Topic-
Judicial Activism: Pros and Cons
Author- Srishti Srivastava, B.A.LLB(Hons), C.M.P. Degree College, University of Allahabad, Prayagraj
Abstract
Indian
Constitution provides for state a responsibility to ensure justice, liberty,
equality and fraternity among the citizens[1].
The state is obligated to protect fundamental rights and the Directive
Principles of State Policy.In order to ensure that the state does not ignores
its responsibilities, the court, judiciary, has been provided with powers to
keep checks on other organs of the government, i.e., legislature and executive.
Using these powers the judiciary works as activists. This working of Judiciary
is called Judicial Activism.Judicial Activism implies a judicial working where
judiciary starts playing more assertive role which is mainly because of failure
in performance of duties by the other organs of government. It can also be said
that judicial activism stands against the misuse of power by government. This
article deals with judicial activism- emergence of Judicial Activism, meaning,
need,merits and demerits.
Emergence
In the world
The concept of Judicial Activism began and developed
in the USA in 1947. The term was chased by Arthur Schlesinger Jr., an
American annalist and preceptorin a 1947 composition in Fortune magazine.
He used it to describe certain decisions of the U.S. Supreme Court which went
beyond strict statutory interpretation.
InIndia
In India it was laid down byJustice V.R. Krishna
Iyer, Justice P. N. Bhagwati, Justice O.Chinnappa Reddy, and Justice D.A. Desai.
After the Emergency period (1975-1977), the Judiciary became more assertive and
started acting as activists.
Kesavananda Bharati vs. State of Kerala(1973)[2]
which introduced the Basic Structure Doctrine, limiting power of Parliament of
amending the constitution. This case was theturning point of Judicial Activism
in India. Basic Structure Doctrine is not defined in the Indian Constitution. The
constituents of Basic Structure are decided on case-to-case basis by the
Judges. This means that in a way Judiciary has acted as super legislature by
setting the limits of legislation.This case gave Judicial Activism widespread
recognition.
Meaning
Judicial Activism means “a judicial philosophy
holding that courts can and should go beyond the applicable law to consider
broader societal implications of their decisions”. Black’s Law Dictionary
defines Judicial activism as “judges allow their personal views about public
policy, among other factors, to guide their decisions.” The term, in
simpler words, means that the judiciary will act as activists and make rulings
according to their views rather than relying only on prior judgements or
written statutes. It can also be said that Judicial Activism is a process by
whichthe Judiciary starts shaping the law and goes beyond the conventional role
of applying the written laws. The Judiciary acts a s a super legislature and
limits the powers of legislature and executive.
Why is Judicial
Activism needed?
Judicial Activism stands against the misuse of power.
In states like India with diverse culture and vast population Judicial Activism
is considered necessary. Judicial Activism helps in maintaining justice, equality
and equity, liberty, and fraternity. When the Judiciary will be acting as
activists, the rulings would be unbiased resulting to reduced social
inequalities. The executive inaction and legislative shortcomings can be
supervised which easily hinders justice and governance, and eventually peace of
the state. The Constitution is a living document, and Judicial Activism enables
courts to interpret it in a progressive and evolving manner. Judicial Activism allows
individuals or groups to approach the courts even without a personal interest
(PIL), promoting social justice and access to justice to everyone. Judicial
Activism helps in maintaining checks and balances by keeping an eye on the misuse
of powerby the other branches, i.e., legislature and executive. It enhances transparency
and enables good governance.
Merits of
Judicial activism
o
Protects Fundamental rights- Judicial
Activism helps in enforcing Fundamental Rights when they are violated or
ignored, especially poor and the voiceless section of the society who won’t get
to be treated better otherwise.
Example- Right
to Education (Article 21)was judicially interpreted and enforced through
activism in the case of Unnikrishnan vs. State of Andhra Pradesh(1993)[3].
o
Keeps a check on Legislature and
Executive-Judicial
Activism acts as a legislative and executive branch of the government,
preventing abuse and misuse of power. It helps in reducing unjust laws.
Example- Striking
down arbitrary detentions during the Emergency under Habeas Corpus writ(the
writ used for the release of person unlawfully detained).
o
Fills Legal and Policy Gaps- Judicial
Activism lets judiciary step in and create temporary statutes until the parliament
acts in case of inadequate or outdated laws.
Example- Vishaka
vs State of Rajasthan (1997)[4].
This case is popularly known as anti-sexual harassment at workplace case. In
this case Supreme Court issued guidelines to prevent sexual harassment at
workplace. This judgement was given before the law was formally enacted in 2013.
o
Promotes Social and Economic Justice- Judicial
Activism ensures that the citizens get economic and social justices as enlisted
in Preamble. It upholds justice not just as an abstract concept but also as a
tangible outcome.
o
Maintaining Constitutional Morality- The
judiciary steps in to hold the virtues of the Constitution, when elected bodies
(legislature and executive) fail to do so.
Example- Navtej
Singh Johar vs. Union of India (2018)[5].
Section 377 was revoked, affirming the dignity of LGBTQ+ individuals and
bringing in line India with the global trend of decriminalizing homosexuality.
o
The Judicial Activism helps judges in
advancing the goals of Constitution like equality, justice, fraternity, liberty
and dignity.
Criticisms of
Judicial Activism
Though Judicial activism helps in extraordinary situations
with the unbiased interference of Judiciary but in some cases, activism emerges
as overreach. There is very thin line between Judicial Activism and Judicial
Overreach. Judicial Overreach takes place when theinterference of judiciary,in
the work belonging to executive and legislature,becomes excessive and
undesirable for the health of democracy. It becomes violation of the principle
of separation of powers, a central tenet of the Indian Constitution. This
violationresults into breakdown of healthy balance between the organs of
government(judiciary, executive, legislature).
Acting as Judicial Activists increases the workload
of judges which canin the long run cause their burnouts. When judges,
activists, takes up more and more responsibility, it ends up in the loss of
accountability, and since the judges cannot be held accountable by the publicas
they are not elected by them, they lose the trust of people. In simpler words,
Judicial Activism leads to Judicial Overreach whichin due course will lead to erosion
of public confidence in judiciary.These risks undermine not only democracy but
also judicial credibility.
Demerits of Judicial
Activism
o
Undemocratic Nature- Judges
are unelected, yet their activism can have major impacts without democratic
legitimacy.This also undermines the democratic process by bypassing the elected
representatives.
o
Subjective Interpretation- Since
the judges acting as activists are making decisions according to their views
rather than relying merely on precedents, the judgements can reflecttheirpersonal
ideologies rather than objective law.
o
Policy making by Courts- Since
the Judges are interfering in the works of legislature and executive, though
for supervising, it blurs the line between the functions of the three organs
(legislature, executive, judiciary).
o
Subjective Judgements- Since
the activists are not relying on any fixed statute, different judges may interpret
similar legal constitutional issues in different ways which will lead to unpredictable
and conflicting judgements.
o
Creates Legal Uncertainty- Since
Judicial Activism involves broad interpretations, the same law might be applied
differently by different benches and courts which leads to inconsistency in the
law. These interpretations are unpredictable leading to confused subordinate
courts and litigants.
o
Lack of Accountability-Unlike
Legislature and executive, the Judiciary is not directly accountable to the
people. Activism without restraint can lead to consolidation on unchecked
powers in the hands of a few judges.
o
Inconsistency in Decision Making-
Activist rulings may lack consistency, leading to confusion in legal
principles.
Conclusion
Judicial Activism
takes place when Judiciary starts playing dominant role as a result of failure
in performance of duties by other organs of government, i.e., legislature and
executive. Judicial Activism helps in keeping checks on the other branches of
government and at the same time working for the poor, marginalised and the voiceless
section of the society who may not get justice otherwise. It ensures the state
has justice, equality, liberty and fraternity. Although Judicial Activism ensures
citizens get social justice, there are possibilities of conflicts. When
activists interfere excessively in the works meant precisely for legislature
and executive, they end up violating the principles of separation of powers
resulting to Judicial Overreach. And since the judges are not elected by the
people and their decisions are very influential in the governance, taking too
much load of work may exhaust them and they will lose accountability to the
people. Activism without restraint can lead to unchecked powers in the hands of
a few judges. Therefore, from time to time the Supreme Court has asked the
subordinate courts to exercise Judicial Restraint from time to time. This
requires judges to follow self-discipline to make sure that Judicial Activism
does not ends up as judicial Overreach.
References
2. Christopher
Wolfe (1997). Judicial activism.(Rowman & Littlefield Publishers, Inc. ISBN
0-8476-8531-4).
3. acs law
[1] Preamble, Constitution of India
[2] AIR 1973 SC 1461
[3]AIR 217, 1993 SCR (1) 594, 1993 SCC (1) 645, JT 1993 (1) 474, 1993 SCALE (1) 290
[4] (1997) 6 SCC 241
[5] 2018 (10) SCALE 386
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judicial activism in India
pros and cons of judicial activism
advantages of judicial activism
disadvantages of judicial activism
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role of judiciary in democracy
public interest litigation and judicial activism
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impact of judicial activism on governance
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