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Like many catchwords, judicial activism has acquired so many different meanings as to obscure more than it reveals. But at the same time it can not be discarded as an intellectual void for the vagueness of the definiton of the word for at the heart it speaks about the survival of law. Abandonment of this word not being a viable option, clarification needed as to what judicial activism is. Judicial activism is different from the judicial review or other process of jurisdiction in the sense that under the gamut of judicial review the judiciary can extend its influence to the spheres of executive and the legislative. Judaical activism simply means a pro-active judiciary which does no limit itself to the interpretation of law only but also sees if the law affects people adversely.
Two understand the concept of the judicial activism two theories have been expounded. The first theory “Power vacuum filling” theory says if in a system there is a vacuum because of the lack of any particular organ or the inaction of it, then other organs extend their influence to the vacuum created. Nature does not allow the vacuum to remain as such. In the government in certain areas vacuum ais created due to the lack of interest in executive or legislative or simply due to the inaction and indifference in their part. This vacuum is filled by a dynamic judiciary. This is called the judicial activism. The other thoery of “social want” says that people want something which is neither provided by the executive or the legislative. So judiciary took it upon itself to provide the wants of the people ( read the redresssal of the grievance of people ). So it became proactive and this proactive-ness is called as judicial activism. Judicial activism has its genesis in the American system. The American system of governance has favored an active judiciary because they follow the principle of judicial supremacy unlike our constitutional supremacy. So in
Brief history of an active judiciary in
When one talks about the judicial activism in
1. Golaknath Vs. the state of
In a land mark judgment Supreme Court made it clear that no constitutional amendments can be made on the part To remove the difficulties in the process the government in the 24<sup>th amendment amended article 368 empowering the legislature the power to amend the constitution. 2. Keshavananda Bharti Vs. the state of Kerala In this landmark judgment Supreme Court first kicked the Hornet’s nest in the name of the basic structure of constitution. In this case the Golaknath case was over ruled and parliament regained the power of amending but Supreme Court explicitly said that the legislature by virtue of the amending power cannot change the basic structure of the constitution. But what constitutes the basic structure was not specified. To remove the constitutional hurdles in an amendment the government inserted clause 4 and 5 in the article 368 which mentions that limited power of amendment is a basic structure of constitution.
3. Minnerva Mills vs. the union of
In this case the supreme court over ruled that amending power is a basic structure of constitution. By this time the legislative and the judiciary in
In this case Supreme Court reinterpreted the writ of Habeas corpus as not only producing a person in the court but also preventing a person jailed from the inhuman treatment in the prison.
In this case Supreme Court not only pronounced that deployment of children in hazardous factories is unlawful but also provided various guidelines for the children welfare.
Apart from the above cases in many landmark judgments Supreme Court categorically mentioned about environment issues, gender issues and issue related to dalits etc. The beauties of these cases are all against the legislature. In each of the cases either some constitutional amendments have been made void or the law has been reinterpreted differently. In the brief period when judiciary has been active in
The preceding paragraph gives a basic idea of the history of judicial activism in Indian constitution in article 246 speaks about the separation of power between executive, legislative and judiciary. The idea envisaged in the separation of the power is not to give rise to a dictatorial regime. Because these three branches are independent of each other. The separation of power is the essence of Indian democracy. But an active judiciary in some way or other infringes on the power of the legislative. One can take the case of the Golaknath case. The government has made some changes which abridge the fundamental rights and those changes have been made to enter into the ninth schedule also which is free of judicial purview. No doubt any law making is the function of the legislative and as per convention judiciary is to interpret the laws made by the legislative. But in Golaknath case the Supreme Court quashed the amendment itself. That means it did not recognize the law made by constitution. No doubt such a law was to some extent the spirit of the fundamental rights but the act of judiciary is a clear encroachment upon the legislature. The Kehsavananda Bharti case is a very important verdict in defining the ambit of judicial activism. Here the Supreme Court talks about the basic structure of the constitution but what constitutes the basic structure? The Supreme Court remains surprisingly silent; of course various justices have included different things under the basic structure of constitution but there is no specific benchmark. If one examines all the above cases it is pretty clear that judicial activism is against the legislative hegemony but the question may arise is it against democracy? Legislative is a democratic body. It gains the authority from the people. On the other hand judiciary has no popular mandate backing it. It is an independent authority. So by principle judiciary ratifying the legislature is against the principle of democracy. But arriving any such conclusion is not an easy task. There are many a loopholes in such straight forward criticism. Suppose the legislature makes the law which affects the liberty of people and which is a gross violation of human rights. In this case does the judiciary remain silent and follow the rule of law principle even if the law is inhumane? This is a question which has far reaching significance. There is no absolute solution for this. To analyze this one needs to reinterpret the word democracy itself. Democracy is a form of government where people surrender some of their rights to a small elite body who are elected by people to rule over themselves. This elite body or the public representatives make law for the betterment of people. Once elected the public representatives remain all powerful till the end of the term by constitutional provision or otherwise because the constitution does not provide “call back” power to the people. The assumed principle is that these public representatives should make laws for the benefit of the people. The loophole in our administration is that it is not very transparent and popular participation is bare minimum. The prescribed methods of control on government have been largely unsuccessful. So in such a situation a vacuum is created in governance i.e. who shall see the validity of a law. The judiciary as such and by principle can not act unless an aggrieved party does not knock its door. Hence this vacuum is substantial. As per the theory of “Power vacuum filling” some organ has to extend its influence and it is only natural for judiciary to extend its influence in the sphere. Many argue that it is against the principle of democracy. May be it is true. But there is a widening gap between the principle of democracy and the essence of democracy. Sometimes the hegemonic growth of the form and procedure of democracy become so vast that they make the spirit of democracy in danger. Now it is important to decide what is more important the procedure and principles of democracy like the legislative supremacy or the spirit of democracy i.e. welfare of people. The principle and procedure may be a means to an end but the end is always the spirit of democracy. So if means are abridged to attain the ends then democracy will be more successful than anything else. Judiciary under the veil of activism serves as a watch dog for preserving this basic spirit of democracy.
The executive and legislative is always at disadvantage with the increasingly proactive judiciary. But the judicial activism has been beneficial to the public in many situations. For example, in the field of basic human rights, the judiciary has been consistently building new linkages of a new egalitarian democratic and free society in consonance with new universal socio-political and economic order by raising some rights as Fundamental Rights under Part One of the important tools through which judicial activism become popular and effective is the public interest litigations. Earlier a case can be filed by a person only if he had a locus standi in the court. But with the provision of PILs people now know that judiciary has constitutional power of intervention and can ameliorate their miseries arising out of lawlessness or repression by the government. To this effect many people and groups have acting pro bono publico has filed PILs on various issues and judiciary has taken steps to mend those problems. And an active judiciary has gained popular support. Once speaking about the judicial activism one of the retired Supreme Court judges has said a proactive judiciary is successful if it draws its support from people.
So much said about the benefits of the active judiciary one cannot entirely neglect the harmful effects of it as hinted earlier in the present article. An active judiciary many times infringes upon the legislative and judiciary and that is strictly against the principle of separation of power. And an active judiciary disrupts the balance between a democratically elected body i.e. the legislature. There are many criticisms against the active judiciary. The chief among them are:-
To some extent the above criticisms are correct. But they are fairly exaggerated. It is argued that judicial activism has made a victim of legislature. But in a sense it has not only resulted in a pro-active judiciary but also it has made the legislature and the judiciary more active. Several new legislations have appeared after the involvement of judiciary. It has also unearthed many scams like hawala scam, St Kitties scam, scam on distribution of houses and petrol pumps etc. It has created an environment of transparency and accountability in the government. It has made the government more responsive to people. PILs have served as a tool of popular participation in government. The second criticism that judges crave for limelight also has little credibility. Because as such judges occupy a revered position in the society. However if ever any judge wants to be in lime light then there is not major sin because after all he is also a human being, s there is no need to get this problem exaggerated. Regarding the abuse of PILs the apex court in several of its pronouncements has categorically mentioned about some guidelines regarding the PILs and their usages. So much said, judicial activism is no God. It has its own inherent problems; the chief among them is any institution usurping the independence of legislature (albeit to a small extent). However one also needs to see the fact that it also sees that legislature does not become undemocratic or despotic and the spirit of democracy that is mass-welfare is achieved. The position of judiciary with reference to the principle of judicial activism has been quite complex. An active judiciary is always welcome in a democratic state but there should be a fine balance between the popularly elected body. Trackback(0)
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