Judicial activism is a concept that originated in the US in 1947. It has been seen in India since the Emergency days. It is an important topic because it is often seen in the news. In this article, you can read about the concept, judicial activism for the UPSC exam.
The judiciary plays an important role in upholding and promoting the rights of citizens in a country. The active role of the judiciary in upholding the rights of citizens and preserving the constitutional and legal system of the country is known as judicial activism. This entails, sometimes overstepping into the territories of the executive. Judicial activism gone too far is a judicial overreach.
The concept of Public Interest Litigation (PIL) is always talked of when judicial activism is discussed.
Judicial activism is seen as a success in liberalizing access to justice and giving relief to disadvantaged groups, because of the efforts of justices V R Krishna Ayer and P N Bhagwati.
The Black’s Law Dictionary defines judicial activism as “judicial philosophy which motivate judges to depart from the traditional precedents in favour of progressive and new social policies.”
Judicial Activism Methods
There are various methods of judicial activism which are followed in India. They are:
- Judicial review (power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict with the Constitution)
- PIL (The person filing the petition must not have any personal interest in the litigation, this petition is accepted by the court only if there is interest of large public involved; aggrieved party does not file the petition). Read more on PILs.
- Constitutional interpretation
- Access of international statute for ensuring constitutional rights
- Supervisory power of the higher courts on the lower courts
Significance of Judicial Activism
- It is an effective tool for upholding citizens’ rights and implementing constitutional principles when the executive and legislature fails to do so.
- Citizens have the judiciary as the last hope for protecting their rights when all other doors are closed. The Indian judiciary has been considered as the guardian and protector of the Indian Constitution.
- There are provisions in the constitution itself for the judiciary to adopt a proactive role. Article 13 read with Articles 32 and 226 of the Constitution provides power of judicial review to the higher judiciary to declare any executive, legislative or administrative action void if it is in contravention with the Constitution.
- According to experts, the shift from locus standi to public interest litigation made the judicial process more participatory and democratic.
- Judicial activism counters the opinion that the judiciary is a mere spectator.
Judicial Activism Examples
It all started when the Allahabad High Court rejected the candidature of Indira Gandhi in 1973.
- In 1979, the Supreme Court of India ruled that undertrials in Bihar had already served time for more period than they would have, had they been convicted.
- Golaknath case: The questions in this case were whether amendment is a law; and whether Fundamental Rights can be amended or not. SC contented that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13, and that to amend the Fundamental rights a new Constituent Assembly would be required. Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.
- Kesavananda Bharati case: This judgement defined the basic structure of the Constitution. The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” This is the basis in Indian law in which the judiciary can strike down any amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
- In the 2G scam, the SC cancelled 122 telecom licenses and spectrum allocated to 8 telecom companies on the grounds that the process of allocation was flawed.
- The Supreme Court rolled out a blanket ban on firecrackers in the Delhi – NCR area with certain exceptions in 2018.
- The SC invoked terror laws against alleged money launderer Hasan Ali Khan.
Pros & Cons Of Judicial Activism
Judicial Activism in simple words means when judges interrupt their own personal feelings into a conviction or sentence, instead of upholding the existing laws. For some reason, every judicial case has a base of activism within it, so it is imperative to weigh the pros and cons to determine the aptness of the course of action being carried out.
Pros associated with Judicial Activism India
- Judicial Activism sets out a system of balances and controls to the other branches of the government. It accentuates required innovation by way of a solution.
- In cases where the law fails to establish a balance, Judicial Activism allows judges to use their personal judgment.
- It places trust in judges and provides insights into the issues. The oath of bringing justice to the country by the Judges does not change with judicial activism. It only allows judges to do what they see fit within rationalised limits. Thus showing the instilled trust placed in the justice system and its judgments.
- Judicial Activism helps the judiciary to keep a check on the misuse of power by the state government when it interferes and harms the residents.
- In the issue of majority, It helps address problems hastily where the legislature gets stuck in taking decisions.
Cons Associated with Judicial Activism
- Firstly, when it surpasses its power to stop and misuse or abuse of power by the government. In a way, it limits the functioning of the government.
- It clearly violates the limit of power set to be exercised by the constitution when it overrides any existing law.
- The judicial opinions of the judges once taken for any case becomes the standard for ruling other cases.
- Judicial activism can harm the public at large as the judgment may be influenced by personal or selfish motives.
- Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.
Judicial Activism Criticism
Judicial activism has also faced criticism several times. In the name of judicial activism, the judiciary often mixes personal bias and opinions with the law. Another criticism is that the theory of separation of powers between the three arms of the State goes for a toss with judicial activism. Many times, the judiciary, in the name of activism, interferes in an administrative domain, and ventures into judicial adventurism/overreach. In many cases, no fundamental rights of any group are involved. In this context, judicial restraint is talked about.
Also read: PIL Under Scrutiny: RSTV – The Big Picture
Judicial Activism VS Judicial Restraint
As mentioned earlier, Judicial Activism is the role played by the judiciary to uphold the legal and constitutional rights of the citizens. Judiciary exercises its own power to implement or strike down the laws and rules that infringes the right of the citizens or is for the good of the society at large, whatever the case may be.
While, on the other hand, Judicial Restraint is the second face of the coin. It is the polar opposite of the activism which puts obligations on it to follow constitutional laws while implementing its duties. It encourages the judiciary to respect the laws or rules set out in the constitution.
Judiciary has gained power with judicial activism as the judges can take up issue suo-motu wherever they think that constitutional laws are being violated, however, with judicial restraint, the same judiciary has to abide by the executive who is given the sole power to legislate for the public.
Way forward in Judicial Activism
Judicial activism is a product fabricated solely by the judiciaries and not backed by the Constitution. When the judiciary surpasses the line of the powers set for it in the name of judicial activism, it could be rightly said that the judiciary then begins to invalidate the concept of separation of powers set out in the Constitution.
If judges can freely decide and make laws of their choices, it would not only go against the principle of separation of powers but will result in chaos and uncertainty in the law as every judge will start writing his own laws according to his fads and quirks.
Judicial exercise has to be respected to maintain a clear balance.
Making laws is the function and duty of the legislature, to fill the gap of laws and to implement them in a proper manner. So that the only work remaining for the judiciary is interpretations. Only a fine equilibrium between these government bodies can sustain the constitutional values.
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