Judicial Activism

Judicial activism is an important topic in UPSC polity syllabus. It is becoming increasingly important nowadays as seen in the national news. Hence, aspirants must go through this topic during their IAS preparation.

Judicial activism is one step ahead of judicial review. It is possible and available only in the presence of judicial review. That is the reason why we say that. Judicial activism is an extension of the power of judicial review. This grants to the Judiciary a positivist and constructionist role together with its deterrent role. Earlier, the judiciary was a quiet spectator till a case was registered. However since the 1980s some judges have taken up this movement with a missionary spirit and is now on its way of being institutionalized. While a PIL has to be registered, judicial activism is one step ahead. In this, the court on the basis of a written complaint, a newspaper clipping or a report over the television can register a case and begin legal proceedings. Black’s Law Dictionary defines that the judicial philosophy which motivates judges to depart from strict adherence to judicial proceeding in favour of progressive and new social policies which are not always consistent with restraint expected of judges. It is commonly marked by decisions calling for social engineering and occasionally these decisions represent intrusion in legislative and executive matters. The constitution of India divides the powers of the government into three branches; legislature, executive and judiciary. It is when the judiciary steps into the shoes of the executive and the legislature and embarks on the work of lawmaking rather than interpreting laws, it is deemed to be judicial activism. The courts are being force to step into the shoes of the legislature and the executive because of the constantly deteriorating nodal and political conditions of the country. If the other two branches had been responsible and responsive, the need for activism of the judiciary would not have been felt. The administration today is considered as least sensitive to the needs of the public, the legislatures are a symbol of disorder and there have been scams involving millions of rupees in which the needle of suspicion points to the highest level of politicians and the bureaucracy. The individual finds himself alone in this hopeless situation and it is the judiciary that steps in to fill that vacuum and assure him that all is not lost. The judiciary had to adopt this activist approach because the other two organs appear apathetic and often fail to discharge their obligations and the law enforcing authorities show carelessness in the implementation of the law. Hence the need for activism by the judiciary. The judges cannot isolate themselves in an ivory tower and neglect the problems that plague our society. Besides, the Supreme Court has been made the guardian of fundamental rights by the constitution. The courts therefore can adopt an activist approach and issue directions to the governmental organs and agencies at all levels with a view to enforcing the fundamental rights of the citizens. Currently there are a large number of groups in India that are being subjected to exploitation, violence and injustice. In such an environment the judges cannot content themselves by invoking the doctrine of self restraint and passive interpretation. The judiciary, by being active, can remedy the abuses and misuse of power and also help in containing exploitation and injustice. The Indian Supreme Court’s gaze has now gone beyond the protection of the socially and economically downtrodden and securing justice for them, into the realm of public administration. It has started issuing guidelines and directives to the government. Judicial activism has touched almost all the facets that public administration deals with. Some of the areas in which the court has issued guidelines are: bonded labour, rehabilitation of freed bonded labour, payment of minimum wages, protection of pavement and slum dwellers, child labour, juvenile offenders, illegal detentions, torture, maltreatment of women in police lock-ups, environmental problems, closure of factories emitting poisonous gases, amendment of prison laws etc. The court has punished the wrong doers in matters relating to the unfair allotment of official flats and arbitrary allotment of petrol pumps and gas dealerships. It has asked the officers of the Central Bureau 0 Investigation to complete investigations in a particular matter by a fixed date. It has looked into the telecom policy and asked the union or state government to construct dam upto a certain height and to release the bonded labourers. In 2006, the Supreme Court issued guidelines to reform the police administration. Following the Mumbai terrorists attack of November 2008, a former Attorney General of India filed a petition before the Supreme Court seeking to better equip the Indian Police. In 2009, the Supreme Court issued a notice to the union government seeking an explanation of steps taken b; it to improve the plight of Indian students in Australia who have been facing racially motivated attacks. In 2009, it sent a notice to the Uttar Pradesh government questioning the proliferation of Mayawati statues allegedly worth crores of rupees. Thus we see that the Supreme Court is displaying zeal not only in entertaining petitions for the protection of fundamental rights but also questioning the government and issuing directives in the broader realm of governance. Detractors of the judicial activism charge that judicial activism is undemocratic Legislation is primarily the concern of the elected representatives of the people. The detractors further argue that an unelected judicial branch has no legitimate grounds t overrule the policies made by the elected representatives. When it issues guidelines f( the administration, it becomes the virtual lawmaker and has been accused of being the star chamber’ or the ‘third branch of the legislature.’ It is judicial tyranny in the sense that it is virtually tantamount to rebuking an emu government. Critics also say that the Supreme Court should spend its time in solving cases which have been pending for ages rather than interfering with the other two organs. Indian judiciary is at a cross roads today facing several challenges. Its conduct impartiality, independence and readiness to dispense justice is under a question mark. Though the judiciary is quick enough to bring the administration to book, there have been instances when the conduct of the judges themselves has brought embarrassment to it and cast doubts on the dignity and neutrality of judges. In 1992, a committee set up by the Supreme Court found V Ramaswamy a judge of the Supreme Court guilty of misconduct and sent a proposal to the Parliament to impeach him. On 11 May 1993, the motion was put up before the Lok Sabha for voting. 108 MPs of the opposition voted for his removal but all the 205 MPs of the ruling party abstained from voting and Ramaswamy was saved. Clearly the matter had become highly politicized. In 2008, the Ghaziabad Provident Fund Scam came to light. 36 judges at various levels of the judiciary were charged with embezzlement of 23 crore out of the provident fund of class III and IV employees of the Ghaziabad High Court. The Supreme Court handed over the investigation of the case to the CBI. Though the case does not pertain to the Supreme Court, it did tarnish the image of the judiciary as a whole. In September 2008, the Chief Justice of the Supreme Court, Justice Balakrishnan, advised the government to initiate impeachment proceedings against a judge of the Calcutta High Court Soumitra Sen. He has been charged with the misappropriation of several lakh rupees. He resigned in September, 2011. Although it was the case related to a High Court judge but it is the judiciary as a whole that suffers. Judicial processes and procedures are often long drawn, complex and extremely expensive and therefore beyond the reach of the common man. It takes years before a case is solved. Then too the matter does not get resolved. The other party appeals to a higher court, one of the parties could die and often the time and money spent is so high that it cannot be compensated. The procedures are long drawn too. Looking at the trouble one has to face in making appearances in the court, bringing the witnesses to the court, the witnesses turning hostile and a horde of other problems, the common man refrains from registering a case. It is a matter of serious concern that in the year 2011, there were about three crore cases pending in the various courts of India. When a case is examined after several months or years many facts are lost and the pleas taken are forgotten by the concerned judge. Most administrative actions are full of technical complexities. The judges are no doubt legal experts but sometimes they are unable to fathom the technical aspect of administrative problems. They entangle themselves in the legal web and cannot comprehend the human aspect of administration. Therefore, the tendency to set up Administrative Tribunals is on the rise. In 1976, the 42nd Amendment Act was passed. It authorized the Parliament and state legislatures to constitute administrative tribunals ,ad determine their work procedures. Such tribunals have been set up in areas such as the civil service, railways, income tax, public corporations, land reforms, food and civil supplies, industry and labour. Since justice is dispensed faster in these courts the citizens take recource to these courts rather than approaching the regular courts. No doubt they reduce the burden of work on the regular courts but at the same time they reduce the jurisdiction of the courts. Appeals against their decision can however be made to the Supreme Court. Judicial decisions also do not apply uniformly to all administrative acts. All administrative actions cannot be subjected to judicial review. A list of Acts that are immune from judicial review are given in the Ninth Schedule of the constitution. This schedule gives a list of 284 Acts, which are the Acts of various state governments. Until 2007, these 284 Acts were immune from judicial review. This arrangement was challenged in 2007 in the case of I R Coelho vs. State of Tamil Nadu. Justice Sabharwal while delivering his judgement, said, that only laws from 1 to 661, that is only those laws of the Ninth Schedule would be immune from judicial review which had been passed on or before 24, April 1973. This date is important because the judgement in the Keshavanand Bharati case was delivered on this date. The decision in this case was that each law of the land should be examined on the yardstick of whether this law violates the basic structure of the constitution. The words ‘basic structure’ encompass all those features that are the cornerstone or foundation stone of the constitution. Some of these features are fundamental rights, secularism, judicial review, parliamentary democracy etc. Laws ranging from 67 to 284 in the Ninth Schedule were examined on this yardstick and since they were found violating the basic structure they can now be subjected to judicial review.

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