult the court on legal issues or matters of public importance.

"Is the Governor bound by the aid and advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India?" the President asked the Supreme Court.

President Murmu asked if a Governor's exercise of constitutional discretion is justiciable - subject to a trial in court. She cited Article 361 of the Constitution, which says the President or the Governor shall not be answerable to any court for the exercise of the powers and duties of office.