JUDICIAL ACTIVISM

Blog Author- Ms. Upasana Borah, B.B.A LL.B.(Hons), N.E.F. Law College, Assam

INTRODUCTION

According to Merriam Webster’s Dictionary of Law “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 legislation intent.”

The concept of judicial activism originated and evolved in USA. Arthur Schlesinger Jr. introduced this term in a Fortune magazine article in 1947. In that he actually characterized all the nine judges of Supreme Court into “judicial activists and champions of self-restraint”. According to him judicial activists believe that law and politics are inseparable and they see judicial results as result-oriented, as no result is foreordained.Thus in words of Learned Hand- “The words a judge must construe are empty vessels into which he can pour anything he will.”

Schlesinger explains for a champion of self-restrain law has fixed meaning, and deviation from those meaning is inappropriate and their violation, no matter which group may benefit from the departure. The connotation of judicial activism has evolved and its meaning has become increasingly unclear.

JUDICIAL ACTIVISM IN INDIA

Renowned and eminent judges such as Justice V.R Krishna Iyer, Justice P.N Bhagwati, Justice O.P Chinnappa Reddy and Justice D.A Desai laid the foundation of judicial activism in mid-1970s. According to Justice K.G Balakrishan judicial activism is expansion of judicial review which has raised the popular profile of higher judiciary in India. Thus we can say that judicial activism is the proactive role played by the judiciary in order to protect the rights of citizens and promotion of justice.

We can say that judicial review has three meaning:

To ensure fairness in administrative action ;
To protect the fundamental rights ; and
To rule on questions of legislative competence.

With passage of time judiciary felt that it has a vital role to play so that the basic structure (justice: social, economical and political) can be protected. Thus, the concept of judicial activism was introduced.

PUBLIC INTEREST LITIGATION

Public Interest Litigation is actually derivative of judicial activism. It is strategic arm of judicial activism which intended to bring justice within the reach of poor masses, who constitute low visibility area of the humanity. PIL aims at the vindication of rule of law. It provides relaxation to the traditional provision of locus standi. In numerous cases, the court took suo moto cognizance of the matter involving abuse of prisoners, bounded laborers, neglected children etc.

INDIAN COURTS EXPANDED THE MEANING OF RIGHTS

We should not forget that our constitution is a living entity, which grows with the society. And this growth of constitutionalism leads to liberal values, which ought to be protected. And this work has been granted to judiciary. It is very much evident from the act of judiciary that how it expanded the scope of Right to life and Personal Liberty which is incorporated under article 21 of our constitution. The courts need to go beyond its boundaries in order to enforce and protect these rights.

CRITICISM

The judiciary is an unelected body. Thus, there is no accountability of judiciary by institutional mechanism. The judiciary cannot challenge parliamentary sovereignty.The primary function of judiciary is to resolve disputes.

India follows the notion of trias politica, which means there should be three organs of the state and these organs should maintain their power under certain mechanism. There is separation of powers and these organs need maintain cooperation and coordination.

In words of Dr. Manmohan Singh- “The line between judicial independence and judicial overreach is thin one. A takeover of function of other organ may become case of overreach.”

Several times the Supreme Court and High Courts of India were accused of this overreach. Despite the fact that there is independence of judiciary and it is also termed as watchdog (in order to check arbitrary power of the other organs) it cannot transgress its boundaries.

In India adversarial process of justice is followed. This is a common law tradition in which onus judge is like a passive mould. Thus, they have to remain neutral throughout the proceedings.

The judiciary transgresses its power to such an extent that it applies existing statutes to new factual situations and thus creates new laws.

CONCLUSION

While studying correlation between sociology and law, Roscoe Pound contended that law is an agent of social change and the professionals of this field are social engineers. The apex court of our country very well knows the limitation of judiciary and had stated and even warned the High Courts of their limitations. “Judicial activism must not become judicial adventurism; the Bench warned the courts adjudication must be done within the system of historically validated restraints and conscious minimization of judges’ preferences.” Even though framers of our constitution must have not thought of these innovations in judiciary, but there were far-sighted enough to incorporate the concept of constitutionalism.