Author:- Devi Prasad Mishra is a law student at Lajpat Rai Law College, Sambalpur University.
Edited by Rutvij Vyas, a Law Student at the Faculty of Law, GLS University.
INTRODUCTION:
Judicial activism denotes the proactive role played by the judiciary in the protection of the rights of citizens and the promotion of justice in society. Judicial activism is the procedure to evolve new principles, concepts, maxims, formulae, and relief to do justice or to open doors of court for the needy or to litigation affecting the entire society or a section of it. Although judicial activism plays a crucial role in social justice, however, there is a constant fear of judicial overreaching so it must be done judiciously
Keywords: Judicial activism, Constitution, separation of power, Supreme Court, Social justice
ORIGIN & MEANING:
The concept of judicial activism finds its origin in the USA. Arthur Schlesinger Jr., who was an American historian and educator coined the term ‘Judicial activism’.
Judicial activism denotes the proactive role played by the judiciary in the protection of the rights of citizens and promotion of justice in society. Black’s law dictionary defines judicial activism as a way of exercising judicial power that motivates judges to apply judicial precedent in favour of new and progressive policies.
V.G. Palishikar in his journal Judicial Activism as the process of law-making by judges. “It means an active interpretation of existing legislation by a judge, made to enhance the utility of that legislation for social betterment”
Thus judicial activism is the procedure to evolve new principles, concepts, maxims, formulae, and relief to do justice or to open doors of court for the needy or to litigation affecting the entire society or a section of it.
DEVELOPMENT OF JUDICIAL ACTIVISM IN INDIA:
Judicial activism is often mixed with judicial review. However former is part of the latter in which judges participate in law-making policies. They not only uphold or strike down the law but also play their policy preferences. Traces of judicial activism can be found way before independence when Justice Mahmood delivered a dissenting judgement in Allahabad high court in 1893 and held that the precondition of a case being heard will be fulfilled when only somebody speaks. In modern times judicial activism gained momentum after a dark period of national emergency. Later on, the concept of public interest litigation introduced by Justice Bhagawati and Justice Krishna Iyer laid the foundation of judicial activism.
Judicial activism in India can be discussed under three headings.
- Pre–emergency period
Since this time marks the early year of independence judiciary played a limited role. The court upholds principled and doctrinally approach. It was limited to interpreting laws and safeguarding constitutional rights. Even during that period, the land mark case of Kesvananda Bharti vs State of Kerala introduced the doctrine of basic structure in the Indian judiciary.
- Post–emergency period
This indicates the period of the end of the emergency. After the 44th amendment it was made harder to impose an emergency and guaranteed the right under articles 20 and 21 even during an emergency. Post emergency era set a more progressive and open-minded approach to judiciary. In the case of Maneka Gandhi vs Union of India of india, the apex court expanded the scope of Article 21.
- Public interest litigation to present
One of the main factors contributing expansion of judicial activism is the introduction of public interest litigation, which allows the court to offer direction for public benefit. Landmark cases such as Hussainara Khatoon, vishaka vs the state of Rajasthan, oleum gas leak show judicial activism in the way PILs.
CONSTITUTIONAL POWERS OF THE SUPREME COURT AND HIGH COURTS
The Constitution of India which the is the supreme law in the state empowers the supreme court and high courts to exercise their power to protect the rights of the citizens and provide justice. There are some key provisions that allow the court to take part in judicial activism. They are as follows.
- “Article 32: This provision empowers the supreme court to issue necessary orders, directions, prerogative writs to enforce the fundamental rights of the citizen.”
- “Article 226 of the Constitution empowers the High Court to issue writs including habeas corpus, mandamus, certiorari, prohibition and quo warranto. These tools are essential tools for enforcing fundamental rights and ensuring justice.”
- “Article 142 of the Constitution provides extraordinary power to the Supreme Court . It allows the court to pass suitable decree or orders for complete justice in any pending matter before it.”
JUSTIFICATION OF JUDICIAL ACTIVISM :
There is a near collapse of responsible government when the legislature and executive fail to discharge their respective functions. This results in erosion of confidence in the Constitution and justice system. In that case, expectations do arise from the judiciary for the protection rights. According to Dr B.L. Wadehra judicial activism fills up the vacuum where there is no legislation present.
Also, there are so many activators which activate judicial activism such as civil rights activists, consumer rights activists, women’s rights groups etc.
According to Dr. Vandana the concept of judicial activism can be seen to reflecting from following trends,
- Expansion of rights of hearing in administrative process
- Excessive delegation without limitation
- Expansion of judicial control over discretionary power
- Promotion of open government
- Passing of orders that are per se unworkable
IMPORTANCE OF JUDICIAL ACTIVISM
Judicial activism in India has played a crucial role in shaping constitutional law and upholding principles of justice. It can be summarized as follows.
- Expanding Fundamental Rights:
Judicial activism has expanded the scope of fundamental rights. For instance, in the Right to Education case, the Supreme Court interpreted the right to education as a fundamental right under Article 21A of the Constitution in Unnikrishnan v/s Andhra Pradesh. Similarly, in the Naz Foundation v. Government NCT of Delhi case, the court decriminalized homosexuality, recognizing the right to privacy and personal autonomy.
- Upholding Public Interest Litigation (PIL):
PIL allows citizens to seek justice irrespective of locus standi. The judiciary actively encourages PIL petitions to address public grievances. Notable examples include cases related to environmental protection like M.C. Mehta vs UOI, child labour, and bonded labour like Bandhua Mukti Morcha vs Union of India & ors
- Promoting Social Justice:
Judicial activism has provided social justice by addressing discrimination and inequality such as in Indra Sawhney etc v. Union of India and ors. Case, the court upheld reservations for socially and economically backward classes.
- Protecting Human Rights:
The judiciary steps in when human rights are violated for example, in the Vishaka and Ors. v. State of Rajasthan & Ors. Case, the court laid down guidelines to prevent sexual harassment at workplaces which led to new legislation.
APPREHENSIONS
As every coin has two sides judicial activism has also its own flaws. As the constitution of India provides for separation of power no organ amongst the three organs of government i.e. judiciary, legislative and executive, should overreach their power and step into another’s sphere. Following are some of the fears :
- Ideological fear that may not represent the popular will and go against society
- Epistemic fear, which means the judges may not have expertise over the matter that they are dealing with.
- Management fears, this may add a burden over the court to exercise its fundamental duty.
CONCLUSION
The role of judicial activism is of great significance in upholding constitutional rights and the rule of law. The court brings social reforms which erode discrimination and inequality by being active. By time judicial activism has gained the confidence of the people as recently in the Manipur violence case the supreme court took suo moto cognizance and intervened in the matte rof violating human rights during the violence. Lastly it may be concluded by quoting the lines of former CJI N.V. Ramana which tells the court to be mindful of Lakshman Rekha provided by the constitution.
REFERENCES
Books
- 1. Indian Polity, M Laxmikanth , Third Reprint, MC Graw Hill 2022
- 2. Public Interest Litigation, Wadehra Dr. BL, A Handbook, Second Edition , Universal Law Publishing Co), 2009
- 3. Dimensions Of Judicial Activism In India, Dr. Vandana (Raj Publication , New Delhi), 2016
- 4. Shukla VN and singh M pal, V.N. Shukla’s Constitution of India, 13th edn, Eastern book company), 2017
- Online Articles
- 1. Palishikar VG, “Judicial Activism” (2010) 8 Journal 201
- Cases Referred
- 1. Kesvananda bharti vs State of Kerala
- 2. Maneka Gandhi vs union
- 3. Maneka Gandhi vs union of India
- 4. Unnikrishnan v/s Andhra Pradesh
- 5. Naz Foundation v. Government
- 6. M.C. Mehta vs UOI
- 7. Bandhua Mukti Morcha vs Union of India & ors
- 8. Indra Sawhney etc etc v. Union of India and ors.
- 9. Vishaka and Ors. v. State of Rajasthan & Ors
- Statutes Referred
- 1. Constitution of india, 1947
