CONCEPT OF JUDICIAL ACTIVISM

CONCEPT OF JUDICIAL ACTIVISM

Author : VAIBHAVI BATRA OF AMITY LAW SCHOOL, NOIDA

MEANING

Judicial Activism refers to the “judicial philosophy that the courts can and should go beyond the words of the Constitution or a statute to consider broader societal implication of its decisions.” In layman term, Judicial Activism is a philosophy of judicial making whereby judges allow their personal views regarding a public policy instead of constitutionalism.

This term is generally used by scholars and experts of Social Sciences to describe a tendency by judges to consider outcomes, attitudinal preferences and other public policy issues in interpreting applicable existing laws. One of the meanings of the Judicial Activism is that, “the function of the court is not merely to interpret the law but to make it by imaginatively sharing the passion of the Constitution for social justice.” Therefore, it is formally considered the opposite of Judicial Restraint (a theory of judicial interpretation which encourages the judges to limit the use of their power), but it is also used pejoratively to describe activist judges who endorse a particular agenda. [1]

Over the time the definition of Judicial Activism has seen numerous changes and has increased its scope widely. Some of the scholarly as well as lexicon definitions of the concept are:

• Merriam-Webster Dictionary of Law – it has defined Judicial Activism as, “the practice is the judiciary for protecting or expanding individual rights through decisions that depart from established precedents, or are independent of or, in opposition to supposed constitutional or legislative intent.”
• Black’s Law Dictionary – defines Judicial Activism as, “philosophy of judicial decision making whereby judges allow their personal views about public policy, among other actors to guide their decisions.”
• Harper Collen’s Dictionary of American Government and Politics – Judicial Activism has been defined as, “the making of new public policies through the decisions of judges.”
• David A. Strauss – According to him, Judicial Activism can be narrowly defined as one or more of three possible actions: overturning law as unconstitutional, overturning judicial precedents and ruling against a preferred interpretation of the constitution.
• Anthony Kennedy – An activist court is a court which makes the decision, you do not like. [2]

HISTORY OF JUDICIAL ACTIVISM IN INDIA

The idea of Judicial Activism in India has been around far longer than the term itself.

The instance of judicial activism in India can be traced back to 1893, when Justice Mehmood of the Allahabad High Court delivered a revolutionary judgement which sowed the seeds of judicial activism in India. It was a case of an under trial convict who could not afford to engage a lawyer. Justice Mehmood held that the, “pre-condition of the case being ‘heard’ (as opposed to merely being read) would be fulfilled only when somebody speaks. So he gave the widest possible interpretation of the relevant law and laid the foundation stone of the judicial activism in India.” [3] However, ‘Judicial Activism’, as it is used in the modern era, originated in India later on.

There have been numerous problems and evils emerging in the socio-political infrastructure of the country with proliferating growth of illegal activities that affected the working of the branches of the government. As a result of these evils, the commoners have to bear the burden of all the aforesaid issues. This exploitative and heinous environment raised some urgent demands which could not wait for Parliament to attend and give its protection. Judges were, therefore, less inclined to leave law reform to Parliament and empowered themselves by taking matters into their own hands without any further delay.  Justice Krishna Iyer explained this climax in a judgement, where is quoted that, “Though legislation was the best solution, but when lawmakers take far too long, for social patience to suffer. Courts have to make do with interpretation and carve on wood and sculpt on stone without waiting for the distant marble.” [4] Thus, the Concept of Judicial Activism was formally introduced with the historic case of Mumbai Kamgar Sabha v. Abdul Bhai.

METHODS OF JUDICIAL ACTIVISM

1. Judicial Review – it is the power of the Judiciary to interpret the constitution and declare any such law or order of the Legislature or the Executive void, if it finds them in conflict with the Constitution.
2. Public Interest Litigation (PIL) – PIL is the litigation filed in the court of law for the protection of ‘Public Interest’ such as pollution, human rights, terrorism, road safety, etc. PIL is accepted by the court, only if there is an interest of large public involved in a particular issue.
3. Constitutional Interpretation – it means the interpretation of Constitution by the Judiciary.
4. Access of International Statutes for Ensuring Constitutional Rights
5. Supervisory Power of the Higher Courts on the Lower Courts

EXAMPLES OF JUDICIAL ACTIVISM

1. The very important case where Judicial Activism came to be properly acknowledged in India was State of Uttar Pradesh vs. Raj Narain, where Allahabad High Court in the year 1973, held that the then Prime Minister Indira Gandhi was guilty of electoral malpractices. This verdict is further believed to be resulted in the Emergency of 1975 in India.
2. Golaknath vs. State of Punjab (1967 AIR 1643, 1967 SCR (2) 762) – the question which was raised in this case was that, whether amendment is a law or not; and whether Fundamental Rights mentioned in the Indian Constitution can be amended or not. To these questions, Supreme Court contended that Fundamental Rights are not amendable to the Parliamentary restriction as stated in the Article 13 and that to amend the Fundamental Rights a new Constituent Assembly have to be formed. It also stated that Article 368 of the Indian Constitution gives the procedure to amend the Constitution but does not give the Parliament the power to amend the Constitution of the country.
3. Kesavananda Bharti vs. State of Kerala (1973 4 SCC 225) – this case defined the basic structure of the Constitution. In this, the Supreme Court held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, but the “basic structure of the Constitution could not be abrogated even by a Constitution.” In Indian law, the judiciary has the power to strike down any amendment passed by Parliament which is in conflict with the basic structure of the Constitution. [5]
4. Hussainara Khatoon vs. State of Bihar (AIR 1979 SCR (3) 169) – This case is known as the mother case of Public Interest Litigation in India. In 1979, Supreme Court of India ruled that, the under trials in Bihar had already served time for more period than they would have been convicted.
5. The Supreme Court called for Terror Laws against alleged money launderer Hasan Ali Khan.

SIGNIFICANCE OF JUDICIAL ACTIVISM

• Judicial Activism is an effective tool for upholding citizen’s rights and implementing the principles of constitution when the other branches of the government fail to do so.
• Citizens have Judiciary as the last hope for protecting their rights.
• There are provisions in the constitution itself for the judiciary to adopt a proactive role. Article 13 read with Article 32 and Article 226 of the Constitution provides the power of judicial review to the higher judiciary to struck down and declare void, any action of the government if it is in contravention to the fundamental rights and legal rights of the citizens of the country.
• According to various experts and jurists, the introduction of Public Interest Litigation has made the judicial process more participatory and democratic in nature.
• It also sets out the system of Checks and balances.
• Majorly, Judicial Activism helps in addressing and solving the problems of the citizens speedily, when the Legislature takes too much time to take some action.

CONCLUSION OF JUDICIAL ACTIVISM

Concisely, the concept of Judicial Activism is a highly debated concept as it is believed that the Judiciary sometimes in the name of activism interferes in the other branches of the Government and crosses its line; but simultaneously it cannot be denied that it has done a lot to uplift the conditions of the citizens of the country. It has set right a number of wrongs doings committed by the states as well as individuals.  The common people are very often denied the protection of law due to delayed functioning of the courts, also called judicial inertia or judicial tardiness; Judicial Activism has started the process to removing these stigmas too.

REFERENCES

[1] https://en.wikipedia.org/wiki/Judicial_activism_in_India

[2] Definitions of Judicial Activism by different Jurists and Scholars

[3]http://www.allahabadhighcourt.in/event/Justice_Syed_Mahmood_M_Hidayatullah.pdf

[4]http://lawmin.gov.in/sites/default/files/2015-02-02%20-%20JUS%20VR%20KRISHNA%20IYER_0.pdf

[5] Kesavananda Bharti vs. State of Kerala ( 1973 4 SCC 225)