Judicial activism and Indian democracy

1. What is judicial activism
2. Origin of judicial activism
3. Separation of powers and judicial activism
4. Judicial review and judicial activism
5. Causes of origin of judicial activism
6. Factors which results in causes of judicial activism- poverty, illiteracy, colonial history, corruption
7. Areas of judicial activism in India
8. Course of judicial activism in India
9. PIL – Indian judicial innovation
10. Benefits of judicial activism
11. Judicial adventurism
12. Need of judicial restraints
13. Indian democracy and judicial activism
14. Way forward – inclusive sustainable development, balance between three organs of government

The term ‘judicial activism’ is intended to refer to, and cover, the action of the court in excess of, and beyond the power of judicial review. From one angle it is said to be an act in excess of, or without, jurisdiction. The Constitution does not confer any authority or jurisdiction for ‘activism’ as such on the Court.

Judicial activism refers to the interference of the judiciary in the legislative and executive fields. It mainly occurs due to the non-activity of the other organs of the government.

Judicial activism is a way through which relief is provided to the disadvantaged and aggrieved citizens. Judicial activism is pro­viding a base for policy making in competition with the legislature and executive. Judicial activism is the rendering of decisions, which are in tune with the temper and tempo of the times.

In short, judicial activism means that instead of judicial restraint, the Supreme Court and other lower courts become activists and compel the authority to act and sometimes also direct the government regarding policies and also matters of administration. It is the practice going beyond the normal law for the justice.

Meaning:

As to its meaning, Judicial Activism is not a distinctly separate concept from usual judicial activities. The word ‘activism’ means “being active”, ‘doing things with decision’ and activist is the ‘one’ who favours intensified activities. Justice Krishna Iyer observed ‘every judge is an activist either on the forward gear or on the reverse’.

Judicial policy making can be either an activity in support of legislative and executive policy choices or in opposition to them. But the latter one is usually referred to as judicial activism.

It has to be an arm of the social revolution. An activist judge activates the legal mechanism and makes it play a vital role in socio-economic process.

Causes of judicial activism-

1. Administrative vacuum and failure to provide rule of law , meet the legitimate aspirations of the citizens
2. failure of the executive and legislatures to act in time
3. The violation of basic human rights and rights provided under constitution
4. due to the misuse and abuse of powers by executive and legislature
5. inability to hold and follow the true spirit of constitutionalism
6. the failure of executive and legislature to discharge its responsibilities
7. expansion of rights of hearing in the administrative process,
8. excessive delegation without limitation,
9. expansion of judicial review over administration,
10. promotion of open government,
11. indiscriminate exercise of contempt power, exercise of jurisdiction when non-exist; over extending the standard rules of interpretation in its search to achieve economic, social and educational objectives; and passing of orders which are unworkable.

Factors which results in such causes

1. poverty
2. illiteracy
3. stagnant economy
4. regional disparity
5. rising crime including corruption
6. political beaurocratic  nexus
7. colonial legacy
8. a hung parliament where the government is very weak and instable.

Areas of Judicial Activism

health, child labour, political corruption, environment, education, etc.

Bandhua Mukti Morcha, Bihar Under trials, Punjab Police, Bombay Pavement Dwellers, Bihar Care Home cases, 2G , BCCI administration,

Course of Judicial Activism:

In the first decade of independence, activism on part of the judiciary was almost nil with political stalwarts running the executive and the parliament functioning with great enthusiasm, judiciary went along with the executive. In the 50s through half of the 70s, the apex court wholly held a judicial and structural view of the constitution.

In the famous Keshavananda Bharati case, two years before the declaration of emergency, the Supreme Court declared that the Executive had no right to tamper with the Constitution and alter its fundamental features. At the end of it the apex court and the lower courts began to continuously intervene in executive as well as legislative areas.

From then onwards, the Supreme Court have time and again resorted to the weapon of judicial activism to preserve the sanctity of the Constitution’s structure and its attempt to do it tends to promote the socio-economic development of the country.

Bihar under trials case. In 1980 it came in the form of a writ petition under article 21, by some professors of law revealing the barbaric conditions of detention in the Agra Protective Home.

A case against Delhi Women’s Home filed by a Delhi law faculty student and a social worker. Then three journalists filed a petition for the prohibition of the prostitution trade in which women were bought and sold as cattle.

Taking cognisance of custody deaths Supreme Court ordered the police not to handcuff a man arrested purely on suspicion, not to take a woman to the police station after dusk. High Court judges visited the prisons to check the living conditions of prisoners, in the year 1993, in just a month the apex court proclaimed judgment protecting the rights of innocents held in Hazaratbal mosque in Srinagar, defining the constitutional powers of the Chief Election Commissioner, threatening multi-crore rupees industries with closure if they continued to pollute the Ganga and Taj Mahal and brought all government and semi government bodies under the purview of the Consumer Protection Act.

In a 1994, judgement it asked the Chief of Army Staff to pay Rs. 6, 00,000 to the widow and two children of an army officer who died due to the callousness of the authorities concerned some 16 years before.

The Supreme Court giving directions to the CBI and summoning the head of the CBI to report on the hawala case reveals the breakdown of other machineries of the government. The court interfer­ence with the CBI working became inevitable in the wake of the tactics of delay and technical evasion that was undertaken by the investigative agencies.

The 2G spectrum case strikingly proves the necessity of judicial activism in restructuring the administrative requirements. In Bhopal gas tragedy and the Jessica Lal Murder case  Money and muscle power tried to win over the good. But lately, it was with the help of judicial activism that the case came to at least one decision.

Public Interest Litigation: An Innovative Step towards Judicial Activism

Public interest litigation means a suit filed in a court of law for the protection of public interest such as pollution, terrorism, road safety etc. Judicial activism in India acquired importance due to public interest litigation. It is not defined in any statute or act.

It has been interpreted by judges to consider the intent of public at large. The court has to be satisfied that the person who has resorted to PIL has sufficient interest in the matter.

Judicial activism is gaining prominence in the present days. In the form of Public Interest Litigation (PIL), citizens are getting access to justice. The judiciary has shed its pro-status-quo approach and taken upon itself the duty to enforce the basic rights of the poor and vulnerable sections of society, by pro­gressive interpretation and positive action.

The Supreme Court has developed new methods of dispens­ing justice to the masses through the public interest litigation. Former Chief Justice PN. Bhagwat, under whose leadership public interest litigation attained a new dimension comments that “the supreme court has developed several new commitments. Justices P.N. Bhagwati and V.R. Krishna Ayer have played a key role in promoting this avenue of approaching the apex court of the country, seeking legal remedies in areas where public interests are at stake.

In India, PIL initially was resorted to towards improving the lot of the disadvantaged sections of the society who due to poverty and ignorance were not in a position to seek justice from the courts. After the Constitution (Twenty Fifth Amendment Act, 1971), primacy was given to Directive Principles of State Policy by making them enforceable. The courts to improve administration by taking up PIL cases, for ensuring compliance constitutional provisions has also increased.

PIL is filed for a variety of cases such as maintenance of ecological balance, making municipal authorities comply with statutory obligations of provision of civic amenities, violation of fundamental rights etc. It has provided an opportunity to citizens, social groups, consumer rights activists etc., easier access to law and introduced a public interest perspective. PIL has been considered a boon, as it is an inexpensive legal remedy due to nominal costs involved in filing the litigation. But there are some problems also in the PIL cases.

There has been an increase in the number of frivolous cases being filed due to low court fees. Genuine cases got receded to the background and privately motivated interests started gaining predominance in PIL cases. In view of this, the Supreme Court has framed certain guidelines governing the PIL.

Presently the court entertains only writ petitions filled by an aggrieved person or public spirited individual or a social action group for enforcement of the constitutional or the legal rights of a person in custody or of a class of persons who due to reasons of poverty, disability, socially or economically disadvantaged position are finding it difficult to approach the court for redress.

PIL is an extraordinary remedy available at a cheaper cost. As Justice Bhagwati observed in the case of Asiad workers case, ‘now for the first time the portals of the court are being thrown open to the poor and the downtrodden. The courts must shed their character as upholders of the established order and the status quo. The time has come now when the courts must become the courts for the poor and the struggling masses of this country’.

Benefits of judicial activism-

• It has carried forward participative justice.
• It has laid just standards of procedure.
• It has made justice more accessible to citizens”.
• Activism in judicial policy making furthers the cause of social change or articulates concepts such as liberty, equality or justice.

Way forward-

The Judiciary cannot take over the functions of the Executive. The Courts themselves must display prudence and moderation and be conscious of the need for comity of instrumentalities as basic to good governance. Judicial activism has to be welcomed and its implications assimilated in letter and spirit. An activist Court is surely far more effective than a legal positivist conservative Court to protect the society against legislative adventurism and executive tyranny. When our chosen representatives have failed to give us a welfare state, Judiciary plays an active role. In judicial activism, the judge places his final decision with his heart and mind, which is emotionally handled. There is need to achieve a balance between judician activism and judicial restraint in tune with judicial prudence.