JUDICIAL ACTIVISM

Written by: Kanika Wadhawan

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.

Judicial activism plays an important role in upholding 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.

It is fundamentally important that justice not only be done but also be clearly and undeniably seen to be done

The judges have been held accountable for bringing justice to the doorsteps of the citizen. There has been an intervention of the judiciary in cases where there is a blatant misuse of executive discretion.

The Indian judiciary has actively defended individual’s fundamental rights whenever necessary from the state's unjust, unreasonable, and unfair actions or inaction.

By upholding human rights, the judiciary has come a long way in terms of judicial activism., from defending the rights of women in the workplace. Judicial activism occurs when the judiciary is charged with participating in the law-making process and subsequently emerges as a significant player in the legal system.

Cases of judicial activism

The following Supreme Court rulings provide insight into the development of judicial activism in independent India.

During the reign and dominance of British courts, the Supreme Court functioned as a technocratic court, but it gradually began to take an activist stance. The first landmark case in this regard was A.K. Gopalan v. the State of Madras (1950), in which a writ was filed to determine whether detention without trial was a violation of fundamental rights under Articles 14, 19, 21, and 22. The Supreme Court opined that the written Constitution contains the authority for judicial review. Even though the challenge was unsuccessful, it did start a new legal trend that became apparent in the years that followed.

CASE LAWS

In the landmark Keshwananda Bharti case, just two years before the emergency declaration the apex court of India declared that the executive had no right to intercede and tamper with the basic structure of the constitution. Though the exigency imposed by the then Prime Minister Indira Gandhi could not be prevented by the Judiciary, the concept of judicial activism started gaining more power from there.

· In I. C. Golaknath & Ors vs State of Punjab & Anrs. the Supreme Court declared that Fundamental Rights enshrined in Part 3 are immune and cannot be amended by the legislative assembly.

· Landmark cases of Judicial Activism

· In Hussainara Khatoon (I) v. State of Bihar, the inhuman and barbaric conditions of the undertrial prisoners were reflected through the articles published in the newspaper. Many prisoners who were under trial had already served the maximum persecution without being charged for the offense. A writ petition was filed by an advocate under article 21 of the Indian Constitution. The apex court accepted it and held that the right to a speedy trial is a fundamental right and directed the state authorities to provide free legal facilities to the under-trial inmates so that they could get justice, bail, or final release.

· Another important case Sheela Barse v. State of Maharashtra, a letter written by a journalist was addressed to the Supreme Court avouching the custodial violence of women prisoners in jail. The court treated that letter as a writ petition and took cognizance of that matter and issued the opposite guidelines to the concerned authorities of the state.

· In Sunil Batra v. Delhi Administration, the court exercised its epistolary jurisdiction, and a letter written by a prisoner was treated as a petition. The letter supposed that the head warden atrociously inflicted pain and assaulted another prisoner. The Court stated that the technicalities cannot stop the court from protecting the civil liberties of individuals.

· Some instances when the mechanism of Judicial Activism turned to Judicial overreach. The parliament of India has held responsible or accused the Judiciary of intervening and overreaching its constitutional powers.

· In the Supreme Court Advocates-on-Record Association v. Union of India, the National Judicial Appointments Commission (NJAC) Act, and the constitutional amendment was declared unconstitutional by the Apex court and the judgment was delivered with the majority of 4:1. The act was declared unconstitutional as it was violating the judicial independence. And the existing collegium system pertaining to the transfer and appointment of judges again came into the operation. Justice Khehar said, the absolute independence of the judiciary, from other organs of governance, protects the rights of the people.

· Lodha Committee report on the Board of Control for Cricket in India

The Supreme Court established the Lodha Panel amid accusations of Indian cricket corruption, match-fixing, and betting controversies. In an effort to bring law and order back into the BCCI, the committee was set up.

· The committee recommended some points such as BCCI should come under RTI, cricket betting should be made legal, and only the bodies that represent states should have voting rights while teams such as Railways and Services should be given the status of associate members without any voting rights. But these recommendations were treated as Judicial overreach as BCCI is an independent body not controlled by any state or central govt. so the Lodha committee has no authority to declare such recommendations.

· In Christian Medical College, Vellore & Others versus Union of India, and Others

· The Supreme Court barred the states from conducting separate entrance exams for medical courses and ruled that undergraduate admissions to medical courses can only be done through the NEET.

· The rulings of the Supreme Court on the National Eligibility-cum-Entrance Test (NEET), i.e., the single exam for admission to medical colleges, the reformation of the Board of Cricket Council in India (BCCI), the filing of the post of judge, etc were regarded by the government to be the Judicial Intervention.

· In Swaraj Abhiyan-(I) v. Union of India & Ors., the Apex court instructed the Ministry of Agriculture of the Union of India to update and amend the Drought Management Manual. The apex court also guided the state to constitute a National Disaster Mitigation Fund within three months

The judiciary sometimes has tried to regulate itself and put some constraints on its powers whenever it is required. The Supreme Court in Divisional Manager, Aravali Golf Course v. Chander Haas observed that:

· Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is a broad separation of powers under the Constitution and each organ of the State-the legislature, the executive, and the judiciary- must have respect for the others and must not encroach into each other's domains. It means that 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.

The necessity of Judicial Activism:

· To understand the increased role of the judiciary, it is important to know the causes that led to the judiciary playing an active role.

· There was rampant corruption in other organs of government.

· The executive became callous in its work and failed to deliver the results required.

· Parliament became ignorant of its legislative duties.

· The principles of democracy were continuously degrading.

· Public Interest Litigations brought forward the urgency of public issues.

In such a scenario, the judiciary was forced to play an active role. It was possible only through an institution like the judiciary which is vested with powers to correct the various wrongs in society. In order to prevent the compromise of democracy, the Supreme Court and High Courts took responsibility for solving these problems.

For example, in G. Satyanarayana vs Eastern Power Distribution Company (2004), Justice Gajendragadkar ruled that a mandatory inquiry should be conducted if a worker is dismissed on the ground of misconduct, and be provided with an opportunity to defend himself. This judgment added regulations to labor law which was ignored by legislation.

Similarly, Vishaka vs the State of Rajasthan (1997) is an important case that reminds the need for Judicial activism. Here, the SC laid down guidelines that ought to be followed in all workplaces to ensure the proper treatment of women. It further stated that these guidelines should be treated as law until Parliament makes legislation for the enforcement of gender equality.

Why is Judicial Activism needed?

• When the legislature fails to make the necessary legislation to suit the changing times and governmental agencies fail miserably to perform their administrative functions sincerely, it leads to an erosion of the confidence of the citizens in constitutional values and democracy. In such a scenario, the judiciary steps into the areas usually earmarked for the legislature and executive and the result is judicial legislation and a government by judiciary.

• In case the fundamental rights of the people are trampled by the government or any other third party, the judges may take upon themselves the task of aiding the bad conditions of the citizens.

• The greatest asset and the strongest weapon in the armory of the judiciary is the confidence it commands and the faith it inspires in the minds of the people in its capacity to do even-handed justice and keep the scales in balance in any dispute.

• 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 choice, 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 must be respected to maintain a clear balance.

Making laws is the function and duty of the legislature, to fill the gap in 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

Through Public Interest Litigation:

Public interest litigation means a suit filed in a court of law for the protection of public interest.

Judicial activism in India acquired importance due to public interest litigation. It is not defined in any statute or act.

In India, PIL initially resorted to towards improving a lot of the disadvantaged sections of the society who due to poverty and ignorance were not in a position to seek justice from the courts.

Justices P.N. Bhagwati and V.R. Krishna Ayer have played a key role in promoting this avenue of approaching the apex court of the country.

PROS AND CONS OF JUDICIAL ACTIVISM

· Pros associated with Judicial Activism in India

· Judicial Activism sets out a system of balances and controls for the other branches of the government.

· 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 rationalized 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 become 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.

What is the difference between judicial activism and judicial restraint?

· Both are opposing concepts. While judicial activism talks about courts taking on a proactive role in ensuring and protecting citizens’ rights, judicial restraint encourages the judiciary to limit the exercise of their own power.

· Is judicial activism good?

· Judicial activism can be good if the intention of the court is to protect and preserve the rights of citizens, and not merely criticize the government.

Conclusion

· Therefore, in a nutshell, the concept of judicial activism has both positive and negative affect. If the judiciary intervenes too much in the working of other organs of the government and tries to overreach the constitutional powers then this concept of judicial activism loses its importance and essence. Sometimes in the name of activism, the judiciary often rewrites personal views in the name of activism, and power separation theory is being overthrown.

· While judicial activism is deemed favorable in addition to the legislative's failures, overreaching the domain of the other organs of the government is regarded as an interference in the appropriate workings of democracy. Its significance, however, lies in the institution's role as a place of hope for aggrieved individuals.

References

http://www.studoc.com/in/document/galgotias-university

Reddy ,G.B Judicial activism in India

Judicial Activism and the Democratic Rule of Law: Selected Case Studies (2020), Dr. Sonja Grover

B.S Tyagi, Judicial activism in India

Nilanjana Jain , Judicial activism in India

Public interest litigation, Dr Sampat Jain 2002

Constitution of India- V.N. Shukla