Judicial Activism

Q. Write an essay on Judicial Activism [20 marks - 2022, 2019, 2017]

Meaning

The term Judicial Activism was coined by Arthur Schlesinger Jr. in his article "The Supreme Court: 1947". Its presence can be seen in India since the Emergency days. 

The judiciary, as the guardian of the Constitution, plays an important role in upholding and promoting the rights of citizens. The active role played by the judiciary  while guarding the rights of citizens and maintaining the constitutional and legal system of the country is known as judicial activism. The judicial activism, sometimes becomes judicial overreach because of encroaching upon the areas of the executives. 

Definitions

The Black’s Law Dictionary defines judicial activism as “judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies.”

V.D. Kulshrestha opines that when the judiciary becomes a key player in the law making process, which may be termed as encroachment, is termed as Judicial Activism

The concept of Public Interest Litigation (PIL) is one of the many outcomes of the Judicial activism.

Types of Judicial Activism 

(i) Judicial review 

The judiciary has been empowered to interpret the constitution and to declare any such law or order of the legislature and executive void, if found in conflict with the Constitution.

(ii) Public Interest Litigations (PIL) 

Any public spirited person may file a petition in the interest of large public. There must not be any personal interest in the litigation.

(iii) Constitutional interpretation

The judiciary has power to interpret the constitution within a predefined framework.

Importance 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 the 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. 

Case references

(i) 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.

(ii) IC Golaknath case: Fundamental Rights are not amenable by the Parliament as stated in Article 13. To amend the Fundamental rights a new Constituent Assembly would be required. 

(iii) Kesavananda Bharati case: This is also known as the basic structrue doctrine case as basic structure of the Constitution was deined in this case. 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 an amendment passed by Parliament that is in conflict with the basic structure of the Constitution.

Merits of Judicial Activism India

(i) Judicial Activism establishes a system of balances and controls in the functioning of the government. 

(ii) It ensures and protects the public rights.

(iii) Misuse of power by the government machinery would be rampant without the Judicial Activism.

(iv) In the issues where the legislature cannot take a decision, Judicial Activism is the only solution.

Demerits of Judicial Activism 

(i) There is a possibility of limiting the functioning of the government. 

(ii) Separation of power is violated due to judicial overreach. 

(iii) If any judgement is with selfish motives, this may harm the public at large.