QUES . What do you understand by Judicial Activism? Why is it considered as a deterrent to executive authority? UPSC IES/ISS EXAM 2015 General Studies. 200 Words. 5 Marks
QUES . Critically examine the concept of judicial activism in the working of the Indian constitutional system. UPSC IES/ISS EXAM 2023 General Studies. 200 Words. 5 Marks
What is Judicial activism?
Black’s Law Dictionary defines judicial activism as: “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent”.
What the proponents of Judicial activism say?
The proponents of Judicial activism regard it as the active interpretation of an existing provision with the view of enhancing the utility of legislation for social betterment, in accordance with the constitution.
According to them, Judicial activism envisages changes in the interpretation of the constitutional and statutory provisions in consonance with the dynamics and uncertainties of human affairs and relations.
Simply put: Courts must “apply” the law in a way that makes sense of the temporal nature of our reality.
Moreover, 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.
Also, 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.
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.
What the critiques of Judicial activism say?
In contrast, according to the critiques the touchstone of activism is the failure of the judiciary to interpret the constitutional provisions and statutes in accordance with the will of the founding fathers and legislators respectively.
The judiciary is overzealous in interfering in Executive and Legislative spheres, and that it acts without regard to the intent of the founding fathers/ legislators. Accordingly, the judiciary fails to observe judicial restraint. Thus, the judiciary is usurping powers of the legislature, the executive or of other autonomous institutions in a civil society.
Also, the judiciary does not have enough knowledge in economic matters, scientific matters, and so on
Judge as a neutral and passive umpire
Judge as a neutral and passive umpire approach may be all right for a stable and static society but not for a society pulsating with urges of gender justice, worker justice, minorities’ justice, dalit justice and equal justice between chronic un-equals.
Where the contest is between those who are socially or economically unequal, the judicial process may prove disastrous from the point of view of social justice, if the Judge adopts a merely passive or negative role and does not adopt a positive and creative approach.
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The judiciary cannot remain a mere bystander or spectator but it must become an active participant in the judicial process ready to use law in the service of social justice through a pro-active goal oriented approach.
What is necessary is to have Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and a creative faculty.
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Above all, Judges should have a deep sense of commitment to the Constitution with an activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half hungry millions of India who are continually denied their basic human rights.
We need Judges who are alive to the socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the constitutional values and who are ready to use law as an instrument for achieving the constitutional objectives.
Has the Supreme Court in its activism failed to respect the Constitution?
It has frequently been remarked that the Indian Supreme Court through its activism has assumed the role of the Legislature; the criticism is that it has not only performed the circumscribed role of a law giver, but that it has actually assumed the role of a plenary law-making body, like the Legislature.
Put differently, it has been stated that the SC has clearly overstepped the limits of the judiciary and has ventured into the domains of the other branches of the government.
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Many proponents of judicial restraint have opined, that some remedies designed by the Supreme Court such as the ‘continuous mandamus’ demonstrate the failure of the judiciary to observe judicial restraint, and that is undesirable because it is a failure to accord respect to other co-equal branches of the government.
According to this view, the judiciary acts as if it were first among equals.
It is, of course, true that our Constitution comprehends three co-equal branches of the government. No democracy and no constitution gives absolute powers to the judiciary. In fact, it must be acknowledged that the consolidation of power by any one branch of government is anathematic to the very idea of democracy.
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Consequently, judicial creativity ought not to result in subverting the Constitution. Any attempt made by the judiciary to re-write the Constitution, particularly in light of the Court’s own creation of the basic structure doctrine, ought to be regarded as unconstitutional.
An act of the judiciary that is motivated purely by goals other than those enshrined in the Constitution must be considered constitutionally illegitimate, and such an act must be curbed in its infancy.
The basic question that then arises is whether the Supreme Court has followed the principle of separation of powers even as it has embraced judicial activism?
The answer has to be a resounding yes. The Court has always abided by the Constitution. It has valiantly fulfilled its primary responsibility of upholding the Constitutional goals.
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It is the Court’s constitutionally mandated duty to enforce the law, not for each minor violation but for those violations that result in grave consequences for the public at large. In such cases, no criticism of such acts as judicial overreach is sustainable in our constitutional framework.
Despite being inspired by the constitutional objective of socio-economic justice, the Court has been rather cautious in its activism. It is only when both the legislature and the executive have failed to provide legislation in an area, that the Court has found it to be the duty of the judiciary to intervene and, that too, only until the Parliament enacts proper legislation covering the area.
In a manner of speaking, the Court has invited the legislature to pass laws in the very areas where it has
passed directions to fill the legislative vacuum.
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Being pragmatic and prudent, the Court has withstood the test of time and proved to be an illustrious example of an active judiciary in a democratic set-up.
Therefore, there cannot be any justification for anyone to say that judiciary has become judocracy, and has taken over the role of the executive and legislature.
With its activism, the Supreme Court has only protected the citizenry—particularly the weak and the downtrodden sections—against the unconstitutional acts of the legislature and the executive. So judicial activism has served as an invaluable tool for the court in strengthening our democracy.
External link: https://nja.gov.in/Concluded_Programmes/2019-20/P-1187_PPTs/1.JUDICIAL%20ACTIVISM%20AND%20JUDICIAL%20RESTRAINT.pdf
