Judicial Activism

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Introduction

Judicial Activism, the two words judicial means connected with a court of law, a judge, or a legal judgment and the Activism mean the policy of using vigorous campaigning to bring about political or social change. Together it means how a judge approaches or is perceived to approach exercising judicial review. The term refers to scenarios in which a judge pronounces a judgment that is not in line with the legal precedents or past constitutional interpretations in favor of protecting individual rights and serving a broader social or political agenda for a larger benefit.

In other words, we can say that the judiciary plays a vital role in upholding and promoting the rights of the citizens. This active role played by the judiciary in upholding these rights of citizens and preserving the constitutional and legal system of the country is known as judicial activism.

Origin of the Term

In a 1947 Fortune magazine article, Schlesinger organized sitting Supreme Court justices into two categories: proponents of judicial activism and proponents of judicial restraint. The judicial activists on the bench believed that politics play a role in every legal decision. In the voice of a judicial activist, Schlesinger wrote: “A wise judge knows that political choice is inevitable; he makes no false pretense of objectivity and consciously exercises the judicial power with an eye to social results.” According to Schlesinger, a judicial activist views the law as malleable and believes that law is meant to do the greatest possible social good. Schlesinger famously did not take an opinion on whether judicial activism is positive or negative.[1]

According to Black’s Law Dictionary Judicial activism is: “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent”.

According to Merriam-Webster, Legal Definition of judicial activism is “The practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent.”

According to SP Sathe, a court giving a new meaning to the provision to sit the changing social or economic conditions or expanding the horizons of the rights of the individual is said to be an activist court.

“Judicial activism is a sharp-edged tool which has to be used as a scalpel by a skillful surgeon to cure the malady. Not as a Rampuri knife which can kill.” (Justice J. S. Verma, 1996)[2]

“Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law courts exist for the society to rise up the occasion to do the needful in the matter, and as such may subserve the basic requirement of the society. It is a requirement of the society and the law has to respond to its need.” (Umesh C. Banerjee, J. in Jai Kumar Vs. State of M.P.  [3]

Judicial Activism is a powerful weapon which the judges have to wield to sub serve the ends of justice by making the law responsive to the felt necessities of the changing times. The scope of judicial activism varies with the courts power of Judicial Review. This scope increases considerably where the power of Judicial Review extends not only over executive action as in the United Kingdom, but also over legislative action as in the United State, and even over constitutional amendment as in India.[4]

ORIGIN AND DEVELOPMENT OF JUDICIAL ACTIVISM IN INDIA

In modern era the primary source of origin of law is legislature & the secondary source is the judge-made law through judicial interpretation of the existing legislature. Judicial activism emerges out of these judge-made laws.

The roots of judicial activism in India can be traced back in 1893, when Allahabad High Court Judge S. Mahmud held that the pre-condition for hearing a case would be accomplished only when someone speaks. In the case, the under trial was not being represented by any lawyer and neither he was in a position to afford a lawyer (Justice Mahmud, 1893)[5]

The power of judicial review has been expressly mentioned in the Article 13 of the Indian Constitution. Article 13 of the Indian Constitution prevents legislatures to make any law which “may take away or abridge the fundamental rights” guaranteed by the Constitution. Any law is declared as void if it is “inconsistent with or in derogation of the fundamental rights”.

Constitutional basis of the judicial review has been provided by Article 13 as it entrusts the Supreme Court and the High Courts the power to interpret the pre-constitutional laws and to settle whether they match with the values and principles of our present constitution. If there is any conflict, they become deemed ineffective until their adoption through amendments. But they must be constitutionally compatible; otherwise, any deviation makes them void (Article 13)[6]

Constitution of India has conferred extensive powers to the Supreme Court under Articles 32, 141, 142 and 144 to pass necessary orders to fill up the vacuum till legislature becomes active or the executive properly discharges its responsibility (Vineet Narain v. Union of India, 1998)[7]

The Executive, the Legislature and the Judiciary are three pillars of Indian democracy. The Legislature frames the law, the Judiciary interprets the law and the Executive executes it. Whenever there are lapses on the part of the Executive and/or the Legislature, when the Legislature becomes adventurous and the Executive becomes autocratic and does not fulfill their roles in the right spirits, the judicial activism becomes imperative to deliver justice.

Indian Judiciary is known as independent part of the Government & Constitutional envisages certain special powers for the protection of fundamental rights of the citizens. The Supreme court and High Courts can issue writs to Government for the enforcement of the rights of the citizens.

Habeas Corpus: A Latin term which literally means “You may have the body” The writ is issued in form of an order calling upon a person by whom another person is detained to bring that person before the court and to let the court know by what authority he has detained that person. The main object of the writ is to give quick and immediate remedy to a person who is unlawfully detained by the person whether in prison or private custody.

Mandamus: Mandamus means “the order.” The writ of mandamus is thus an order by a superior court commanding a person or a public authority to do or forbear to do something in the nature of public duty or in certain cases a statutory duty.

Prohibition: This writ is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rule of natural justice. It is issued by the superior court to the inferior court for the purpose of preventing inferior courts from usurping a jurisdiction with which it was not legally vested.

Quo-Warranto: The word Qua-Warranto literally means “What is your authority” by this writ a holder of an office is called upon to show to the court under what authority he holds the office. The object is to prevent a person to hold an office which is not legally entitled to hold.

Certiorari: A writ of Certiorari is issued by a superior court to an inferior court or body exercising judicial or quasi-judicial functions to remove a suit from such inferior court or body and at adjudicate upon the validity of the proceedings or body exercising judicial or quasi-judicial functions.

Methods of Judicial Activism

The most commonly used of methods of judicial activism are:

  1. Judicial Review:
  2. Public Interest Litigation:
  3. Constitutional Interpretation:
  4. Judicial Review: Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. It’s is the power of judiciary to review and decide the validity of various acts passed by the legislature and executive branches of government. If the reviews of the courts come out with the decisions that a legislative act is unconstitutional, it becomes nullified. The Courts has the power to review the decisions of the executive and administrative agencies and if not conforming the law or the constitution can also be overruled.

 According to Basu in his book Basu’s commentaries on constitution of india, vol 1. any act of the ordinary law-making bodies which contravenes the provisions of the supreme law must be void and there must be some organ which is to possess the power or authority to pronounce such legislative acts void. In Fundamental Rights Case Justice Khanna said that judicial review has become an integral part of our constitution and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of the provisions of statutes. If the provisions of the statutes are found to be voilative of any of the articles of the constitution which is the touchstone for the validity of all laws the Supreme Court and the High Courts are empowered to strike down the said provision.”[8]

  1. Public Interest Litigation: The traditional rule of locus standi that a petition under Article 32 can only be filed by a person whose fundamental right is infringed has now been relaxed by the Supreme Court by various rulings. The courts now permit Public Interest Litigations or Social interest litigations at the instance of ‘Public spirited citizens’ for the enforcement of constitutional and other legal rights of any person or group of persons who because of their poverty or socially or economically disadvantaged position are unable to approach the court for relief but the person filing the petition must not have any personal interest in the litigation.

In Bandhua Mukti Morcha v. Union of India, Bhagwati, J., explained the nature and purpose of public interest litigation as follows: –

“Public Interest litigation is not only in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make the basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the significant tune of our Constitution. The Government and its officers must welcome public interest litigation, because it would provide them an accession to examine whether the poor and the down trodden are getting social and economical entitlements or whether they are continuing to remain victim of deception and exploitation at the hands of strong and powerful sections of the community……………. When the court entertains public interest litigations, it does not do so in a caviling spirit or in a controversial mood  or with a view to titling at executive authority or seeking upsurp it, but its attempt is only to endure observance of social and economic programmes framed for the benefits of the have-nots and the handicapped and to protect them against the violation of their basic human rights, which is also the constitutional obligation of the executive, the court is thus merely assisting in realization of constitutional objective.”[9]

In A.B.S.K Sangh (Rly) v. Union of India, it has held that even an unregistered association can maintain a petition for relief under Article 32 of the constitution if there is a common grievance. Thus Article 32 is not confined to protect only individual’s fundamental rights but is capable of doing justice where it is found and the society has an interest in it. “Access to justice through ‘class actions. ‘Public interest litigation’ and ‘representative proceedings’ is modern jurisprudence”, declared Krishna Iyer, J.[10]

In Bihar Legal support society v. Chief Justice of India, the court made it clear that the strategy of public interest litigation has been evolved by this court with a view to bringing justice within the easy reach of the poor and the disadvantaged sections of the community.[11]

  1. Constitutional Interpretation: The constitution of India vests the Supreme Court under Article 32 and 136 and the High Courts under 226 and 227 with the power of ‘Judicial Review’, where state actions or inactions are put through a constitutional Litmus test. The court has the endeavor to figure out a particular meaning of a provision in the constitution. To find out, the courts employ various methods and modes of interpreting those provisions to realize the goal of equitable justice.
  2. In Kesvananda Bharti v. State of Kerala, the Supreme Court has said that “Fundamental Rights and Directive principles aim at the same goal of bringing about a social revolution and establishment of a welfare State and they can be interpreted and applied together. They are supplementary and complementary to each other. It can be well said that directive principles prescribed the goal to be attained and the fundamental rights lay down the means by which that goal is to be achieved.”[12]

In Unni Krishanan v. State of A.P, The Supreme Court has reiterated the same principle that the ‘Fundamental Rights and Directive Principles are supplementary and complementary to each other and the provisions in Part III should be interpreted having regard to the preamble and Directive Principles of the State Policy.’

B.P . Jeevan Reddy, J., stated that “It is thus well established by the decisions of this Court that the provisions of Part III and Part IV are complementary and supplementary to each other and that fundamental rights are but a means to achieve the goal indicated in Part IV. It is also held that the fundamental rights must be construed in the light of directive principles.” [13]

In S.R. Bomai v. Union of India, The Supreme Court held that “Secularism is the basic feature of the constitution.”  The State treats equally all religions and religious denominations. Religion is a matter of individuals faith and cannot be mixed with secular activities. Secular activities can be regulated by the State by enacting a law. Justice Ramaswami observed that secularism is not anti-God. In the Indian context secularism has a positive content. The Indian Constitution embodies the positive concept of secularism and has not accepted the American Doctrine of secularism. i.e., the concept of erecting “a wall of separation between Religion and State.” The concept of positive secularism separates spiritualism with individual faith. The State is neither anti-religion nor pro-religion. In the matter of religion, the State is neutral and treats every religion equally.[14]

Advantages of Judicial Activism

  1. Creates Balance: Judicial Activism creates balance and keeps an eye on the legislature & executives. In true sense the Judiciary is able to play the effective role of guardian of the constitution. Because if an unfavorable law comes into existence the judiciary can overturn the same. It keeps checks and balances in other government branches.
  2.  Interpretation by Judges: Only the law is supreme and no one is above law. Judges are at a leeway to use their discretion rather than just following the unfavorable laws blindly. Judges are free to use their personal wisdom where the law fails to provide a balance.
  3. Enable judges to rationalize decisions: There are certain constitutional matters which are too complicated; hence for justice judges rationalize their decisions and arrive at what they deem fit to solve these complicated matters.
  4. Empowers Judiciary: For a democracy to function well, the judiciary must have a stalwart position to act independently and arrive at uncompromised decisions. Such approach also restores the faith of the people in the judiciary as it’s the last resort in the eyes of the public.
  5. Upholds the rights & Reforms the society: Judicial activism, wherever required proactively plays an important role in upholding and protecting the rights of the citizens. Moreover, judiciary is more well versed with the problems of the society hence judiciary can address these issues in a better way.is in a position to provide better solutions.
  6. Acts in larger public interest: Judicial activism is a strong weapon for larger public interest rather it will not be wrong to say that when the system turns eyes, ears & mind from the downtrodden, Judiciary is the only savior.
  7. Precedent: The decision of higher courts set a tradition of precedents to be followed by the lower courts, this acts as a key reference for lower courts to follow.
  8. Speedy Solutions: Judicial activism provides speedy solutions where the legislature is stuck in the issues of majority.

Disadvantages of Judicial Activism

  1. Interferes with the elected legislatures: The judiciary ought to be independent and uncompromised but there is always a scope for interference with the law made by the elected representatives of the people. As the saying goes “Democracy is for the people, of the people and by the people.” Interference may lead to the hurdles for the motive for which people have voted. Moreover, repeated interference by the judiciary erodes the faith of the people in the government.
  2. Halt the process of new reforms: If judicial activism is overused or over relied, the public may every now and then challenge the new laws introduced by the legislature for the social reforms, as an outcome the speed of new reforms will get slow down.
  3. Contradiction likely to create confusion: If the mandates issued by the judiciary contradict or are in variance with the ones passed by the legislature, the result might be heavy confusion. The parties concerned will often be at crossroads as to which one to obey and which one to disapprove. It is likely to create a divide and confusion and some may obey and others will oppose it.
  4. Overriding of existing laws: Scope of overriding the existing laws by judges is there, hence it clearly violates the line drawn by the constitution.
  5. Wrong precedents: As the Decisions of superior courts become precedent for the lower courts, there is a possibility of judicial opinions becoming standards for ruling in other cases.

Conclusion:

As with the development of science and evolution of human beings, society has got more organized and civilized similarly the Judicial activism is a blessing of the modern era. Today when the world is moving towards equality & discarding every discrimination on the basis of Sex, Religion, Caste, Creed & Nationality, the role & scope of Judiciary activism becomes immense in upholding and protecting the rights of humans. No doubt that Judges don’t have the power of sword but their strength rests on the public trust & confidence of the public. To keep the stalwart image in the eyes of the public when every other option is not responding, the Judiciary must be fair, faceless, impartial, impassive and humble interpreter of law. At the same judges must keep the balance and must not be overactive & over enthusiastic. If the Judicial activism becomes overactive it may create the institutional imbalance or even destabilize. Courts need to remember they are not running the country; it’s the elected Government which has the responsibility to run the country. Courts need to be sympathetic to the rights of the public, as they will always be a weaker party in front of Government.

Recently, Chief Justice of India Sh. N V Ramana said “Judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the ‘rule of law’ would become illusory.”


[1] (https://www.thoughtco.com/judicial-activism-definition-examples-4172436)

[2] (Manoj Mitta, ‘A strong arm is needed to make the executive work’, India Today (March 15, 1996), available at http://indiatoday.intoday.in/story/the-court-has-grown- stronger-in-keeping-with-the-need-of-the-times- justice-j.s.-verma/1/280953.html.

[3] (1999) 5 SCC 1, para 13.)

[4] (Jain, Sampat, Public Interest litigation, Deep and Deep Publications, New Delhi, 2002, p. 168.)

[5] ‘Evolution & Growth Of Judicial Activism In India’, Shodhganga at 79, available at http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/8/09_chapter%203.pdf

[6] (Article 13, Constitution of India)

[7]  (A.I.R. 1998 S.C. 889.)

[8] Basu in his book Basu’s commentaries on constitution of india, vol 1. 

[9] (AIR 1984 SC 802)

[10] (AIR 298, 1981 SCR (2) 185)

[11] (AIR 38, 1987 SCR (1) 295)

[12] (AIR1973 SC 1461)

[13] (1993) 1 SCC 645.

[14] (AIR 1994 SC 1918)

Author: Pawan Choudhary – Dogra Law College (University of Jammu)

Editor: Kanishka VaishSenior Editor, LexLife India.

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