Judicial Activism

  • Denotes the proactive role played by the judiciary in the protection of the rights of citizens and in the promotion of justice in the society
  • Implies the assertive role played by the judiciary to force the other two organs of the government (legislature and executive) to discharge their constitutional duties.
  • Also Known as “judicial dynamism”
  • Antithesis of “judicial restraint”, which means the self-control exercised by the judiciary.
  • Closely related to the concept of Public Interest Litigation (PIL)

Judicial Review and Judicial Activism

  • The former is that form of latter in which judges participate in law making policies,
    e., not only they uphold or invalidate laws in terms of constitutional provisions, but also exercise their policy preferences in doing so.
  • The concept of judicial activism is inherent in judicial review, which empowers the court to uphold the constitution and declare the laws and action inconsistent with the constitution
    as void. Judicial activism is necessary for ensuring proper discharge of duties by other organs.
  • Judicial activism stresses the importance
    of judicial review and a powerful judiciary in the protection and promotion of certain core rights
  • The expanded concept of locus standi in connection with PIL, by judicial interpretation from time-to-time, has expanded the jurisdictional limits of the courts exercising
    judicial review. This expanded role has been given the title of “judicial activism” by those who are critical of this expanded role of the judiciary.
  • Judicial activism, as regards constitutional cases, falls under the rubric of what is commonly called judicial review, and at the broadest level, it is any occasion where a court intervenes and strikes down a piece of duly enacted legislation.
  • The Supreme Court judgments in Golak Nath Case (1967), Kesavanand Bharti Case (1973), Menaka Case (1973), Vishaka case (1997) etc are some of the examples of the Judicial Activism.

Activators of Judicial Activism

  • Civil Rights, People Rights Activists
  • Consumer Rights & Bonded Labour Groups
  • Citizens for Environmental Action
  • Rights of Child, Women’s Poverty etc

Apprehensions of Judicial Activism

  • Fears of Ideological, Epistemic, Management, Legitimation, Democratic, Biographic

Judicial Restraint

  • This term defines that the role of judges is limited and they are merely to say, what the law is?, leaving the law making process where it belong to i.e. Legislature and Executive.
  • Under no circumstances judges should be allowed to colour their judicial opinions on the basis of the personal/political/religious views. 
  • While delivering ata judgement Supreme Court called for the judicial restraint and asked courts not to take over the functions of legislature and executive, saying that there is a broad separation of powers among the different organs of the Government of India in constitution and each organ should respect others and should not encroaches on others.
Judicial ReviewJudicial ActivismJudicial RestraintJudicial Overreach
Judiciary examines the constitutionality of legislative enactments and executive orders of both the Central and state governments.Proactive role played by the judiciary in the protection of the rights of citizens and in the promotion of justice in the society.Self-control exercised by the judiciary and limiting itself only to interpretation of original intent of constitution makers.When the judiciary oversteps the powers given to it, it may interfere with the proper functioning of the legislative or executive organs of government.
Enabling in natureEnabling in natureRestrictive, limiting nature.Encroaching and predatory in nature.
Not mentioned in constitutionNot mentioned in constitutionNot mentioned in constitutionNot mentioned in constitution
Origin- Art.13, 32, 226 etc.Origin- Judicially innovatedOrigin- Judicially innovatedOrigin- Judicially innovated
Desirable in any democracy to protect rights of citizens.Desirable in any democracy to protect rights of citizens and provide justice to people.Desirable in any democracy to protect and respect separation of power and independence of other organs.Undesirable in any democracy. It destroys the spirit of separation of powers
E.g.- Striking down of the Section 66A of the IT Act as it was against the Fundamental Rights guaranteed by the constitution.

 

 

E.g– National Green Tribunal (NGT) banning diesel trucks older than 10 years in Delhi etc.E.g– In S.R Bommai case the judges said that there are certain situations where the political element dominates and no judicial review is possible.E.g Misuse the power to punish for contempt of court.

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