Meaning of “Judicial activism”
- Judicial Activism, in its layman’s term, reflects the active role played by the judiciary in promoting justice. It is basically a kind of judicial rulings centred upon personal or political interest. Black’s Law Dictionary also tends to explain Judicial Activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”
- It is not all together a separate concept or notion from the usual judicial actions or activities. The word ‘activism’ refers to ‘being active’, or in other words, ‘doing things with decision’. Whereas, the ‘activist’ is the one who favours intensified activities.
- Justice Krishna Iyer evidently remarked that every judge is an activist either on the forward gear or on the reverse.
- In India, judiciary has become the centre of controversy, in the recent past. Judicial Activism is gaining prominence among the citizen in the form of Public Interest Litigation (PIL), and citizens are getting access to justice.
- Judicial activism relies on the idea that the judges undertake the character of an independent policy makers or independent trustees or representatives on behalf of the entire society, and they are further inclined to go beyond their traditional role as interpreters of the Constitution and laws. This notion of judicial activism stands in contrast to judicial restraints.
Origin of Judicial Activism and its course in India
- The Constitution has three instrumentalities — Executive, Legislative and Judiciary. The implementation of the State’s laws and policies is the responsibility of the Executive. Whereas, the Parliament consisting of two Houses and legislatures at the State level, makes law. In general, our Constitution works in harmony with these instrumentalities.
- However, when the executive or legislature acts arbitrary, or in contrary to the constitutional provisions, the judiciary has the power to correct them by issuing directions under Article 143. Any citizen can approach the Supreme Court for the issue of a writ to defend his or her fundamental rights and onus lies on the Judiciary to provide justice. This conduct of the judiciary is referred as Judicial Activism.
- In India, there are two major aspects of Judicial Activism. The first comes in the form of PIL where various directions issued by the courts to the government authorities protecting the rights of the citizen, for example; cases like Agra Protection Home case and Bihar undertrail case etc. The second aspect is in the field of Interpretation of Fundamental Rights, particularly the right to equality (article14), right to freedom (article 19), and the right to Life and personal liberty(article 21). For example, in KeshavanandBharti case, 1973, the Supreme Court formulated the doctrine of ‘Basic Structure’ which restricts the power of Parliament to amend certain features of Constitution.
- In the trend of Judicial Activism, a number of cases have been decided by the Judiciary protecting the rights of the people. It is due to Judicial Activism, corruption has much been exposed in higher offices, and thereby initiating penal action against politicians and public servants.
Status quo and Criticism of Judicial Activism in India
- The Judicial activism in India is working very well and it has been improving the condition of the governance. The progress of the society is dependent more upon the proper implementation of law to fulfil the need of the people, and since the society has much awareness of its rights and obligations than ever before, the judiciary has to mould and shape the law to deal with such rights and obligations. The mere existence of legislation cannot solve the problems of society at large unless the judges interpret and apply the law to ensure its benefit to the right quarters.
- However, the activist nature of the judiciary is often subjected to criticism. It is argued that the judiciary has usurped the role of the legislature and the executive. Secondly, they have interfered in the area where they had no knowledge and expertise. Thirdly, critics also argue that courts are already over-burdened, and PILs would lead to judicial delays.
- In view of the above discussion, it is humbly submitted that judicial activism has been a very useful tool in Indian democracy and it has improved the quality of our governance and has brought reforms in the governance of the country. The only thing the judiciary must keep in mind is that not to overstep the limitations prescribed in the Indian Constitution. In the grab of Judicial Activism, sometimes the judiciary encroach upon the affairs of other two branches of government, particularly executive, in policy formulation which, in turns, becomes in conflict with them, and thereby, ultimately leading to debate of Judicial Activism verses Judicial overreach.