Judicial activism is the use of judicial power to articulate and enforce what is beneficial for the society in general and people at large. The Hon’ble Supreme Court of India despite its constitutional limitations has come up with flying colors as a champion of justice in the true sense of the word.
Judicial Activism has touched almost every aspect of life in India to do positive justice and in the process has gone beyond, what is prescribed by law or written in black and white. The only thing that the Judiciary must keep in mind is that while going overboard to do justice to the common man, it must not overstep the limitations prescribed by our sacrosanct i.e. The Constitution.
In a modern democratic setup, Judicial Activism should be looked at as a mechanism to curb legislative adventurism and executive tyranny by enforcing Constitutional limits. That is, it is only when the Legislature and the Executive fail in their responsibility or try to avoid it, that Judicial Activism has a role to play. In other words, Judicial Activism is to be viewed as a “damage control” exercise, in which sense, it is only a temporary phase. Recent times have seen Judiciary play an intrusive role in the areas that are constitutionally reserved for the other branches of government.
What is Judicial Activism?
Judicial Activism can be regarded as an unconventional role played by the Judiciary by delivering valuable judgments and granting reliefs to the aggrieved according to moral and social justice standards where statutory law is silent or even contrary. Active interpretation of an existing provider with a view to enhancing the utility of legislation for social betterment can be regarded as Judicial Activism. In brief, it can be also assumed that Judicial Activism comes into play when there is legislative
shortsightedness or executive arbitrariness, or both.
In the words of Hon’ble Justice J.S.Verma (Retd.), Judicial Activism must necessarily mean – “The active process of implementation of the Rule of Law, essential for the preservation of functional democracy”. Judicial Activism is an ascriptive term. While some may exalt the term by ascribing it as judicial creativity, the dynamism of the judges, bringing a revolution in the field of human rights and social welfare through the enforcement of public duties, etc., others have criticized the term by ascribing it as judicial extremism, judicial terrorism, transgression into the domains of other organs of the State negating the constitutional spirit, etc.
Judicial Activism in India
During the last two decades, Judicial Activism has played a major role in protecting the rights and freedoms of individuals, as guaranteed under the Constitution. After the landmark decision in the Maneka Gandhi case, courts have assumed an activist posture and come forward to the rescue of aggrieved citizens. In a number of cases, the Judiciary has interpreted the constitutional provisions in their wider possible meaning to protect basic civil liberties and fundamental rights. During this period, our Judiciary developed the concept of social action litigation and public interest litigation by discarding the traditional and self-imposed limitations on its own jurisdiction.
In 1975, Hon’ble Justice VR Krishna Iyer (Retd.) for the first time the Bar Council case advocated a liberal interpretation of locus standi in public interest litigation. He observed that in developing countries like India, public-oriented litigation better fulfills the Rule of Law if it is to run close to the rule of life. Hon’ble Justice P.N. Bhagwati (Retd.) had observed that there is an urgent need to innovate new methods and strategies for the purpose of providing access to justice to the large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning.
Justice Bhagwati further developed the idea of social justice through Judicial Activism in another case in which he observed, “The time has now come when the courts must become the court for the poor and struggling masses of this country. It is through public interest litigation that problems of the poor are now coming to the forefront and the entire theatre of the law is changing. It holds out great possibilities for the future.”
Areas of Judicial Activism
During the past decade, many instances of Judicial Activism have gained prominence. The areas in which Judiciary has become active are health, child labor, political corruption, environment, education, etc. Through various cases relating to Bandhua Mukti Morcha, Bihar Under trials, Punjab Police, Bombay Pavement Dwellers, Bihar Care Home cases, the Judiciary has shown its firm commitment to participatory justice, just standards of procedures, immediate access to justice, and preventing arbitrary state action.
Public Interest Litigation is an innovative step towards Judicial Activism. The area of Judicial Activism has been steadily expanding through the device of public interest litigation. P.I.L. 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. Judicial Activism provides a safety valve in a democracy. Just a few concerns need to be addressed so as to prevent Judiciary from usurping the powers of the other organs. It is important to determine areas, where the Judiciary is required to decide in favour of the political establishment of the day, and the best mechanism for it would be ‘self-restraint’ on the part of the Judiciary. The panacea for the so-called evil ‘over-reach is with the Judiciary itself and ‘self–restraint’ is the best form of keeping a check on itself. To conclude I quote Anil Divan, Senior Advocate Supreme Court of India – “That plants slowly nurtured by judicial craftsmanship have grown into sturdy trees and have blossomed with colorful and fragrant flowers. Judicial Activism has added much-needed oxygen to a gigantic democratic experiment in India by the alchemy of judico-photosynthesis.” (The article first published in Hitavada)
Views are personnel.
(India CSR/August 24, 2021)