Judicial Activism

Judicial Activism

Introduction
In the words of former C.J.I.
Justice J.S. Verma, Judicial Activism
means an active process of
implementation of rule of law essential
for the preservation of a fundamental
democracy. Judicial Activism to define
broadly is in the assumption of an
active role by the judiciary. Theoretically
the judiciary is expected to adjudicate
matters comes before it or to evaluate
the policies promulgated by legislative
or executive wing of the government.
It has been argued that Judicial
Activism would shift the power from
the Executive and Legislative to the
judges. But it is equally important to
check the excess committed by the
other two branches of the State by the
judiciary using its power of judicial
review.

Active and an activist Judge -
All judges and courts must
have to be active, because they cannot
refuse to decide a properly presented
case. An active Judge is regarded as it
were as a trustee of State power and
Judicial Authority. In the words of
Upendra Baxi, activist judge regards
himself as holding Judicial Power in
fiduciary capacity for civil and
democratic right of all peoples,
especially the disadvantaged,
dispossessed, and deprived. He does
not regard adjudicatory power as
repository of the reason of the State.

Basic Structure Theory
The Supreme Court in Kesavanand
Bharti v. State of Kerala, 1973 AIR SC
1461, it was held that it can struck
down even Constitutional amendment
if it destruct the basic structure of
the Constitution.

Court not to run Government
Nani Palkiwala said that
function of the court is not to run
the Government. Justice V. R.Krishna
Iyer is also of the opinion that court
can not and should not run the
Government.
Direction to Make Law
The Apex Court has ruled repeatedly
that “no Court can direct a legislature
to enact a particular law, but assuming
Activist role, on Sept. 6, 2005, it
asked the Union to report on the Lok-
Pal Bill’s status. Judiciary has not
shown much hesitation in asking the
Executive as to what laws should be
enacted & when? Calling status report
on Lok pal Bill and Sarla Mudgal
case on uniform civil code may be
recalled in this respect.

Encroachment
Criticizing Judicial Activism, Former
Lok Sabha speaker, Som Nath chatarjee
commented that the issue of Judicial
Activism is attracting the attention
of Constitutional experts, legal
luminaries and others. Many eminent
personalities have expressed the view
that Judiciary has, at times, been found
transgressing its jurisdiction and entering
in to the domain of executive and
legislature. By way of Judicial Activism
if judiciary is making other two wings
of the government defunct and
weakening them, it would not be in
favour of the good health of the democracy.

Excessive Judicial intervention

It was felt in some quarters that there
was excessive judicial intervention in the
functioning of the executive wing, but
it was necessitated entirely by the
lethargy of the executive branch of the
Government. Legislature showed a
chronic lack of political will to act on
many occasions, which compelled the
Supreme Court to step-in and make
laws by judicial decisions in order to
protect the rights of the citizens.
Vishaka judgment [AIR 1997 SC 3011]
is an example in this regard.

Failure of other wings
The increase of administrative power
is generally thought with the danger
of its abuse. Failure of use or abuse of
its power by the Executive is sure to
disturb the heartbeats of social aspira-
tion. Judicial Activism is a potent
pacemaker to correct the malfunctio-
ning in violation of the Constitutional
mandates. Balanced Judicial Activism,
therefore, indispensable for improving
the needed vitality to the rule of law
in a welfare State.

Governmental Functions
Lord Bingham said that - ‘The
Courts should be more active and
creative when political organs of
the State are least effective.
Harmonious Requiremen
Constitution does not postulate
any super organ amongst three
pillars in the governance.
Legislative, Executive and Judiciary
are not competing partners but are
complimentary to each other.
Therefore, each of them has to respect
authority of other and work with
harmony within its assigned sphere.

Judges Appointments:
In In S.C. Advocates on record Assn.
(1993)4 SCC 441, the Apex court has
assumed power of appointing judges
transgressing the domain of executive.
Taking Activist step the Apex Court
held that opinion of CJI has primacy in
matter of appointment of a judge of
Supreme Court or of a High Court.

Judicial Protection to Judges
In K. Veeraswami v. UNION OF INDIA
(1991)3 SCC 655, it was held that no
criminal case shall be registered against
a judge of the Supreme Court or a High
Court without the approval of the
C.J.I.No law contained such immunity.
It seems to be a Judicial Activism for
securing independence of judiciary.

Law Abhors Vacuum
Law abhors vacuum. Therefore,
when the executive refused to act and
legislature could do little about it,
Indian Judiciary stepped in to save
the day. Many call it Judicial Activism’
and a few also consider it to be a
usurpation of power by the Judiciary.
Criticism, howsoever severe, this
was needed helping the downtrodden,
disadvantaged persons and who were
unable to knock the door of the court.

Marbury v. Madison
Marbury v. Madison case decided in
1803 by the U.S. Supreme Court was
the starting point of Judicial Activism.
Chief Justice John Marshall held that,
although Marbury was entitled to the
commission, the statute that was the
basis of the particular remedy sought
was unconstitutional because it gave
the Supreme Court authority that was
implicitly denied it by Article 3 of
the U.S. Constitution.This was the first
case in which the Supreme Court has
declared an act passed by U S Congress
as unconstitutional and void.

Needed Relief to Downtroddens
Justice S.B. Sinha said that starting
from S.P. Gupta v. UNION OF INDIA,
AIR1982 SC 149 in number of cases the
Supreme Court relaxed the common
law rule of locus Standi and reaffirmed
this principle & entertained the cases
for giving redresses to those hapless,
helpless citizens of the country who
were in need of justice for enforcing
their right to life, liberty & other
fundamental rights guaranteed under
the Constitution. The Apex Court has
granted great relief to large number
of people who are the down trodden,
the dalits, women, children, workers,
old people etc. who by reason of their
disadvantaged position are not able
to knock at the doors of the court.
The Supreme Court assumed the
role of a starter and relaxed the
Common-law rules of Locus Standi.

Opposition of Judicial Activism
Judicial Activism is resented every-
where and so was the case in India too.
Opponents of the judicial activism maintain that:--
a. Court is not run on democratic line.
b. It took controversial stand on the
matters related to public policy.
c. Court lacks the capacity to make
effective policy.
d. Court has passed some
unenforceable verdicts.
e. If judicial activism becomes
pattern then novelty will
disappear sooner or later.

Policy Matter
A series of judgments beginning with
Maneka Gandhi v. U.O.I., [1978]1
SCC 248, the Supreme Court has
not hesitated in taking appropriate
action in respect of policy matters
like reservation in public services,
keeping subject in 9th schedule,
admission to private professional
colleges, freedom of media, and
need of common civil code, etc.
has sparked debate on Judicial
Activism. Judiciary has to keep
in mind that Constitution did not
empowered judiciary a substitute
for the failure of other two
branches of the State.

P.I.L. - A New Tool of Activism
PIL is one of the highly potent
tools & technique of Judicial Creativity
of the Court in maintaining people’s faith
in administration of justice and rule of law.
It is true that some times this tool was
used as a weapon of harassment, therefore,
judicial activism is resented every where
in the world and so is the case in India.
Former CJI J.S. Verma, has rightly
observed that – “the need is to prevent
misuse of PIL and not to criticize the
process. What the court has to ensure
that misuse of PIL has to be prevented
and proper use of it has to be blunted.
Any attempt to curb it would be to
through the baby with bath water.
The court has to device self-restraint,
proper check and balance to ensure
those even people who want to misuse
is not able to do so.

Verities of Judicial Activism
Activist and creative role of the
higher judiciary is clearly visible
in a series of path breaking judgments.
The following examples of cases
will suffice to see how the Supreme
Court has come to rescue with its
Activist role in a needed vitality:--

[1] Access to Court: In S. P. Gupta v.
U.O.I., AIR 1982 SC 149, the Apex Court
has liberalized an old age legal requirement
of locus-standi.

[2] Bonded Labourers: In Bandhua Mukti
Morcha v. U.O.I. [AIR 1984 SC 802].

[3] Right against Custodial Violence:
In D.K. Basu v. State of West Bengal,
(1997)1 SCC 416.

[4] Duty of State: It is the duty of
State to make citizens free from
pollution, as held in RATLAM MUNICPALITY
v. VARDICHAND AIR 1980 SC 1622.
(5) Right to free Education –
In Unikrishnan v. state of Andhra Pra-
desh AIR 1993 SC 2178.

(6) Fundamental Rights: Fundamental
Rights cannot be waived by a person
even by s legal agreement, as held in
Olga Tellis v. Bombay Municipal
Corporation (1985)3 SCC 545.

(7) Gender Justice: Right to be free
from Sexual harassment: In Vishaka
v. State of Rajsthan AIR 1997 SC 3011.

(8) Right against Handcuffing: In
Prem Shanker Shukla v. Delhi
Administration, (1980)3 SCC 526.

(9) Right against illegal arrest –
In Joginderr Kumar v. State of U.P.
(1994)4 SCC 250.

(10) Judges Appointments: In
In S.C. Advocates on record Assn.
(1993)4 SCC 441, the Apex court
has assumed power of appointing
judges transgressing the domain.

(11) K. Veeraswami Case: (1991)3 SCC
655: No criminal case shall be registered
against a judges of SC and H.C. without
the approval of the C.J.I.

(12) Right to Legal Aid – In Madhav
Hoskat v State of Mah. AIR 1978 SC 1548.

(13) Maneka Gandhi case: Procedure
should be just, reasonable, and fair,
otherwise it would be violative of Art. 21.

(14) Right to Privacy – In Govind v.
State of M.P. AIR 1975 SC 1378.

(15) Right to Speedy Trial – In
Hussainara Khatoon v. State of Bihar,
AIR 1979 SC 1360.

(16) Right against illegal use of Article
356: In S. R. Bommai v. U.O.I., AIR
1994 SC 1918.

The above list of cases is not
exhaustive but only illustrative to indicate
how case after case, creativity of Supreme
Court is visible in this pro-active
interpretation of the Constitution.
By innovative interpretation of
Constitutional provisions by Supreme
Court by way of Judicial Activism is
gradually becoming a domestic law of
the country.

Transgression in the field of Legislature
Judiciary is not empowered to
make law. It is the sole domain of
Legislative branch of the State. But
judges are transgressing in the field of
Legislature. Justice Holmes said that
- Judges do and must legislate. Justice
Cardozo said that - “Judges have of
course, the power though not the
right to travel beyond the walls of interstices.”
Aiming to Judicial Activism
Lord Denning cautioned that “If
they depart from it and do so knowingly
– they themselves would be guilty of a
misuse of power.”

Economic and Financial Policies:
Supreme Court on Feb. 6 of 2008
said that courts should not interfere in
matters relating to economic and financial
policies as it would amount to encroaching
in to the domain of executive and the
legislature. But Apex Court justified
the judiciary’s activist role in protecting
civil liberties and fundamental rights of citizens.
Why?
A bench of Justice H.K. Sema and
Maskanateya Katju said that as economic
politics involve planning by experts,
courts should refrain from interfering
unless the policies are unconstitutional.
Apex Court said that the Court does
not consist of economic and administrative
experts. It has no expertise in these
matters and in this age of specialization,
when policies have to be laid down with
great care after consulting specialists in the
field, it will be wholly unwise for the court
to encroach in to the domain into executive
and the legislature.”
Professor Sir Willdam Wade, Q.C.
in his book “Judicial Activism and
Constitutional democracy in India”, has
recorded appreciation of Judicial Activism,
but sounds a note of caution against
encroachment in the field of other organs: -
“For one thing, courts lack the facilities
to gather detailed data or probing enquiries.”

Strike-down the Action.
When a State action is challenged,
function of the court is to examine the
action in accordance with law
determining as to whether Legislature or
Executive has acted within the powers
assigned under the Constitution and if not
Court must strike-down the action.

Court is not an appellate authority
Every State action has to be tasted at the
anvil of the rule of law, but court has to
keep in mind that it is not an appellate
authority. Policy matters lies within the
sphere of Legislature or Executive.
Therefore, the role of the court is limited
to see that these authorities do not transgress
their constitutional limits or statutory
power. But now it is not uncommon to see
the speakers of the legislative house being
summoned to explain some of the decisions
taken in the course of their constitutional
duties. Even the Presidential prerogative
of pardon is not immune to judicial review.
Maru Ram’s case [AIR 1980 SC 2147] is an
example in this respect.

Zenith of Judicial Activism
S. R. Bommai case [AIR 1994 SC
1918] is zenith of judicial activism. It
was held in this case that Court can restore
Legislative Assembly if President’s
proclamation is found to be unconstitutional.
Today it has been the position that the
Supreme Court has acquired the final say
practically in all matters related to the
governance of the country.
Constitutional Amendments
The Supreme Court in Kesavanand
Bharti v. State of Kerala, 1973 AIR SC
1461, evolved new theory of basic structure
of the Constitution and held that it can
struck down Constitutional amendments if it
affects the basic structure of the Constitution.

Conclusion
While the politicians have been uneasy
about judicial encroachment in to area of policy
making, the public by and large have
welcomed the intervention of courts
through PIL. This is a general perception
that the Legislature is unwilling to take
prompt remedial measures and the
Executive is unwilling to enforce even
existing laws, Court has come forward
to help public in their needed vitality.
Now a day, in the prevailing
circumstances, Judicial Activism has
become indispensable for ensuring rule
of law. Judicial Activism is not an
unguided missile. It has to be
controlled and properly channelized.
Balanced Judicial Activism is, therefore,
indispensable for improving the needed
vitality to the rule of law in a welfare State.