Q. “Judicial activism is a recent phenomenon in the Indian governance.” Comment and bring out the main arguments in favour and against of judicial activism. [BPSC-2019]
OR
Comment on ‘Judicial Activism – Meaning and Evaluation’. [BPSC-2002]
OR
Comment upon “Judicial Action is a double edged weapon in a parliamentary democracy”. [BPSC-1999]
Ans: Judicial activism denotes the proactive role played by the judiciary in the protection of the rights of citizens and in the promotion of justice in the society. In other words, it implies the assertive role played by the judiciary to force the other two organs of the government (legislature and executive) to discharge their constitutional duties.
The concept of judicial activism originated and developed in the USA. This term was first coined in 1947. In India, the doctrine of judicial activism was introduced in mid-1970s. Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O. Chinnappa Reddy and Justice D.A. Desai laid the foundations of judicial activism in the country.
- Former Chief Justice of India P N Bhagwati, considered a pioneer of judicial activism in the country for introducing the concept of PILs.
Judicial activism is also known as “judicial dynamism”. It is the antithesis of “judicial restraint”, which means the self-control exercised by the judiciary.
The concept of judicial activism is closely related to the concept of Public Interest Litigation (PIL). It is the judicial activism of the Supreme Court which is the major factor for the rise of PIL. In other words, PIL is an outcome of judicial activism. In fact, PIL is the most popular form (or manifestation) of judicial activism.
Arguments in favour:
- There is near collapse of the responsible government, when the Legislature and Executive fail to discharge their respective functions. This results in erosion of the confidence in the Constitution and democracy amongst the citizens.
- The citizens of the country look up to the judiciary for the protection of their rights and freedoms. This leads to tremendous pressure on judiciary to step in aid for the suffering masses.
- Judicial Enthusiasm, that is, the judges like to participate in the social reforms that take place in the changing times. It encourages the Public Interest Litigation and liberalises the principle of ‘Locus Standi’.
- Legislative Vacuum, that is, there may be certain areas, which have not been legislated upon. It is therefore, upon court to indulge in judicial legislation and to meet the changing social needs.
- The Constitution of India has itself adopted certain provisions, which gives judiciary enough scope to legislate or to play an active role.
- In case of a ‘hung’ legislature when the government it provides is weak, insecure and busy only in the struggle for survival and, therefore, unable to take any decision which displeases any caste, community, or other group.
- Those in power may be afraid of taking honest and hard decisions for fear of losing power and, for that reason, may have public issues referred to courts as issues of law in order to mark time and delay decisions or to pass on the odium of strong decision-making to the courts.
- There may be authoritarian parliamentary party government going against the ideals of democracy e.g. during emergency aberration.
- Some good examples of Judicial activism:
- The case of Vishakha v State of Rajasthan where the court laid down guidelines for protection of women from sexual harassment at workplace.
- in Maneka Gandhi v Union of India the court read the term ‘procedure established by law’ under Article 21 of the Constitution by repositioning it as ‘due process of law’ i.e., the procedure which is established by law must be just, fair and reasonable.
- the discovery “Basic structure” doctrine under Keshavananda Bharti case.
- S.C. has issued directions:
- to control pollution,
- to check evil of child prostitution.
- to revive a sick company to protect the livelihood of 10,000 employees.
- to segregate the children of prostitutes from mother,
- to provide insurance to workers in match factory.
- to protect Taj Mahal from environmental pollution.
- Taking cases under Special leave petition. e.g. cauvery water dispute.
Arguments against:
- There may be fear of usurping powers of the legislature, the executive or of other autonomous institutions in a civil society. => Against the idea of separation of power.
- Judicial activism is a product fabricated solely by the judiciaries and not backed by the Constitution.
- they may not have enough knowledge in economic matters, in scientific matters, etc.
- May lead to more and more litigations and create arrears and pendings.
- It may cause depletion of their symbolic and instrumental authority if the orders passed in public interest litigation are bypassed or ignored by the executive. It will lead to erosion of the people’s faith in judiciary.
- Judges are not the representatives of people. Fear of depleting democracy.
- 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.
- While delivering a judgement in December 2007, the Supreme Court of India called for judicial restraint and asked courts not to take over the functions of the legislature or the executive, saying there is a broad separation of powers under the Constitution and each organ of the state must have respect for others and should not encroach on others’ domain
- The Bench said, “We are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. This is clearly unconstitutional. In the name of judicial activism, judges cannot cross their limits and try to take over functions which belong to another organ of the state”.
- The Bench said, “Judges must know their limits and must not try to run the government“.
- Judicial activism must not become judicial adventurism/overreach, the Bench warned the courts Adjudication must be done within the system of historically validated restraints.
- The court must realise that administrative authorities have expertise in the field of administration while the court does not.
- The Bench said, “The justification often given for judicial encroachment on the domain of the executive or the legislature is that the other two organs are not doing their jobs properly. Even assuming this is so, the same allegations can be made against the judiciary too because there are cases pending in courts for half-a-century.”
- If the legislature or the executive was not functioning properly, it was for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who would fulfil their expectations or by other lawful methods, e.g., peaceful demonstrations.
- “The remedy is not in the judiciary taking over the legislative or the executive functions, because that will not only violate the delicate balance of power enshrined in the Constitution but also (because) the judiciary has neither the expertise nor the resources to perform these functions.”
- The Bench said: “Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the state:
- first, judicial restraint not only recognises the equality of the other two branches with the judiciary, it also fosters that equality by minimising inter-branch interference by the judiciary.
- judicial restraint tends to protect the independence of the judiciary. When courts encroach on the legislative or administrative fields almost inevitably voters, legislators, and other elected officials will conclude that the activities of judges should be closely monitored.
- instances Judicial activism when it has been criticised:
- Interpreting the term ‘consultation’ as ‘concurrence’ under Article 124 of the Constitution of India in the cases of appointment of Judges.
- cancelling all allocations of coal blocks, 2G spectrum licences and iron ore mining in Karnataka and Goa in its zeal to protect the environment dealt a serious blow to the country’s economy.
- Ban on selling liquor on highways. It is duty of executive to decide.
- Reforms in BCCI
- S.C order in 2016 to madatorily play national anthem in Cinema hall. (modified later.)
Many times PILs becomes political interest litigations,. The court should not allow an unscrupulous person to vindicate his personal grudge in the garb of public interest.
Note:
- Judicial Restraint:
- Judicial activism and judicial restraint are the two alternative judicial philosophies in the United States.
- Those who subscribe to judicial restraint contend that the role of judges should be scrupulously limited; their job is merely to say what the law is, leaving the business of law-making where it properly belongs, that is, with the legislators and the executives. Under no circumstances, moreover, should judges allow their personal political values and policy agendas to colour their judicial opinions.
- This view holds that the ‘original intent’ of the authors of the constitution and its amendments is knowable, and must guide the courts.
