There has been a swing in judicial pendulum between assertion and abnegation, between withdrawal and return, but irrespective of the role the Judges have played from time to time, the Courts have always endeavored to act in harmony with the spirit of the times on the basis of the values and norms that it has set for itself. The current political mood of the country, the prevailing economic situation and the dominant idea amongst the people govern the activities of the Court during any particular period. The values that the Court seeks to uphold shift and turn from period to period due to the push and pull of such forces and on the Court’s own appreciation of the requirements of the society. The understanding of the nature of these forces and the perspectives which mold the vision of such requirements depend on the philosophies of individual judges who at any point in time constitute the Court. After all, a Judge’s personality is the funnel through which the value norms judgments are announced. Out of such a welter, during different periods, perceptible trends and major policies of the Court emerge.
There has been an ongoing debate about process of judicial decision-making and role of judges and courts in politics and society. The factors which affect judicial decision making include, but are not limited to, personal attitudes of judges, characteristics of judges, institutional factors and peer effects.
The social and political significance of the judiciary has become a common trait of contemporary democracies; a phenomenon described as the ‘Judicialization of politics’. In principle Judicialization does not conflict with democratic values. However, the increasing political significance of the judiciary has assumed different forms in different countries. Judicialization means expansion of the province of courts and judges at the expense of politicians or government administrators.
Policy-making is the integral part of the executive’s functions and lies at the heart of political process. It includes not only the development of new policies but also the modification of existing policies. The problem arises when judges are faced with novel situations which have not been dealt with by the executive in its policymaking. When judges apply law to the new situations and interpret it in different ways they come directly in conflict with the executive as they end up performing the function which lies exclusively within the domain of the executive. This situation is not desirable but is inevitable in any judicial system. The executive cannot always come up with policies which will deal with all the situations arising in the future. The judges have to intervene when faced with a novel situation and then their decisions become policy statements. Whenever courts make rulings on political or social issues it is blamed for stepping into the domain of either the legislature or the executive. If the judges are interventionists then the legislation and policy implementation is increasingly displaced from the executive and legislature towards the judiciary. Sometimes judges get involved in politics against their wishes. Sometimes, opposition parties challenge certain policies of the government before the court when they fail to stop it in the legislature because they are a minority.
Whenever administrative decisions are challenged before the courts, they have to do some sort of a balancing exercise between different policies and this leads to them being involved in political decision making. Whenever they are asked by litigants to determine the rights and privileges granted to them by the legislature, it requires them to find out what was meant by the legislature when it passed a particular statute. If they give it a literal meaning, they are not criticized but if they give it some purposive meaning, then they are criticized for making a new policy which was not intended by the legislature. The judges cannot escape this situation as their judgments are never a simple mechanical application of law to fact. Judges realize that they should not interfere in the policy making and they try to keep the intervention to the minimum. Recently, Justice Anthony Kennedy said that he is concerned that the U.S. Supreme Court is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration. He said that “major policies in a democracy should not depend on what nine unelected people from a narrow legal background have to say. Rather, it is important for political leaders to show the world that democracy works through compromise.”
The relationship between the courts and politics is highly complex, due to the large number of interactions between them and the magnitude of the values at stake. If unchecked, judicial power could become political power without democratic responsibility. Judges are inevitably part of the political system, but they operate within it in a different way from other political actors. Social and cultural transformations fostered by the growth of public regulation and the evolution of constitutional democracies have accentuated the intrinsic political nature of judicial decision making.
The effectiveness of the Court in its core area will depend upon the dominant national mood. The Court’s power is enormous, but it is the power of the public opinion that ultimately prevails. I feel that at the end it is not appetite but opinion that has to be satisfied. At no time will the Court be able to maintain a position squarely opposed to the opinion of a strong popular majority.
It is debatable whether to turn the major challenges of policy over to the legislative and executive power , and to refrain from diving into the middle of the ‘hottest political cauldrons’ if situations demand in the immediate and imperative interest of the society even at the threat of its own existence. Therein will lie perils for the Court and opportunities for its greatness. All these, however, relate to the past and the present. The future is always illuminated by the past and the present experience, but the future can make up its own mind as well. Our concern however is about the immediate role that the Court is expected to play in the contemporary context of rising hopes and failing realities of life in the country.
Judicial intervention should move from the greater rights to the smaller rights, from greater wrongs to smaller wrongs, from public to private grievances. It would then be radical and be free from the allegations that it has indulged in political rhetoric couched in judicial phrases. What we need is real judicial activism not mere judicial populism.